HomeMy WebLinkAboutAGENDA REPORT 2017 0315 CCSA REG ITEM 11A S"%``•'OF raOORPARK,C1UFORN!A
City Council Mem 'gag
int TION ._. ITEM 11 .A.
` /3 ' ORDINANCE NO. 443
AWORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, APPROVING A DEVELOPMENT
AGREEMENT BY AND BETWEEN THE CITY OF
MOORPARK AND ESSEX MOORPARK OWNER, L.P. FOR
RESIDENTIAL PLANNED DEVELOPMENT (RPD) PERMIT
NO. 2012-02, A 200-UNIT APARTMENT COMPLEX ON 11.66
ACRES AT 150 CASEY ROAD
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; and
WHEREAS, on August 1, 2007, the City Council adopted Ordinance No. 355,
approving a Development Agreement by and between the City of Moorpark and Essex
Portfolio, L.P. in Association with RPD Permit No. 2004-06, a 200-unit apartment
complex at 150 Casey Road; and
WHEREAS, the Development Agreement was never executed by the Developer
and City and the RPD Permit expired; and
WHEREAS, Essex Moorpark Owner, L.P., the owner of the land with an
application for Residential Planned Development Permit No. 2012-02, has applied to the
City of Moorpark to seek a revised Development Agreement with the City pursuant to
Chapter 15.40 of the Moorpark Municipal Code; and
WHEREAS, on November 7, 2012, the City Council adopted Resolution No.
2012-3141, initiating proceedings for a revised Development Agreement for RPD Permit
No. 2012-02; and
WHEREAS, after holding a duly noticed public hearing on June 4, 2013, the
Planning Commission adopted Resolution No. PC 2013-584. recommending to the City
Council approval of the Development Agreement proposed in conjunction with RPD
Permit No. 2012-02; and
WHEREAS, a duly noticed public hearing was conducted by the City Council on
March 1, 2017 to consider the Development Agreement and to accept public testimony
related thereto; and
WHEREAS, the City Council has considered all points of public testimony
relevant to the Development Agreement and has given careful consideration to the
content of the Development Agreement, and has reached a decision on the matter; and
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Ordinance No. 443
Page 2
WHEREAS, on March 1, 2017, the City Council reviewed.the Mitigated Negative
Declaration adopted on July 18, 2007 for RPD Permit No. 2004-06 determined that no
further environmental review was needed for the project under RPD Permit No. 2012-02
in that it is not substantially different than the previous project, no new avoidable
significant effects have been identified, no new mitigation measures or project revisions
are necessary, and the previously identified mitigation measures will reduce the
potential effects of the project under RPD Permit No. 2012-02 to a less-than significant
level.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
MOORPARK DOES ORDAIN AS FOLLOWS:
SECTION 1. Ordinance No. 355 is hereby rescinded.
SECTION 2. The City Council of the City of Moorpark does hereby find as
follows:
A. The Development Agreement attached hereto and incorporated herein
(Exhibit A) is consistent with the General Plan as most recently amended
in that the project is consistent with the planned use and density of the
General Plan Land Use Element and helps achieve the goals of the
Housing Element and is consistent with the goals and policies of all other
elements. There is no applicable Specific Plan for the area covered by the
Development Agreement.
B. The Development Agreement and the assurances that said agreement
places upon the project are consistent with the provisions of Chapter
15.40 of the Moorpark Municipal Code
SECTION 3. The City Council hereby adopts the Development Agreement
attached hereto and incorporated herein (Exhibit A) between the City of Moorpark, a
municipal corporation, and Essex Moorpark Owner, L.P., and the City Clerk is hereby
directed to cause one copy of the signed, adopted agreement to be recorded with the
County Recorder no later than ten (10) days after the City enters into the development
agreement pursuant to the requirements of Government Code Section 65868.5.
SECTION 4. Upon the effective date of this ordinance,_ the Community
Development Director shall cause the property that is the subject of the Development
Agreement to be identified on the Zoning Map of the City by the designation "DA"
followed by the dates of the term of said Agreement.
SECTION 5. If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or unconstitutional by any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council declares that it would have adopted this
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Ordinance No. 443
Page 3
Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 6. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 7. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall make
a minute of the passage and adoption thereof in the records of the proceedings of the City
Council at which the same is passed and adopted; and shall, within fifteen (15) days after
the passage and adoption thereof, cause the same to be published once in the Moorpark
Star a newspaper of general circulation, as defined in Section 6008 of the Government
Code, for the City of Moorpark, and which is hereby designated for that purpose.
PASSED AND ADOPTED this 15th day of March, 2017.
Janice S. Parvin, Mayor
ATTEST:
Maureen Benson, City Clerk
Attachment: EXHIBIT A- Development Agreement
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Ordinance No. 443
Page 4
Recording Requested By EXHIBIT A
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
by and between the
CITY OF MOORPARK
and
ESSEX MOORPARK OWNER, L.P.
[THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5]
384
Ordinance No. 443
Page 5
DEVELOPMENT AGREEMENT
This Development Agreement ("the Agreement") is made and entered into on
, 2017 by and between the CITY OF MOORPARK, a municipal
corporation (referred to hereinafter as "City") and ESSEX MOORPARK OWNER, L.P.,
the owner of real property within the City of Moorpark generally referred to as
Residential Planned Development Permit 2012-02 (referred to hereinafter individually as
"Developer"). City and Developer are referred to hereinafter individually as "Party" and
collectively as "Parties." Capitalized terms used in this Agreement but not defined
herein shall have the meanings given such,terms in the Affordable Housing Agreement
(defined in Section 1.5 hereof). In consideration of the mutual covenants and
agreements contained in this Agreement, City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the following facts and for the
following purposes, each of which is acknowledged as true and correct by the
Parties:
1.1 Pursuant to Government .Code Section 65864 et seq. and Moorpark
Municipal Code Chapter 15.40, City is authorized to enter into a binding
contractual agreement with any person having a legal or equitable interest
in real property within its boundaries for the development of such property
in order to establish certainty in the development process.
1.2 Developer is the owner in fee simple of certain real property in the City of
Moorpark, as more specifically described by the legal description set forth
in Exhibit A, which exhibit is attached hereto and incorporated herein by
this reference (the "Property").
1.3 Prior to, and in connection with, the approval of this Agreement, the City
Council reviewed the. project to be developed pursuant to this Agreement
as required by the California Environmental Quality Act ("CEQA.") The
City Council found that the Mitigated Negative Declaration ("MND") and
Mitigation Monitoring and Reporting Program ("the MMRP") adopted by
Resolution No. 2007-2611 to be applicable to this Agreement and the
Project Approvals as defined in Section 1.4 of this Agreement and that no
changes or new information within the scope of State CEQA Guidelines
Section 15162 requires the preparation of a new or subsequent
environmental document in connection with the approval of this
Agreement.
1.4 General Plan Amendment No. 2004-05 ("GPA 2004-05"), Zone Change
No. 2004-04 ("ZC 2004-04"), and Residential Planned Development
Permit No. 2012-02 ("RPD 2012-02"), including all subsequently approved
modifications and permit adjustments to RPD 2012-02 and all
amendments thereto (collectively "the Project Approvals"; individually "a
Project Approval") provide for the development of the Property with a 200-
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Ordinance No. 443
Page 6
unit residential apartment complex and the construction of certain off-site
improvements in connection therewith ("the Project").
1.5 The Project shall include at least fifty (50) Affordable Units rented to
individuals and families whose incomes do not exceed those specified by
the Affordable Housing Agreement executed by the Developer in favor of
the City contemporaneously with this Agreement (the "Affordable Housing
Agreement") at rents no greater than those set forth in the Affordable
Housing Agreement (the "Affordable Units"). The Project shall be
restricted and encumbered by the Affordable Housing Agreement. The
City and Developer acknowledge and agree that the Developer may apply
for, qualify, develop and finance the Project in a manner that qualifies for
tax exempt bond financing and federal low income housing tax credits. For
that purpose, the Developer may seek City approval for an air rights
subdivision of the Project into separate parcels so that the parcels
containing the 16 Very Low Income Units and the 24 Low Income Units
required by the Affordable Housing Agreement can be_conveyed to and
owned by one owner separate from the ownership of the other rental Units
in the Project, but the Very Low Income Units and the Low Income Units
cannot be sold to or owned by multiple owners (i.e., the Very Low Income
Units and the Low Income Units must be owned by a single owner at all
times, except that the owner of market rate Units may also own ten (10)
Moderate Income Units which will be rented as Low Income Units until the
last to end of the Compliance Period and Extended Use Period or
Qualified Project Period). It is anticipated that if tax exempt bond financing
and low income housing tax credits are used in connection with the
Project the Very Low Income Units, .the Low Income Units and the
Moderate Units will be rented and occupied in accordance with the
restrictions set forth in the Affordable Housing Agreement.
1.6 City and Developer acknowledge and agree that the previous
Development Agreement No. 2004-03 for the Property, approved by the
City Council on July 18, 2007 by Ordinance No. 355, did not take effect .
and was not recorded because the Developer did not execute it. City and
Developer also acknowledge and agree that by the enabling ordinance
approving this new Agreement, the City's previous approval of
Development Agreement No. 2004-03 pursuant to Ordinance No. 355 is
rescinded and that rescission will take effect upon the date the enabling
ordinance for this Agreement under Government Code Section 36937
("Enabling Ordinance") becomes effective ("Operative Date").
1.7 City and Developer acknowledge and agree that the approval of
Residential Planned Development Permit No. 2004-06 for the Property,
approved by the City Council on July 18, 2007 by Resolution No. 2007-
2612, expired due to lack of Project inauguration by Developer.
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Ordinance No. 443
Page 7
1.8 By this Agreement, City desires' to obtain the binding agreement of
Developer to develop the Property in accordance with the Project
Approvals and this Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its governmental and proprietary
powers to the extent specified in this Agreement.
1.9 By this Agreement, Developer desires to obtain the binding agreement of
City to permit the development of the Property in accordance with the
Project Approvals and this Agreement. In consideration thereof,
Developer agrees to waive its rights to legally challenge the limitations and
conditions imposed upon the development of the Property pursuant to the
Project Approvals and this Agreement and to provide the public benefits
and improvements specified in this Agreement.
1.10 City and Developer acknowledge and agree that the consideration that is
to be exchanged pursuant to this Agreement is fair, just and reasonable
and that this Agreement is consistent with the General Plan of City, as
currently amended. -
1.11 On June 4, 2013, the Planning Commission commenced a duly noticed
public hearing on this Agreement, and at the conclusion of the hearing on
June 4, 2013 recommended approval of this Agreement.
1.12 On March 1, 2017, the City Council of City ("City Council") commenced a
duly noticed public hearing on this Agreement, and following the
conclusion of the hearing approved the Agreement by adoption of
Ordinance No. 443 ("the Enabling Ordinance") on March 15, 2017.
2. Property Subject To This Agreement. All of the Property shall be subject to this
Agreement. The Property may also be referred to hereinafter as "the site" or "the
Project".
3. Binding Effect. The burdens of this Agreement are binding upon, and the
benefits of the Agreement inure to, each Party and each successive successor in
interest thereto (subject to Section 3.4 below) and constitute covenants that run
with the Property. Whenever the terms "City" and "Developer" are used herein,
such terms shall include every successive successor in interest thereto.
3.1 Constructive Notice and Acceptance. Every person who acquires any
right, title or interest in or to any portion of the Property shall be
conclusively deemed to have consented and agreed to be bound by this
Agreement, whether or not any reference to the Agreement is contained in
the instrument by which such person acquired such right, title or interest,
subject to Section 3.4 below.
387
Ordinance No. 443
Page 8
3.2 Conveyance of Very Low Income Units and Low Income Units. Upon
recordation of an approved final map under Section 7.1 below creating
legal air rights parcels for the Property and delivery of reasonable
evidence to the City Manager showing that the transferee is partly owned
(directly or indirectly) and is controlled (directly or indirectly) by Developer,
Developer may convey the subdivided portion of the Property containing
such Very Low Income and Low Income Units to a single entity so owned
and so controlled by Developer (the "Affordable Housing Owner") subject
to the Affordable Housing Agreement between City and Developer, and
this Agreement shall inure to the benefit of and be binding upon the
Affordable Housing Owner. Developer and Affordable Housing Owner
shall not convey fee title to such Very Low Income Units or the Low
Income Units to any other person or entity. Developer shall reimburse
City within ten (10) days after written demand (with an explanation of the
costs) for all costs incurred by City in evaluating the conveyance to the
Affordable Housing Owner and any subsequent permitted conveyance by
the Affordable Housing Owner.
3.3 No Other Separate Conveyance of Very Low Income Units and Low
Income Units. After the initial conveyance by Developer to Affordable
Housing Owner of Very Low Income Units and Low Income Units,
Developer and the Affordable Housing Owner and their successors in
interest shall not convey their respective portions of the Property
separately, but shall only convey them concurrently and to the same
purchaser, only to a purchaser reasonably approved in writing by City
(which will consider the reputation and experience of the purchaser in
owning and operating affordable rental units). As a condition to the initial
conveyance by Developer to Affordable Housing Owner of Very Low
Income Units and Low Income Units, Developer and Affordable Housing
Owner shall execute, acknowledge and record (i) a separate agreement
(i.e., a covenant and agreement to hold property as one parcel) imposing
the foregoing restriction on the Property, which shall be subject to the
written approval of City, and (ii) "conditions, covenants and restrictions" for
the Affordable Units and the remainder of the Project ("CC&R's"), which
shall also be subject to the written approval of City. Such separate
agreement and CC&R's shall be senior to any and all deeds of trust and
other liens (except property taxes and assessments not yet due).
3.4 Release Upon Subsequent Transfer. Upon the sale or transfer of
Developer's and Affordable Housing Owner's interests in the Property to a
single purchaser (or any such purchaser or subsequent purchaser's sale
of the entire Property), Developer and Affordable Housing Owner, or any
such subsequent purchaser (as applicable), shall be released from its
obligations hereunder with respect to the Property subsequent to the
effective date of the sale or transfer, provided that the seller or transferor
(i) was not in breach of this Agreement at the time of the sale or transfer,
388
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Page 9
and (ii) prior to the sale or transfer, delivered to City a written assumption
agreement, duly executed by the purchaser or transferee and notarized by
a notary public, whereby the purchaser expressly assumes the obligations
under this Agreement with respect to the Property. Failure to provide a
written assumption agreement hereunder shall not negate, modify or
otherwise affect the liability of the purchaser or transferee pursuant to this
Agreement. Nothing contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or transfer, except as
otherwise provided in this Agreement.
4. Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
4.1 Permitted Uses. The permitted and conditionally permitted uses of the
Property shall be limited to those that are allowed by the Project Approvals
and this Agreement.
4.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height
and size of buildings, that shall be applicable to the Property are set forth
in the Project Approvals and this Agreement.
4.3 Building Standards. All constructionon the Property shall adhere to all
City building codes in effect at the time the plan check or permit is
approved per Title 15 of the Moorpark Municipal-Code and to any federal
or state building requirements that are then in effect (collectively "the
Building Codes").
4.4 Reservations and Dedications. All reservations and dedications of land for
public purposes that are applicable to the Property are set forth in the
Project Approvals and this Agreement.
5. Vesting of Development Rights.
5.1 Timing of Development. Developer shall comply with the Schedule of
Performance attached hereto as Schedule 1, subject to Excused Delays
(as defined in Section 10) and as amended from time to time and
approved in writing by the City Council.
No future amendment of any existing City ordinance or resolution, or
future adoption of any ordinance, resolution or other action, that purports
to limit the rate or timing of development over time or alter the sequencing
of development phases, whether adopted or imposed by the City Council
or through the initiative or referendum process, shall apply to the Property
provided the Property is developed in accordance with the Project
Approvals and this Agreement. Nothing in this section shall be construed
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Ordinance No. 443
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to limit City's right to ensure that Developer timely provides all
infrastructure required by the Project Approvals, Subsequent Approvals,
and this Agreement.
5.2 Amendment of Project Approvals. No amendment of any of the Project
Approvals, whether adopted or approved by the City Council or through
the initiative or referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to the amendment.
5.3 Issuance of Subsequent Approvals. Applications for land use approvals,
entitlements and permits, including without limitation subdivision maps
(e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps),
subdivision improvement agreements and other agreements relating to the
Project, lot line adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g. site plans,
architectural plans and landscaping plans), encroachment permits, and
sewer and water connections that are necessary to or desirable for the
development of the Project (collectively "the Subsequent Approvals";
individually "a Subsequent Approval") shall be consistent with the Project
Approvals and this Agreement. For purposes of this Agreement,
Subsequent Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project Approvals and by
the applicable provisions of the Moorpark General Plan, the Moorpark
Municipal Code and other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently adopted or
approved by the City Council or through the initiative or referendum
process and in effect at the time that the application for the Subsequent
Approval is deemed complete by City (collectively "City Laws"), except
City Laws that:
(a) change any permitted or conditionally permitted uses of the
Property from what is allowed by the Project Approvals;
(b) limit or reduce the density or intensity of the Project, or any part
thereof, or otherwise require any reduction in the number of
proposed buildings or other improvements from what is allowed by
the Project Approvals.
(c) limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of the
Project in any manner, provided that all infrastructure required by
the Project Approvals to serve the portion of the Property covered
by the Subsequent Approval is in place or is scheduled to be in
place prior to completion of construction;
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(d) are not uniformly applied on a City-wide basis to all substantially
similar types of development projects or to all properties with similar
land use designations;
(e) control residential rents;
(f) prohibit or regulate development on slopes with grades greater than
20 percent, including without limitation Moorpark Municipal Code
Chapter 17.38 or any successor thereto, within the Property; or
(g) modify the land use from what is permitted by the City's General
Plan Land Use Element at the Operative Date of this Agreement or
that prohibits or restricts the establishment or expansion of urban
services including but not limited to community sewer systems to
the Project.
5.4 [INTENTIONALLY OMITTED]
5.5 Modification of Approvals. Throughout the term of this Agreement,
Developer shall have the right, at its election and without risk to or waiver
of any right that is vested in it pursuant to this section, to apply to City for
modifications to Project Approvals and Subsequent Approvals. The
approval or conditional approval of any such modification shall not require
an amendment to this Agreement, provided that, in addition to any other
findings that may be required in order to approve or conditionally approve
the modification, a finding is made that the modification is consistent with
this Agreement and does not alter the permitted uses, density, intensity,
maximum height, size of buildings or reservations and dedications as
contained in the Project Approvals.
5.6 Issuance of Building Permits. No Building Permit shall be unreasonably
withheld or delayed from Developer. In addition, no Final Building Permit
final inspection or Certificate of Occupancy will be unreasonably withheld
or delayed from Developer if all infrastructure required by the Project
Approvals, Subsequent Approvals, and this Agreement to serve the
portion of the Property covered by the Final Building Permit is in place or
is scheduled to be in place prior to completion of construction and all of
the other relevant provisions of the Project Approvals, Subsequent
Approvals and this Agreement have been satisfied. Consistent with
section 5.1 of this Agreement, in no event shall building permits be
allocated on any annual numerical basis or on any arbitrary allocation
basis.
6. Developer Agreements. Note: Certain fees payable by Development under this
Section 6 are also set forth and cross-referenced on Schedule 2 attached hereto.
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Ordinance No. 443
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6.1 Development as a Residential Project. Developer shall comply with (i) this
Agreement, (ii) the Project Approvals, (iii) all Subsequent Approvals for
which it was the applicant or a successor in interest to the applicant and
(iv) the MMRP of the MND and any subsequent or supplemental
environmental actions. Developer agrees not to apply for any non-
residential uses on the Property. The clubhouse and leasing offices are
considered to be part of the residential uses.
6.2 Condition of Dedicated or Conveyed Property. All lands and interests in
land dedicated to City shall be free and clear of liens and encumbrances
other than easements or restrictions that do not preclude or interfere with
use of the land or interest for its intended purpose, as reasonably
determined by City.
6.3 Development Fee Per Unit. As a condition of the issuance of a building
permit for each residential unit within the boundaries of the Property,
Developer shall pay City a one-time development fee as described herein
(the "Development Fee"). The Development Fee may be expended by
City in its sole and unfettered discretion. The amount of the Development
Fee shall be Eight Thousand Four Hundred Dollars ($8,400.00) per
residential unit. If not paid by January 1, 2019, the fee shall be adjusted
annually commencing January 1, 2019 by the larger increase of a) or b) as
follows:
(a) The Consumer Price Index (CPI) increase shall be determined by
using the information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers within the Los
Angeles /Riverside/Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October.
(b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items
for the twelve (12) month period available on December 31 of the
preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Development Fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
6.4 Traffic Mitigation Fee. As a condition of the issuance of building permit for
each residential use within the boundaries of the Property, Developer shall
pay City a one-time traffic mitigation fee as described herein ("Citywide
Traffic Fee"). The Citywide Traffic Fee may be expended by City in its
sole and unfettered discretion. The amount of the Citywide Traffic Fee
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Ordinance No. 443
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shall be Eight Thousand Five Hundred Twenty-seven Dollars ($8,527.00)
per residential unit. If not paid by January 1, 2019, then on January 1,
2019, and annually thereafter until paid, the contribution amount shall be
increased to reflect the change in the Caltrans Highway Bid Price Index for
Selected California Construction Items for the twelve (12) month period
available on December 31 of the preceding year ("annual indexing"). In the
event there is a decrease in the referenced Index for any annual indexing,
the current amount of the fee shall remain until such time as the next
subsequent annual indexing which results in an increase.
6.5 [INTENTIONALLY OMITTED.]
6.6 Processing Fees. On the Operative Date (defined in Section 1.6 above),
Developer shall pay all outstanding City processing costs related to
preparation of this Agreement, the Project Approvals, the MND.
6.7 Park Fees. Prior to the issuance of the building permit for each residential
dwelling unit within the Property, Developer shall pay a one-time fee in lieu
of the dedication of parkland and related improvements ("Park Fee"). The
amount of the Park Fee shall be Eight Thousand Four Hundred Dollars
($8,400.00) for each residential dwelling unit within the Property. If the
Park Fee is not paid by January 1, 2019, the Park Fee shall be adjusted
annually commencing January 1, 2019 by the larger increase of a) or b) as
follows:
(a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for all urban consumers within the Los
Angeles/Riverside/Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October.
(b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items
for the twelve (12) month period available on December 31 of the
preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Park Fee shall remain at its then current amount until
such time as the next subsequent annual indexing which results in an
increase.
Developer agrees that the above-described payments shall be deemed to
satisfy the parkland dedication requirement set forth at California
Government Code Section 66477 et seq. for the Property. Developer also
understands that because the above-described payments shall be
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Ordinance No. 443
Page 14
deemed to satisfy applicable parkland dedication requirements, a public
trail through the Property shall not be required.
6.8 [INTENTIONALLY OMITTED.]
6.9 Densities Allowed for Development. Developer agrees that densities
vested and incentives and concessions received in the Project Approvals
include all densities available as density bonuses and all incentives and
concessions to which Developer is entitled under the Moorpark Municipal
Code, Government Code Sections 65915 through 65917.5 or both;
Developer shall not be entitled to further density bonuses or incentives or
concessions and further agrees, in consideration for the density bonus
obtained through the Project Approvals that is greater than would
otherwise be available, to: (i) execute, acknowledge and record against
the Property an Affordable Housing Agreement in the form attached
hereto as Exhibit F substantially concurrently with the recording of this
Agreement and ensure that the Affordable Housing Agreement is not
subject or subordinate to any liens (except for property taxes and
assessments not yet due); and (ii) comply with the terms thereof, which
are incorporated herein by reference, during the term of this Agreement
(after which the Affordable.Housing Agreement shall remain in effect for its
stated term). Residential Planned Development Permit No. 2012-02,
including the special conditions that incorporate and include all of the
. requirements set forth in the Affordable Housing Agreement are part of the
Project conditions of approval and not merely contractual in nature.
6.10 Affordable Unit Priority Leasing. Developer agrees to the greatest extent
permitted by state and federal law to grant priority to the Affordable Units
to eligible City of Moorpark residents to the extent it does not (i)jeopardize
Developer's rights pursuant to this Agreement or the Project Approvals, or
(ii) jeopardize or materially affect any City-issued bond financing for the
Project obtained by Developer.
6.11 Bond Issuance Costs. In the event City issues bonds to provide any
financing for the Project, Developer shall pay an initial issuer fee to City of
Fifty Thousand Dollars ($50,000.00). The fee shall be paid upon funding
of. the City-issued bond financing. Developer agrees that City may at its
sole discretion select the bond counsel, financial advisor and other
professional service providers deemed necessary and appropriate by
Developer that City deems necessary to effectuate City-issued bond
financing. Developer further agrees to fund all costs actually incurred by
City in connection with such City-issued bond financing by providing City
with deposits for all such bond financing related costs not contingent on
the sale of bonds. In addition, Developer will pay for all city attorney and
city staff time at applicable rates. With the exception of city staff costs, all
other costs including, but not limited to out of pocket and professional
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Ordinance No. 443
Page 15
services costs shall have City overhead expense of fifteen percent (15%)
added to said costs. If the City does not act as the issuer of bonds, the
City shall cooperate in good faith with the issuance of bonds for the
Project by others, including, but not limited to, holding a TEFRA hearing at
a time reasonably approved by the City Manager; however, Developer
shall reimburse City within ten (10) business days after written demand for
all costs actually incurred by City in connection therewith, including City
staff and City attorney time, and the overhead markup described above for
other costs. If the City does not act as the issuer of the bonds, Developer
shall pay a fee of Fifty Thousand Dollars ($50,000.00) to City for its
cooperation with the issuance of Bonds for the Project by others, upon the
funding of the bond financing; in addition, any costs incurred by City in
connection with such cooperation shall be reimbursed/paid by Developer
in accordance with the preceding provisions of this paragraph.
6.12 Air Quality Fees. Developer agrees that the Mitigation Measures included
in the City Council approved MND and MMRP, or subsequent
environmental clearance document approved by the Council, set forth the
mitigation requirements for air quality impacts. Developer agrees to pay to
City a one-time (not annual) air quality mitigation fee, as described herein
("Air Quality Fee"), in satisfaction of the Transportation Demand
Management Fund mitigation requirement for the Project. The Air Quality
Fee may be expended by City in its sole discretion for reduction of
regional air pollution emissions and to mitigate residual Project air quality
impacts.
The Air Quality Fee shall be One Thousand Two Hundred Thirty and
No/100 Dollars ($1,230.00) per residential unit to be paid prior to the
issuance of the building permit for the first residential building in RPD
2012-02. If the Air Quality Fee is not paid by January 1, 2019, then
commencing on January 1, 2019, and annually thereafter, the Air Quality
Fee shall be adjusted by any increase in the Consumer Price Index (CPI)
until all fees have been paid. The CPI increase shall be determined by
using the information provided by the U.S. Department of Labor, Bureau of
Labor Statistics, for all urban consumers within the Los
Angeles/Riverside/Orange County metropolitan area during the prior year.
The calculation shall be made using the month of December over the prior
month of December. In the event there is a decrease in the CPI for any
annual indexing, the fee shall remain at its then current amount until such
time as the next subsequent annual indexing which results in an increase.
6.13 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a)
Developer shall pay the City a Five Thousand Dollar ($5,000) Assessment
District Formation Fee; and (b) either two Assessment Districts (one fully
funded and a second "back-up" district) or one Assessment District
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Ordinance No. 443
Page 16
containing two zones (one zone to be fully funded and the other to be a
back up zone), as determined by the City at the City's discretion, shall be
formed that includes the Property. The first District out of the two Districts
or the first zone of the one District, whichever is applicable, shall be for the
purposes of funding future costs for the maintenance landscaping and
irrigation of the landscaped area above the retaining wall along the
southern perimeter of the Property and the maintenance of the storm
water quality basin and drainage improvements, including basin
landscaping and irrigation. The second District or second zone of the
District, whichever is applicable, shall be for the maintenance of parkway
landscaping on Casey Road and Walnut Canyon Road and Project slopes
adjacent to the Walnut Canyon School, the maintenance of the storm
water basin access drive and the emergency access drive. It shall be the
intent of the City to approve the required assessment each year, but to
only levy that portion of the assessment necessary to recover any past
City costs or any anticipated City costs for the that fiscal year. The City
shall administer the annual renewal of the Assessment District or Districts,
and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses.
Developer agrees to cast affirmative ballots for the establishment of both
Assessment Districts, or both zones of the one District, as applicable, and
for annual increases in the assessments thereunder, for the purposes
specified in this subsection. Developer hereby waives any right it may
have to contest or protest any such assessments or assessment
increases. In the event that any such Assessment District has insufficient
funds for its purposes, then Developer shall pay the funds required to the
Assessment District within five (5) business days after written demand
from the Assessment District from time to time. Developer also agrees to
add this language to any Regulatory Agreement as part of the sale of any
bonds issued by the City for this Project.
6.14 Other Development and Processing Fees. In addition to fees specifically
mentioned in this Agreement, Developer agrees to pay all City capital
improvement, development, and processing fees at the rate and amount in
effect at the time the fee is required to be paid. Said fees include but are
not limited to Library Facilities Fees, Police Facilities Fees, Fire Facilities
Fees, drainage, entitlement processing fees, and plan check and permit
fees for buildings and public improvements. Developer further agrees that
unless specifically exempted by this Agreement, it is subject to all fees
imposed by City at the Operative Date of this Agreement and such future
fees imposed as determined by City in its sole discretion so long as such
fees are imposed on projects similar to the Project or on property similar to
the Property.
6.15 AOC Fees. If paid prior to January 1, 2020, Developer shall pay the Los
Angeles Avenue Area of Contribution (AOC) fee in effect at the time of
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Ordinance No. 443
Page 17
project approval for each residential unit in a building prior to the issuance
of the building permit for that residential building within the Project,
consistent with City Resolution No. 2014-3336. If paid on or after January
1, 2020, Developer shall pay the Los Angeles Avenue Area of Contribution
(AOC) fee in effect at the time of building permit issuance.
Developer shall pay the Gabbert Road/Casey Road Area of Contribution
fees, if any, in effect at the time of building permit issuance for each
residential unit in a building prior to the issuance of the building permit for
that residential building within the Project.
6.16 Street Improvement Standards. The street improvements for all streets
scheduled for dedication to the City shall be designed and constructed by
Developer to provide for a 50-year life as determined by the City Engineer.
6.17 Fee Protest Waiver. Developer agrees that any fees and payments
pursuant to this Agreement and for RPD 2012-02 shall be made without
reservation, and Developer expressly waives the right to payment of any
such fees under protest pursuant to California Government Code Section
66020 and statutes amendatory or supplementary thereto. Developer
further agrees that the fees it has agreed to pay pursuant to Section 6.3 of
this Agreement are not public improvement fees collected pursuant to
Government Code Section 66006 and statutes amendatory or
supplementary thereto.
6.18 Annual Review Procedures. Developer agrees to comply with Section
15.40.150 of the Moorpark Municipal Code and any provision amendatory
or supplementary thereto for annual review of this Agreement and further
agrees that the annual review shall include evaluation of its compliance
with the approved MND and MMRP.
6.19 Art in Public Places Fee. Developer agrees to pay the Art in Public Places
Fee in effect at the time of building permit issuance for each building prior
to the issuance of the building permit for that residential building within the
Project consistent with City Resolution No. 2005-2408 (1.0 percent of total
building valuations excluding land value and off-site improvement costs).
6.20 Eminent Domain. Developer agrees that any election to acquire property
by eminent domain shall be at City's sole discretion, and only after
compliance with all legally required procedures including but not limited to
a hearing on a proposed resolution of necessity.
6.21 [INTENTIONALLY OMITTED]
6.22 CPI Indexes. In the event the "CPI" referred to in Sections 6.3, 6.7 or 6.12
above or Sections 6.24 or 7.18 below, or the "referenced Index" referred to
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Ordinance No. 443
Page 18
in Section 6.4 above are discontinued or revised, a successor index with
which the "CPI" and or "referenced Index" are replaced shall be used in
order to obtain substantially the same result as would otherwise have
been obtained if either or both the "CPI" and "referenced Index" had not
been discontinued or revised.
6.23 Conveyance to City of City Site; Utility and Construction Easements. The
Developer agrees to convey to City the site (hereinafter referred to as the
"City Site") as shown in Exhibit "B" pursuant to the Purchase and Sale
Agreement attached hereto as Exhibit "C" (the "Purchase and Sale
Agreement") subject to the utility easement described in Exhibit "G".
Developer shall execute and deliver the Purchase and Sale Agreement
concurrently with its execution and delivery of this Agreement and upon
delivery to Developer of a copy thereof executed by the City, Developer
shall comply with the Purchase and Sale Agreement.
If at any time the City Manager determines that a construction easement
for the City is necessary within the slope on the southerly fifteen (15) feet
of the Property for purposes of improving the City Site and City Manager
requests such an easement in writing, then Developer shall grant a
construction easement to City which shall expire five (5) years after the
last Certificate of Occupancy is issued (and the City Manager is hereby
authorized to execute a Certificate of Acceptance for such easement).
6.24 Flood Control Channel Improvements and Property Line Improvements.
Developer agrees to enclose the flood control channel located on the
eastern portion of the Project as shown on the approved Project Site Plan
to connect to the enclosed portion of the channel on the City Site to the
satisfaction of the City Engineer/Public Works Director and the Ventura
County Watershed Protection District. Developer shall be responsible for
any aesthetic or landscape improvements over and around the channel as
required by Ventura County Watershed Protection District and as part of
the Project Approvals. Developer further agrees to construct retaining
walls (made of slumpstone, not precision blocks) with a color approved by
the Community Development Director in good faith and landscaping along
the southerly property line as shown on the Project Site Plan as approved
and conditioned by the City Council Resolution approving Residential
Planned Development Permit No. 2012-02 to the satisfaction of the
Community Development Director.
6.25 High Street Improvements. Developer agrees, prior to issuance of the first
building permit for the first residential building, within the Project to
improve High Street within its existing right-of-way from its intersection
with Moorpark Avenue up to the point of the temporary fire access to the
extent required by Ventura County Fire Department, and the City Engineer
in accordance with the approved Site Plan for the Project, for emergency
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Ordinance No. 443
Page 19
secondary access to the Project. In no event shall Developer be required
to acquire any property in order to fulfill this obligation.
6.26 Power Pole Relocation Costs and Fees. Per the Real Property Acquisition
Agreement between City and Essex approved by the City Council on
March 18, 2009, City paid for a private utility consultant (BJ Palmer &
Associates) to redesign (Revised Plan) the Edison 66kV Essex Pole
Relocation Plan (Essex Plan) in order to plan for the relocation of the
existing poles. The Real Property Acquisition Agreement also called for
City to pay for installation of any poles or guy poles required in addition to
those shown on the Essex Plan. Developer had agreed to pay for the
relocation of the existing 66 KV overhead power lines as shown on the
Essex Plan under the Real Property Acquisition Agreement. Developer
now agrees that the relocation of the existing poles as shown in the
Revised Plan contained in Exhibit "D" does not require any additional
poles or guy poles from those shown on the Essex Plan, and that City is
not obligated to pay any further costs under the Real Property Acquisition
Agreement. However, Developer further agrees to pay $400,000 to City
prior to issuance of the certificate of occupancy for the first residential
building, to be used by City in its sole and unfettered discretion, due to the
power poles in the Revised Plan limiting full utility and use of City property.
6.27 Required Tenant and Guest Parking. Developer agrees to provide a total
of at least 2.00 parking spaces per unit on site. Two parking spaces shall
be designated and reserved for each of the 2-bedroom and 3-bedroom
units, and one space shall be designated and reserved for each of the 1-
bedroom units, with the remainder of the spaces available for guest
parking. At least one of the parking spaces designated and reserved for
each of the units shall be in a garage or covered carport. There shall be
no extra charges for required parking for any units (whether or not they
are Affordable Units). Developer shall only be required to provide ninety-
four (94) guest parking spaces.
6.28 [INTENTIONALLY OMITTED]
6.29 Restoration of City Site. Prior to the issuance of a grading permit by City
for the Property, Developer shall provide reasonable evidence satisfactory
to the City Engineer/Public Works Director and the Director of Community
Development of the amount of stockpiled dirt placed onto the City Site
prior to January 1, 2017; such amount shall be the maximum amount of
dirt that may be removed from the City Site for placement on the Property.
Developer shall, prior to the conveyance of the City Site to City and as a
condition to issuance of the Certificate of Occupancy for the last building
within the Project, and consistent with Section 7.10 of this Agreement,
restore the City Site to a reasonable condition, free of Developer's
construction. debris, piles of construction related dirt and all other
•
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Ordinance No. 443
Page 20
construction material deposited or stockpiled by Developer to the
satisfaction of the City Engineer and Community Development Director.
The elevation of the City Site must be restored to the level prior to the
Developer's use of the City Site for Developer's stockpiling of construction
dirt and material (except for graded access and the storm water quality
basin, which shall be at the elevations required by the Project Approvals)
to the satisfaction of the City Engineer/Public Works Director and the
Community Development Director.
6.30 [INTENTIONALLY OMITTED]
6.31 Prior Development Agreement and Residential Planned Development
Permit. Developer agrees that the previous Development Agreement No.
2004-03 for the Property, approved by the City Council on July 18, 2007
by Ordinance No. 355, did not take effect and was not recorded because
the Developer did not execute it. Developer further agrees that by the
enabling ordinance approving this new Agreement, the City's previous
approval of Development Agreement No. 2004-03 pursuant to Ordinance
No. 355 is rescinded and that rescissionwill take effect upon the
Operative Date. Developer further agrees that the approval of Residential
Planned Development Permit No. 2004-06 for the Property, approved by
the City Council on July 18, 2007 by Resolution No. 2007-2612, had
expired due to lack of Project inauguration by Developer.
6.32 [INTENTIONALLY OMITTED]
6.33 [INTENTIONALLY OMITTED]
6.34 City Ability to Modify. Developer acknowledges the City's ability to modify
the development standards and to change the General Plan designation
and zoning of the Property upon the termination or expiration of this
Agreement (if the Project has not been built), and Developer hereby
waives any rights they might otherwise have to seek judicial review of
such City actions to change the development standards, General Plan
designation and zoning to those development standards and density of
permitted development to that in existence prior to the approval of General
Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No.
2004-04 ("ZC 2004-04").
6.35 Annual Community Services Fee. Commencing upon issuance of a
Zoning Clearance by the City for occupancy of the first unit of the Project,
and on each anniversary thereof, Affordable Housing Owner shall pay to
City a community services fee equal to Eight Thousand Dollars
($8,000.00) increased by two percent (2%) on each anniversary of the
Operative Date. (This fee is the same fee as is included in the Affordable
Housing Agreement.)
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Ordinance No. 443
Page 21
6.36 Indemnity. Developer will defend, indemnify and hold City harmless from
and against any and all claims, liabilities, losses, damages, costs and
expenses arising from any activity by Developer or its contractors on the
City Site.
6.37 Storm Water/Flood Determination Basin Obligations. Developer shall fulfill
its obligations under Section 7.18.
6.38 Status of Real Property Acquisition Agreement. Developer hereby
stipulates and agrees that all of the obligations of the City under that
certain Real Property Acquisition Agreement dated March 31, 2009 (the
"Portfolio Agreement") between the City and Essex Portfolio, L.P. have
been satisfied. Developer shall defend, indemnify and hold City harmless
from and against any and all claims by Essex Portfolio, L.P.: (i) that the
foregoing is not correct; or (ii) under or with respect to the Portfolio
Agreement.
6.39 Well Site Deed. Concurrently with its execution and delivery to City of this
Agreement, Developer shall execute, cause to be duly acknowledged and
deliver to City an original of a Grant Deed in the form attached hereto as
Exhibit "I" conveying the so-called "well site" to City.
7. City Agreements.
7.1 Commitment of Resources. At Developer's expense, City shall commit
reasonable time and resources of City staff to work with Developer on the
expedited and parallel processing of applications for Project Approvals
and all Subsequent Approvals and Building Permits for the Project area
and if requested in writing by Developer shall use overtime and
independent contractors whenever possible. City shall process an air
rights subdivision separating the sixteen (16) Very Low Income Units and
the twenty-four (24) Low Income Units required by the Affordable Housing
Agreement so that they can be conveyed to the Affordable Housing Owner
pursuant to the aforementioned map (but no other subdivision maps) upon
receipt of a complete application from Developer. Developer shall assume
any risk related to, and shall pay the additional costs incurred by City for,
any expedited and parallel processing. City shall also commit reasonable
time and •resources of City staff to work with the Ventura County Water
Protection District for the processing and permitting of the plans for the
undergrounding of the channel.
7.2 Easement Acquisitions. If requested in writing by Developer and limited to
City's legal authority, City at its sole and absolute discretion shall proceed
to acquire, at Developer's sole cost and expense, easements or fee title to
land in which Developer does not have title or interest in order to allow
construction of public improvements required of Developer including any
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Ordinance No. 443
Page 22
land which is outside City's legal boundaries. The process shall generally
follow Government Code Section 66462.5 et seq. and shall include the
obligation of Developer to enter into an agreement with City, guaranteed
by cash deposits and other security as the City may require, to pay all City
costs including but not limited to, acquisition of the interest, attorney fees,
appraisal fees, engineering fees, City staff costs, and City overhead
expenses of fifteen percent (15%) on all out-of-pocket costs.
7.3 [INTENTIONALLY OMITTED]
7.4 Concurrent Entitlement Processing. City agrees that whenever possible as
determined by City in its sole discretion to process concurrently all land
use entitlements for the Project so long as the application for such
entitlements are "deemed complete" in compliance with the requirements
of Chapter 4.5 Review and approval of Development Projects (Permit
Streamlining Act) of the California Government Code.
7.5 Park Fees. City agrees that the Park Fee required under Section 6.7 of
this Agreement meets all of Developer's obligation for park land dedication
provisions of state law and City codes.
7.6 [INTENTIONALLY OMITTED]
7.7 Reimbursements from other Developments. City shall facilitate the
reimbursement to Developer of any costs incurred by Developer that may
be subject to partial reimbursement from other developers as a condition
of approval of a tract map, development permit or development agreement
with one or more other developers and at City's discretion may include
provisions requiring such reimbursement to Developer for the same in
such other development project conditions of approval.
7.8 [INTENTIONALLY OMITTED]
7.9 Acquisition by City of City Site. Provided Developer shall have duly
executed and delivered the Purchase and Sale Agreement to City, City
shall enter into the Purchase and Sale Agreement to acquire the City Site.
7.10 Developer/City Use of City Site for Stockpiling Dirt. Developer may
reasonably stockpile construction dirt and materials on the City Site during
construction of the Project, subject to Section 6.29. Upon execution of the
Purchase Agreement, Developer shall grant an easement to City pursuant
to the Easement Agreement in the form and substance attached as
Exhibit "C" to the Purchase Agreement pursuant to which City shall have
access to the (approximately) two (2) acres of the City Site on the
southeastern portion of the City Site, adjacent to the existing High Street
improvements and otherwise at a location reasonably acceptable to City
402
Ordinance No. 443
Page 23
more particularly described in the Easement Agreement, on which the City
may stockpile dirt prior to the conveyance of the City Site to the City; and
in connection therewith, City shall comply with Section 2.2 of the Purchase
and Sale Agreement and the Easement Agreement. The City agrees to
fence the approximately two (2) acre site to separate it from the balance of
the City Site. Prior to issuance of the first building permit for the Property,
the portion of the City Site used by Developer under the first sentence of
this Section 7.10 shall be restored by Developer to a reasonable condition,
free of Developer's construction debris, piles of dirt and all other
construction-related material deposited or stockpiled by Developer, and to
its elevation level that existed prior to Developer's stockpiling of dirt and
material, all to the satisfaction of the City Engineer/Public Works Director
and Community Development Director.
7.11 Parking Requirements for Tenants and Guests. The parking requirements
shall be as set forth in Section 6.27 above.
7.12 Art in Public Places Fee. City agrees that the Art in Public Places Fee
required under Section 6.19 of this Agreement meets all of Developer's
obligation for Art in Public Places provisions of City codes and resolutions.
7.13 Bond Financing. City acknowledges Developer may Want to use City-
issued bond financing for the Project. If City, at its sole and absolute
discretion, authorizes such bond financing, then City agrees to use good
faith efforts to accommodate any request by Developer for an inducement
resolution allowing the use by Developer of City-issued bond financing for
the Project. City shall also comply with its obligations under Section 6.11
above.
7.14 [INTENTIONALLY OMITTED]
7.15 Grant Funding Assistance. City shall use good faith efforts, at no cost to
City, to assist Developer in obtaining public grants, loans, or other public
assistance from public agencies other than the City, including, but not
limited to Metrolink, but only if assisting Developer in obtaining such funds
does not directly or indirectly financially burden City.
7.16 [INTENTIONALLY OMITTED]
7.17 Power Pole Relocation. City agrees to accept relocation of the Edison
66kV power poles on City Property consistent with the Revised Plan
discussed in Section 6.26 and attached hereto as Exhibit "D".
7.18 Storm Water/Flood Detention Basin. City agrees that Developer may use
the storm water/flood detention basin located on the City Property and
depicted on Exhibit "H" for storm water/retention purposes for the Project,
403
Ordinance No. 443
Page 24
and City shall execute and deliver a revocable license agreement to
Developer to that affect; however, City may elect by written notice to
Developer to relocate said detention basin and any service road and
secondary access road located on the City Property at any time, and
Developer shall reimburse or pay City for the costs of such relocation
within ten (10) business days after written demand from City from time to
time describing such costs. Developer shall promptly provide a bond
acceptable to City in the amount of such costs, as projected in good faith
by City, to ensure payment of the costs, and every two (2) years the
amount of the bond shall be increased (by amendment or by a
replacement bond) by the percentage increase over the applicable two
year period in the Caltrans Highway Bid Price Index for Selected California
Construction Items, as determined in good faith by the City Manager.
7.19 Extension of High Street. City agrees that Developer shall not be required
to make any improvements related to the extension of High Street except
as necessary to meet Ventura County Fire Protection District requirements
for the provision of secondary emergency access to the Property.
7.20 Prior Development Agreement and Residential Planned Development
Permit. City agrees that the previous Development Agreement No. 2004-
03 for the Property, approved by the City Council on July 18, 2007 by
Ordinance No. 355, never was executed, as Developer never had signed
the previous Development Agreement No. 2004-03, and that the enabling
ordinance for previous Development Agreement No. 2004-03 (Ordinance
No. 355) is rescinded upon the Operative Date. City further agrees that
the approval of Residential Planned Development Permit No. 2004-06 for
the Property, approved by the City Council on July 18, 2007 by Resolution
No. 2007-2612, had expired due to lack of Project inauguration by
Developer.
8. Supersession of Agreement by Change of Law. In the event that any state, or
federal law or regulation enacted after the date the Enabling Ordinance was
adopted by the City Council prevents or precludes compliance with any provision
of the Agreement, such provision shall be deemed modified or suspended to
comply with such state or federal law or regulation, as reasonably determined
necessary by City.
9. Demonstration of Good Faith Compliance. In order to ascertain compliance by
Developer with the provisions of this Agreement, the Agreement shall be
reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40.
of City or any successor thereof then in effect. The failure of City to conduct any
such annual review shall not, in any manner, constitute a breach of this
Agreement by City, diminish, impede, or abrogate the obligations of Developer
hereunder or render this Agreement invalid or void. At the same time as the
• 404
Ordinance No. 443
Page 25
referenced annual review, City shall also review Developer's compliance with the
MMRP.
10. Authorized Delays. Performance by any Party of its obligations hereunder, other
than payment of fees., shall be excused during any period of "Excusable Delay",
as hereinafter defined, provided that the Party claiming the delay gives written
notice of the delay to the other Parties as soon as possible after the same has
been ascertained. For purposes hereof, Excusable Delay shall mean delay that
directly affects, and is beyond the reasonable control of, the Party claiming the
delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d)
strike, picketing or other labor dispute; (e) shortage of materials or supplies; (f)
damage to work in progress by reason of fire, flood, earthquake or other
casualty; (g) failure, delay or inability of City to provide adequate levels of public
services, facilities or infrastructure to the Property including, by way of example
only, the lack of water to serve any portion of the Property due to drought; (h)
delay caused by a delay by other third party entities which are required to
approve plans or documents for Developer to construct the Project, or restrictions
imposed or mandated by such other third party entities or governmental entities
other than City, (including but not limited to, Ventura County Watershed
Protection District); or (i) litigation brought by a third party attacking the validity of
this Agreement, a Project Approval, a Subsequent Approval or any other action
necessary for development of the Project.
11. Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have breached
this Agreement if it:
(a) practices, or attempts to practice, any fraud or deceit upon City; or
willfully violates any order, ruling or decision of any regulatory or
judicial body having jurisdiction over the Property or the Project,
provided that Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good faith, in
which event no breach of this Agreement shall be deemed to have
occurred unless and until there is a final adjudication adverse to
Developer; or
(b) fails to make any payments required under this Agreement within
five (5) business days after City gives written notice to Developer
that the same is due and payable; or
(c) breaches any of the other provisions of this Agreement and fails to
cure the same within thirty (30) days after City gives written notice
to Developer of such breach (or, if the breach is not able to be
cured within such thirty (30) day period, Developer fails to start to
cure the same within thirty (30) days after delivery of written notice
•
405
Ordinance No. 443
Page 26
by City of such breach or fails to thereafter diligently prosecute the
cure to completion).
11.2 Default by City. City shall be in breach of this Agreement if it breaches
any of the provisions of this Agreement and fails to cure the breach within
thirty (30) days after Developer gives written notice to City of the breach
(or, if the breach is not able to be cured within such thirty (30) day period,
City fails to start to cure the same within thirty (30) days after delivery of
written notice from Developer of such breach or fails to thereafter diligently
prosecute the cure to completion).
11.3 Content of Notice of Violation. Every notice of breach shall state with
specificity that it is given pursuant to this section of this Agreement, the
nature of the alleged breach, and the manner in which the breach may be
satisfactorily cured. Every notice shall state the applicable period to cure.
The notices shall be given in accordance with Section 20 hereof.
11.4 Remedies for Breach. Each party shall have any and all remedies for
breach of this Agreement that may be available under applicable law.
Additionally, the Parties acknowledge that remedies at law, including
without limitation monetary damages, would be inadequate for breach of
this Agreement by any Party due to the size, nature and scope of the
Project. The Parties also acknowledge that it would not be feasible or
possible to restore the Property to its natural condition once
implementation of this Agreement has begun.
Consequently, the remedies for breach of this Agreement by either party
shall include injunctive relief and/or specific performance.
In addition, if Developer is in default under this Agreement, City shall have
the right to withhold the issuance of building permits to Developer from the
date that the notice of violation was given pursuant to Section 11.3 hereof
until the date that the breach is cured as provided in the notice of violation.
12. Mortgage Protection. If City gives notice to Developer of a breach, City shall
send a copy of the notice to each holder of record of any deed of trust on the
portion of the Property in which Developer has a legal interest ("Financier"),
provided that the Financier has given prior written notice of its name and mailing
address to City and the notice makes specific reference to this section. The
copies shall be sent by United States mail, registered or certified, postage
prepaid, return receipt requested, and shall be deemed received upon the third
(3rd) day after deposit.
Each Financier that has given prior notice to City pursuant to this section shall
have the right, at its option and insofar as the rights of City are concerned, to
cure any such breach within eighteen (18) days after the giving of the notice by
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Ordinance No. 443
Page 27
City. If such breach cannot be cured within such time period, the Financier shall
have such additional period as may be reasonably required to cure the same,
provided that the Financier gives notice to City of its intention to cure and
commences the cure within eighteen (18) days after giving of the notice by City
and thereafter diligently prosecutes the same to completion. City shall not
commence legal action against Developer by reason of Developer's breach
without allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be binding and
effective against the Financier and every owner of the Property, or part thereof,
whose title thereto is acquired by foreclosure, trustee sale or otherwise; provided,
however, Financier and such owner shall not be responsible for any matters that
occurred prior to their acquisition of the Project.
13. Estoppel Certificate. At any time and from time to time, Developer may deliver
written notice to City and City may deliver written notice to Developer requesting
that such Party certify in writing that, to the knowledge of the certifying Party, (i)
this Agreement is in full force and effect and a binding obligation of the Parties,
(ii) this Agreement has not been amended, or if amended, the identity of each
amendment, and (iii) the requesting Party is not in breach of this Agreement, or if
in breach, a description of each such breach. The Party receiving such a request
shall execute and return the certificate within ten (10) days following receipt of
the notice. City acknowledges that a certificate may be relied upon by
successors in interest to the Developer who requested the certificate and by
holders of record of deeds of trust on the portion of the Property in which that
Developer has a legal interest.
14. Administration of Agreement. Any consent or approval herein to be given by the
City may be given by the City Manager provided itis express and is in writing.
Any decision by City staff concerning the interpretation and administration of this
Agreement and development of the Property in accordance herewith may be
appealed by the Developer to the City Council, provided that any such appeal
shall be filed with the City Clerk of City within ten (10) days after the affected
Developer receives written notice of the staff decision. The City Council shall
render its decision to affirm, reverse or modify the staff decision within thirty (30)
days after the appeal was filed. The Developer shall not seek judicial review of
any staff decision without first having exhausted its remedies pursuant to this
section.
15. Amendment or Termination by Mutual Consent. In accordance with the
provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any
successor thereof then in effect, this Agreement may be amended or terminated,
in whole or in part, by mutual consent of City and the affected Developer.
15.1 Exemption for Amendments of Project Approvals. No amendment to a
Project Approval or Subsequent Approvals shall require an amendment to
this Agreement and any such amendment shall be deemed to be
407
Ordinance No. 443
Page 28
incorporated into this Agreement at the time that the amendment becomes
effective, provided that the amendment is consistent with this Agreement
and does not alter the permitted uses, density, intensity, maximum height,
size of buildings or reservations and dedications as contained in the
Project Approvals or Subsequent Approvals.
16. Developer Indemnification. Developer shall indemnify, defend with counsel
approved by City, and hold harmless City and its officers, employees and agents
from and against any and all losses, liabilities, fines, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or resulting in any way
from, Developer's performance pursuant to this Agreement.
Developer shall indemnify, defend with counsel approved by City, and hold
harmless City and its officers, employees and agents from and against any action
or proceeding to attack, review, set aside, void or annul this Agreement, or any
provision thereof, or any Project Approval or Subsequent Approval or
modifications thereto, or any other subsequent entitlements for the project and
including any related environmental approval.
17. Time of Essence. Time is of the essence for each provision of this Agreement of
which time is an element.
18. Operative Date. As described in Section 1.6 above, This Agreement shall
become operative on the Operative Date, being the date the Enabling Ordinance
becomes effective pursuant to Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect for a term of seven (7)
years commencing on the Operative Date or until one year after the issuance of
the final building permit for occupancy of the last building of the Project
whichever occurs last, unless said term is amended or the Agreement is sooner
terminated as otherwise provided herein. Notwithstanding the foregoing, the
following shall survive the expiration or earlier termination of this Agreement: (i)
all obligations arising under this Agreement prior to the expiration or earlier
termination of this Agreement; (ii) density, parking and other physical aspects of
the Project construction in accordance with this Agreement, the Affordable
Housing Agreement, and RPD 2012-02.
Expiration of the term or earlier termination of this Agreement shall not
automatically affect any Project Approval or Subsequent Approval or Building
Permit or Final Building Permit that has been granted or any right or obligation
arising independently from such Project Approval or Subsequent Approval or
Building Permit or Final Building Permit.
Upon expiration of the term or earlier termination of this Agreement, the Parties
shall execute any document reasonably requested by any Party to remove this
408
Ordinance No. 443
Page 29
Agreement from the public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant to this Agreement
shall be in writing and shall be deemed received when personally delivered or
upon the third (3rd) day after deposit in the United States mail, registered or
certified, postage prepaid, return receipt requested, to the Parties at the
addresses set forth in Exhibit "D" attached hereto and incorporated herein.
Any Party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and documents
referenced herein contain the entire agreement between the Parties regarding
the subject matter hereof, and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall not be amended,
except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of
any other provision, whether or not similar; nor shall any such waiver constitute a
continuing or subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized representative of the
Party against whom enforcement of the waiver is sought.
23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of this
Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as
an agent of any of the other Parties in any respect. Nothing contained herein or
in any document executed in connection herewith shall be construed as creating
the relationship of partners, joint ventures or any other association of any kind or
nature between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole benefit of the Parties and their successors in interest. No other person shall
have any right of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and any
amendment thereof shall be recorded with the County Recorder of the County of
Ventura by the City Clerk of City within the period required by Chapter 15.40 of
the Moorpark Municipal Code of City or any successor thereof then in effect.
409
Ordinance No. 443
Page 30
27. Cooperation Between City and Developer. City and Developer shall execute and
deliver to the other all such other and further instruments and documents as may
be necessary to carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the various sections and
subsections of this Agreement are for convenience of reference only, and they
shall not constitute a part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this Agreement be
found to be in conflict with any provision of the Purchase and Sale Agreement,
the Project Approvals or the Subsequent Approvals, the provision of this
Agreement shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have been prepared
jointly and equally by the Parties, and it shall not be construed against any Party
on the ground that the Party prepared the Agreement or caused it to be
prepared.
30. Governing Law and Venue. This Agreement is made, entered into, and executed
in the County of Ventura, California, and the laws of the State of California shall
govern its interpretation and enforcement. Any action, suit or proceeding related
to, or arising from, this Agreement shall be filed in the appropriate court having
jurisdiction in the County of Ventura.
31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the
enforcement or declaration of any right or obligation pursuant to, or as a result of
any alleged breach of, this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys' fees and litigation expenses and costs, and any judgment,
order or decree rendered in such action, suit or proceeding shall include an
award thereof.
32. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which constitute one and the
same instrument.
410
Ordinance No. 443
Page 31
IN WITNESS WHEREOF, Essex Moorpark Owner, L.P., and. City of Moorpark
have executed this Development Agreement on the date first above written.
CITY OF MOORPARK
Janice S. Parvin
Mayor
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P
a California limited partnership,
Its general partner
By: Essex Management Corporation
a California corporation,
its general partner
By:
Title:
Print Name:
411
Ordinance No. 443
Page 32
EXHIBIT "A"
LEGAL DESCRIPTION
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 200507210178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said
County Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said Parcel
1A.
412
Ordinance No. 443
Page 33
EXHIBIT "B"
LEGAL DESCRIPTION OF CITY SITE
All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of
Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document
No. 20050503-0108315 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5
Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30,
2009 as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described
line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No. 2005-
03, distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3`d Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel
1A.
413
Ordinance No. 443
Page 34
EXHIBIT "C"
FORM OF REAL ESTATE PURCHASE AGREEMENT
(Attached.)
414
Ordinance No. 443
Page 35
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS
(this "Agreement") is dated as of , 2017, and is entered into by and between
the CITY OF MOORPARK ("Buyer"), and ESSEX MOORPARK OWNER,L.P., a
California limited partnership ("Seller"). Upon execution of this Agreement by Buyer, Buyer
shall promptly deliver a copy of this executed Agreement to Seller.
RECITALS
A. Seller is the owner of the land described on Exhibit"A" and the improvements (if
any) thereon (collectively, the "Property").
B. Buyer desires to purchase the Property from Seller and Seller desires to sell the
Property to Buyer.
C. Buyer and Seller are parties to the certain Development Agreement dated
,2017 (the"Development Agreement")and this Agreement is being executed
as a condition of and in accordance with the Development Agreement.
NOW, THEREFORE, in consideration of the Independent Consideration set forth in
Section 1.2.2 below, and for other valuable consideration,the receipt and sufficiency of which
are hereby acknowledged, Buyer and Seller hereby agree as follows:
1. SALE AND PURCHASE PRICE.
1.1 Sale and Purchase. Seller agrees to sell the Property to Buyer and Buyer
agrees to purchase the Property upon the terms and conditions hereafter set forth.
1.2 Purchase Price.
1.2.1 The purchase price ("Purchase Price") for the Property shall be
One Dollar($1.00).
1.2.2 Independent Consideration. Notwithstanding anything in this
Agreement to the contrary, upon execution of this Agreement by Buyer, One Hundred and
No/100 Dollars ($100.00) shall be delivered by Buyer to Escrow Agent for delivery to Seller as
non-refundable independent contract consideration(the "Independent Consideration"), which
is in addition to the Purchase Price, and which amount has been bargained for and agreed to as
consideration for Seller's execution and delivery of this Agreement and for the rights and
privileges granted to Buyer herein, including, without limitation, any and all rights granted to
Buyer to terminate this Agreement during certain periods hereunder. If Buyer elects to terminate
this Agreement for any reason other than Seller's default, Seller shall retain the Independent
Consideration. The Independent Consideration shall not be applicable towards the Purchase
Price.
415
Ordinance No. 443
Page 36
.2. TITLE.
2.1 General. Title to the Property shall be conveyed by a grant deed in the
form attached hereto as Exhibit"B" and shall be evidenced by a CLTA Standard Coverage Form
of Owner's Policy of Title Insurance (or an ALTA Extended Coverage Form Policy, if Buyer
elects such coverage as provided in Section 2.3 hereof) ("Title Policy"), and the extra cost of any
such ALTA coverage shall be borne by Seller as described in Section 4.9 below. The Title
Policy shall be issued by First American Title Company, 1737 North First Street, Suite 500, San
Jose, CA 95112, Title Officer: Michael D. Hickey("Title Company"), with liability in the full
amount of the Purchase Price, insuring title to the Property as vested in Buyer, free and clear of
all liens and encumbrances and other matters affecting title to the Property, except the utility
easement described in Section 6.23 of the Development Agreement (the"Utility Easement") and
other title exceptions which Buyer has approved in writing (which shall constitute "Approved
Title Exceptions") except that real property taxes and assessments shall be prorated.
(Seller may claim a refund of property taxes in the event any property taxes paid
are allocable to the period after the closing. Buyer, as a municipal corporation, is exempt from
property taxes.)
2.2 Acts After Date of Agreement; City Access. During the period from the
date of this Agreement through the Close of Escrow, except for the Utility Easement described in
Section 2.1 above and the Access Easement described in this Section 2.2, Seller shall not record
or permit to be recorded any document or instrument relating to the Property or physically alter
the Property or permit or cause to be altered without the prior written consent of the Buyer,
which consent may be withheld in Buyer's sole and absolute discretion.
Notwithstanding the foregoing, after the date of this Agreement and ending upon
the conveyance of the Property to Buyer pursuant to this Agreement, Seller may use the Property
for the storage of construction debris, the storage of construction related materials and supplies,
and the deposit of dirt excavated or otherwise removed from the construction site on the Seller's
property to the;extent permitted by Section 7.10 of the Development Agreement. The restoration
of the Property by Seller prior to the Close of Escrow shall be governed by Sections 6.29 and
7.10 of the Development Agreement (and Seller shall comply therewith). Contemporaneously
with the execution of this Agreement, Buyer and Seller shall enter into the Easement Agreement
attached hereto as Exhibit"C"with respect to the portion of the Property more particularly
described in the Easement Agreement pursuant to which Buyer may use the property described
in the Easement Agreement for the uses described therein including installation of a fence and
stockpiling dirt on the Property to the extent permitted therein and by Section 7.10 of the
Development Agreement.
3. NO REPRESENTATIONS BY SELLER("AS IS" SALE).
3.1 Buyer acknowledges that Seller is making no representations or warranties
about the Property, express or implied; provided, however, that Buyer does not waive Seller's
obligations under Section 2.2 and Buyer does not waive Seller's obligations under applicable law
to disclose to Buyer all material facts known to Seller about the Property(including facts in the
Natural Hazard Disclosure Statement described below,whether or not required under applicable
416
Ordinance No. 443
Page 37
law). Subject to the foregoing and Section 2.2, upon the Close of Escrow, Buyer shall take title
to the Property in its then current "AS IS" condition, subject to Seller's obligations under Section
6.29 of the Development Agreement. Notwithstanding California Civil Code Section
1103.1(a)(9), Seller shall deliver to Buyer, with reasonable diligence after the execution of this
Agreement and at Seller's cost, a Natural Hazard Disclosure Statement (described in California
Civil Code Section 1103.2).
4. ESCROW.
4.1 Agreement to Constitute Escrow Instructions. This Agreement shall
constitute escrow instructions and a copy hereof shall be deposited with the Escrow Holder for
that purpose.
4.2 Escrow Holder. The escrow shall be opened with First American Title
Insurance Company, 2901 North Ventura Road, Suite 175, Ventura, CA 93036 ("Escrow
Holder"), within five(5) business days after the execution of this Agreement by Buyer and Seller
depositing an executed copy or executed counterparts of this Agreement with Escrow Holder.
This document shall be considered as the escrow instructions between the parties, with such
further instructions as Escrow Holder requires in order to clarify the duties and responsibilities of
Escrow Holder.
4.3 Close of Escrow. For the purposes of this Agreement, "Close of Escrow"
shall be the date on which a grant deed for the Property in favor of Buyer is recorded in the
Official Records of the Ventura County Recorder's Office. Provided all of Seller's and Buyer's
. obligations to be performed on or before Close of Escrow have been performed and all the
conditions to the Close of Escrow set forth in this Agreement have been satisfied, escrow shall
close on or before the date that is six(6)months after the date on which the final Certificate of
Occupancy for the Project is issued ("Closing Date"). All risk of loss or damage with respect to
the Property shall pass from Seller to Buyer at the Close of Escrow. Possession of the Property
shall be delivered to Buyer upon the Close of Escrow.
4.4 Seller Required to Deliver. Before the Close of Escrow, Seller shall
deposit into escrow the following:
4.4.1 Intentionally omitted
4.4.2 A grant deed conveying the Property to Buyer, in the form attached
hereto as Exhibit"B", duly executed by Seller and acknowledged(the"Grant Deed");
4.4.3 A California 593 certificate and federal non-foreign affidavit(with
respect to Seller);
4.4.4 Any other documents reasonably required by Escrow Holder or the
Title Company to be deposited by Buyer to carry out this escrow.
4.5 Buyer Required to Deliver. On or before the Close of Escrow, Buyer shall
deposit into escrow the following (properly executed and acknowledged, if applicable):
417
Ordinance No. 443
Page 38
4.5.1 An executed and acknowledged"Certificate of Acceptance" in the
form attached to the Grant Deed(attached hereto as Exhibit"B");
4.5.2 The Purchase Price; and
4.5.3 Any other documents reasonably required by Escrow Holder to be
deposited by Buyer to carry out this escrow.
4.6 Conditions to the Close of Escrow. Escrow shall not close unless and until
both parties have deposited with Escrow Holder all sums and documents required to be deposited
as provided in this Agreement. Additionally, Buyer's obligation to proceed with the transaction
contemplated by this Agreement is subject to the satisfaction of all of the following conditions
precedent, which are for Buyer's benefit and may be waived only by Buyer:
4.6.1 The Building Department of Buyer shall have issued a final
Certificate of Occupancy for the Project described in the Development Agreement.
4.6.2 Seller shall have performed all agreements to be performed by
Seller hereunder.
4.6.3 As of the Close of Escrow,the Property shall be in the a condition
reasonably similar to the condition it was in when the parties executed the Development
Agreement, subject to Section 6.29 of the Development Agreement; and
4.6.4 Title Company shall have issued or shall have committed to issue
the Title Policy to Buyer, for the amount of the Purchase Price, showing fee title to the Property
to be vested in Buyer subject only to the Approved Title Exceptions.
If any of the conditions to Close of Escrow are not timely satisfied for a reason
other than a default of Buyer or Seller under this Agreement, and this Agreement is terminated,
then upon termination of this Agreement, Escrow Holder shall promptly return to Buyer all funds
(and all interest accrued thereon) and documents deposited by Buyer in escrow and to return to
Seller all funds and documents deposited by Seller in escrow and which are held by Escrow
Holder on the date of the termination(less, in the case of the party otherwise entitled to such
funds, however, the amount of any cancellation charges required to be paid by such party under
Section 4.11 below).
4.7 Recordation of Grant Deed; Delivery of Funds and Possession. Upon
receipt of the funds and instruments described in this Section 4, Escrow Holder shall cause the
Grant Deed to be recorded in the office of the County Recorder of Ventura County, California.
Thereafter, Escrow Holder shall deliver the proceeds of this escrow(less appropriate charges) to
Seller, and Seller shall deliver possession of the Property to Buyer free and clear of all
occupants.
4.8 Prorations. Property taxes shall not be prorated as Buyer is exempt from
property taxes; Seller shall apply for a refund, if Seller has paid property taxes that are allocable
to the period after the Close of Escrow. All property assessments shall be prorated between
418
Ordinance No. 443
Page 39
Buyer and Seller as of the Close of Escrow based on the latest available tax information. All
prorations shall be determined on the basis of a 360-day year.
4.9 Costs of Escrow. Seller shall pay the premium for the Title Policy
(including the cost of extended coverage and the cost of any survey obtained by Buyer in
connection with such extended coverage, and Seller's reimbursement of survey costs shall be a
condition to the Close of Escrow). The escrow fees, the recording costs (if any), and any other
closing costs or charges not expressly provided for herein shall be shared equally by the parties.
4.10 Brokers. Buyer and Seller represent to one another that no broker or
finder has been engaged by it in connection with the transaction contemplated by this
Agreement, or to its knowledge is in any way connected with such transaction. Each party
covenants and agrees that any broker fee or commission, which may be due or payable in
connection with the closing of the transaction contemplated by this Agreement through its
dealings with that party, shall be borne solely by that party. Each party agrees to defend,
indemnify and hold harmless the other party and its respective employees, agents,
representatives, council members, attorneys, successors and assigns, from and against all claims
of any agent, broker, finder or other similar party arising from or in connection with its activities
relating to the sale of the Property to Buyer.
4.11 Escrow Cancellation Charges. In the event that this escrow shall fail to
close by reason of the default of either party hereunder,the defaulting party shall be liable for all
escrow and title cancellation charges. In the event that the escrow shall fail to close for any other
reason, each party shall pay one-half(1/2)of all escrow and title cancellation charges.
5. ATTORNEYS' FEES. In any action between Buyer and Seller seeking •
enforcement of any of the terms and provisions of this Agreement,the prevailing party in such
action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs
and expenses, not limited to taxable costs, reasonable attorneys' fees and reasonable fees of
expert witnesses.
6. NOTICES. All notices, requests, demands and other communication given or
required to be given hereunder shall be in writing and sent by first class United States registered
or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized
courier service such as Federal Express, duly addressed to the parties as follows:
To Seller: Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attention: John Eudy and Jordan Ritter
And
419
Ordinance No. 443
Page 40
Essex Moorpark Owner, L.P.
17541 Derian Avenue, Suite 110
Irvine, CA 92614
Attention: Bob Linder
To Buyer: City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Manager
Delivery of any notice or other communication hereunder shall be deemed made on the
date indicated in the return receipt or courier's records as the date of delivery or as the date of
first attempted delivery, if sent by mail or courier service. Any party may change its address for
purposes of this Section by giving notice to the other party as herein provided.
7. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned
by either party without the prior written consent of the other party.
8. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the
parties hereto with respect to the matters contained herein, and all prior or contemporaneous
agreements or understandings, oral or written,pertaining to any such matters are merged herein
and shall not be effective for any purpose. No provision of this Agreement may be amended,
supplemented or in any way modified except by an agreement in writing signed by the parties
hereto or their respective successors in interest and expressly stating that it is an amendment of
this Agreement.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original,but all of which shall constitute one and the
same instrument.
10. EMAIL DELIVERY. This executed Agreement(and executed counterparts of
this Agreement), may be delivered by email.
11. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
12. THIRD PARTIES. Nothing contained in this Agreement, expressed or implied, is
intended to confer upon any person, other than the parties hereto and their successors and
assigns, any rights or remedies under or by reason of this Agreement.
13. SEVERABILITY. If any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity, illegality or unenforceability shall not affect any
other provision hereof,and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein, unless such invalidity, illegality or
unenforceability materially affects the economic terms of the transactions contemplated by this
Agreement or the ability of either party to perform its obligations under this Agreement. In such
case, either party may terminate this Agreement and the escrow upon written notice to the other
party given no later than ten(10) business days after the party giving such notice becomes aware
420
Ordinance No. 443
Page 41
of such invalidity, illegality or unenforceability. In the event of such termination, all funds
deposited with Escrow Holder by Buyer and any interest accrued thereon shall be returned to
Buyer.
14. ADDITIONAL DOCUMENTS. Each party hereto agrees to perform any further
acts and to execute, acknowledge and deliver any further documents that may be reasonably
necessary to carry out the provisions of this Agreement.
15. AUTHORITY OF CITY MANAGER. The City Manager of Buyer may give any
and all notices, consents and terminations hereunder on behalf of Buyer provided they are in
writing.
16. DUE AUTHORIZATION/EXECUTION. Upon execution hereof, each party
shall promptly provide to the other party reasonable evidence of its due authorization of this
Agreement.
421
Ordinance No. 443
Page 42
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
SELLER:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By:
Print Name:
Title:
BUYER:
CITY OF MOORPARK
By:
Janice S. Parvin
Mayor
Attest:
Maureen Benson, City Clerk
APPROVED AS TO FORM:
Kevin G. Ennis, City Attorney
422
Ordinance No. 443
Page 43
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All of Parcel lA of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark,
County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-
0108315 or official records in the Office of the County Recorder of said County, being a portion
of Lot"T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1St Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point inthe west line of said Parcel 1A.
423
•
Ordinance No. 443
Page 44
EXHIBIT "B"
FORM OF GRANT DEED
(Attached.)
424
Ordinance No. 443
Page 45 •
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Of Moorpark
799 Moorpark Avenue
Moorpark, California 93012
Attention: City Clerk
APN:
[SPACE ABOVE FOR RECORDER'S USE ONLY]
GRANT DEED
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
The undersigned declares that this Grant Deed is exempt from Recording Fees pursuant
to California Government Code Section 27383.
- Documentary Transfer Tax is $0 (exempt; conveyance to a public entity).
FOR VALUABLE CONSIDERATION,receipt of which is hereby acknowledged the
ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Grantor") hereby
grants to the CITY OF MOORPARK("Grantee"), the land and located in the County of
Ventura, State of California, more particularly described on Exhibit A attached hereto and
incorporated herein by reference and all improvements thereon(collectively,the "Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth
below.
Dated: , 201_
GRANTOR:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By:
Print Name:
Title:
425
Ordinance No. 443
Page 46
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of the document.
STATE OF CALIFORNIA
COUNTY OF
On , 20 before me, ,Notary
Public, personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in '
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
(affix seal in above space)
426
Ordinance No. 443
Page 47
Exhibit A
to Grant Deed
LEGAL DESCRIPTION
All of Parcel lA of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark,
County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-
0108315 or official records in the Office of the County Recorder of said County,being a portion
of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described line;
BEGINNING at a point in east line of Parcel lA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A.
427
Ordinance No. 443
Page 48
CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain Grant Deed
dated , 2017, from Essex Moorpark Owner, L.P. to the City of Moorpark, which is a
political corporation, is hereby accepted by the undersigned officer on behalf of the City of
Moorpark pursuant to the authority conferred by action of the City of Moorpark on
2017, and the grantee consents to recordation thereof by its duly authorized officer.
Dated: , 2017
Steven Kueny,
City Manager
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached,and not the truthfulness,
accuracy,or validity of that document.
State of California )
County of )
On , before me,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the persons) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
428
Ordinance No. 443
Page 49
EXHIBIT "C"
FORM OF EASEMENT
(Attached.)
•
429
Ordinance No. 443
Page 50
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attn: Legal
(Space Above For Recorder's Use)
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (the "Agreement") is entered into as of
, 2017, by and between the City of Moorpark, a municipal corporation("Grantee"),
and Essex Moorpark Owner, L.P.,a California limited partnership ("Grantor").
RECITALS
Grantor is the owner of the real property located in the City of Moorpark, County of Ventura,
State of California, as more particularly described in Exhibit"A"attached hereto and
incorporated herein by reference (the "Property").
Grantee and Grantor entered into a Development Agreement dated as of
2017(the"Development Agreement"), and an Agreement for Purchase and Sale and
Escrow Instructions dated as of , 2017(the"Purchase Agreement").
Grantee requires access to a certain area of the Property for itself, its employees, its contractors,
and any and all permittees and invitees of Grantee and any and all of their respective
permittees and invitees, including, without limitation, any third party developer and/or its
agents, contractors and subcontrators, and all of their respective agents, employees and
representatives (collectively,the "Grantee's Agents")prior to the closing of the purchase
and sale and conveyance of the Property to Grantee in accordance with the Purchase
Agreement for the purpose of stockpiling soil on the area shown on Exhibit"B" hereto
(the"Stockpile Area").
Grantor desires to grant to Grantee a exclusive access easement for Grantee and Grantee's
Agents to enter the Stockpile Area and an easement for the limited purpose of stockpiling
soil thereon and fencing the Stockpile Area. Such soil shall be subject to removal
pursuant to the terms of this Agreement.
In consideration of Grantee being granted access to the Property as described in this Agreement,
Grantee and Grantor hereby agree as follows:
• Incorporation of Recitals, Capitalized Terms. The Recitals are incorporated
herein as part of this Agreement. In addition, capitalized terms not otherwise defined herein or
in the Recitals shall have the meaning set forth in the Development Agreement and Purchase
Agreement.
430
Ordinance No. 443
Page 51
• Grant of Easement. Grantor hereby grants to Grantee for the benefit of Grantee
and Grantee's Agents, a non-assignable but exclusive easement(the"Easement") to enter the
Stockpile Area and to use the Stockpile Area for the sole purpose of depositing and storing of
clean, imported soil (including the right of access for all necessary personnel, equipment and
materials but excluding any right to take any other action on, in, over,under, or around the
Stockpile Area) and fencing the Stockpile Area and for no other uses or purposes. Grantee and
Grantee's Agents shall not use any other portion of the Property in any manner which impedes,
interferes with, disrupts, or increases the cost of any grading, construction access, construction,
excavation, construction staging,the storage of construction materials and supplies, or the
stockpiling of soil and other materials by Grantor on such other portion of the Property. If
Grantor, in Grantor's reasonable judgment, determines that Grantee has breached the covenants
in the preceding sentence, Grantor shall have the right to suspend Grantee's access to the
Stockpile Area from the Property until the breach has been cured to Grantor's reasonable
satisfaction.
• Termination. The Easement and this Agreement shall automatically terminate
on the earliest of(i)the date which is six (6)months after the date on which the final certificate
of occupancy is issued for the Property, if escrow closes pursuant to Section 4.3 of the Purchase
Agreement, (ii) any earlier termination of Purchase Agreement unless resulting from default
thereunder by Grantor, or(iii)the date which is twelve (12) months from the date on which the •
final certificate of occupancy is issued for the Property, if escrow does not close pursuant to
Section 4.3 of the Purchase Agreement(collectively, the"Termination Date") unless escrow
does not close due to a default by Grantor under the Purchase Agreement; provided, however,
Grantee's indemnity and other obligations under this Agreement shall survive any such
termination.
• Removal Obligation. Not later than the thirty (30) days following the
Termination Date (unless terminated pursuant to subsection(3)(i) above), Grantee shall remove
all equipment, materials, and stockpiled soil brought on to the Property,the Stockpile Area, or
both,by or at the direction of Grantee. Grantee, at its sole cost and expense, shall promptly
restore the Property, the Stockpile Area, or both,to the condition that existed thereon prior to
Grantee's or Grantee's Agents entry on to the Property,the Stockpile Area, or both. In the event
that Grantee fails, within the time required by this Section 4,to restore the Property, the
Stockpile Area, or both,to the condition that existed thereon prior to Grantee's and Grantee's
Agents entry on to the Property,the Stockpile Area, or both, Grantor may restore the Property,
the Stockpile Area, or both to such condition and Grantee shall reimburse Grantor for all costs
and expenses incurred by or on behalf of Grantor in connection therewith.
• Hazardous Materials. Grantee shall take all actions necessary and required to
assure that any and all soil brought to the Property(whether by Grantee or Grantee's Agents) for
placement in the Stockpile Area shall not contain or be affected by any"Hazardous Materials"
(as defined below) such that(i)it cannot be lawfully placed for storage on the Property or(ii) it
would adversely impact soil,groundwater or environmental conditions present on or under the
Property or otherwise require response action by Grantor. The phrase "Hazardous Materials"as
used herein shall mean any flammable explosives,radioactive materials, asbestos in any form
which is friable or could become friable, hazardous waste, toxic substances or other related
materials whether in the form of a chemical, element, compound, solution, mixture or otherwise.
431
Ordinance No. 443
Page 52
For the purpose of this Agreement, Hazardous Materials shall include, but not be limited to,
substances defined as"hazardous substances", "hazardous materials," "contaminants,"
"pollutants," "hazardous wastes" or"toxic substances" (a) in(i)the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act 42 U.S.C. Section 9601 et seq., (ii)the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., (iii) the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv) the Federal Water Pollution
Control Act, as amended, 33 U.S.C. Section 1251, et seq., (v)the Clean Air Act, 33 U.S.C.
Section 7401 et seq., (vi) the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., (vii)
the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., (viii) Sections 25117 and 25316 of
the California Health& Safety Code, (ix)applicable state or local law, or (x) the rules, orders or
regulations adopted or proposed or in the publications promulgated pursuant to said laws; or(b)
in any reported decision of a state or federal court.
• Grantee's Indemnity. Grantee, to the fullest extent permitted by law,shall be
solely responsible for and pay for any and all loss and/or damage (i)to the Property,the
Stockpile Area, or both(and any property adjoining the Property, the Stockpile Property, or
both), or(ii) arising out of or in connection with the use, storage or transport of Hazardous
Materials on the Property and/or Stockpile Area, including but not limited to the cost of any
remediation or third party claims related thereto, arising wholly or in part from or in connection
with the use of the Property, the Stockpile Area, or both,pursuant to (or in violation of)this
Agreement. Grantee shall keep the Property, the Stockpile Area, or both, free and clear of all
environmental liens,mechanics' and materialmen's liens and claims for labor and/or materials
arising out of any activity upon the Property, the Stockpile Area, or both by Grantee or Grantee's
•
Agents. Grantee shall protect, defend, indemnify and hold Grantor and its members, managers,
partners, agents, officers, directors, employees and affiliates ("Grantor Indemnified Parties") free
and harmless against all claims, liens, actions, losses, liabilities, damages, costs and expenses
(including but not limited to reasonable attorneys' fees and costs and including any claims
arising in connection with the use, storage or transport of Hazardous Materials on the Property
and/or Stockpile Area, including, but not limited to, the cost of any remediation or third party
claims related thereto), collectively, "Claims") of whatever kind or nature, including,but not
limited to, consequential damages, arising in connection with the rights granted under or any
breach of Grantee's or Grantee's Agents covenants contained in this Easement except to the
extent caused by Grantor's gross negligence or willful misconduct. The foregoing
indemnification shall survive the termination of this Agreement.
• Compliance with Laws. Access to and use of the Property, the Stockpile Area,
or both, by Grantee and Grantee's Agents and others shall be in strict compliance with all
applicable laws, statutes, ordinances, rules and regulations,including, without limitation,those
of the United States and the city, county and state in which the Property is located, and any
agency of any of the foregoing (the "Laws"), and Grantee shall defend, indemnify and hold
Grantor and its members, managers,partners, agents, officers, directors, employees and affiliates
free and harmless against all penalties, charges and damages including, without limitation,
consequential damages, costs and expenses(including, without limitation, attorneys' fees and
expenses) of whatever kind or nature, imposed for any violation or alleged violation by Grantee
or any Grantee Agent of any such Laws. Grantee shall be responsible for obtaining and
complying with the conditions and requirements of all permits and approvals required under all
432
Ordinance No. 443
Page 53
applicable Laws in connection with Grantee and Grantee's Agents' activities on the Property, the
Stockpile Area, or both.
• Insurance. At its sole cost, Grantee shall either maintain its participation in the
insurance program administered by the California JPIA(which includes liability coverage of
$1,000,000 per occurrence, with accrued aggregate limit of$1,000,000) or maintain equivalent
insurance, and will cause Seller to be named as additional insured thereunder, with respect to
Grantee's entry on and use of the Property. At its sole cost, Grantee shall deliver to Grantor
reasonable evidence of such insurance prior to entering the Property or the Stockpile Area.
• No Representations or Warranties Hereunder. Grantee understands that
neither Grantor nor any Grantor Indemnified Parties have made or make any representation or
warranty, express or implied, as to the suitability of the Property or the Stockpile Area for
Grantee's use in connection with the License granted under this Agreement. All information
provided by Grantor with respect to the Property or Stockpile Area has been provided as an
accommodation and solely for Grantee's use in connection with its performance of this
Agreement without any representation or warranty as to its accuracy or completeness. Neither
Grantor, nor any Grantor Indemnified Parties or their respective attorneys or advisors or any
other person will have any liability to Grantee or any of Grantee's Agents under this Agreement
for information provided or the exercise by Grantee or Grantee's Agents of any rights granted
either hereunder.
• No Waiver. It is understood and agreed that no failure or delay by Grantor in
exercising any right,power or privilege hereunder shall operate as a waiver thereof or the
exercise of any other right, power or privilege hereunder. The provisions of this Agreement may
not be waived or amended except by the written agreement of Grantor.
• Injunction. Grantee further understands and agrees that in the event of any
breach of this Agreement by Grantee or any of Grantee's Agents, Grantor would be irreparably
and immediately harmed and could not be made whole by monetary damages. Accordingly,
Grantee hereby agrees that Grantor, in addition to any other remedy which it may have at law or
in equity, shall be entitled to injunctive relief to prevent breaches of this Agreement and/or
specific performance to compel compliance with this Agreement.
• Assignment. This Agreement is binding on the successors and assigns of the
parties hereto. Notwithstanding the foregoing, Grantee may not assign its rights hereunder
without the prior written consent of Grantor in its sole discretion.
• Miscellaneous. This Agreement and any and all matters arising under, from or
relating to this Agreement shall be governed by and construed in accordance with the internal
laws of the State of California without regard to choice of laws principles. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an original, but all of
which, together, shall constitute one and the same instrument. A facsimile, scanned or
photocopy signature on this Agreement, any amendment or waiver hereto, or any notice
delivered hereunder shall have the same legal effect as an original signature. This Agreement
may not be amended or modified except in writing executed by the parties hereto.
433
Ordinance No. 443
Page 54
[signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first set forth above.
GRANTOR:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P
a California limited partnership,
Its general partner
By: Essex Management Corporation
a California corporation,
its general partner
By:
Title:
Print Name:
Grantor Notice Information:
Essex Moorpark Owner, L.P.
do Essex Property Trust
1100 Park Place, Suite 200
San Mateo, Ca 94303
Attention: Legal Department
GRANTEE:
CITY OF MOORPARK,
a municipal corporation
By:
Janice S. Parvin,
Mayor
Grantee Notice Information:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: City Manager
434
Ordinance No. 443
Page 55
EXHIBIT "A"
LEGAL DESCRIPTION
OF THE PROPERTY
All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark,
County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-
0108315 or official records in the Office of the County Recorder of said County,being a portion
of Lot"T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1St Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3`d Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A.
435
Ordinance No. 443
Page 56
EXHIBIT "B"
STOCKPILE AREA
(See attached diagram.)
436
Ordinance No. 443
Page 57 ,
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Ordinance No. 443
Page 58
EXHIBIT "0"
MAP FOR RELOCATED POWER LINES
(Attached.)
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Ordinance No. 443
Page 60
EXHIBIT "E"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
ESSEX MOORPARK OWNER, L.P.
Attention: John D. Eudy
1100 Park Place, Suite 200
San Mateo, CA 94403
With required copies to:
ESSEX PORTFOLIO, L.P.
Attention: Jordan Ritter
1100 Park Place, Suite 200
San Mateo, CA 94403
and
ESSEX MOORPARK OWNER, L.P.
Attention: Bob Linder
17541 Derian Avenue, Suite 110
Irvine, CA 92614
440
Ordinance Na. 443
Page 61
EXHIBIT "F"
FORM OF AFFORDABLE HOUSING AGREEMENT
(Attached.)
441
Ordinance No. 443
Page 62
Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS LINE FOR RECORDERS USE
AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
ESSEX MOORPARK OWNER, L.P.
Dated as of , 2017
442
Ordinance No. 443
Page 63
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (this "Agreement") is to be
effective as of , 2017, regardless of the date of actual execution
hereof, and is by and between the CITY OF MOORPARK, a municipal corporation
("City"), ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Owner").
RECITALS
A. The City and Owner have entered into a Development Agreement dated
, recorded as Instrument No. in the Official
Records of the County of Ventura on (the "Development
Agreement") pursuant to which Owner will construct a residential development
consisting of 200 apartments on approximately 10.57 acres (the "Property"), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential
Planned Development Permit No. 2012-02 ("RPD"), and Zone Change No. 2004-04
("ZC") provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPD and Mitigation Monitoring Program, as amended, are collectively referred to as the
"Project Approvals".
C. The RPD requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that Owner and Affordable Housing
Owner maintain each and every one of the Affordable Units at all times in the same
manner as the market rate units, including, but not limited to the quality and
maintenance of flooring, window coverings, appliances, heating and air conditioning
systems, storage space and type, and the number and location of required parking
spaces.
E. The Development Agreement requires that this Affordable Housing
Agreement be executed by Owner and delivered to City for recording, and that this
Affordable Housing Agreement not be subordinate to any liens (except for property
taxes and assessments not yet due).
F. As permitted by the Development Agreement, Owner may apply for
approval of an air rights subdivision such that the Affordable Units may be conveyed to
and separately owned by a single entity affiliated with Owner (as described in the
Development Agreement) and used solely as affordable rental units in accordance with
this Agreement. Such affiliated entity is referred to herein as the "Affordable Housing
Owner".
443
Ordinance No. 443
Page 64
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
"Affordable Housing In Lieu Fee" shall mean the annual fee paid to the City in
exchange for the Owner and Affordable Housing Owner not being obligated to provide
four (4) additional Affordable Low Income Units in addition to the 50 Affordable Units
required by this Agreement.
"Affordable Housing Owner" shall mean the single entity to which the sixteen (16)
Very Low Income Units and twenty-four (24) Low Income Units are conveyed if tax
exempt bond financing and low income housing tax credits are used with respect to the
Project described in Section 2.1 below; however, until Owner conveys such Affordable
Units to Affordable Housing Owner, and if Owner never conveys the Affordable Units to
Affordable Housing Owner, and to the extent of its ownership of the ten (10) Units
. described in Section 2.1 and Exhibit No. 2, Owner shall be the "Affordable Housing
Owner" as well as the "Owner". .
"Affordable Rent" shall mean the rent described in Section 2.9, subject to
Section 2.10.
"Affordable Units" shall mean the rent-restricted dwelling units for Low Income
Households, Very Low Income Households and Moderate Income Households
described in this Affordable Housing Agreement.
"Agreement" shall mean this Affordable Housing Agreement.
"City" shall mean the City of Moorpark, California, a municipal corporation.
"County" shall mean Ventura County.
"County Median Income" shall mean the Median Income adjusted by actual
household size as published annually by the Department of Housing and Community
Development (HCD) of the State of California for the County, which Median Income
levels shall be adjusted concurrently with publication of adjustment of the same by HCD
(or if HCD discontinues such publication, then such reasonable replacement publication
as may be selected by City in good faith).
"Density Bonus" shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals, which requires the
Developer to construct the Project, and also requires that at least twenty percent (20%)
(Le., 40 units) of the total dwelling units in the Project be rented at an Affordable Rent to
Very Low Income households (Le., 50% of County Median income) and Low Income
444
Ordinance No. 443
Page 65
households (i.e., 80% of County Median Income) and an additional five percent (5%)
(Le. 10 Units) of the total dwelling units in the Project be rented at an Affordable Rent to
Moderate Income households (i.e. 120% of County Median income).
"Development Agreement" shall mean that certain Development Agreement
dated , 2017, recorded substantially concurrently herewith in the Official
Records of the County of Ventura.
"HCD" shall mean the Department of Housing and Community Development
(HCD) of the State of California.
"Initial Rent-Up" shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and "Stabilization" (as defined
below).
"Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit. The household income amount for Lower Income households
shall be based on the amount most recently published by HCD as the Household
Income Limits for Ventura County ("HCD Income Limits") or such successor information
in the event the referenced published information is no longer available.
"Low Income Household" or "Lower Income Household" or "Low Income Tenant"
means individuals or households qualified on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
"Low Income Units" means Units rented to Low Income Households.
"Moderate Income" shall mean a household income that does not exceed one
hundred twenty percent (120%) of the County Median Income, adjusted for household
size appropriate to the Unit. The household income amount for Moderate Income
households for any year shall be based on the amount most recently published by HCD
as the Household Income Limits for Ventura County ("HCD Income Limits") or such
successor information in the event the referenced published information is no longer
available.
"Moderate Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Moderate Income, adjusted for
household size.
"Moderate Income Units" means Units rented to Moderate Income Households.
"Owner" shall mean Essex Moorpark Owner, L.P., and any permitted assignee of
its rights, powers and responsibilities, or any successor in interest to any portion of or
interest in the Project or Property.
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"Project" is the residential development described in RPD 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner or Affordable
Housing Owner and located on or used in connection with all such improvements and
all functionally related and subordinate facilities, and all improvements required by the
Project Approvals.
"Project Approvals" is defined in Recital B above.
"Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1.
"Stabilization" shall mean the time at which the Project achieves ninety percent
(90%) occupancy for ninety (90) consecutive days.
"Term" shall mean from the date of recordation of this Agreement until the later
of: (i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential. use or purpose as a "non-conforming use" and has no
residential occupancy; or (ii) fifty-five-(55) years after the recordation of this Agreement.
"Units" shall mean residential dwelling units.
"Utility Allowance" shall mean the utility allowance set forth in the chart attached
to this Agreement as Exhibit No. 2 and referred to in Section 2.9.
"Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit The household income amount for Very Low Income households shall be
based on the amount most recently published by HCD as the Household Income Limits
for Ventura County ("HCD Income Limits") or such successor information in the event
the referenced published information is no longer available.
"Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
"Very Low Income Units" means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.2 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to this Agreement as a whole.
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1.2.3 All of the terms and provisions hereof shall be construed to
effectuate the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and
the table of contents appended to copies hereof shall be solely for convenience of
reference and shall not affect the meaning, construction, or effect of the provisions
hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose
affordability restrictions and household income restrictions on the
Affordable Units in the Project, specifically there shall be sixteen
(16) Very Low Income Units, twenty-four (24) Low Income Units,
and ten (10) Moderate Income Units, all as more particularly set
forth on Exhibit No. 2.
B. However, Owner may obtain Federal low income housing tax
credits and tax-exempt bonds (collectively, "Affordable Housing
Financing") to finance the Project, which will require that forty (40)
of the Affordable Units be restricted for rent to Very Low Income
Households during the periods set forth in the Internal Revenue
Code, as the same may be modified by law applicable to the low
income housing tax credits (the "Compliance Period and Extend
Use Period") and applicable to the tax exempt bonds (the "Qualified
Project Period"). At the end of whichever is the last to expire of the
Compliance Period and Extended Use Period and the Qualified
Project Period, Owner shall rent the ten (10) Moderate Income
Units to Low Income Households consistent with the requirements
of this Agreement. Upon the the last to expire of the Compliance
Period and Extended Use Period and the Qualified Project Period,
the provisions of this Agreement shall be applicable and the
number of Very Low Income Units, Low Income Units, and
Moderate Income Units shall be consistent with Section 2.1.A.
above and Exhibit No. 2.
At the time the Project is no longer required to comply with
Affordable Housing Financing, the City, Owner and Affordable
Housing Owner shall in good faith, and consistent with applicable
law and this Agreement, prepare a plan to transition the Affordable
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Units so that the number of Very Low Income Units, Low Income
Units, and Moderate Income Units in the Project is as required by
Section 2.1A above and Exhibit No. 2 and that there are Very Low
Income Households, Low Income Households, and Moderate
Income Households occupying the Affordable Units consistent with
Section 2.1.A. above and Exhibit No. 2 in the shortest possible
time.
2.2 Agreement to be Recorded; Priority. Owner and Affordable Housing
Owner represent, warrant, and covenant that they will cause this Agreement to be
recorded in the Office of the County Recorder of Ventura County, California, and that
this Agreement shall be senior in priority to any lien, encumbrance or other matter of
record except as expressly approved in writing by City. The Owner or Affordable
Housing Owner shall pay all fees and charges in connection with any such recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to
develop and operate the Project and Property as a multifamily residential rental property
and uses incidental thereto and for no other purposes. Owner and Affordable Housing
Owner agree that the Affordable Units shall have the same or better amenities (in type,
quality and number) as the market-rate units in the Project (as determined by the
Community Development Director) and shall be located as described on the site plan
attached to Exhibit No. 2. Such amenities for the Affordable Units shall include, without
limitation, air conditioning/heating, plumbing and electrical fixtures, garbage disposal,
flooring, cabinets, counter tops, trim, built-in dishwasher, clothes washer and dryer,
sinks, bathtub, solar or solar stub out, water heater, built-in oven, microwave, stove,
bathroom fan (the most quiet model), garage door openers, doors and door hardware,
and floor and window coverings (all to the same extent provided for the market rate
units). Owner and Affordable Housing Owner shall promptly notify City in writing upon
any relocation of an Affordable Unit under this Agreement (meaning change in the
designated/intended household income level, not an actual change in the fixed locations
of the Affordable Units, which constitute a separate subdivided parcel, and are fixed as
shown at the end of Exhibit No. 2), and each such notice shall include the basis for such
relocation and the location of such relocated Affordable Unit(s); however, the ten (10)
Moderate Income Units to be owned by the Owner of the market-rate. Units shall be
randomly dispersed among its Units in the portion of the Project owned by the Owner
consistent with Exhibit No. 2. Owner and Affordable Housing Owner further agree not
to convert the Project or any part thereof to any type of common interest development,
for-sale condominiums, community apartments, planned development, stock
cooperative, hotel, motel, or any type of congregate care or assisted living facility (but
the foregoing shall not prohibit the air rights subdivision and conveyance described in
Recital F above). Owner and Affordable Housing Owner agree that they shall not
knowingly permit any of the Units in the Project to be used on a transient basis and shall
not rent any Unit for a period of less than thirty (30) days. At no time shall any of the
Affordable Units be rented to an employee, agent, officer, contractor of any owner of
any portion of the Property or Project or of any company affiliated with any such owner,
or to any such affiliated company.
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2.4 INTENTIONALLY OMITTED
2.5 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner and Affordable Housing Owner and approved by City which
approval shall not be unreasonably withheld, conditioned, or delayed ("Rules"). Owner
and Affordable Housing Owner shall submit such Rules to City during the Initial Rent-Up
for the City's approval, which will not be withheld, conditioned or delayed. Annually,
Owner and Affordable Housing Owner shall submit any amendments, modifications or
changes to such Rules to the City at least forty-five (45) days prior to their proposed
effective date and all of such amendments, modifications and changes shall be subject
to the City's prior written consent, which will not be withheld, conditioned or delayed. If
City does not consent, City shall specify the reasons in writing so that Affordable
Housing Owner can revise the amendment(s), modification(s) or change(s) and re-
submit them for City approval, which will not be withheld, conditioned or delayed. In
addition, Owner and Affordable Housing Owner shall submit to the City on an annual
basis a certification that the Rules previously submitted to City, as amended, remain in
effect (with a copy of the Rules and any amendments). If applicable, this Agreement
shall be consistent with any Extended Use Agreement entered into between Owner or
any affiliate of Owner and the California Tax Credit Allocation Committee.
2.6 Single Owner. Except for the ten (10) Moderate Income Units (which will
be Low Income Units until the last to end of the Compliance Period and Extended Use
Period and the Qualified Project Period, as set forth in Section 2.1.B. above, and will be
owned by the owner of the market-rate Units), all of the Affordable Units shall be and
remain owned by the Affordable Housing Owner (an,affiliate of the Owner of the market-
rate Units). Such ten (10) Units (Moderate, or Low Income until the last to end of the
Compliance Period and Extended Use Period or the Qualified Project Period) may be
owned by Owner but shall be subject to this Agreement. No Affordable Unit may be
sold separately.
2.7 Affordable Units Generally.
2.7.1 Allocation/Dispersal of Affordable Units. As set forth on Exhibit No.
2, the Affordable Units shall be randomly dispersed throughout the Project, and as
described in Section 2.3 above, Owner and Affordable Housing Owner shall promptly
notify City in writing of any change in the designated income level of any Affordable
Unit.
2.7.2 Accessible Compliant Units. Four (4) of the nineteen (19) one-
bedroom one-bath affordable Low and Very Low Income units shall be compliant with all
laws regarding disabled persons (including, without limitation, the Americans with
Disabilities Act) and shall be reserved for and occupied by persons eligible for such
accommodations, to the extent there is a qualified accessible Low or Very Low Income
person ready to occupy such unit. Owner and Affordable Housing Owner shall maintain
a waiting list for the affordable accessible-compliant units, shall promptly deliver a copy
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thereof to City and shall thereafter deliver a copy of the revised list to City whenever the
list changes. Should there be a qualified Low or Very Low Income prospective tenant
desiring to rent such a unit but all such units are rented, Owner and Affordable Housing
Owner shall add such prospective tenant to the waiting list for the affordable accessible-
compliant units. At the earliest possible time a Low or Very Low Income non-accessible
compliant affordable unit becomes available, the non-accessible Low or Very Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy
the accessible compliant unit. Owner and Affordable Housing Owner shall include a
provision in the non-accessible compliant affordable lease for any accessible-compliant
affordable unit that the non-accessible Low or Very Low Income tenant agrees to be
relocated, at Owner's or Affordable Housing Owner's cost, as soon as a non-accessible
compliant unit becomes available. While any of the four (4) affordable accessible-
compliant units are not being leased to disabled persons (due to unavailability of such
persons to lease), the applicable Affordable Unit shall be leased in accordance with this
Agreement.
At all times, Affordable Housing Owner shall keep City informed in writing of the
income level applicable to each accessible compliant unit. The fixed locations of the
Affordable Units shall be as shown on the site plan attached to Exhibit No. 2.
The accessible compliant units shall be consistent with accessibility design
criteria established by the State of California, and Owner and Affordable Housing Owner
shall promptly make any changes to such units required by new laws or changes in
laws. Reasonable accommodation shall be made, as may be requested by specific Low
or Very Low Income disabled tenants in such units, to provide features such as smoke
alarms with flashing lights, for instance, if requested by hearing impaired Low or Very
Low Income tenants in an accessible compliant unit.
2.7.3 Affordable Housing In Lieu Fee.
2.7.3.1 In addition to the Affordable Units herein described,
Owner and Affordable Housing Owner shall pay (and be jointly and severally liable for)
a single annual in lieu fee for having irrevocably elected not to provide four (4)
additional Low Income units (the "Affordable Housing In Lieu Fee"). The modification of
affordability levels for Affordable Housing Financing purposes (as described in Section
2.1, 2.12 and Exhibit No. 2), shall not affect the foregoing.
2.7.3.2 The Affordable Housing In Lieu fee shall initially be
Forty Seven Thousand. Five Hundred and No/100 Dollars ($47,500.00) if paid on or
before January 1, 2019. If the initial payment is not paid by January 1, 2019, it shall
increase by two percent (2%) each year above the prior year amount. Similarly, all
subsequent annual payments shall increase by two percent (2%) of the previous year's
payment.
Payments shall be made on March 10 of the first calendar year in which one or
more residential unit in the Project has theretofore been occupied, and on or before
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March 10 of each subsequent calendar year. If March 10 falls on a Saturday, Sunday,
or City Holiday, then payment shall be due on the City's next business day. A late
payment charge (constituting liquidated damages) equal to ten percent (10%) of the
payment due shall be added to payments received three (3) days or more after the due
date as stated herein or when a deficient check has been given for payment, and the
parties hereby stipulate and agree that it would be very difficult and impractical to
determine the damages suffered by City, as a public entity, due to late payments.
Payments received more than ten (10) days after the due date shall, in addition to the
ten percent (10%) late charge, accrue interest at a rate of twelve percent (12%) from the
due date through and including the date the payment is received by the City.
In the event of a sale, transfer, assignment of any type or any portion of the
Project or Property by Owner or Affordable Housing Owner to any other entity not
owned in whole or in part by Owner, the fee amount referenced above shall be
increased based on the new value of the Property as if it had been reassessed by the
Ventura County Assessor and not exempt from the payment of new property taxes. The
calculation shall provide the City 0.095% (equivalent to $950.00 per $1 million of
assessed value) of the assessed value or such higher percentage of the total new
property taxes if the City portion has been increased by action of the State of California
or by a statewide initiative or referendum. (For example, if the sale results in a value of
$50,000,000.00 then the annual fee to the City would be $50,000,000.00 X .00095 =
$47,500.00, or if the City portion of the property taxes has been increased by the State
of California on a statewide initiative or referendum then the amount would increase). In
the event the payment to the City under this calculation would be less than the Initial
Affordable Housing In-lieu Fee Amount, inclusive of any 2% adjustments applied as of
the date of sale, transfer or assignment, then such adjusted Initial In-lieu Fee Amount
shall continue until such time as the calculation in this paragraph would yield a higher
annual fee.
2.7.4 Preference Policies. To the extent permitted by applicable state
and federal law, priority shall be granted to eligible City of Moorpark residents. A
waiting list for the Affordable Units shall be maintained from which vacancies shall be
filled. The waiting list shall be established through a fair process for the selection of the
next eligible households to fill the vacancies allowing for priority for City of Moorpark
residents to the extent permitted by applicable state and federal law. Details of this
process shall be submitted in writing to the City for review and approval prior to the
issuance of the first building permit for this project. Additionally, Affordable Housing
Owner shall submit to City an annual report, no later than January 30 of each calendar
year for the pervious calendar year, describing the vacancies filled from households on
the list, total vacancies filled and the number of households on the list.
2.7.5 Occupancy Reporting. As specified in Section 2.12, Owner and
Affordable Housing Owner will advise City on a quarterly basis in writing of the number
of Affordable Units occupied by Very Low, Low and Moderate Income Tenants by
delivery of a certificate in the form specified by the City, which is attached hereto as
Exhibit No. 3, which shall include a statement as to whether or not the tenant was a City
of Moorpark resident who on the waiting list and was given priority. Any reporting
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schedule less frequent than quarterly must be expressly approved in writing by the City
Manager.
2.7.6 Unit Classification. An Affordable Unit occupied by a Very Low
Income Tenant, a Low Income Tenant, or a Moderate Income Tenant shall be deemed,
upon termination of occupancy by such tenant (whether voluntarily or involuntarily), to
be continuously occupied by a Very Low Income Tenant, a Low Income Tenant, or a
Moderate Income Tenant, as' applicable, until re-occupied other than for a temporary
period (not to exceed 60 days), at which time the classification of the Unit shall be
redetermined (provided that upon such reclassification, Affordable Housing Owner must
remain in compliance with this Agreement). Owner and Affordable Housing Owner shall
use commercially reasonable efforts to prevent such temporary periods from exceeding
sixty (60) days. Owner and Affordable Housing Owner will also obtain and maintain on
file such Certifications of Tenant Eligibility in the form of Exhibit No. 3 attached hereto,
for each Very Low, Low and Moderate Income Tenant. Owner and Affordable Housing
Owner shall make a good faith effort to verify that the income declared by an applicant
in an income certification is accurate by reviewing any one or more of the following
documents, which shall be provided by the applicant:
(a) A pay stub for the most recent pay period;
(b) An income tax return for the most recent tax year;
(c) An income verification form from the applicant's current employer;
(d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
(e) If the applicant is unemployed and has no tax return, another form
of independent verification is needed.
In addition to the above-referenced income certification, eligible Very Low and
Low Income applicants for the ADA compliant units shall submit a letter from a
physician or other document acceptable to the City, Owner and Affordable Housing
Owner which confirms the accessibility needs of the applicant.
2.7.7 Lease Provisions. The Owner and the Affordable Housing Owner
shall include provisions in all signed leases or rental agreements for all Affordable Units
which authorize the Owner or Affordable Housing Owner, as applicable, to immediately
terminate the tenancy of any tenant occupying an Affordable Unit where one or more of
such tenants have misrepresented any fact material to the qualification of such an
individual or household as a Very Low, Low or Moderate Income Tenant and/or for
qualification for occupancy of an Affordable Unit, and Affordable Housing Owner and
Owner shall reasonably enforce such termination rights (i.e., Affordable Housing Owner
or Owner, as applicable, shall exercise them and not waive them). Each lease or rental
agreement for an Affordable Unit shall also provide that the tenants of such Affordable
Unit shall be subject to annual certification or recertification of income, as required by
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the City, and shall be subject to rental increases in accordance with Section 2.10 of this
Agreement.
2.7.8 Management Diligence. Owner and Affordable Housing Owner
shall use commercially reasonable efforts not to allow any rent-ready Affordable Unit to
remain vacant.
2.7.9 Administration by City; Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner and
Affordable Housing Owner in writing of the name and phone number of such staff
person and any replacements. On or before the first day of February of each year
during the Term of this Agreement, commencing after the first residential occupancy of
the Project, Affordable Housing Owner and Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by
the larger of(a) or (b) below:
(a) The percentage increase in the Consumer Price Index
during the prior year, which shall be determined by using the Consumer Price Index by
the U. S. Department of Labor, Bureau of Labor Statistics, for all urban consumers, all
items, for the Los Angeles/Riverside/Orange County metropolitan area. The calculation
shall be made by copying such CPI for the month of October to the CPI for the previous
October.
(b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly
effective yield amounts paid by LAIF for the City's Pooled Money Investment Account
for the most recent four (4) calendar quarters divided by four (4).
In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to
achieve substantially the same result.
2.7.10 Lease Provisions. The provisions relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner or
the Affordable Housing Owner for the lease or rental of the Affordable Units shall be
subject to review and approval by the City, the approval of which shall not be
unreasonably withheld, conditioned, or delayed. If the lease or rental agreement
provisions specified in this Section are not approved or disapproved within thirty (30)
days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 For initial rent-up only, for each ten (10) units rented in the Project
(i.e., both Affordable Units and other units), at least two (2) must be Affordable Units
which comply with this Agreement.
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2.8.2 During the Initial Rent-Up, the Very Low Income Units occupied by
Very Low Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed sixteen (16) units (subject to Section 2.1 above).
2.8.3 During the Initial Rent-Up, the Low Income Units occupied by Low
Income households, plus those Units held available for occupancy by such tenants,
shall be equal to or exceed twenty-four (24) units (subject to Section 2.1 above).
2.8.4 During the Initial Rent-Up, the Moderate Income Units occupied by
Moderate Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed ten (10) units (subject to Section 2.1 above).
2.8.5 In connection with the Initial Lease-Up of the Project, Owner and
Affordable Housing Owner will adopt outreach programs to locate qualified tenants for
the Project and shall establish such procedures for occupancy, rental, and rent
grievances as may be reasonably required by the City. Not later than ten (10) days prior
to the commencement of marketing, Owner and Affordable Housing Owner shall
prepare and submit to the City for reasonable approval a marketing and outreach
program which shall contain, among other things, the following: how a potential tenant
would apply to rent a Unit in the Project, including where to apply, applicable income
limits and rent levels; support documentation needed such as pay stubs, tax returns, or
confirmation of disability, if applicable, a description of procedures Owner and
Affordable Housing Owner will follow to publicize vacancies in the Project, including
notice in newspapers of general circulation, including at least one Spanish-language
newspaper and mailing notices of vacancies to or contacting by telephone potential
tenants on the waiting list maintained by Owner and Affordable Housing Owner.
Notices shall also be given to organizations in Ventura County which provide referrals or
other services to persons with disabilities.
2.8.6 In the event that any Affordable Unit is rendered unfit for occupancy
(including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner or Affordable Housing Owner, as applicable, shall pay the City a
single fee of $10 (which shall increase by $2 every five (5) years) per day until the
Affordable Unit is placed back in service except that such fee shall not be payable for so
long as Owner or Affordable Housing Owner is diligently attempting to repair or re-build
the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2.9.1 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of
the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons
for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Low Income Tenants shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowance. "Family size appropriate
to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the California
Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2
bedroom unit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Moderate Income Tenants shall be no
greater than thirty percent (30%) of one hundred and ten (110%) of County Median
Income, adjusted for family size appropriate for the Unit, Less the Utility Allowance.
"Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section
50052.5(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom
unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
"Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667)
based on .Apartment/Walk Up unit type as posted and updated annually by the Area
Housing Authority of the County of Ventura based on the following appliances/utilities to
be provided to the units:
Natural Gas— Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or
future prudent refinancing of this project, utilizes definitions, sources of information, etc.,
other than those which have been herein defined and utilized in calculating Affordable
Rent, then the procedure or input which produces the lowest affordable rent, will prevail.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner and Affordable Housing Owner shall cause the income of
each Tenant of an Affordable Unit to be re-certified on an annual basis on the
anniversary date of each such tenant's initial rental date. This recertification shall be
submitted in writing to the City within thirty (30) days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County Median
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by a Very Low, Low
or Moderate Income Tenant, as the case may be, shall not exceed the allowable rent
calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below.
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2.12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Very Low Income Units and the Low Income Units rented to Very Low
Income Households, and at all times for the ten (10) Moderate Income Units regardless
of whether they are rented to Moderate Income Households or rented to Low Income
Households, the following shall apply:
2.12.1 If, upon income recertification, the Owner. or Affordable Housing
Owner, or both, as applicable, determines that the household income of a Very Low
Income Tenant has increased above the maximum allowable household income level of
a Very Low Income Tenant, but remains equal to or below that of a Low Income
household, then, except as provided below in this Section 2.12, the Owner or Affordable
Housing Owner, or both, as applicable, shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of sixty percent (60%) of the County Median Income for the size
household appropriate to the unit (less the utility allowance), upon sixty (60) days
written notice to the occupants thereof. In that event, the next available unit that was
previously a Low Income Unit must be rented to (or held_vacant and available for
immediate occupancy by) a Very Low Income household.
2.12.2 If, upon income recertification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the household income of a Very Low or
Low Income.Tenant has increased above the maximum allowable household income of
a Low Income Tenant, to not more than Moderate Income, which is one hundred and
twenty percent (120%) of median income, then the Owner or Affordable Housing
Owner, or both, as applicable, shall not be required to evict the Tenant and the monthly
rent charged to such Tenant shall be no more than one twelfth (1/12) of thirty percent
(30%) of one hundred ten percent (110%) of the County Median Income for the size
household appropriate to the unit, less the utility allowance. In this event, the next
available unit that was previously a Moderate Income unit must be rented to or held
vacant and available for immediate occupancy by a Very Low or Low Income
household, as the case may be, at an affordable rent (1/12 of 30% of 50% of Median
Income, in the case of a Very Low Income unit, or 1/12 of 30% of 60% of Median
Income, in the case of a Low Income unit, both of which are net of the utility allowance).
2.12.3 If, upon income re-certification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the income of a tenant occupying one of
the Affordable Units has increased and now exceeds that of a Moderate Income
household, the Tenant is no longer eligible to rent the unit, and the Owner or Affordable
Housing Owner, or both, as applicable, shall not increase the rent but shall provide
written notice to the Tenant to vacate the unit within six (6) months. If an appropriate
unit is available to substitute for said unit, and the "substitute unit" has not been one of
the Affordable Units, provided that said substitute unit is of the same configuration and
size as the unit currently occupied by the now ineligible Tenant, the Affordable Housing
Owner may request authorization from the City Manager or his/her designee to
substitute the like unit for the Affordable Unit, and cause the rent on the substitute unit
to be at the same level of affordability as the unit that was occupied by the formerly
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eligible Tenant, and the City Manager shall use good faith efforts to respond within thirty
(30) days.
Notwithstanding the foregoing, any such Tenant shall have the right to request a
recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that income is not greater than the
maximum allowable household income level due to a documented voluntary reduction
of income, then the notice to vacate shall be withdrawn.
Until the last to end of the Compliance Period and Extended Use Period or the,
Qualified Project Period, the foregoing provisions shall not apply to the units rented to
Very Low Income Households, but shall continue to apply to the ten (10) Moderate Units
that are to be rented to Low Income Tenants during such period (and owned by the
entity which also owns the market rate Units). Until the last to end of the Compliance
Period and Extended Use Period or the Qualified Project Period, Owner and Affordable
Housing Owner shall comply with laws and regulations, and any separate/additional
recorded restrictions or "Regulatory Agreement" required by the Affordable Housing
Financing.
Owner and Affordable Housing Owner shall promptly deliver to City copies of all
Affordable Housing Financing regulatory agreements or similar agreements restricting
Units in the Project, and shall notify City and all affected tenants in writing of the
expiration of the Bond Period at least one (1) calendar year (but not more than fourteen
(14) months) prior to expiration of the Compliance Period and Extended Use Period or
Qualified Project Period, whichever expires later, of any effect on the affordability level
of their Affordable Units.
Additionally, Owner and Affordable Housing Owner shall notify City in writing of
any re-syndication or extension of tax credit financing and any defeasance or
refinancing of bond financing as soon as they become reasonably likely.
2.13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner and Affordable Housing Owner hereby agree that specific
enforcement of Owner's and Affordable Housing Owner's agreements to comply with
the allowable rent and occupancy restrictions of this Agreement is one of the reasons
for the City's issuing the Project Approvals and entering into the Development
Agreement.
2.13.2 Owner and. Affordable Housing Owner further agree that, in the
event of any breach of such requirements, potential monetary damages to City, as well
as prospective Very Low, Low and Moderate Income Tenants, would be difficult, if not
impossible, to evaluate and quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the
City may be entitled as a consequence of the breach hereof, Owner and Affordable
Housing Owner agree to the imposition of the remedy of specific performance against it
in the case of any event of default by Affordable Housing Owner in complying with the
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allowable rent, occupancy restrictions or any other provision of this Agreement. Nothing
herein shall impair City's rights to liquidated damages under Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requirements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner and Affordable Housing Owner shall prepare
and submit to the City, on a quarterly basis, written reports, setting forth the rental
activity for the previous month, and the current total number of Affordable Units
occupied by tenants.
2.15.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.15.1, Owner and Affordable Housing
Owner shall prepare and submit to the City, on a quarterly basis, not later than the 15th
day of each calendar quarter, a Certificate of Continuing Program Compliance in a form
substantially similar to Exhibit No. 4 attached hereto, stating: (a) the number and
percentage of Affordable Units in the Project which were occupied by Very Low, Low
and Moderate Income Tenants, or held vacant and available for occupancy by such
Tenants during said period; and (b) that to the knowledge of the Affordable Housing
Owner; no default has occurred under the provisions of this Agreement; and (c) such
other information as may be requested in writing by the City Manager.
2.15.3 Owner and Affordable Housing Owner shall prepare and submit to
the City, on an annual basis, a report in form and substance reasonably satisfactory to
the City, not later than March 31st of each year for the preceding calendar year,
summarizing the vacancy rate of the Affordable Units in the Project on a month-to-
month basis for such calendar year.
2.15.4 Owner and Affordable Housing Owner shall also deliver to City from
time to time any other information about the Affordable Units and the rental thereof as
may be reasonably requested in writing by City within ten (10) days after any such
written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or the
Affordable Housing Owner or a single third-party management agent with demonstrated
ability to operate, and experience in operating, residential housing including restricted
affordable housing, in a manner that will provide decent, safe and sanitary residential
facilities to occupants thereof, including experience in complying with reporting
requirements and occupancy restrictions similar to those imposed upon the Project by
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the terms of this Agreement. (There may only be one manager for the entire Project at
any one time.)
3.2.2 The Owner or the Affordable Housing Owner, directly or through an
affiliate, may be the "manager" of the Project. The Owner and the Affordable Housing
Owner may retain on-site personnel and other consultants and service providers to
assist Owner and the Affordable Housing Owner to operate the Project effectively and in
compliance with the provisions of this Agreement and state and federal law.
3.2.3 In the event that Owner or Affordable Housing Owner seeks to
appoint a replacement management entity to manage the Project, they shall advise the
City of the identity of any such qualified management agent not later than thirty (30)
days prior to the effective date of such appointment. The Owner and the Affordable
Housing Owner shall also submit such additional information about the background,
experience and financial condition of any proposed management agent as is reasonably
requested by the City.
3.2.4 Upon the City's written request, the Owner and the Affordable
Housing Owner shall cooperate with the City in an annual review of the management
practices and status of Project. The purpose of each annual review will be to enable the
City to determine if the Project is being operated and managed in accordance with the
requirements and standards of this Agreement.
3.3 Day-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation among
the City, the Owner, the.Affordable Housing Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a resident manager who will report to
the management agent.
3.3.2 There will be regular meetings as necessary between the Owner,
the Affordable Housing Owner and the management agent for the purpose of reviewing
policies, procedures, resident relations and budget control.
3.3.3 Owner shall notify the City in writing of the direct phone number
and email address of the management agent (so that City may contact the management
agent directly), and shall cause the management agent or its personnel to be available
on a twenty-four hour a day basis to respond to City inquiries.
3.4 Staffing Arrangements. Owner and Affordable Housing Owner shall
provide for adequate on-site staffing of management personnel to manage the Project in
a prudent and businesslike manner. In addition, Owner and Affordable Housing Owner
shall provide such security services as may be necessary or appropriate for the Project.
All hiring of on-site personnel shall conform to applicable equal opportunity guidelines,
without regard to race, religion, color, national origin or sex. All hiring materials will
indicate that the Project is an "Equal Opportunity Employer." Employment grievances,
terminations and promotions will be conducted according to personnel policies and
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Ordinance No. 443
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procedures which conform with equal opportunity laws. All personnel employed at the
Project will receive training specific to Owner's policies and procedures.
3.5 City Ability to Modify. If the Project is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to change the General Plan designation and zoning of
the Property, and Owner and Affordable Housing Owner hereby waive any rights they
might otherwise have to seek judicial review of such City actions to change the
development standards, General Plan designation and zoning to those development
standards and density of permitted development to that in existence prior to the
approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change
No. 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on each
anniversary thereof, Owner and Affordable Housing Owner shall pay to City a single
community services fee of Eight Thousand Dollars ($8,000.00) increased by two
_percent (2%) on each anniversary of the Operative Date (as defined in Section 18 of the
Development Agreement).
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner and Affordable Housing Owner
shall maintain and preserve the Project and, the Property in good condition and repair
and in a prudent and businesslike manner. If any portion of the Project is damaged,
restoration of the damaged improvements shall be made by Owner and Affordable
Housing Owner to a condition as good as existed prior to the damage. Owner and
Affordable Housing Owner shall complete promptly and in a good and workmanlike
manner any improvements which may now or hereafter be constructed as part of the
Project and pay when due all claims for labor performed and material furnished therefor.
Owner and Affordable Housing Owner shall comply with all laws, ordinances, rules,
regulations, covenants, • conditions, restrictions, and orders of any governmental
authority now or hereafter affecting the conduct or operation of the Project and of their
businesses on the Project or any part thereof or requiring any alteration or improvement
to be made thereon. Owner and Affordable Housing Owner shall maintain grounds,
sidewalks, roads, parking, and landscaped areas in the Project (and on any adjacent
areas owned by either of them) in good and neat order and repair. Owner and
Affordable Housing Owner hereby agrees that City may conduct from time to time
through representatives of its own choice who are properly identified as agents of the
City, upon reasonable written notice and subject to reasonable security and safety
procedures and rights of tenants in possession, on-site inspections and observation of
such records of Owner and Affordable Housing Owner relating to the Project and the
Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner's compliance with the provisions of this Agreement. Owner and the Affordable
Housing Owner shall assure that each Affordable Unit receives the same level of
maintenance and repair and upgrades or improvements as all other units in the Project.
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The Owner and the Affordable Housing Owner shall conduct an ongoing maintenance
program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c. Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment
as well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and
cleaned regularly and kept free of trash and other debris. Garbage removal will be
provided through arrangements with a contractor, consistent with applicable City
ordinances. The trash areas will be swept regularly and scrubbed with disinfectant
when necessary. Extermination services will be contracted with to provide pest control
consistent with high quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f. Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical
inspection, or as occupancy changes, or as the Owner and Affordable Housing Owner
or their management agent may otherwise deem necessary.
g. Owner and Affordable Housing Owner will employ a maintenance
work order procedure in the Project to adequately document requests for work and
promptness within which the work has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect
for the Term.
ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an "Event of
Default" by the Owner hereunder:
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6.1.1 Failure by the Owner or Affordable Housing Owner to duly perform,
comply with and observe the conditions of Project approval, conditions, terms, or
covenants of the Development Agreement or this Agreement, if such failure remains
uncured thirty (30) days after written notice of such failure from the City in the manner
provided herein or, with respect to a default that cannot be cured within thirty (30) days,
if the Owner or Affordable Housing Owner fails to commence such cure within such
thirty (30) day period or thereafter fails to diligently and continuously proceed with such
cure to completion. In no event shall the City be precluded from exercising remedies if
an Event of Default is not cured within ninety (90) days after the first notice of default is
given or such longer period as may be agreed upon by both parties in writing. If a
different period or notice requirement is specified under any other section of this
Agreement, then the specific provision shall control.
6.1.2 Failure by Owner and the Affordable Housing Owner to cure any
default under Section 2.15 within fifteen (15) business days after written notice of such
default by City.
6.1.3 Any representation or warranty contained in this Agreement or in
any application, financial statement, certificate, or report submitted to the City by Owner
or Affordable Housing Owner proves to have been incorrect in any material respect
when made, if such failure remains uncured thirty (30) days after written notice of such
failure from City to Owner in the manner provided herein or, with respect to a default
that cannot be cured within thirty (30) days, if the Owner and the Affordable Housing
Owner fail to commence such cure within such thirty (30) day period or thereafter fail to
diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner or Affordable Housing Owner to be bankrupt or insolvent; (b)
approving as properly filed a petition seeking reorganization of Owner or Affordable
Housing Owner or seeking any arrangement on behalf of the Owner under the
bankruptcy law or any other applicable debtor's relief law or statute of the United States
or of any state or other jurisdiction which is not dismissed within sixty (60) days after
filing; (c) appointing a receiver, trustee, liquidator, or assignee for the benefit of creditors
of the Owner or Affordable Housing Owner in bankruptcy or insolvency or for any of its
properties which (or who) is not discharged within sixty (60) days after its appointment;
or (d) directing the winding up or liquidation of the Owner or Affordable Housing Owner,
providing, however, that any such decree or order described in any of the foregoing
subsections shall have continued unstayed or undischarged for a period of ninety (90)
days.
6.1.5 The Owner or Affordable Housing Owner shall have assigned its
assets for the benefit of its creditors or suffered a sequestration or attachment or
execution on any substantial part of its property, unless the property so assigned,
sequestered, attached, or executed upon shall have been returned or released within.
ninety (90) days after such event (unless a lesser time period is permitted for cure
hereunder) or prior to sale pursuant to such sequestration, attachment, or execution. If
the Owner or Affordable Housing Owner is diligently working to obtain a return or
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release of the property and the City's interest hereunder is not imminently threatened in
the City's reasonable business judgment, then the City shall not declare a default under
this subsection.
6.1.6 The Owner or Affordable Housing Owner shall have voluntarily
suspended its business for a period of thirty (30) consecutive days or dissolved and a
subsequent owner has not assumed the obligations of Owner or Affordable Housing
Owner (if applicable) in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in the applicable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in priority to any lien or
encumbrance on the Property (other than the Development Agreement) and all liens
and encumbrances shall be subordinate and subject to this Agreement, regardless of
actual date of recordation. The City shall consider in good faith, reasonable
modifications of this Agreement typically required by secured lenders and commonly
known as "mortgagee protection" provisions; however, in no event shall any such
modification shorten the term of this Agreement or contain or require any subordination
of provisions of this Agreement.
6.2.2 Owner and Affordable Housing Owner shall pay and promptly
discharge when due, at their cost and expense, all liens, encumbrances and charges
upon their respective interests in the Project or the Property, or any part thereof or
interest therein (except the lien of any mortgage, deed of trust or other recorded
instrument securing any construction or permanent financing for the Project, which
shall, in any event, be junior and subordinate to this Agreement), provided that the
existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or
right thereto shall not constitute a violation of this Section if payment is not yet due
under the contract which is the foundation thereof and if such contract does not
postpone payment for more than forty-five (45) days after the performance thereof.
Owner and Affordable Housing Owner shall have the right to contest in good faith the
validity of any such lien, encumbrance or charge, provided that within ten (10) days after
service of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner
or Affordable Housing Owner "shall deposit with City a bond or other security reasonably
satisfactory to City in such amounts as City shall reasonably require, but no more than
the amount required to release the lien under California law and provided further that
Owner or Affordable Housing Owner shall thereafter diligently proceed to cause such
lien, encumbrance or charge to be removed and discharged, and shall, in any event,
cause such lien, encumbrance or charge to be removed or discharged not later than
sixty (60) days prior to any foreclosure sale. If Owner or Affordable Housing Owner
shall fail either to remove and discharge any such lien, encumbrance or charge or to
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deposit security in accordance with the preceding sentence, if applicable, then, in
addition to any other right or remedy of City, City may, but shall not be obligated to,
discharge the same, without inquiring into the validity of such lien, encumbrance or
charge nor into the existence of any defense or offset thereto, either by paying the
amount claimed to be due, or by procuring the discharge of such lien, encumbrance or
charge by depositing in a court a bond or the amount or otherwise giving security for
such claim, in such manner as is or may be prescribed by law. Owner and Affordable
Housing Owner shall, immediately upon written demand thereof by City, pay to City an
amount equal to all costs and expenses incurred by City in connection with the exercise
by City of the foregoing right to discharge any such lien, encumbrance or charge. To
the extent not paid, all costs and expenses paid by the City shall be a lien on the
Property pursuant to Civil Code Section 2881.
6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other
costs of enforcing the obligations secured hereby including without limitation, recording
fees, receiver's fees and expenses, and all other expenses of whatever kind or nature,
incurred by the prevailing party in connection with the enforcement of this Agreement,
whether or not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement; Remedies. Upon the occurrence of any
Event of Default by Owner or Affordable Housing Owner, City shall be entitled to
enforce performance of any obligation of Owner or Affordable Housing Owner arising.
under this Agreement and to exercise all rights and powers under this Agreement or any
law now or hereafter in force. Additionally, without limiting any of City's other rights or
remedies, upon any leasing of a particular Affordable Unit in violation of this Agreement,
then Affordable Housing Owner shall pay the City a single fee of $10 (which shall
increase by $2 every five (5) years) per day until the violation has been cured (it being
understood that if the Affordable Unit is unavailable due to material damage or
destruction, Section 2.8.6 above shall govern). Additionally, City shall be entitled to
recover from Affordable Housing Owner and Owner, in addition to enforcement costs
and any other damages to which City may be entitled, all rent charged by Owner in
excess of the rental amounts permitted under this Agreement, with interest thereon from
the date paid to Affordable Housing Owner until the date paid by Affordable Housing
Owner to City at the lesser of eight percent (8%) per annum or the maximum rate
permitted by law. Affordable Housing Owner and Owner stipulate, acknowledge and
agree that the amounts described herein are reasonable estimates of the minimum
damages incurred by the City and public as a result of violation(s), and that actual
damage would be impractical or impossible to determine with accuracy. No remedy
herein conferred upon or reserved to City is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute. Every power or remedy given by this Agreement to the City
may be exercised, concurrently or independently, from time to time and as often as may
be deemed expedient by the City, and the City may pursue inconsistent remedies. The
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City shall have the right to mandamus or other suit, action or proceeding at law or in
equity to require the Owner and the Affordable Housing Owner to perform its obligations
and covenants under this Agreement or to enjoin acts or things which may be unlawful
or in violation of the provisions hereof.
ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
If to the Owner or the Affordable Housing Owner
ESSEX MOORPARK OWNER, L.P.
Attention: John D. Eudy
1100 Park Place, Suite 200
San Mateo, CA 94403
With required copies to:
ESSEX PORTFOLIO, L.P.
Attention: Jordan Ritter
1100 Park Place, Suite 200
San Mateo, CA 94403
and
ESSEX MOORPARK OWNER, L.P.
Attention: Bob Linder
17541 Derian Avenue, Suite 110
Irvine, CA 92614
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by
overnight messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner or the City and the
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Ordinance No. 443
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Affordable Housing Owner, or the City and any agents, employees or contractors of the
Owner or Affordable Housing Owner, and the Owner and the Affordable Housing Owner
shall each at all times be deemed an independent contractor and shall be wholly
responsible for the manner in which it or its agents, or both, perform the services
required of it by the terms of this Agreement for the operation of the Project. The Owner
and the Affordable Housing Owner have and hereby retain the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on-site operation .of the
Project, the Owner and the Affordable Housing Owner shall be solely responsible for all
matters relating to payment of its employees, including compliance with Social Security,
withholding and all other laws and regulations governing such matters. The Owner and
the Affordable Housing Owner each agrees to be solely responsible for its own acts and
those of its agents and employees.
7.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person.the Owner or the Affordable Housing Owner may
have employed or with whom the Owner or the Affordable Housing Owner may have
contracted relative to the purchase of materials, supplies or equipment, or the furnishing
or the performance of any work or services with respect to the operation of the Project
or the Property.
7.4 [INTENTIONALLY OMITTED]
7.5 Limitation of.Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall
be personally liable to the Owner, or any successor in interest, or the Affordable
Housing Owner, or any successor in interest, in the event of any default or breach by
the City or for any amount which may become from the City or successor or on any City
obligation under the terms of this Agreement. No member, official, employee, attorney,
partner or consultant of the Owner or the Affordable Housing Owner shall be personally
liable to City in the event of any default or breach by Owner or for any amount which
may become due to City or its successor, or on any obligations under the terms of this
Agreement or Development Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner and Affordable Housing Owner
under this Agreement to any person or entity, including, but not limited to, City and its
successors and assigns, is limited to their interests in the Project and the Property, and
such persons and entities shall look exclusively thereto, or to such other security as
may from time to time be given for the payment of obligations arising out of this
Agreement or any other agreement securing the obligations of Owner or Affordable
Housing Owner, under this Agreement, (ii) from and after the date of this Agreement, no
deficiency or other personal judgment, nor any order or decree of specific performance
(other than pertaining to this Agreement), shall be rendered against Owner or Affordable •
Housing Owner, or their assets (other than their interests in the Project, and this
Agreement), in any action or proceeding arising out of this Agreement.
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7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
performance hereunder due to acts of God, fire, earthquake, flood, extreme weather
conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage, acts of
terrorism, vandalism, malicious mischief, inability to procure or general shortage of
labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation, ,
requisition, governmental restrictions including, without limitation, inability or delay in
obtaining government consents or permits, laws or orders of governmental, civil, military
or naval authorities, or any other cause, whether similar or dissimilar to the foregoing,
not within the party's control, other than lack of or inability to procure monies to fulfill its
commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner and the Affordable Housing Owner shall defend, indemnify and hold City
harmless from and against any and all claims, losses, damages, liabilities, costs and
expenses arising directly or indirectly from, or relating directly or indirectly to: (i) any
failure by Owner or Affordable Housing Owner to complywith the terms of this
condemnation Agreement; (ii) the construction, maintenance, alteration or operation of
the Project; (iii) any negligence or willful misconduct by Owner, Affordable Housing
Owner or any of their employees, agents, contractors, licensees, invitees or tenants on
the Project or the Property.
7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated
in this Agreement, the rights and remedies of the parties are cumulative, and the
exercise or failure to exercise one or more of such rights or remedies by either party
shall not preclude the exercise by it, at the same time or different times, of any right or
remedy for the same default or any other default by the other party. No waiver of any
default or breach hereunder shall be implied from any omission. to take action on
account of such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the waiver, and such wavier
shall be operative only for the time and to the extent therein stated. Waivers of any
covenant, term, or condition contained herein shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or approval
by the City to or of any act by the Owner or Affordable Housing Owner requiring further
consent or approval shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar act. The exercise of any right, power, or
remedy shall in no event constitute a cure or a waiver of any default under this
Agreement, nor shall it invalidate any act done pursuant to notice of default, or prejudice
the City in the exercise of any right, power, or remedy hereunder.
7.9 Enforcement; Waiver. The City may take whatever action at law or in
equity as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner or Affordable Housing Owner under this
Agreement. No delay or omission to exercise any right or power accruing upon any
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Ordinance No. 443
Page 88
defaultshall impair any such right or power or shall be construed to be a waiver of such
right or power, but any such right or power may be exercised from time to time and as
often as City may deem expedient. In order to.entitle the City to exercise any remedy
reserved-to it in this Agreement, it shall not be necessary to give any notice, other than
such notice as may be herein expressly required or required by law to be given.
7.10 Severability. If any term, provision, covenant or condition of this
Agreement is held in a final disposition by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions shall continue in full force and effect
unless the rights and obligations of the parties have been materially altered or abridged
by such invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or
to enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
(including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment). _
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner or Affordable Housing Owner shall be deemed to apply to any successor or
assign or successor-in-interest of such party who has acquired any portion of or interest
in the Project. Without limiting the foregoing, City may assign this Agreement to the
Area Housing Authority of the County of Ventura or any other housing authority created
by City or in which City is a member.
7.13 Binding Effect; Successors and Assigns. Owner and Affordable Housing
Owner each covenant and agree for itself, and its successors and assigns and every
successor in interest to any portion of or interest in the Project that it and its successors,
assigns and successors in interest shall comply with all of the terms, provisions,
easements, conditions, covenants, restrictions, liens, and servitudes set forth in this
Agreement. This Agreement is intended to bind the Project and Property "run with the
land".
7.14 Transfers. Owner shall provide the City with prompt notice of any
conveyance of Affordable Units to the Affordable Housing Owner, with a copy of the
applicable deed. Owner shall provide the City with at least thirty (30) days' prior written
notice of any sale or transfer of the Project or the Property or any portion thereof. The
Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which the Essex Portfolio, L.P. or any affiliate
thereof, directly or indirectly, owns or controls the entity to which the transfer will be
made, provided that the City is given a copy of the Assignment and Assumption
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Ordinance No. 443
Page 89
Agreement and organizational documents that prove the entity is such an affiliate of
Essex Portfolio, L.P.
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with
respect to the matters described herein and therein.
7.17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties
and has been the subject of arm's length and careful negotiation over a considerable.
period of time, that each party has reviewed this Agreement with legal counsel, and that
each party has the requisite experience and sophistication to understand, interpret and
agree to the particular language of the provisions of this Agreement. Accordingly, in the
event of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 16.54, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of
California, without regard to conflict of law provisions, except to the extent federal law
applies. Venue for any action brought under this Agreement will be in the Superior Court
for the County of Ventura, California or in the United States District Court for the Central
District of California. Owner and Affordable Housing Owner each hereby accepts for
itself and in respect to its property, generally and unconditionally, the non-exclusive
jurisdiction of the foregoing courts. Owner and Affordable Housing Owner each
irrevocably consents to the service of process in any action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to Owner and
Affordable Housing Owner at its address for notices pursuant to this Agreement.
Nothing contained herein shall affect the right of the City to serve process in any other
manner permitted by law.
7.19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
(a) "Hazardous Materials" shall mean:
(1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of
the California Health and Safety Code at such time;
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Ordinance No. 443
Page 90
(2) any "hazardous water," "infectious waste" or "hazardous
material" as defined in Section 25117, 25117.5 or 25501(j) of the
California Health and Safety Code at such time;
(3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
(4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under
any other present or future environmental or other similar laws relating to
the Project or the Property.
(b) "Hazardous Materials Laws" means all federal, state, and local
laws, ordinances, regulations, orders and directives pertaining to Hazardous
Materials, in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner and Affordable Housing Owner hereby agree that:
(a) Neither shall knowingly permit the Project, the Property or
any portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which arecomparable to the Project; or (2) certain substances which
may contain chemicals listed by the State of California pursuant to Health and Safety
Code Section 25249.8 et seq., which substances are commonly used by a significant
portion of the population living within the region of the Project, including (without
limitation) alcoholic beverages, aspirin, tobacco products, and saccharine.
(b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
(c) Upon receiving actual knowledge of the same, the'Owner or
Affordable Housing Owner shall immediately advise the City in writing of: (1) any and
all enforcement, cleanup, removal or other governmental or regulatory actions instituted,
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Ordinance No. 443
Page 91
completed or threatened against the Owner or the Project or the Property pursuant to
any applicable Hazardous Materials Laws; (2) any and all claims made or threatened by
any third party against the Owner or Affordable Housing Owner or the Project or the
Property relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials (the matters set forth in the foregoing clause (1)
and this clause (2) are hereinafter referred to as "Hazardous Materials Claims"); (3) the
presence of any Hazardous Materials in, on or under the Project or the Property; or (4)
the Owner's or the Affordable Housing Owner's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Project classified as
"borderzone property" under the provisions of California Health and Safety Code,
Section 25220 et seq., or any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership, occupancy, transferability or use
of the Project or the Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner and Affordable Housing Owner hereby agree to
indemnify, protect, hold harmless and defend (by counsel reasonably approved by the
City) the City, and its City Council members, officers, employees, contractors, agents
and attorneys from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders, judgments,
remedial action requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith, including, but not limited to, reasonable
attorneys' fees and expenses(collectively, a "Loss"), arising directly or indirectly, in
whole or in part, out of (1) the failure of the Owner or the Affordable Housing Owner, as
applicable, or any other person or entity occupying or present on their respective
interest in the Project or Property, to comply with any Hazardous Materials Law relating
in any way whatsoever to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Materials into, on,
under or from the Project or the Property; (2) the presence in, on or under its interest in
the Project or the Property of any Hazardous Materials or any releases or discharges of
any Hazardous Materials into, on, under or from its interest in the Project or the
Property; or (3) any activity carried on or undertaken on its interest in the Project or the
Property during its ownership thereof, whether by the Owner or the Affordable Housing
Owner or any employees, agents, contractors or subcontractors, or any third persons at
any time occupying or present on the Project or the Property, in connection with the
handling, treatment, 'removal, storage, decontamination, cleanup, transport or disposal
of any Hazardous Materials at any time located or present on or under the Project or the
Property. The foregoing indemnity shall further apply to any residual contamination on
or under the Project or the Property, or affecting any natural resources, and to any
contamination of any property or natural resources arising in connection with the
generation, use, handling, treatment, storage, transport or disposal of any such
Hazardous Materials on, under, or from the Project or the Property, and irrespective of
whether any of such activities were or will be undertaken in accordance with Hazardous
Materials Laws. However, the foregoing indemnity shall not extend to the portion of any
Loss arising from the gross negligence, fraud or willful misconduct of the City or anyone
for whose actions the City is legally liable. This Section shall survive termination of this
Agreement.
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Ordinance No. 443
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7.19.4 No Limitation. Owner and Affordable Housing Owner hereby
acknowledge and agree that their duties, obligations and liabilities under this Agreement
are in no way limited or otherwise affected by any information the City may have
concerning the Project or the Property and/or the presence within the Project or the
Property of any Hazardous Materials, whether the City obtained such information from
Owner or Affordable Housing Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner and Affordable Housing Owner shall
maintain and keep in force, at their sole cost and expense, the following insurance for
their respective interests in the Project, provided, however, that a Contractor's liability
policy may be used during construction provided it complies with all terms and
conditions of this Section:
(a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for
bodily injury and property damage, including coverages for contractual liability, personal
injury, broad form property damage, products and completed operations. Beginning on
the fifth anniversary date of the recordation of this Agreement, and thereafter every five
(5) years, the policy limits shall be increased by ten percent (10%) of the then-current
limit.
(b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
(c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind
•
and sized apartment projects within the City.
(d) A policy or policies of insurance against loss or damage to
the Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief,
and such other perils ordinarily included in extended coverage casualty insurance
policies. In addition, if Owner or Affordable Housing Owner carries coverage voluntarily
for additional causes (such as earthquake, riot, civil commotion or other), such coverage
shall be treated in all respects as the policy or policies required to be kept under this
paragraph (d) for so long as it continues to voluntarily carry such coverage. All
insurance hereunder, except earthquake insurance, shall be maintained in an amount
not less than one hundred percent (100%) of the Full Insurable Value of the Project as
defined below (such value to include amounts spent for construction of the Project,
architectural and engineering fees, and inspection and supervision). "Full Insurable
Value of the Project" shall mean the actual replacement cost excluding the cost of
excavation, foundation and footings below the ground level of the Project. To ascertain
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Ordinance No. 443
Page 93
the amount of coverage required, Owner and Affordable Housing Owner shall cause the
Full Insurable Value to be determined from time to time, but in no event less often than
once each five (5) years, by appraisal by the insurer or by any appraiser mutually
acceptable to City, Owner and Affordable Housing Owner; except that no such
appraisals shall be required if the policy is written on a "replacement cost" basis.
7.20.2 General Requirements. The insurance required by this Section
shall be provided under an occurrence form, and Owner and Affordable Housing Owner
shall maintain such coverage continuously so long as this Agreement is in force.
Should any of the required insurance be provided under a form of coverage that
includes an annual aggregate limit or provides that claims investigation or legal defense
costs be included in such annual aggregate limit, such annual aggregate limit shall be
one and one-half times the occurrence limits specified above. All policies shall be with
an insurance carrier licensed and admitted to do business in California and rated in
Best's Insurance Guide, or any successor thereto (or if there be none, an organization
having a national reputation) as having a "Best's Rating" of "A" and a "Financial Size
Category" of at least "VII" or if such ratings are not then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional
insured on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee.
Comprehensive general liability policies shall also be endorsed to name as additional
insureds the City, and its City Council members, officers, agents and employees. All
policies shall be endorsed to provide thirty (30) days prior written notice of cancellation,
reduction in coverage, or intent not to renew to the address established for notices to
the City pursuant to Section 7.1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time
during the Term of this Agreement, Owner and Affordable Housing Owner shall provide
certificates of insurance, in form and with insurers reasonably acceptable to the City,
evidencing compliance with the requirements of this Section, and shall provide complete
copies of such insurance policies, including a separate endorsement approved by the
City Manager or his/her designee, as indicated in Section 7.20.3, naming the City as an
additional insured.
7.21 Burden and Benefit. City and Owner and Affordable Housing Owner
hereby declare their understanding and intent of the burden of the covenants set forth
herein touching and concerning the Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be
made only upon the written mutual consent of the Parties. However, no changes shall
be made to this Agreement which would adversely affect any bonds issued under this
Project without the written consent of all appropriate parties with respect to any bond
issuance.
473
Ordinance No. 443
Page 94
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City,
Owner, Affordable Housing Owner and their respective successors and assigns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7.25 Assessment Districts; Covenant and Waivers. Owner and Affordable
Housing Owner agree to cast affirmative ballots for the increase of any assessment for
existing assessment districts for the maintenance of parking and median landscaping,
street lighting and parks conferring special benefits, and for the formation of any new
assessment district for such purposes, in order to supplement then-existing
assessments upon properties within the Project. Owner and Affordable Housing Owner
hereby waive any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner and Affordable Housing
Owner shall pay the funds that the assessment district requires to the assessment
district within five (5) business days after written demand from the assessment district
from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term" in Section 1.1
above). The following provisions of the Development Agreement are hereby
incorporated herein to clarify that they survive the expiration of the Development
Agreement (but, except for Sections 8.1, 8.4 and 8.7, such provisions will not survive
any earlier termination of the Development Agreement due to a default by the
"Developer" thereunder) and continue until the expiration (or earlier termination) of this
Agreement, it being understood that all of the rights and benefits of Owner and
Affordable Housing Owner under the following (except for obligations thereunder arising
prior to termination and Sections 8.1, 8.4 and 8.7) shall terminate upon any early
termination of the Development Agreement due to a default by Owner or Affordable
Housing Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. After the initial
conveyance by Owner to Affordable Housing Owner of Affordable Units, Owner and the
Affordable Housing Owner and their successors in interest shall not convey their
respective portions of the Property separately, but shall only convey them concurrently
and to the same purchaser, only to a purchaser reasonably approved in writing by City
(which will consider the reputation and experience of the purchaser in owning and
operating affordable rental units). As a condition to the initial conveyance by Owner to
Affordable Housing Owner of Affordable Units, Owner and Affordable Housing Owner
shall execute, acknowledge and record (i) a separate agreement (i.e., a covenant and
agreement to hold property as one parcel) imposing the foregoing restriction on the
Property, which shall be subject to the written approval of City, and (ii) "conditions,
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Ordinance No. 443
Page 95
covenants and restrictions" for the Project ("CC&R's"), which shall also be subject to the
written approval of City. Such separate agreement and CC&R's shall be senior to any
and all deeds of trust and other liens (except property taxes and assessments not yet
due).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are set forth in the Project Approvals
and the Development Agreement.
8.2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements
that are then in effect (collectively "the Building Codes").
8.2.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8.3 Densities Allowed for Development. Owner and Affordable Housing Owner
agree that densities vested and incentives and concessions received in the Project
Approvals include all densities available as density bonuses and all incentives and
concessions to which Developer is entitled under the Moorpark Municipal Code,
Government Code Sections 65915 through 65917.5 or both; neither Owner nor
Affordable Housing Owner shall be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this
Agreement is in consideration for the density bonus obtained through the Project
Approvals that is greater than would otherwise be available. Residential Planned
Development Permit No. 2012-02, including the special conditions that incorporate and
include all of the requirements set forth in this Agreement are part of the Project
conditions of approval and not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner and
Affordable Housing Owner shall pay the City a single Five Thousand Dollar ($5,000)
-Assessment District Formation Fee; and (b) either two Assessment Districts (one fully
funded and a second "back-up" district) or one Assessment District containing two
zones (one zone to be fully funded and the other to be a back up zone), as determined
by the City at the City's discretion, shall be formed that includes the Property. The first
District out of the two Districts or the first zone of the one District, whichever is
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Ordinance No. 443
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applicable, shall be for the purposes of funding future costs for the maintenance
landscaping and irrigation of the landscaped area above the retaining wall along the
southern perimeter of the Property and the maintenance of the storm water quality:basin
and drainage improvements, including basin landscaping and irrigation. The second
District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm
water basin access drive and the emergency access drive. It shall be the intent of the
City to approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for
the that fiscal year. The City shall administer the annual renewal of the Assessment
District or Districts, and any costs related to such administration shall be charged to the
fund established for such Assessment District revenues and expenses. Owner and
Affordable Housing Owner agree to cast affirmative ballots for the establishment of both
Assessment Districts, or both zones of the one District, as applicable, and for annual
increases in the assessments thereunder, for the purposes specified in this subsection.
Owner and Affordable Housing Owner hereby waive any right they may have to contest
or protest any such assessments or assessment increases. In the event that any such
Assessment District has insufficient funds for its purposes, then Owner or Affordable
Housing Owner shall pay the funds required to the Assessment District within five (5)
business days after written demand from the Assessment District from time to time.
Owner and Affordable Housing Owner also agree to add this language to any
Regulatory Agreement as part of the sale of any bonds issued by the City for the
Project.
8.5 Fee Protest Waiver. Owner and Affordable Housing Owner agree that any
fees and payments pursuant to the Development Agreement, this Agreement and for
RPD 2012-02 shall be made without reservation, and Developer expressly waives the
right to payment of any such fees under protest pursuant to California Government
Code Section 66020 and statutes amendatory or supplementary thereto.
8.6 Required Tenant and Guest Parking. Owner and Affordable Housing
Owner agree to provide a total of at least 2.00 parking spaces per unit on site. Two
parking spaces shall be designated and reserved for each of the 2-bedroom and 3-
bedroom units, and one space shall be designated and reserved for each of the 1-
bedroom units, with the remainder of the spaces available for guest parking. At least
one of the parking spaces designated and reserved for each of the units shall be in a
garage or covered carport. There shall be no extra charges for required parking for any
units (whether or not they are Affordable Units). Owner and Affordable Housing Owner
shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner and Affordable Housing Owner acknowledge
the City's ability to modify the development standards and to change the General Plan
designation and zoning of the Property upon the termination or expiration of the
Development Agreement (if the Project has not been built), and Developer hereby
waives any rights they might otherwise have to seek judicial review of such City actions
to change the development standards, General Plan designation and zoning to those
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Ordinance No. 443
Page 97
development standards and density of permitted development to that in existence prior
to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone
Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner and Affordable Housing Owner will defend, indemnify
and hold City harmless from and against any and all claims, liabilities, losses, damages,
costs and expenses arising from any activity by Owner or Affordable Housing Owner or
the contractors of either of them.
8.9 Storm Water/Flood Detention Basin. City agrees that Owner and
Affordable Housing Owner may use the storm water/flood detention basin located on
the.City Property and depicted on Exhibit No. 5 for storm water/retention purposes for
the Project, and City shall execute and deliver a revocable license agreement to Owner
and Affordable Housing Owner to that effect; however, City may elect by written notice
to Owner and Affordable Housing Owner to relocate said detention basin and any
service road and secondary access road located on the City Property at any time, and
Owner and Affordable Housing Owner shall reimburse or pay City for the costs of such
relocation within ten (10) business days after written demand from City from time to time
describing such costs. Owner and Affordable Housing Owner shall promptly provide a
bond acceptable to City in the amount of such costs, as projected in good faith by City,
to ensure=payment of the costs, and every two (2) years the amount of the bond shall be
increased (by amendment or by a replacement bond) by the percentage increase over
the applicable two year period in the Caltrans Highway Bid Price Index for Selected
California Construction Items, as determined in good faith by the City Manager.
WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
CITY:
CITY OF MOORPARK
By:
Print Name:
Title:
•
477
Ordinance No. 443
Page 98
OWNER:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management
Corporation,
a California corporation,
its general partner
By:
Print Name:
Title:
478
Ordinance No. 443
Page 99
A notary public or other officer
completing this certificate verifies only
the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
State of California )
County of Ventura )
On , before me,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
479
Ordinance No. 443
Page 100
A notary public or other officer
completing this certificate verifies only
the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
State of California )
County of Ventura )
On , before me,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
•
•
480
Ordinance No. 443
Page 101
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 20050721-0178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
. of Tract IP and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said
County Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said
Parcel 1A.
481
Ordinance No. 443
Page 102
EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE;
LOCATIONS OF AFFORDABLE UNITS
Very Low Income
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 8 2 persons $156
2-br/2 bath 7 3 persons $175
3-br 1 4 persons $199
Total 16
Low Income
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 11 2 persons $156
2-br/2 bath 12 3 persons $175
3-br 1 4 persons $199
Total 24
Moderate Income (but must instead be Low Income when tax credit and/or tax
exempt bond laws apply to the Project)
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 0 2 persons $156
2-br/2 bath 5 3 persons $175
3-br 5 4 persons $199
Total 10
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
Illustration: For example, the maximum rent for a Very Low Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 50% x the Ventura
County median income for a household of three divided by 12, less the utility allowance.
482
Ordinance No. 443
Page 103
Illustration: For example, the maximum rent for a Low Income Household renting
a 2-bedroom unit would be calculated as follows: 30% x 60% x the Ventura County
median income for a household of three divided by 12, less the utility allowance.
Illustration: For example, the maximum rent for a Moderate Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 110% x the Ventura
County median income for a household of three divided by 12, less the utility allowance.
Utility Allowances will be adjusted annually using the most current "Allowances
for Tenant Furnished Utilities and Other Services" (form HUD-52667) based on
Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas — Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric uses)
Locations of Affordable Units (Including Handicapped-Compliant Units)
The Affordable Units (including handicapped-compliant units) shall be located as
shown on the site plan attached hereto.
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Ordinance No. 443
Page 107
EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification / Recertification Unit Number
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and
personally each of the following questions for all persons who are to occupy the unit
being applied for in the above apartment project. Listed below are the names of all
persons who intend to reside in the unit:
1. 2. 3. 4. 5.
Name of Members Relationship
Of the to Head of Social Security Place of
Household Household Age Number Employment
. Income Computation
6. The total anticipated income, calculated in accordance with this paragraph 6, of
all persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
fora unit is $ .1
If this form is being completed in accordance with recertification of a Lower Income Tenants or Very Low Income Tenants
occupancy of a Lower Income Unit or a Very Low Income Unit,respectively,this form must be completed based upon the
current income of the occupants.
487
Ordinance No. 443
Page 108
Included in the total anticipated income listed above are:
(a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal
services;
(b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowances for depreciation of assets used in
a business or profession may be deducted, based on straight line depreciation, as
provided in Internal Revenue Service regulations. Any withdrawal of cash or assets
from the operation of a business or profession will be included in income, except to the
extent the withdrawal is reimbursement of cash or assets invested in the operation by
the family ;
(c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation is permitted only
as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from
an investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net
family assets in excess of $5,000, annual income shall include the greater of the actual
income derived from all net family assets or a percentage of the value of such assets
based on the current passbook savings rate.
(d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and other
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that
are received in a lump sum amount or in prospective monthly amounts;
(e) payments in lieu of earnings, such as unemployment and disability
compensation, workers' compensation and severance pay;
(f) welfare assistance. If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to adjustment by the
welfare assistance agency in accordance with the actual cost of shelter and utilities, the
amount of welfare assistance income to be included as income shall consist of:
(1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
(2) the maximum amount that the welfare assistance agency could in fact
allow the family for shelter and utilities. If the family's welfare assistance is ratably
reduced form the standard of need by applying a percentage, the amount calculated
under this paragraph shall be the amount resulting from one application of the
percentage;
488
Ordinance No. 443
Page 109
(g) periodic and determinable allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from
persons not residing in the dwelling;
(h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the
special pay to a family member serving in the Armed Forces who is exposed to hostile
fire; and
Excluded from such anticipated income are:
(a) income from employment of children (including foster children) under the age of
18 years;
(b) payments received for the care of foster children or foster adults (usually persons
with disabilities, unrelated to the tenant family, who are unable to live alone);
(c) lump sum additions to family assets, such as inheritances, insurance payments
(including payments under health and accident insurance and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker's compensation
and severance pay;
(d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any family member;
(e) income of a live-in aide, as defined by 24 CFR §5.403;
(f) the full amount of student financial assistance paid directly to the student or to
the educational institution;
(g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
(h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
'(2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits
because they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
(3) amounts received by a participant in other publicly assisted programs
which are specifically for or in reimbursement of out-of-pocket expenses incurred
(special equipment, clothing, transportation, child care, etc.) and which are made solely
to allow participation in a specific program;
(4) amounts received under a resident service stipend is a modest amount
(not to exceed $200 per month) received by a resident for performing a service for the
489
Ordinance No. 443
Page 110
Public Housing Issuer or owner, on a part-time basis, that enhances the quality of life in
the development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
(5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including
training programs not affiliated with a local government) and training of a family member
as resident management staff. Amounts excluded by this provision must be received
under employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
(i) temporary , nonrecurring or sporadic income (including gifts);
(j) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
(k) earnings in excess of $480 for each full-term student 18 years old or older
(excluding the head of household and spouse);
(I) adoption assistance payments in excess of$480 per adopted child; and
(m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
(n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
(o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and
equipment needed to keep the developmentally disabled family member at home; or
(p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth
in 24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
(a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No; or
(b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
490
Ordinance No. 443
Page 111
Yes No
(c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of. by all such persons total more than $5,000?
Yes No
(d) If the answer to (c) above is yes, state:
(1) the combined total value of all such assets: $
(2) the amount of income expected to be derived from such assets in the 12-
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $ , and
(3) the amount of such income, if any, that was included in item 6 above:
8. Are all of the individuals who propose to reside in the unit full-time students*?
Yes No -
*A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
(a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a
husband and wife entitled to file a joint federal income tax return?
Yes No
9. Neither myself nor any other occupant of the unit I/we propose to rent is the
owner of the rental housing project in which the unit is located (hereinafter the "Owner"),
has any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the
Owner to determine maximum income for eligibility to occupy the unit; and I/we declare
that all information set forth herein is true, correct and complete and based upon
information I/we deem reliable and that the statement of total anticipated income
contained in paragraph 6 is reasonable and based upon such investigation as the
undersigned deemed necessary.
491
Ordinance No. 443
Page 112
11. I/We will assist the Affordable Housing Owner in obtaining any information or
documents required to verify the statements made herein, including either an income
verification from my/our present employer(s) or copies of federal tax returns for the
immediately preceding calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Affordable Housing Owner to lease the unit and will entitle
the Owner to prevent or terminate my/our occupancy of the unit by institution of an
action for ejection or other appropriate proceedings.
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this day of , 20 (year) in the City
of Moorpark, California
Applicant Applicant
Applicant Applicant
[Signature of all persons (except children under the age of 18 years) listed in number 2
above required]
492
Ordinance No. 443
Page 113
FOR COMPLETION BY OWNER/AFFORDABLE HOUSING OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($ );
(2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount
in 7(d)(1) would be if invested in passbook savings ($ ), subtract from
that figure the amount entered in 7(d)(3) and enter the remaining balance ($
);
(3) Enter at right the greater of the amount calculated under (1) or (2)
above:$
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Moderate-Income Tenant(s).
Qualifies the applicant(s) as a Lower-Income Tenant(s).
Qualifies the applicant(s) as a Very-Low Income Tenant(s).
3. Number of apartment unit assigned: Bedroom size:
Rent:$
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other( )
6. Is occupant a City of Moorpark resident on the waiting list who was given
priority? Yes: No:
Manager Date
493
Ordinance No. 443
Page 114
INCOME CALCULATION WORKSHEET
Include all household income for all persons over 18 years of age. Written verification of all income must be included.
Gross Net 1099 Public Social Pension Unemploy Military Alimony Family
Applicant Wages Income Income Assistance Security ment Pay and/or Supp.
& Salaries* from 1040 disability or Child (regular gift
(YTD as of: (self workers Support from
employed) compensat person not
ion pay living in
unit)
1
2
3
4
(A)TOTAL INCOME $
*Includes overtime pay, commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs or
insurance payments.
ASSET CALCULATION
All income earned on assets in excess of $5,000 must be included as household income. Written verification must be included. If written
verification is not available for savings, the current passbook savings rate as determined by HUD may be used.
Real Property* $ Savings $
Stocks $ Bonds $
Other** $
(B) TOTAL ASSET INCOME $
*Includes rental income or equity if not rented only. Equity is the difference between the market value of the property and the total dollar amount
of any loans secured by the property.
**Does not include the personal property i.e., furniture or automobiles.
TOTAL HOUSEHOLD INCOME(A+ B) $
Ordinance No. 443
Page 115
•
INCOME VERIFICATION
(FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee's current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages (Gross) Other Income
Avg. Total Hours
Overtime Worked Weekly
Bonuses Total Current Income
Commissions Year-to-Date Income
Current Base Pay
Pay Period: [ ] Weekly [ ] Bi-weekly [ ] Monthly [ ] Other
Do you anticipate an increase in the base pay over the next 12 months? 0 Yes ❑ No
If so, please indicate the amount of anticipated increase $ per
start date:
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
APPLICANT
•
495
Ordinance No. 443
Page 116
I hereby grant you permission to disclose my income to
in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed
under the Multifamily Revenue Bond Program.
Date
Print Name (Resident) Signature (Resident)
Please send to:
(Management Co.
or Owner)
496
Ordinance No. 443
Page 117
INCOME VERIFICATION
(for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
Signature Date
497
Ordinance No. 443
Page 118
INCOME VERIFICATION
(for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
Multifamily Housing Program for persons of very
low income: Every income statement of a prospective tenant must be stringently
verified. In connection with my application for a rental unit, I hereby authorize the
Department of Social Services to release to
the specific information requested
below:
Date:
Signature:
Social Security No.:
Name (Print):
Address(Print)
Monthly Benefits - Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): Amount: $
Medicare Deductions: $
Are benefits expected to change?[ ] Yes [ ] No
If yes, please state date and amount:
Date: of change
Amount $
498
Ordinance No. 443
Page 119
If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
Date of Resumption:
Amount:
Date:
Signature:
Title:
Please send form to:
499
Ordinance No. 443
Page 120
INCOME VERIFICATION
(for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the
Multifamily Housing Program for persons of very low income. Every income statement
of a prospective tenant must be stringently verified. In connection with my application
for a rental unit, I hereby authorize the Department of Social Services to release to
the specific information requested below:
Date:
Signature:
Caseload Number:
Name (Print):
Case Number:
Case Worker:
1. Number of persons included in budget:
2. Total monthly budget $
(a) Amount of grant$
(b) Date aid last began:
(c)Other income and source:
(d) Is other income included in total budget? ❑ Yes ❑ No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.):
4. If recipient is not receiving full grant, please indicate reason:
[ ] Overpayment due to client's failure to report other income
[ ] Computation error
[ l
Other:
500
Ordinance No. 443
Page 121
Date when full grant will resume:
Date:
Case Worker's Signature:
Telephone:
District Office:
Your very early response will be appreciated.
Please return form to:
501
Ordinance No. 443
Page 122
DECLARATION OF NO INCOME
As managing agents for
(Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence
and used only for the purpose of establishing eligibility.
Name of Management Company
By:
•
Name and Title
CERTIFICATION
I, , do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from
any source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
•
502
Ordinance No. 443
Page 123
Support Verification
Source's Mailing Address:
Phone #:
Fax#:
Recipient:
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information
requested below regarding the above referenced individuals. This information will be
used only for determination of eligibility and/or rent computation. You will notice a •
release of information is authorized by the applicant/tenant's signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature:
Social Security #:
503
Ordinance No. 443
Page 124
Please complete the.following. If the monies are based on a percentage of the payor's
income, please indicate the average amount per period.
Type of Benefit Amount Frequency
[ ] Child Support ( ) weekly ( ) monthly( )
yearly
[ ] Family Support ( ) weekly ( ) monthly ( )
yearly
[ ] Alimony ( ) weekly ( ) monthly( )
yearly
[ ] Other ( ) weekly ( ) monthly ( )
yearly
(Please list
type)
Are monies paid to offset an AFDC grant? [ ] Yes [ ] No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments:
Signature of Source:
SSN#:
Date Completed Form:
504
Ordinance No. 443
Page 125
EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING
The undersigned, , as the authorized
representative of (the "Affordable Housing Owner"), has
read and is thoroughly familiar with the provisions of the Affordable Housing Agreement
by and between Essex Moorpark Owner, L.P. ("Owner") and the City of the City of
Moorpark (the "City"), dated as of , 2017.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held continuously since the date a Very Low
Income Tenant or Low Income Tenant vacated such Unit,'as indicated:
Occupied by Very Low Income Tenants
Number of Units:
Occupied by Low Income Tenants
Number of Units:
Occupied by Moderate Income Tenants
Number of Units:
Held vacant for occupancy continuously since last occupied by Very Low Income
Tenants and Low Income Tenants:
Vacant Units
Number:
Occupied Units
Number:
Very Low Income Tenants and. Low Income Tenants who commenced occupancy of
Units during the preceding [month/quarter]:
Very Low Income:
Units Nos.:
• 505
Ordinance No. 443
Page 126
Low Income:
Units Nos.
Moderate Income:
Number of Units:
Attached is a separate sheet (the "Bond Program Report") listing, among other
items, the following information for each apartment Unit in the Project: the number of
each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the
size and number of bedrooms of each Unit. It also indicates which Units are occupied
by Low Income Tenants and Very Low Income Tenants and Modern Income Tenants
and which Units became Low Income Units and Very Low Income Units and Moderate
Income Tenants during the preceding [month/quarter]. The information contained
thereon is true and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner.
and-Affordable Housing Owner during such [month/quarter] and of Owner's and the
Affordable Housing Owner's performance under the Affordable Housing Agreement
among Owner, Affordable Housing Owner and the City, has been made under the
supervision of the undersigned; and (2) to the best of the knowledge of the undersigned,
based on the review described in clause (1) hereof, the neither the Owner nor the
Affordable Housing Owner is in default under any of the terms and provisions of the
above documents [or describe the nature of any default in detail and set forth the
measures being taken to remedy such default:
506
Ordinance No. 443
Page 127
EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
INITIAL LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
(Attached.)
507
Ordinance No. 443
Page 128
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Ordinance No. 443
Page 129
EXHIBIT "G"
FORM OF OVERHEAD POWER EASEMENT
Form to be proposed by Southern California Edison for a 66kV power line, but will be
subject to approval by the City Manager, and it shall be executed and recorded by
Developer prior to issuance of a grading permit for the Property and prior to conveying
the City Site to the City. The easement must be a reasonable easement over the
northerly 30 feet (or less) of the City Site, permitting reasonable use of the easement
area by City for parking, ingress/egress and landscaping.
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LOT AREA SUMMARY TABLE
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NEW LOT (Aro...): 3.37,410 SF I
PROPOSED LEC. ES14T: {A,): 11,920 SF
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REMAINDER LOT(A mi...—A._e_i). 286,720 $F
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Ordinance No. 443
Page 131
EXHIBIT "H"
STORM WATER/FLOOD DETENTION BASIN
(Diagram attached.)
•
511 .
Ordinance No. 443
Page 132
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512
Ordinance No. 443
Page 133
EXHIBIT "I"
FORM OF WELL SITE GRANT DEED
(AND CERTIFICATE OF ACCEPTANCE)
(Attached.)
513
Ordinance No. 443
Page 134
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93012
Attention: City Clerk
APN: 511-0-020-071
[SPACE ABOVE FOR RECORDER'S USE ONLY]
GRANT DEED
(Well Site)
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
The undersigned declares that this Grant Deed is exempt from Recording Fees
pursuant to California Government Code Section 27383.
Documentary Transfer Tax is $0 (exempt; conveyance to a public entity).
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged
the ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Grantor")
hereby grants to the CITY OF MOORPARK ("Grantee"), the land and located in the
County of Ventura, State of California, more particularly described on Exhibit A attached
hereto and incorporated herein by reference and all improvements thereon (collectively,
the "Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date
set forth below.
Dated: , 2017
GRANTOR:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By:
Print Name:
Title:
514
Ordinance No. 443
Page 135
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of the document.
STATE OF CALIFORNIA
COUNTY OF
On , 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
' WITNESS my hand and official seal.
Signature:
(affix seal in above space)
515
Ordinance No. 443
Page 136
Exhibit A
to Grant Deed
LEGAL DESCRIPTION
A PORTION OF LOT T OF THE MAP OF A PART OF TRACT L OF RANCHO SIMI, IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 5, PAGE 5 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 325.00 FEET WEST OF THE SOUTHEAST CORNER OF
SAID LOT T, THENCE
1ST: WEST 10.00 FEET TO POINT; THENCE,
2ND: NORTH 20.00 FEET T A POINT; THENCE,
3RD: EAST 20.00 FEET TO POINT; THENCE,
4TH: SOUTH 20.00 FEET TO A POINT; THENCE,
5TH: WEST 10.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM 50% OF ALL OIL AND MINERAL RIGHTS IN AND UNDER
SAID LAND, AS RESERVED BY WALLY B. HOFFELT, IN A DEED RECORDED
MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ANY AND ALL
RIGHT TO ENTER IN OR UPON THE SURFACE, OR WITHIN 500 FEET OF THE
PRESENT SURFACE, MEASURED VERTICALLY, FROM SUCH SURFACE WAS
QUITCLAIMED BY WALLY B. HOFFELT IN A DEED RECORDED FEBRUARY 11,
1958 IN BOOK 1589, PAGE 153 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM AN UNDIVIDED 25% OF AN UNDIVIDED ONE-
HALF INTEREST IN AND TO THE TOTAL OIL AND MINERAL RIGHTS IN AND
UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR
SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCER AND DORA E. SPENCER, IN A DEED RECORDED FEBRUARY 4, 1958 IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
•
516
Ordinance No. 443
Page 137
CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain Grant
Deed dated , 2017, from Essex Moorpark Owner, L.P. to the City of
Moorpark, which is a political corporation, is hereby accepted by the undersigned officer
on behalf of the City of Moorpark pursuant to the authority conferred by action of the
City of Moorpark on , 2017, and the grantee consents to recordation thereof
by its duly authorized officer.
Dated: , 2017
Steven Kueny,
City Manager
ACKNOWLEDGMENT
517
Ordinance No. 443
Page 138
A notary public or other officer
completing this certificate verifies only
the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
State of California )
County of )
On , before me,
(insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
•
518
Ordinance No. 443
Page 139
SCHEDULE 1
SCHEDULE OF PERFORMANCE
Design Phase: Design has been completed
Bond / Tax Certificate Application: May 19, 2017 (Tax credit application would follow
shortly thereafter.)
Subdivision Mapping: Estimated to be September, 2017.
Conveyance to Affordable Housing Owner entity (after delivery of organizational
documents for Affordable Housing Owner to City): October, 2017
Plan Check / Building Permits: May 31, 2017
Evidence to City of all debt/equity funds for all Project costs (with comprehensive
Project budget): August, 2017
Close Bond Financing: October, 2017
Construction: 28 months from start of grading, but no later than December 31, 2020.
Lease-Up: approximately 11 months
519