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HomeMy WebLinkAboutRES PC 2013 584 2013 0604 RESOLUTION NO. PC-2013-584 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF AN ORDINANCE ADOPTING A DEVELOPMENT AGREEMENT BETWEEN CITY OF MOORPARK AND ESSEX MOORPARK OWNER, L.P. AND RESCINDING ORDINANCE NO. 355 FOR APPROXIMATELY 10.57 ACRES LOCATED AT 150 CASEY ROAD WHEREAS, at its meeting of July 18, 2007, the City Council adopted Resolution No. 2007-2611, adopting a Mitigated Negative Declaration and approving General Plan Amendment No. 2004-05, to amend the General Plan land-use designations from Specific Plan 9 (SP-9) — School Overlay to Very High Density Residential (VH); and adopted Ordinance No. 354, approving Zone Change No. 2004-04, changing zoning of the property from Rural Exclusive (RE) to Residential Planned Development — 19.0 units per acre (RPD-19.0u); and Resolution No. 2007-2612, approving Residential Planned Development Permit No. 2004-06 for a two-hundred (200) unit apartment complex on 10.57 acres located south of Casey Road and west of Walnut Canyon Road, on the application of Essex Portfolio, L.P.; and WHEREAS, on July 18, 2007, the City Council approved Ordinance No. 355, adopting a Development Agreement with Essex Portfolio, LP; and WHEREAS, Essex has requested a revised Development Agreement; and WHEREAS, Chapter 15.40 of the Moorpark Municipal Code establishes procedures for the adoption of a Development Agreement; and WHEREAS, on November 7, 2012, the City Council adopted Resolution No. 2012-3141, directing the Planning Commission to study, hold a public hearing, and provide a recommendation to the City Council on this matter; and WHEREAS, at a duly noticed public hearing on June 4, 2013, the Planning Commission considered a Development Agreement for Residential Planned Development Permit No. 2012-02 for construction of a 200-unit apartment project on approximately 10.57 acres, located at 150 Casey Road; and WHEREAS, at its meeting of June 4, 2013 the Planning Commission considered the agenda report and any supplements thereto and written public comments; opened the public hearing and took and considered public testimony both for and against the proposal; and reached a decision on this matter. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS: Resolution No. PC-2013-584 Page 2 SECTION 1. ENVIRONMENTAL DOCUMENTION: On July 18, 2007, the City Council adopted a mitigated negative declaration for a 200-unit apartment project, located at 150 Casey Road. As the project under Residential Planned Development Permit No. 2012-02 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 Residential Planned Development Permit No. 2012-02 to a less-than significant level. Therefore, no further environmental documentation is required. SECTION 2. PLANNING COMMISSION RECOMMENDATION: The Planning Commission recommends to the City Council approval of the proposed Development Agreement by and between the City of Moorpark and Essex Moorpark Owner, LP as attached in Exhibit A, and the rescission of Ordinance No. 355. SECTION 3. Filing of Resolution: The Community Development Director shall cause a certified resolution to be filed in the book of original resolutions. The action of the foregoing direction was approved by the following vote: AYES: Commissioners Di Cecco, Hamous, Landis, Vice Chair Groff, and Chair Gould NOES: None ABSTAIN: None ABSENT: None PASSED, AND ADOPTED this 4th day of June, 2013. Dian-Mould,r%hair • g/4)7/1 David A. Bobardt, Community Development Director Exhibit A - Draft Development Agreement Resolution No. PC-2013-584 Page 3 Recording Requested By 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 §65868.84 Resolution No. PC-2013-584 Page 4 DEVELOPMENT AGREEMENT This Development Agreement ("the Agreement") is made and entered into on , 2013 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." 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 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"). HIS IS A NEW SECTION, CONSISTENT WITH CITY'S 'MOST RECENT DA RECITAL LANGUAGE. 1.3. Prior to approval of this Agreement, the City Council of the City found 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. PREVIOUSLY NUMBERED 1.2, IT HAD READ AS FOLLOWS. Prior to approval of this Agreement, but after the approval of the Mitigated Negative Declaration (MND), Mitigation Measures, and Mitigation Monitoring and Reporting Program ("the MMRP") for the Project Approvals as defined in section 1.3 of this Agreement, the City Council of City ("the City Council") approved General Plan Amendment No. 2004-05 ("GPA 2004-05"), for approximately 10.57 acres of land within the City ("the Property"), as more specifically described in Exhibit "A" attached hereto and incorporated herein, and changed the Resolution No. PC-2013-584 Page 5 zoning of the Property pursuant to Zone Change No. 2004-04 ("ZC 2004-04"). IT WAS UPDATED TO REFLECT THE ACTION ON THE MND WITH RESPECT TO THE REVISED PROJECT. THE NEW SECTION 1.2 COVERED THE LAST PART OF THIS RECITAL RELATED TO THE PROPERTY. 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") [collectively "the Project Approvals"; individually "a Project Approval"] provide for the development of the Property and the construction of certain off-site improvements in connection therewith ("the Project"). PREVIOUSLY NUMBERED 1.3, IT HAD READ AS FOLLOWS: GPA 2004-05, ZC 2004-04, and Residential Planned Development Permit No. 2004-06 (RPD 2004-06) [collectively "the Project Approvals"; individually "a Project Approval"] provide for the development of the Property and the construction of certain off-site improvements in connection therewith ("the Project"). IT WAS UPDATED TO REFLECT THE NEW RPD. 1.5 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, 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 effective date of the enabling ordinance (Ordinance No. ) for this Agreement. NEW ;=RECITAL ACKNOWLEDGING THE STATUS OF THE PREVIOUS DA. ALSO INCLUDED IN SECTIONS 6.29 AND 7.19. 1.6 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, had expired due to lack of Project inauguration by Developer. NEW RECITAL ACKNOWLEDGING THE STATUS OF THE PREVIOUS RPD. ALSO INCLUDED IN SECTIONS 6.29 AND 7.19. 1.7. 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. PREVIOUSLY 1. Resolution No. PC-2013-584 Page 6 1.8. 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. Developer anticipates developing the Property over a minimum of three (3) years. 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. PREVIOUSLY 1.5 1.9. 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. PREVIOUSLY 1.6 1.10. On , 2013, the Planning Commission commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing on , 2013 recommended approval of the Agreement. PREVIOUSLY 1.7 - UPDATED DATES ONLY 1.11. On , 2013, 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. ("the Enabling Ordinance") on , 2013. PREVIOUSLY 1.8 - UPDATED DATES ONLY 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 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, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project that has been fully developed in accordance with the Project Approvals and this Agreement. 3.1. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property except any lot within the Project that has been fully developed in accordance with the Project Approvals and this Agreement shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether Resolution No. PC-2013-584 Page 7 or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest. 3.2. Release Upon Transfer. Upon the sale or transfer of any of Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the operative date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer 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 or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of 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 expressly provided in this Agreement. 3.3 In the event of a partial assignment or transfer, the assumption agreement referenced in section 3.2 shall include provisions acceptable to the City to ensure that the phased construction of affordable housing units contemplated by section 6.9 is achieved, regardless of the identity or number of developers of the Project. 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 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"). UPDATED REFERENCES TO BUILDING Resolution No. PC-2013-584 Page 8 CODE; CONSISTENT WITH LANGUAGE IN MOST RECENT DEVELOPMENT AGREEMENTS 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. In Pardee Construction Co. v. City of Camarillo, 37 CaI.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later-adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment, except as provided for in this Agreement. ADDED LANGUAGE FROM RECENT DEVELOPMENT AGREEMENT. In furtherance of the Parties intent, as set forth in this section, 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 to limit City's right to ensure that Developer timely provides all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement. CHANGED "INSURE" TO "ENSURE." 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 Resolution No. PC-2013-584 Page 9 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; (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 Resolution No. PC-2013-584 Page 10 (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. Term of Subsequent Approvals. The term of any Subsequent Approval or other agreements relating to the Project, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Community Development Department prior to the expiration of that Subsequent Approval. Each such Subsequent Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Subsequent Approval. It is understood by City and Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, any Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 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 Resolution No. PC-2013-584 Page 11 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. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City-wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1. 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 institutional uses on the Property. The clubhouse and leasing offices are not considered to be institutional uses. 6.2. 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. As a condition of the issuance of a building permit for each residential use within the boundaries of the Property, Developer shall pay City a 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 Fourteen- Thousand Seven-Hundred Fourteen Dollars ($14,714.00) per residential unit. The fee shall be adjusted annually commencing January 1, 2015 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 Resolution No. PC-2013-584 Page 12 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 Index 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. FEE WAS TO ADJUST JULY 1, 2008, NOW JANUARY 1, 2015. THE PREVIOUS $10,874.00 WAS INFLATION ADJUSTED FROM THE DATE OF THE ORIGINAL DA TO THE DATE OF THIS DA. 6.4. As a condition of the issuance of building permit for each residential use within the boundaries of the Property, Developer shall pay City a 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 shall be Six Thousand Four Hundred Two Dollars ($6,402.00) per residential unit. Commencing on January 1, 2015, and annually thereafter, 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. FEE WAS TO ADJUST JULY 1, 2008, NOW JANUARY 1, 2015. THE PREVIOUS $5,075.00 WAS INFLATION ADJUSTED FROM THE DATE OF THE ORIGINAL DA TO THE DATE OF THIS DA 6.5. [THIS SECTION INTENTIONALLY LEFT BLANK.] 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Project Approvals, and MND. 6.7. Prior to the issuance of the building permit for each residential dwelling unit within the Property, Developer shall pay a fee in lieu of the dedication of parkland and related improvements (Park Fee). The amount of the Park Fee shall be Six-Thousand Seven-Hundred Forty Resolution No. PC-2013-584 Page 13 Dollars ($6,740.00) for each residential dwelling unit within the Property. The fee shall be adjusted annually commencing January 1, 2015 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 deemed to satisfy applicable parkland dedication requirements, a public trail through the Property shall not be required. EE WAS TO ADJUST JULY 1, 2008, NOW JANUARY 1, 2015. THE PREVIOUS $4,981.00 WAS INFLATION ADJUSTED FROM THE DATE OF THE ORIGINAL DA TO THE DATE OF THIS DA. HIGHLIGHTED SECTION IN LAST PARAGRAPH IS ADDED PER DIRECTION FROM CITY COUNCIL ON 9/19/2012 6.8. Provided that prior to the approval by City of the utility plans for RPD 2012-02, , Ventura County Waterworks District No. 1 or any successor entity confirms that it has sufficient recycled water to serve the public and community owned landscaped areas within RPD 2012-02, then Developer shall construct appropriately sized water lines, pumping facilities, and storage facilities for recycled water consistent with the requirements of the City, Waterworks District No. 1 and Calleguas Water District. Said lines shall be installed prior to the final cap being placed on all streets. Developer shall provide service including payment of any connection and meter charges and shall use recycled water for medians and parkways for all public streets adjacent to the Resolution No. PC-2013-584 Page 14 Project , and any other public and commonly owned landscaping and recreation areas constructed by Developer as part of the Project Approvals. The amount of recycled water needed and areas to be irrigated by recycled water shall be determined by City at its sole discretion. The recycled water line(s) shall be installed for each City approved phase of development of the Project, and the recycled water shall be in use prior to the first occupancy approval for each City approved phase of the Project. Developer shall install dual water meters and services for all locations in the Project determined necessary by City at its sole discretion to insure that both potable and recycled water are available where restroom and drinking fountains are planned. iJP SATED RPD REFERENCE ONLY 6.9. 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 and Government Code Sections 65915 through 65917.5; 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 guarantee the affordability of forty (40) rental units (16 for very low income households and 24 for low income households) for the life of the Project. These forty (40) affordable units shall be rented to eligible tenants as shown in the table below. If City-Issued bonds are issued by City, at its sole discretion, through an "Inducement Resolution" and after a Tax Equity and Fiscal Responsibility Act (TEFRA) hearing and used by Developer for the Project, then Developer will be deemed to have a "City Issued Bond Financed Project," in which case, in addition to the aforementioned forty (40) units, Developer shall provide ten (10) additional units for moderate income households for the life of the Project as provided in the table below. Resolution No. PC-2013-584 Page 15 Unit Type 1 Bedroom 2 Bedroom 2 Bedroom 1 3 1 Bath 1 Bath 2 Bath Bedroom Moderate (for a City Issued City-Issued Bond 1 4 5 Financed Project only) Low 11 4 8 1 Very Low 8 2 5 1 TOTAL 19 6 13 2 TOTAL 19 7 17 7 (for a City Issued Bond Financed Project ) Four (4) of the nineteen (19) one-bedroom one bath affordable Low and Very Low Income units shall be handicap accessible and shall be reserved for and occupied by persons eligible for such accommodations, to the extent there is a qualified handicapped affordable person ready to occupy such unit. Should there be a qualified low or very low income prospective tenant desiring to rent such units but all such units are rented, Developer shall add such prospective tenant to the waiting list for such affordable handicap accessible units. At the earliest possible time a low or very low income non-handicap affordable unit becomes available, the non-handicapped affordable tenant who occupies the affordable handicap unit shall be relocated to another affordable unit in order to allow the qualified handicap tenant to occupy the handicap accessible unit. Developer shall include a provision in the non-handicap affordable lease that the non-handicap affordable tenant agrees to be relocated, at Developer cost, as soon as a non-handicap unit becomes available. Low income households shall meet the criteria of sixty percent (60%) or less of median income for Ventura County. Very low income households shall meet the criteria of 50 percent (50%) or less of median income for Ventura County. For a City Issued Bond Financed Project, households for moderate income units shall meet the criteria of one hundred twenty percent (120%) or less of median income, low Resolution No. PC-2013-584 Page 16 sixty percent (60%) and/or very low income fifty percent (50%) or less of median income. The aforementioned forty (40) units (fifty units if it's a City Issued Bond Financed Project, including the additional ten units to be for moderate income tenants) are collectively referred to as the affordable housing units or affordable units. The household income limit, affordability thresholds and the affordable rent for very low income and low income affordable units (and moderate income affordable units in the event of a City Issued Bond Financed Project), may, if required by the issuer of any such bonds, be based on an income equal to or less than (but in no event greater than) the amounts stated in this paragraph, in accordance with the provisions of the Affordable Housing Agreement executed for the Project. Developer further agrees that no grading permit shall be issued and no TEFRA hearing shall be scheduled until the Affordable Housing Agreement is executed by City and Developer. The Affordable Housing Agreement shall include, but not be limited to all terms addressed in this section 6.9. In addition to the units referenced above, Developer agrees, at Developer's option, to either provide four (4) additional low income units during the term of the Affordable Housing Agreement, or to pay an in-lieu fee for any years during which the additional four (4) low income units are not continuously provided. The in-lieu fee shall be used by the City for any purposes, in the City's sole discretion. The in-lieu fee shall be Twenty Six Thousand Three Hundred Fifty-Two Dollars ($26,352.00) if paid in calendar year 2008. ("Initial In-lieu Fee Amount") The annual in-lieu payment shall increase by two percent (2%) each year above the prior year amount. In no event shall there be a decrease in the amount paid in any year compared to the prior year. Payments shall be made on March 10 of each year beginning March 10, 2015, or the first March 10 of any year in which the Project is occupied with one or more residential units, whichever is later. 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 penalty equal to 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. Payments received more then ten (10) days after the due date shall, in addition to the 10% penalty, accrue interest at a rate of 12% from the due date through and including the date the payment is received by the City. Resolution No. PC-2013-584 Page 17 In the event of a sale, transfer, assignment of any type or any portion of the Project or Property by Developer to any other entity not owned in whole or in part by Developer, 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 0.08% (equivalent to $800.00 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 $36,000,000.00 then the annual fee to the City would be $36,000,000.00 X .0008 = $28,800.00, or if the City portion of the property taxes has been increased to 0.09% by the State of California on a statewide initiative or referendum then the amount would be $32,400.00). In the event the payment to the City under this calculation would be less than the Initial 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. Developer agrees not to convert the Project to for-sale condominiums, community apartments, planned development, stock cooperative, or other common interest development, hotel/motel, or as congregate care or assisted living facility for the life of the Project, with the exception of obtaining a subdivision map to facilitate tax credit financing for the Project consistent with Section 7.1 of this Agreement. Developer further agrees it shall not permit any of the units (affordable and market rate) to be used on a transient basis and shall not rent any unit for a period of less than monthly. Developer agrees that the units used to house the qualified low and very low income tenants (and ten [10] units for qualified moderate income tenants if it's a City Issued Bond Financed Project) shall at all times and in all manner be the same as the market rate units including, but not limited to the quality and maintenance of flooring, window covers, appliances, HVAC, storage space and type, and the number and location of required parking spaces. Developer further agrees that it has the obligation to provide the required number of affordable housing units as specified above regardless of the cost to acquire or construct said housing units. Developer further agrees that City has no obligation to use eminent domain proceedings to acquire any of the required affordable housing Resolution No. PC-2013-584 Page 18 units and that this subsection 6.9 is specifically exempt from the requirements of subsection 7.2 of this Agreement. At no time shall any of the affordable units be rented to an employee, agent, officer, contractor, subcontractor, affiliated company or subsidiary of Developer. Developer shall pay an annual fee to City of Ten Thousand Dollars ($10,000.00) to administer the affordability provisions and other requirements of the Affordable Housing Agreement. The fee shall be paid on or before February 1 of each year commencing after the first residential occupancy for the Project and adjusted annually commencing each subsequent January 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 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). Developer agrees City may at any time assign or transfer or substitute the Moorpark Redevelopment Agency for City relative to affordable housing matters, including the issuance of City-Issued Bonds. Developer agrees to the greatest extent permitted by state and federal law to grant priority to eligible Moorpark residents for the life of the Project 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 desired by Developer. In the event Developer obtains a legal opinion letter from bond counsel which confirms that granting priority to Moorpark residents may be in violation of any state or federal laws, Developer shall not grant priority to Moorpark residents. Resolution No. PC-2013-584 Page 19 All units shall meet the criteria of all applicable State laws to qualify as newly affordable to low income and very low income persons (in the quantity as specified in this Agreement) to satisfy a portion of the City's RHNA obligation and the Moorpark Redevelopment Agency's affordable housing goals. None of the affordable units required by this Agreement shall duplicate or substitute for the affordable housing requirement of any other developer or development project. All Subsequent Approvals required of City under this section 6.9 shall be made at City's sole discretion. If any conflict exists between this Agreement and the Affordable Housing Agreement or the conditions of approval for RPD No. 2012-02 or state and federal laws and regulations, then the provision providing the City the most favorable language for assisting eligible renters who meet the qualification of low and very low income (and moderate income for the ten [10] units in the event City-Issued Bond Financing is used) shall prevail. Developer must submit its request, in writing, to City for approval and processing of City Issued Bond Financing for the Project. If City concurs with Developer's request and Developer proceeds with City Issued Bond Financing, then City approval and processing of all documents, agreements, hearings and anything else required specifically for a City Issued Bond Financed Project shall not be unreasonably withheld or delayed. For a City Issued Bond Financed Project, Developer agrees that City may at its sole discretion select the bond counsel, underwriter, 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 City Ivied 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 services costs shall have City overhead expense of fifteen percent (15%) added to said costs. In the event of a City Issued Bond Financed Project, Developer shall also pay an initial issuer fee to City of Forty Thousand Dollars ($40,000.00). The fee shall be paid upon funding of the City Issued Bond Financing. Resolution No. PC-2013-584 Page 20 Developer agrees that the terms of the Affordable Housing Agreement for this Project shall be materially consistent with this Development Agreement, and if there are any inconsistencies between the Affordable Housing Agreement and this Development Agreement, the Affordable Housing Agreement shall govern. HIGHLIGHTED DATES AND FEES WERE UPDATED FROM THE PREVIOUS DA. THE $10,000 ADMINISTRATIVE FEE WAS NOT CHANGED AS IT IS NOT REQUIRED UNTIL OCCUPANCY. THE LAST PARAGRAPH WAS ADDED TO CLARIFY RELATIONSHIP BETWEEN DA AND AFFORDABLE HOUSING AGREEMENT. COUNCIL DIRECTION ON 9/19/2012 WAS TO ALLOW FOR CLARIFICATION LANGUAGE IN THIS SECTION. 6.10. 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 an 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 Forty-One Dollars ($1,041.00) per residential unit to be paid prior to the issuance of each building permit for the first residential building in RPD 2012-02. Commencing on January 1, 2015, 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. CURRENT AIR QUALITY FEE IS $1,230/APT. UNIT, ADOPTED BY RESOLUTION AND IT DOES NOT ADJUST FOR INFLATION. FEE FROM ORIGINAL DA WAS $929/UNIT AND WOULD ADJUST ON JULY 1, 2008. THIS FEE WAS LOWERED IN CONSIDERATION OF THE AFFORDABLE HOUSING AS PART OF THE LAST DA. Resolution No. PC-2013-584 Page 21 6.11. Developer agrees to cast affirmative ballots for the formation of one or more assessment districts and levying of assessments, for the maintenance of parkway and median landscaping, street lighting, including but not limited to all water and electricity costs, and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. 6.12. 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 said fee is imposed on similarly situated properties. 6.13. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC) fee of Three-Thousand Seven-Hundred Sixty Dollars ($3,760.00) for each residential unit prior to the issuance of a building permit for each residential building within the Project. CURRENT FEE IS $7,807/UNIT AND WAS ADOPTED PRIOR TO THE APPROVAL OF THE ORIGINAL DA. THIS FEE WAS LOWERED IN CONSIDERATION OF THE AFFORDABLE HOUSING AS PART OF THE LAST D.A.. NO CHANGES WERE MADE TO THIS SECTION. 6.14. 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. 6.15. 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. RPD REFERENCE UPDATED Resolution No. PC-2013-584 Page 22 6.16. 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. 6.17. Developer agrees that the Art in Public Places Fee shall not apply to this Project since negotiations for the Development Agreement were begun prior to the effective date of the ordinance adopting the Fee. . 6.18. 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. 6.19 Developer agrees that in the case of failure to comply with the terms and conditions of the early grading agreement after the expiration of all cure periods provided for in the early grading agreement, the City Council may by resolution declare its surety forfeited. 6.20 In the event either or both of the "CPI" referred to in sections 6.3, 6,57 6.7, 6.9, and 6.10, above, the "referenced Index and/or LAIF" referred to in section 6.4, above and LAIF referred to in section 6.9 are discontinued or revised, such successor index with which the "CPI" and or "referenced Index and/or LAIF" 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. HIGHLIGHTED TO TRACK. SECTION 6.5 WAS IDENTIFIED IN PREVIOUS DA, BUT SINCE IT IS BLANK, IT WILL BE REMOVED. 6.21 Prior to the issuance of the final building permit for the last residential building in the Project Developer agrees to sell City an approximate 7.09 acre site (hereinafter referred to as City Site) as shown in Exhibit B pursuant to the Purchase and Sale Agreement attached hereto as Exhibit C (the "Purchase and Sale Agreement") for the amount of One Million Two Hundred Thirty-Eight Thousand Six Hundred Dollars ($1,238,600.00). Developer shall pay all escrow and related costs for the sale of the City Site to City. Developer further agrees that prior to the Final Building Permit for the last residential building, to submit a Lot Line Adjustment application to remove the approximately 0.55 acre property with the slope below Walnut Canyon School from the City Site, and to return the City Site ground elevation to the same elevation that was in place at the time of issuance of a grading permit for the Resolution No. PC-2013-584 Page 23 Project. Verification of the elevation shall be determined by the City Engineer in his/her sole discretion. SIZE REFERENCE WAS CHANGED FROM 8.84 ACRES. 7.09 ACRES IS STILL AN ESTIMATE, RELFECTING THE LOSS OF 1.20 ACRES FOR HIGH STREET PER THE RPAA AND THE LOSS OF 0.55 ACRES FOR THE SLOPE BELOW WALNUT CANYON SCHOOL, THE DEVELOPER TO KEEP. THE ACTUAL ACREAGE NEEDS TO BE FINALIZED. PURCHASE PRICE HAS NOT BEEN ADJUSTED. LAST HIGHLIGHTED SECTION IS ADDED TO REFLECT THE LOT LINE ADJUSTMENT. 6.22 Developer agrees to enclose the flood control channel located on the eastern portion of the Project as shown on the approved Project Site Plan and 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 agrees to reimburse City three hundred and fifty-thousand dollars ($350,000) for its expenses in enclosing the flood control channel on the City site prior to the issuance of the first building permit for the project. PREVIOUS SECTION 6.22 READ: Developer agrees to enclose the flood control channel located on the eastern portion of the Project as shown on the approved Project Site Plan and City Site to the satisfaction of the City Engineer 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. THIS INCLUDES REIMBURSEMENT FOR WORK DONE BY CITY PER COUNCIL DIRECTION ON 9/19/2012. 6.23 Developer agrees, prior to issuance of the final 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 secondary access to the Project. 6.24 The-Per the Real Property Acquisition Agreement between City and Essex approved by the City Council on March 18, 2009, City has agreed to pay, at its sole cost, a private utility consultant (BJ Palmer & Associates) to redesign (Revised Plan) the Edison 66kV Essex Pole Resolution No. PC-2013-584 Page 24 Relocation Plan (Essex Plan) in order to plan for the relocation of the existing poles, and to pay for installation of any poles or guy poles required in addition to those shown on the Essex Plan. Developer agrees to pay for the relocation of the existing 66 KV overhead power lines as shown on the Essex Plan. PREVIOUS SECTION 6.24 READ: The Developer agrees, at its sole cost and expense to relocate the existing 66 KV overhead power lines within the Project and City Site and connect to the Civic Center adjacent to the City Site in accordance with the map attached hereto as Exhibit D. Said relocation shall be completed prior to the first residential occupancy of the Project. NEW LANGUAGE IS CONSISTENT WITH THE TERMS OF THE RPAA, EXCEPT THAT IT DOES NOT LIMIT CITY TO RE-ROUTING THE LINE ON THE SOUTH SIDE OF HIGH STREET. 6.25 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 the affordable units. PREVIOUS SECTION 6.25 READ: Deveiop , proviue ocie parking space in a (i) garage or "gang garage" as provided in the podium designed buildings, or (ii) within the thirty parking spaces covered by a carport, for each of the two hundred (200) units, with the remaining parking uncovered. The parking ratio provided on-site shall in no case be less than 2.13 parking spaces per unit. At least two parking spaces per unit shall be designated for each unit, guest parking shall be designated and there shall be no extra charges for required parking for the affordable units. NEW SECTION IS CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 FOR 2.00 SPACES PER UNIT AND REFLECTS CDD RECOMMENDATION THAT SPACES BE ASSIGNED. WITH 94 1 BEDROOM UNITS, EACH GETTING ONE PARKING SPACE, AND 106 2 AND 3 BEDROOM UNITS, EACH GETTING 2 PARKING SPACES, IT WOULD LEAVE 94 PARKING SPACES AVAILABLE FOR GUESTS. OUR CURRENT CODE REQUIREMENT WOULD BE FOR 100 GUEST SPACES (0.5 PER UNIT). 6.26 Developer agrees that if "cable services" (as defined by the federal Cable Act) or their equivalent (including, but not limited to, "video services" as defined in Public Utilities Code 5800 et seq., programming provided over a wireless or satellite system contained within the Project, including Satellite Master Antenna Television) are provided to Resolution No. PC-2013-584 Page 25 the Project other than by a City Cable Franchisee or a State Video Services Franchisee, the apartment management entity shall pay monthly to City a fee of the highest of (1) five percent (5%) of the gross revenue generated by the provision of those services, (2) the highest franchise fee required from any City Cable Franchise or (3) the highest franchise fee required by any State Video Franchisee. In that event, except as otherwise provided herein, Developer also agrees to comply with all other requirements applicable to state video franchisees, including, but not limited to, customer service, PEG access, and PEG fees. "Gross revenue" as used herein is defined in Chapter 5.06 of the Moorpark Municipal Code and any successor amendment or supplementary provision thereto. Developer further agrees that if cable services or their equivalent are provided to the Project by any means other than by a City Cable Franchisee or a State Video Services Franchisee. Developer will add this language to any Regulatory Agreement as part of the sale of any bonds issued by the City for Project and the Affordable Housing Agreement. 6.27 Developer shall, prior to the issuance of the final building permit for the last building within the Project restore the City Site to a reasonable condition, free of construction debris, piles of construction related dirt and other construction (including construction landscape) material to the satisfaction of the City Engineer and Community Development Director. 6.28 Developer agrees for the life of the Project to cast affirmative ballots for the increase of any assessments for existing assessment districts for the maintenance of parkway and median landscaping, street lighting, and parks conferring special benefits, and for the formation of any new assessment district for the purposes listed above in order to supplement then existing assessments upon properties within the Project. 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 and to the Affordable Housing Agreement. 6.29 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, 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 effective date of the enabling ordinance (Ordinance No. ) for this Agreement. Developer further agrees that the approval of Residential Planned Development Permit No. 2004-06 for the Property, approved by the Resolution No. PC-2013-584 Page 26 City Council on July 18, 2007 by Resolution No. 2007-2612, had expired due to lack of Project inauguration by Developer. NEW SECTION TO REFLECT THAT PREVIOUS DA AND RPD ARE NOT VALID. 7. City Agreements. 7.1 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. Upon satisfaction of the City Manager and City Attorney that a subdivision map is necessary to facilitate tax credit financing for the Project and it can be legally assured that said map will not result in any sale of individual units, City shall process the aforementioned map 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, the 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. NEW LANGUAGE HIGHLIGHTED IS ADDED CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 TO PROVIDE CLARIFICATION ON THIS ISSUE. 7.2 If requested in writing by Developer and limited to City's legal authority, City at its sole 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 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 The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading of the Project after City Council approval of all Project Approvals. Said early grading agreement shall be consistent with the conditions of approval for RPD 2012-02 and Resolution No. PC-2013-584 Page 27 contingent on City Engineer and Director of Community Development acceptance of a performance bond in a form and amount satisfactory to them to guarantee implementation of the erosion control plan and completion of the rough grading and construction of on-site and off-site improvements. NEW RPD PEFERENCE ONLY 7.4 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 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 City agrees that the terms of the Affordable Housing Agreement for this Project shall be materially consistent with this Development Agreement, and if there are any inconsistencies between the Affordable Housing Agreement and this Development Agreement, the Affordable Housing Agreement shall govern. City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Project required herein for the duration such units are required to be maintained as affordable consistent with the provisions of section 6.9 of this Agreement and the Affordable Housing Agreement for this Project. NEW LANGUAGE HIGHLIGHTED IS ADDED CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 TO PROVIDE CLARIFICATION ON THIS ISSUE. 7.7. 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. City agrees that the Los Angeles Avenue Area of Contribution (AOC) fee shall be Three-Thousand Seven-Hundred Sixty Dollars ($3,760.00) per residential unit. CURRENT FEE IS $7,807/UNIT AND WAS ,DOPTED PRIOR TO THE APPROVAL OF THE ORIGINAL DA. THIS FEE WAS LOWERED IN CONSIDERATION OF THE Resolution No. PC-2013-584 Page 28 AFFORDABLE HOUSING AS PART OF THE LAST DA. NO CHANGES WERE MADE TO THIS SECTION. 7.9. City shall acquire the City Site for One Million Two Hundred Thirty- Eight Thousand Six Hundred Dollars ($1,238,600.00) prior to issuance of the final building permit for the last residential building in the Project. NO CHANGES WERE MADE TO THIS SECTION, BUT IT IS HIGHLIGHTED FOR THE PURPOSES OF DISCUSSION. SEE SECTION 6.21. 7.10. City will allow the use of the City Site for the staging for the construction of the Project. 7.11. City will allow a total minimum parking ratio of 2.00 parking spaces per unit on site, provided that 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; that at least one of the parking spaces designated and reserved for each of the units shall be in a garage or covered carport; and that there shall be no extra charges for required parking for the affordable units. PREVIOUS SECTION 7.11 READ: City will allow one parking space in a (i) garage or "gang garage" as provided in the podium designed buildings, or (ii) within the thirty parking spaces covered by a carport, for each of the two hundred (200) units, with the remaining parking uncovered. The parking ratio provided on-site shall in no case be less than 2.13 parking spaces per unit. At least two parking spaces per unit shall be designated for each unit, guest parking shall be designated and there shall be no extra charges for required parking for the affordable units. NEW SECTION IS CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 FOR 2.00 SPACES PER UNIT AND REFLECTS CDD RECOMMENDATION THAT SPACES BE ASSIGNED. WITH 94 1 BEDROOM UNITS, EACH GETTING ONE PARKING SPACE, AND 106 2 AND 3 BEDROOM UNITS, EACH GETTING 2 PARKING SPACES, IT WOULD LEAVE 94 PARKING SPACES AVAILABLE FOR GUESTS. OUR CURRENT CODE REQUIREMENT WOULD BE FOR 100 GUEST SPACES (0.5 PER UNIT). ALSO SEE SECTION 6.25. 7.12. City agrees that the Art in Public Places Fee shall not apply to this Project since negotiations for this Development Agreement were begun prior to the effective date of the ordinance adopting the Fee. Resolution No. PC-2013-584 Page 29 7.13. City acknowledges Developer may want to use City-Issued Bond Financing for the Project. If City, at its sole and unfettered discretion, authorizes such bond financing, then City agrees to use all good faith best efforts to accommodate any request by Developer for an inducement resolution allowing the use by Developer of City Issued Bond Financing for the Project. Moreover, City agrees that City shall, in good faith, expedite the process to approve City Issued Bond Financing for the Project, including, but not limited to scheduling a TEFRA hearing within 120 days from Developer's written request for City Issued Bond Financing for the Project, preparing and negotiating documents, and executing all necessary agreements. NEW LANGUAGE HIGHLIGHTED IS ADDED CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 TO PROVIDE CLARIFICATION ON THIS ISSUE. 7.14. City agrees that payment of the Development Fee required under section 6.3 of this Agreement also meets Developers' Casey Road/Gabbert Road Area of Contribution obligation. 7.15. City shall 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 financially burden City or if Developer agrees to fully fund such assistance. NEW SECTION ADDED IS CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 TO PROVIDE CLARIFICATION ON THIS ISSUE. 7.16. The Project Approvals require that Developer install certain on-site and off-site infrastructure improvements (the "Infrastructure Improvements") that will be dedicated to and owned by City. To the extent that such Infrastructure Improvements are oversized and benefit any future development projects, City shall require any future project that benefits from the oversized Infrastructure Improvements to pay their pro-rata share of the cost of such Infrastructure Improvements. Developer shall provide to City evidence of the total cost of such oversized Infrastructure Improvements. City shall impose a condition of approval requiring a pro-rata payment from all future development projects benefiting from the oversized Infrastructure Improvements. Upon a determination by City of a future project's pro-rata share of such costs, the developer of a particular future project shall pay to City the pro-rata amount, and City shall deliver such funds to Developer within 5 business days of receipt by City. NEW SECTION ADDED IS CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 TO PROVIDE CLARIFICATION ON THIS ISSUE. Resolution No. PC-2013-584 Page 30 7.17. City agrees to pay, at its sole cost, 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 in a manner approved by the City. The Revised Plan will be subject to City and Edison approval. Installation of any poles or guy poles required in addition to those shown on the Essex Plan shall be paid for solely by the City. In no event shall the City require Essex to fund undergrounding of any of the poles shown in the Essex Plan. NEW SECTION IS CONSISTENT WITH THE TERMS OF THE RPAA, EXCEPT THAT IT DOES NOT LIMIT CITY TO RE- ROUTING THE LINE ON THE SOUTH SIDE OF HIGH STREET. ALSO SEE SECTION 6.24. 7.18. 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. NEW SECTION ADDED IS CONSISTENT WITH COUNCIL DIRECTION ON 9/19/2012 TO PROVIDE CLARIFICATION ON THIS ISSUE. 7.19. 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 effective date of the enabling ordinance (Ordinance No. ) for this Agreement. 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. NEW SECTION TO REFLECT AAT PREVIOUS DA AND RPD ARE NOT VALID. 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. Resolution No. PC-2013-584 Page 31 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 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) days of receipt of written notice from City that the same is due and payable; or Resolution No. PC-2013-584 Page 32 (c) breaches any of the provisions of the Agreement and fails to cure the same within five (5) days of receipt of written notice from City of such breach (or, if the breach is not able to be cured within such five (5) day period, fails to start to cure the same with five (5) days of receipt of written notice from City of such breach). 11.2. Default by City. City shall be deemed in breach of this Agreement if it breaches any of the provisions of this Agreement. 11.3. Content of Notice of Violation. Every notice of violation 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 include a period to cure, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if the defaulting party cannot reasonably cure the breach within the time set forth in the notice such party must commence to cure the breach within such time limit and diligently effect such cure thereafter. The notice shall be deemed given on the date that it is personally delivered or on the date that it is deposited in the United States mail, in accordance with section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money 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 the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this section. Prior to pursuing the remedies set forth herein, notice and an opportunity to cure shall be provided as required by this Agreement. The remedies for breach of the Agreement by City shall be injunctive relief and/or specific performance. The remedies for breach of the Agreement by Developer shall be injunctive relief and/or specific performance. In addition, if the breach is of sections 6.9, 6.10, 6.11, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.21, 6.26, or section 6.28 of this Agreement, City shall have the right to withhold the issuance of building permits to Developer throughout the Project 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. If the violation is of section 6.9, injunctive relief, specific performance and/or monetary damages shall be available. Resolution No. PC-2013-584 Page 33 Nothing in this section shall be deemed to preclude City from prosecuting a criminal action against any Developer who violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that 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 fifteen (15) days after the receipt of the notice from 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 fifteen (15) days after receipt of the notice from 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. Resolution No. PC-2013-584 Page 34 14. Administration of Agreement. 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 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. 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. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. Resolution No. PC-2013-584 Page 35 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. 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 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. Resolution No. PC-2013-584 Page 36 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. 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, Resolution No. PC-2013-584 Page 37 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. 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 OWNER/DEVELOPER 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: Its: Resolution No. PC-2013-584 Page 38 EXHIBIT "A" LEGAL DESCRIPTION PARCEL 2B PARCEL 2A TOGETHER WITH THAT PORTION OF PARCEL 4A OF LOT LINE ADJUSTMENT NO.2005-03 IN THE CITY OF MOORPARK,COUNTY OF VENTURA,STATE OF CALIFORNIA, AS RECORDED IN DOCUMENT NO.20050503-0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,BEING A PORTION OF LOT"T"OF TRACT NO."L"OF RANCHO SIMI,AS PER MAP RECORDED IN BOOK 5,PAGE 5 OF MISCELLANEOUS RECORDS(MAPS)IN SAID OFFICE OF THE COUNTY RECORDER AND A PORTION OF LOT 4,TRACT NO.3 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 RECORDED IN BOOK 5,PAGE 37 OF SAID MISCELLANEOUS RECORDS(MAPS),LYING EASTERLY OF THE FOLLOWING DESCRIBED LINE: BEGINNING AT A POINT IN THE SOUTHERLY LINE OF THAT CERTAIN COURSE HAVING A BEARING AND LENGTH OF NORTH 89°52'00"EAST 401.10 FEET IN THE SOUTHERLY LINE OF SAID PARCEL 4A,SAID POINT BEING DISTANT THEREON NORTH 89°52'00"EAST 91.73 FEET FROM THE WESTERLY TERMINUS THEREOF;THENCE 1ST: NORTH 0°07'53"WEST 124.14 FEET TO THE NORTHERLY LINE OF SAID PARCEL-4A. CONTAINING:10.57 ACRES,MORE OR LESS. Resolution No. PC-2013-584 Page 39 SCALE 1" = 200' LOT LINE ADJUSTMENT 5-04 CASEY ROAD b I-/7 O I PARCEL 4B I 0.41 AC. (PARCEL 4A 2005-03) ix U Z - -SEE DETAIL A . l Q O SHEET 2 J � — 1 ►�, 0 'Of rx un (PARCEL 3A) n d- , 1 (LOT LINE ADJUSTMENT NO. 2005-03) w o I- v J OI- -i CO J o o Q � � fir') 6=54'29'12" z CC On R=53.00' N L=50.40' N8c07'4-0 E (-) v) m U_ roO 443.60' }- Q r' 0 3 f-- v z o :4, OJ J Q in ry0 (PARCEL 2A) -eG � 0(LOT LINE ADJUSTMENT N0. 2005-03) X8.03'59" ry R=60.60' ti 2^i� PARCEL 28 L=8.53' ,./0 10.57 AC. s �6‘" • J . - N89-52'18"E 864.29' U Q CC 1n (PARCEL 1A) 1- O (LOT UNE ADJUSTMENT NO. 2005-03) o_ M F- Z O < Lo J c PARCEL OLD AREA NEW AREA = NEW LOT LINE 2B 9.80 AC. 10.57 AC. © = OLD LOT LINE 4B 1.18 AC. 0.41 AC. 1 010.L Lot a Y it p Keith Comps nies I = *1 P.LS. 4.438 41 210 N. Wle,Moks 814 Ste 150 Wastloln Vigo"C4 91362 Phone Na: (90.5)495-6522 "',, a•. D ' For Na: (806)495-6502 7-540 Op CALL //.,'d(� L No. PLS 4438 EXP. DA TE 9/30/050SHEET 1 OF 2 Resolution No. PC-2013-584 Page 40 LOT LINE ADJUSTMENT 5-04 k0 0 W 3 C r.SOUTHERLY UNE OF J 10.10' 98-231662 O.R. N69'52'0O`E _ CASEY ROAD• tnc 337.32 N69'52'00`E ———— 267.24' 152.93' 114.31' - 1 � 3 �17'S4'30' 5727,. E 541'X04-E 0 0 0 coS, R=269.00' 8$85 (.. . rri o .n L=64.08' SO4'21'28`E- rn co- PARCEL 4B 0.41 AC. o N (PARCEL 4A) 25.16' 00 (LOT LINE ADJUSTMENT NO. 2005-03) N \ S 19.01' Z PARCEL 2B cs rn cp. \ 7°, S61'23'15`E -8.25' N89'S2'00`E 401.10' S. —OU'% \ S`�70, F • 91.73' r �� \ N89'52'00"E \ 99.98' �.. 07 S28'10'4-6"E-7.:6... \ o .h. • SOUTHERLY LINE OF _ 30.58' • 1 Zgh !� 91-185164 O.R. �� � r 43 Oi (PARCEL 3A) w �- Li 0., -Ns Y F o SOUTHERLY LINE OF ___.---- zo n NO SCALE PARCEL 8" OF �EitSl o . BK.176 PG 275 DEEDS asJ- of 2 0 z 2 OA = NEW LOT LINE BO = OLD LOT LINE 1 . `otAL LAND 99 ,.•S§L i o� "."e-'`e, e� Ke,<<, compen,es I TKC a 9! 110 N..MMUdre 91Si: 150 MYr i,, Ylogq 4+49136 2 Phare No.:(605)495-6522 Far No.: )495-6502 °P CALlikj.- 4199( LS . PLS 3 EXP. DATE 9/30/05 Resolution No. PC-2013-584 Page 41 EXHIBIT B LEGAL DESCRIPTION OF CITY SITE PARCEL 1A PARCEL 1 TOGETHER WITH THAT PORTION OF PARCEL 3 OF LOT LINE ADJUSTMENT NO. 2005-01 IN THE CITY OF MOORPARK,COUNTY OF VENTURA,STATE OF CALIFORNIA,AS RECORDED IN DOCUMENT NO.20050406-0083167 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,BEING A PORTION OF LOT"r OF TRACT NO. "L"OF RANCHO SIMI„AS PER MAP RECORDED IN BOOK 5,PAGE 5 OF MISCELLANEOUS RECORDS(MAPS)IN SAID OFFICE OF THE COUNTY RECORDER,DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHERLY TERMINUS OF THAT CERTAIN COURSE HAVING A BEARING AND LENGTH OF NORTH 30°04'57"WEST 157.82 FEET IN THE NORTHEASTERLY LINE OF SAID PARCEL I;THENCE ALONG THE PROLONGATION OF SAID LINE 1ST: NORTH 30°04'57"WEST 3.14 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 60.60 FEET,TO WHICH A RADIAL LINE OF SAID CURVE BEARS SOUTH 52°17'33"EAST;THENCE;THENCE 2ND:WESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 82°07'57"A DISTANCE OF 86.87 FEET;THENCE TANGENT TO SAID CURVE 3RD: NORTH 60°09'36"WEST 45.65 FEET TO THE WESTERLY LINE OF SAID PARCEL 3; THENCE ALONG SAID BOUNDARY THE FOLLOWING THREE COURSES, 4TH:SOUTH 4.85 FEET;THENCE - 5Th:SOUTJL60°09'36"EAST 45.65 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE NORTHERLY AND HAVING A RADIUS OF 60.60 FEET;THENCE 6Th:EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 84°3823"A DISTANCE OF 89.52 FEET TO THE POINT OF BEGINNING. CONTAINING:8.84 ACRES,MORE OR LESS. PAGE I 7J CU m ca CO cD 0 .A c N = 0 n WESTERLY LINE OF BK. 1592 O.R. 487 Z LOT T, TRACT L RANCHO SIMI 0 �, , PRpF� NORTH 697.00' 5 MR 5 13 •,s,'ro 551.35' / 145.65' 0m, n o r m n mm �n rO. ,4�e O �`r DC7. 0 s WESTERLY LINE OF BK.144 PG 283 DEEDS I *dol:r4� n �" ( NORTH 416.08' o NJ OD O m'pZ / I no z I #w x o P g z m I ?,,1 PI 'co C Zn - r w� P. > 100.00' v, D •' (n Z I O '� O n{ J N y 1^1i g „ 3 NORTH I o N 'r N o O LLD gyp_ o m ��-' m nNi I W Nmm ^40' D rn N LA m� I� o o X N NJ D r m N C7 'o (II in O s 0 X7 I D 9 -, m • N00'11'40"E 330.53' n A d VD Z co y 335.38' • mnm^A a po �o o tri20.00' r'No-, Iv D PN D Lt) Cy 300' o D =o C� rn w LOT T, TRACT L O n `� O RANCHO SIMI ` Nr o 5 M 5 co: 00 >WN > nDDD0 _ II N i---J p Z 306.80' 613.89' o f orn-DcDo NORTH 1 920.69' IOt 4 i ro o w co 4.c4 D = LOT U, TRACT L -4 P nDDm0° M.L. WICKS SUB. C Z n 40. RANCHO SIMI TRACT NO. 3 � '' r m 5MR5 5 M 37 o m r �rn003f a000�� D D D D y ' II 2C)pp N O O Resolution No. PC-2013-584 Page 43 O Q LOT LINE ADJUSTMENT z J Q SOUTHERLY LINE OF >'m J 0 10.10' 98-231662 O.R. w N89-52.00"E _CASEY ROAD _ (rn 337.32' _—-N89'52'00"E ———— — 267.24' - z 161.82' 105.42' S7?7 I r 541.39'04"E o o 1 T54'30" 3 3°-4- 0 E 2.49' co ,oc,PI w B R=269.00' 95.gs. ! o S) 0 o o L=84.08' 504'21'28"E In o 25.16' o N PARCEL 4A o �' �cn, n S 19.01' z 1.18 AC. :'(41 ,5•.: �ssi .-561'23'15"E -S'69.Oce N89'52'00"E401.10' rg9,g8' 301.12' 3.10 /•5� -`1-1: o .h'' SOUTHERLY LINE OF528'10'46"E o.. co 0 ALO�5� 91-185164 O.R. 30.58' I o 4.86' 1 ?� c,, DETAIL "B" 6',�, - P.0.8. NO SCALE Li. n oa t^ +n _ o b M SOUTHERLY LINE OF ,••-) o PARCEL "8" OF Ic' z S ' BK.176 PG 275 DEEDS ' J. ' c'' ai o x ca 1- 0 S6�Lc,6y5 0 o n z A=8'03'59" z 0 R=60.60' X54'29'12" L=8.53' R=53.00' N84'07'40"E 443.60 , 4.85' A=82'07'57" L=50-40' T N84'0T40"E 443-58 20 R=60.60' / L60'09' ' PARCEL 3A 0 t 54'29'12"" O 560'09'36"E in 4, / R=53.00' 45.65' 43 mac_ /,4, L=50.40' di X90'11'56" X84'38'23" 4- .^�ti /.ry ® R=60.60' o R=60.60' tic'^h/ ,y,ti L=89.52' o L=95.40'- ,� / ye,^op D=5'33'33" 2 / .. kal R=60.60' O ' / L=5.884.85' 4 ` PARCEL 2A © 71 48555'06'57"W 0\ _ Q, Z�AS"K ,0 A p 3y o ,�., B s-N,s� z PARCEL 1A (5, DETAIL "A" qty).L LAND .s? DETAIL NO SCALE cit N S S. Le `5'6' 0 •s° `YJ.4•CI.L Keith Com ponies I MCC C ...O Cl. A * P.L.S. 4438 1#1 310 N. Westlake BIW,Ste. 150 W sUde Wfoge,G 91362 Phone No.: (805)495-6522 Fax No.: (805)495-6502 Qp p_, p C /l OA = NEW LOT LINE 1�`OF t1 � r-- T�'O 5 BQ = OLD LOT LINE L o. PL 4438 EXP. DATE 9/30/05 SHEET 2 OF 2 Resolution No. PC-2013-584 Page 44 EXHIBIT C Real Estate Purchase Agreement Essex Portfolio L.P, a California limited partnership(the"Seller"), hereby agrees to sell to the City of Moorpark("Buyer")for a price of One Million Two Hundred Thirty-Eight Thousand Six Hundred Dollars($1,238,600.00), and on the terms and conditions stated herein, the following real property located in the City of Moorpark, County of Ventura, State of California(the"Property"). approximately eight and eighty-four one hundredths(8 84)acres of land further descnbed in Exhibit"A"attached hereto Exact legal description to follow in escrow. In addition, as additional purchase price, Buyer shall also pay to Seller at closing an amount equal to the actual Costs (as defined below) of any site improvements required by any governmental authority to be constructed on the Property, including,without limitation,flood control channel improvements,to the extent same do not solely and directly benefit that certain property adjacent to the Property which is also owned by Seller, such adjacent property being more particularly described in Exhibit"B" attached hereto (the "Adjacent Property") The term "Costs" shall mean all direct and actual costs incurred by Seller, including, without limitation, consultants'costs,fees and permit costs,to construct improvements on the Property 1)ESCROW: Escrow shall be opened within three(3)days after the Effective Date(as defined in Section 16 E.below) Escrow shall close on the date which is five(5)days from and after the date that a final certificate of occupancy,or its equivalent, is issued by the City of Moorpark for all residential apartment units to be built on the Adjacent Property Escrow shall be held by LandAmenca Lawyer's Title, 2535 Townsgate Road, Suite 207, Westlake Village, California, 91361 Attention: Connie Ferraro, Phone 805.446.6465, Fax. 805.446.6469(the"Escrow Agent") The entire balance of the purchase price shall be paid in cash by Buyer at closing The provisions hereof shall constitute joint instructions to the Escrow Agent to consummate the purchase in accordance with the terms and provisions hereof; provided, however, that the parties shall execute such additional escrow instructions, not inconsistent with the provisions hereof, as may be deemed reasonably necessary to carry out the intentions of the parties as expressed herein. The cost of escrow shall be paid by Seller The cost of documentary transfer tax, or other taxes imposed upon the sale, if any, shall be paid by Buyer. All other costs shall be paid in accordance with the custom in the County in which the Property is located 2)TITLE: No later than thirty(30)business days after the Effective Date,Seller shall procure and deliver to Buyer a preliminary title report or title insurance commitment for the Property Within twenty(20) business days following receipt thereof, Buyer shall either approve in writing the exceptions contained in said title report or commitment or specify in writing any exceptions to which Buyer objects; provided, however, those certain exceptions shown on Exhibit"C" attached hereto are hereby approved by Buyer. Failure by Buyer to object to any such exceptions in said title report or commitment within such twenty(20) business day penod shall be deemed to mean that Buyer has waived any objections to the exceptions in such title report or commitment In addition, Buyer agrees to grant to Seller or to any public utility,or permit Seller to place or have placed on the Property,pnor to the issuance of a Grading Permit for the Project, certain easements over the Property for certain [construction of the Project, water detention basin, electrical and other utility overhead lines and related items], which easement agreements shall be in form and substance reasonably satisfactory to Buyer,Seller and/or any such applicable public utility. If any such exception which is objected to by Buyer cannot be removed or Seller does not wish to remove same, Buyer may terminate this Agreement by providing wntten notice of same to Seller and Escrow Agent not later than ten (10) days after its receipt of written notice from Seller advising Buyer that it cannot or will not remove such exception, in which event Buyer and Seller shall have no further obligations under this Agreement, or, alternatively, Buyer may purchase the Property subject to such exceptions. Failure by Buyer to provide such written notice of termination within such ten (10) day period shall be deemed to mean that Buyer has waived its objection to such title exception. Seller shall convey to Buyer marketable fee title subject only to the items approved by Buyer in accordance with this Agreement Title shall be insured by a CLTA standard owner's policy of title insurance issued by LandAmenca Lawyers Title Insurance Company, in an amount equal to the purchase pnce with the premium for same to be paid by Seller, provided, however,the cost of any title endorsements shall be paid for by Buyer. Title will be conveyed by Grant Deed. Seller shall also execute and/or deliver to Buyer at closing (i) a FIRPTA Affidavit and California Form 593-C, and (ii) any other documents or instruments reasonably requested by Buyer and/or Escrow Agent, all in form and substance reasonably satisfactory to Buyer and Escrow Agent Buyer shall execute and deliver to Seller at closing any documents or instruments reasonably requested by Seller or Escrow Agent 3)RISK OF LOSS: In the event that any improvements on the Property are destroyed or damaged by any casualty, or the Property becomes the subject of any condemnation proceeding or if any such condemnation proceeding is threatened,between the date this Agreement is executed by the Seller and the date title is conveyed to Buyer, Buyer shall accept the Property in its then condition, all insurance proceeds payable to Seller by reason of the damage to the Property, or, as the case may be, all condemnation proceeds payable by reason of such condemnation,shall be paid and/or assigned,as the case may be,to Buyer. 4)PRORATIONS: Real estate taxes for the fiscal year in which escrow closes and other expenses of the Property shall be prorated as of the close of escrow. All prorations shall be credited against the purchase price 5)POSSESSION: Possession of the Property is to be delivered to Buyer as of the date of close of escrow 6)SELLER'S REPRESENTATIONS AND WARRANTIES: Seller hereby warrants and represents,for the benefit of Buyer,the following both as of the date hereof and as of the date of the closing of escrow A.This Agreement and all documents delivered by Seller to Buyer, now or at the closing, have been or will be duly authorized and executed and delivered by Seller, and are legal,valid and binding obligations of Seller,sufficient to convey title to the Property, and enforceable Resolution No. PC-2013-584 Page 45 7)BUYER'S REPRESENTATIONS AND WARRANTIES: Buyer hereby warrants and represents,for the benefit of Seller,the following both as of the date hereof and as of the date of the closing of escrow A.This Agreement and all documents delivered by Buyer to Seller now or at closing,have been or will be duly authorized and executed by Buyer,and are legal,valid and binding obligations of Buyer sufficient to accept conveyance of title to the Property,and enforceable. All representations and warranties contained in this Agreement or implied by law shall be deemed to survive the date of closing and shall not merge with the deed 8)AS IS, WHERE IS SALE: Buyer acknowledges and agrees that except for the representations and warranties of Seller expressly set forth in this Agreement,that Buyer is purchasing the Property in its existing"As Is""Where Is"condition and"With All Faults", and that (i) Seller makes no representations or warranties concerning the Property, and (ii) Seller has no liability with respect to(x)the value of the Property or its financial condition, (y)projections or estimates regarding size, income or expenses of the Property as provided by Seller or Seller's broker, or(z)the completeness or accuracy of any third party documents, information, market or other data or reports it has provided or shall provide to Buyer. Buyer acknowledges and represents to Seller that Buyer will have during the investigation period ample opportunity to inspect and evaluate the Property; that Buyer is experienced in the ownership of real estate, and to the extent that Buyer's own expertise with respect to any matter is insufficient to enable Buyer to reach an informed conclusion,Buyer has or will have engaged the services of persons qualified to advise Buyer with respect to such matters. Therefore, it is understood and agreed that,with respect to the physical and environmental condition of the Property and its suitability for Buyer's proposed use or development, the Property is being sold and conveyed and Buyer agrees to accept the Property"As Is", "Where Is"and "With All Faults"and subject to any physical or environmental condition which may exist, without any representation or warranty by Seller except as expressly set forth in this Agreement or in any documents executed by Seller in connection with the closing. Buyer hereby expressly acknowledges and agrees that (i) Buyer shall be solely responsible for determining the physical condition of the Property,the legal restnctions applicable to the development and use of the Property,and the suitability of the Property for Buyer's proposed use, and Buyer, prior to the end of the investigation period,will have thoroughly inspected and examined the Property to the extent deemed necessary by Buyer in order to enable Buyer to evaluate the purchase of the Property, and (ii) Buyer is relying solely upon such inspections, examination and evaluation of the Property by Buyer in purchasing the Property on an "As-Is", "Where-Is" and "With All Faults" basis Except for a breach by Seller of a warranty or representation of Seller expressly set forth in this Agreement,in the event that closing occurs hereunder, Buyer hereby assumes the risk that physical and environmental conditions may exist on the Property. To the extent that the foregoing imposes any risk to Buyer,the same is reflected in the purchase price. Buyer, on behalf of itself and its successors and/or assigns,or anyone claiming by,through or under Buyer, hereby fully releases Seller and its subsidianes and affiliates, and each of their respective employees, shareholders, officers,directors, partners, representatives and agents from any and all claims that it may have now or in the future against Seller and/or any of its subsidiaries and/or affiliates, and/or any of their respective employees, shareholders, officers, directors, partners, representatives or agents for any cost, loss, liability, damage, expense (including,without limitation, attorneys' fees and costs and court costs),demand,action or cause of action arising from or related to any adverse physical or other condition affecting the Property(including,without limitation,any adverse conditions as to environmental matters, including,without limitation, soils and groundwater conditions) Seller agrees to indemnify Buyer as a condition of this Agreement, that in the event of any adverse physical or other condition (including, without limitation, regarding any adverse conditions as to environmental matters, including, without limitation, soils and groundwater conditions) affecting the Property, Seller shall be responsible therefor, for any cause of action any judgment, however obtained,executed against Seller and/or any of its subsidiaries and/or affiliates,and/or any of their respective employees, shareholders, officers, directors, partners, representatives, contractors, subcontractors or agents on account thereof. With respect to the claims released in this Section 8, Buyer expressly waives any rights or benefits available to it under the provisions of Section 1542 of the California Civil Code,which provides as follows' "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release,which if known by him must have matenally affected his settlement with the debtor" Buyer acknowledges that its attorney at law has explained to it the meaning and effect of this statute Buyer understands fully the statutory language of Civil Code Section 1542, and,with this understanding,Buyer nevertheless elects to,and does, assume all nsk for claims released under this Agreement whether arising before or after the date of this Agreement and whether now known or unknown, and Buyer specifically waives any rights it may have under California Civil Code Section 1542 Buyer fully understands that if the facts with respect to which this Agreement is executed are later found to be other than or different from the facts now believed by it to be true, it expressly accepts and assumes the risk of that possible difference in facts and agrees that this Agreement shall be and remain effective notwithstanding that difference in facts. The provisions of this Section 8 shall survive the termination of this Agreement and/or the Closing. Buyer's Initials 9)BROKERS: No broker or other party has a claim for brokerage commission,finder's fee,or like payment ansing out of or in connection with Buyer's purchase of the Property Each party shall indemnify,defend,protect and hold the other harmless from and against any liability, cause of action, claim, loss, cost, damage and/or expense, including, without limitation, attorneys' fees and costs and court costs ansing out of or incurred in connection with any claim by any broker of finder for any such commission,fee or like payment provided the person or entity making any such claim alleges that such claim arose out of acts or dealings of the indemnifying party Resolution No. PC-2013-584 Page 46 10) FOREIGN INVESTOR DISCLOSURE: Seller is not a foreign person within the meaning of Section 1445 of the Internal Revenue Code of 1986("IRC"),or under any similar sections of any similar laws of the State of California,i.e.,Seller is not a nonresident alien,foreign corporation,foreign partnership,foreign trust or foreign estate as those terms are defined in the IRC and Income Tax Regulations or similar California laws or regulations Seller shall sign under penalty of perjury and deliver to Buyer at close of escrow a certification thereof indicating thereon Seller's U S taxpayer identification number and address 11) EXCHANGE: Buyer agrees to cooperate should the Seller elect to sell the Property as part of a like-kind exchange under IRC Section 1031 Such cooperation may include the assignment of all or a portion of this Agreement to a third party, the substitution of such third party as the Seller and the execution of all documents reasonably necessary to complete the exchange in accordance with applicable laws and regulations Seller agrees that the consummation of this Agreement is not predicated or conditioned upon the completion of any such exchange. Buyer shall not incur any additional liability or financial obligation as a consequence of the Seller's contemplated exchange, nor shall Buyer be obligated to take title to any property other than the Property 12) ADDENDA: Any addendum attached hereto and either signed or initialed by the parties shall be deemed a part hereof This wnting, including addenda if any, expresses the entire agreement of the parties. There are no other understandings, oral or written, which in any manner alter its terms This Agreement supersedes any and all prior oral or written agreements between the parties hereto regarding the Property. Seller and Buyer agree to execute such additional documents as may be reasonable and necessary to carry out the provisions of this Agreement 13) ATTORNEY FEES: If this Agreement or the transactions contemplated herein gives rise to a lawsuit,arbitration or other legal proceeding between the parties hereto,the prevailing party shall be entitled to recover its costs and reasonable attorney fees in addition to any other judgment of the court or arbitrator(s). 14) SELLER'S DEFAULT: If Seller fails to perform its obligations pursuant to this Agreement for any reason except failure by Buyer to perform hereunder,or if prior to the close of escrow any of Seller's representations or warranties are breached in any materially adverse respect, and any such failure or breach is not cured by Seller within ten (10) days after receipt of wntten notice from Buyer specifying the nature of any such failure and/or breach,Buyer shall elect,as its sole remedy,either to(i)terminate this Agreement by giving Seller timely written notice of such election pnor to or at closing, (ii)enforce specific performance, or(iii) waive said failure and/or breach and proceed to closing. IN NO EVENT SHALL SELLER'S DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS, OWNERS OR AFFILIATES, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS HAVE ANY LIABILITY FOR ANY CLAIM,CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON LAW, STATUTE, EQUITY OR OTHERWISE 15) ACCESS: Seller hereby grants to Buyer, its employees, agents, contractors and nominees (collectively, "Buyer's Agents"), the right to enter onto the Property dunng the term of this Agreement to conduct such engineering, soils, geological, surveying,environmental investigation and assessment,and other tests as Buyer desires, provided that(i)Buyer provides Seller at least five(5)business days pnor written notice of same and affords Seller the opportunity to have its representative present,and(u) Buyer shall not conduct any invasive testing, including, without limitation, Phase II environmental testing, without first obtaining Seller's pnor written consent, which consent may be withheld, or granted on conditions, in Seller's sole discretion Buyer shall (i) indemnify,defend, protect, and hold harmless Seller and the Property from and against all loss, claim, injury, liability,damage, cost and/or expense(including,without limitation,attorneys'fees and costs and court costs)for injury to persons or property incurred as a result of or in connection with any such entry by Buyer or any of Buyer's Agents,and(ii)promptly and properly repair any damage to the Property caused by any such entry by Buyer or any of Buyer's agents. In addition,pnor to any entry upon the Property, Buyer shall deliver certificates or other reasonable proof of a commercial general liability insurance policy written on an occurrence basis with a combined single limit of not less than Two Million Dollars ($2,000,000 00), under which Seller is named as an additional insured, with an insurance company reasonably acceptable to Seller The certificate shall require at least thirty(30) days'written notice to Seller prior to any termination of that insurance. The provisions of this Section 15 shall survive the closing and/or the termination of this Agreement 16) MISCELLANEOUS: A.All notices or tenders required or permitted hereunder shall be made and given in writing and sent to the parties at the respective addresses set forth below by either overnight mail(by a nationally recognized overnight couner)or telecopy and shall be effective as of the date of mailing or telecopying, as the case may be. Should any act or notice required hereunder fall due on a weekend or holiday,the time for performance shall be extended to the next business day. B This Agreement shall be governed by the law of the state in which the Property is located,without regard to any choice of law principles. C Paragraph headings contained herein are included solely for convenience of reference and shall in no way affect the construction of this Agreement. D The provisions of this Agreement are to be construed in accordance with the normal interpretation thereof, and, since both parties are sophisticated real estate investors and have employed counsel to review this Agreement, the party who has actually drafted this Agreement shall be deemed to be irrelevant in determining the meaning of any such provision E The date that this Agreement has been executed by all parties hereto shall be known as the"Effective Date" Resolution No. PC-2013-584 Page 47 F.The individuals executing this Agreement represent and warrant that they are fully authonzed to execute this Agreement on behalf of their respective entities. G.This Agreement may be executed in two or more counterparts,each of which shall constitute a separate document but all of which taken together shall constitute one and the same instrument H Escrow Holder agrees to be the designated"reporting person"under Section 6045(e)of the U.S. Internal Revenue Code with respect to the real estate transactions described in this Agreement and to prepare, file and deliver such information, returns, and statements as the U S Treasury Department may require by regulations or forms in connection therewith, including Form 1099-B. The provisions of this Section 15 H shall survive the closing. I Each party and its counsel has reviewed and revised this Agreement and any rule of contract interpretation to the effect that ambiguities or uncertainties are to be interpreted against the drafting party or the party who caused it to exist shall not be employed in the interpretation of this Agreement or any document executed in connection herewith. J. This Agreement shall not be construed as creating a partnership or joint venture between Seller and Buyer or between either of them and any third party or cause either of them to be responsible in any manner for the other's or any third party's debts or obligations. K Buyer and Seller shall each promptly sign and deliver all additional documents and perform all acts reasonably necessary to perform its obligations and carry out the intent expressed in this Agreement L. If any part of this Agreement is invalid or unenforceable, then the remainder of this Agreement shall remain valid and enforceable and in force and effect M No party besides Buyer, Seller,their permitted successors and assigns and Escrow Holder has any rights or remedies under this Agreement N Neither this Agreement nor any interest herein may be assigned by Buyer without the pnor written consent of Seller, which consent may be granted or withheld in Seller's sole and absolute discretion 0 Time is of the essence with respect to the performance by Buyer and Seller of each and every obligation under any provision of this Agreement. P No document or other memorandum relating to the subject matter hereof shall be recorded without the pnor written consent and approval thereof by Seller,and any attempt to record same shall be deemed a material default hereunder and thereupon,at the sole option of Seller,this Agreement shall be deemed cancelled and Seller shall have any and all remedies for default by Buyer as provided for in this Agreement Q.Buyer and Seller acknowledge that Seller may be required to disclose if the Property lies within the following natural hazard areas or zones: (i)a special flood hazard area designated by the Federal Emergency Management Agency,(ii)an area of potential flooding;(iii)a very high fire hazard severity zone; (iv)a wild land area that may contain substantial forest fire risks and hazards, (v) earthquake fault zone; or (vi) a seismic hazard zone (sometimes all of the preceding are herein collectively called the "Natural Hazard Matters"). Seller has engaged the services of Disclosure Source or any other entity that provides such reports(who,in such capacity, is herein called the"Natural Hazard Expert")to examine the maps and other information specifically made available to the public by government agencies for the purposes of enabling Seller to fulfill its disclosure obligations, if and to the extent such obligations exist,with respect to the natural hazards referred to in California Civil Code Section 1103 et seq.and to report the result of its examination to Buyer and Seller in writing, which report has been delivered to Buyer. The written report prepared by the Natural Hazard Expert regarding the results of its full examination will fully and completely discharge Seller from its obligations referred to herein,if and to the extent any such obligations exist,and,for the purpose of this Agreement,the provisions of Civil Code Section 1103 et seq. regarding non-liability of Seller for errors or omissions not within its personal knowledge shall be deemed to apply and the Natural Hazard Expert shall be deemed to be an expert, dealing with matters within the scope of its expertise with respect to the examination and written report regarding the regarding the natural hazards referred to above Buyer acknowledges that the Real Property may be within a special study zone as designated under the Alquist-Paolo Geologic Hazard Act (Section 2621 et seq. of California Public Resources Code); if the real property is so located, construction or development on the real property of any structures intended for human occupancy may be subject to the findings of a geological report prepared by a geologist registered in the State of California. Buyer hereby expressly assumes such risk and hereby releases Seller and its subsidianes, affiliates, partners and/or constituent entities, and each of their respective employees, shareholders, officers and directors from any and all loss, injury or damage which will or may be sustained by Buyer as a consequence of the Property being within any such special study zone R Except to the extent otherwise expressly limited by the provisions of this Agreement,the provisions of Paragraphs 6,7,8,9, 13, 15 and 16 shall survive the closing or the termination of this Agreement Resolution No. PC-2013-584 Page 48 The undersigned Buyer and Seller agree to sell the above-described Property to Buyer for the price and upon the terms and conditions herein stated. SELLER Address: 925 East Meadow Drive Palo Alto,CA 94303 Essex Portfolio, L.P., Attention: John Eudy, Maura a California limited partnership Lederer and Jordan E. Ritter, Esq. By: Essex Property Trust, Inc., Telephone: (650)849-1600 a Maryland corporation, its general partner Telecopy: (650)858-1372/Ritter (650)494-1671 /Eudy By: (818)593-5857/Lederer Its: DATE: BUYER: Address: 799 Moorpark Avenue Moorpark,California 93021 The City of Moorpark Attention: Maureen Benson,City Clerk By: Telephone: 805-517-6223 Janice S. Parvin, Mayor Telecopy: DATE: Resolution No. PC-2013-584 Page 49 Exhibit "A" Legal Description of Property [To Be Attached] Resolution No. PC-2013-584 Page 50 Exhibit "B" Legal Description of Adjacent Property [To Be Attached] Resolution No. PC-2013-584 Page 51 Exhibit "C" Permitted Exceptions [To Be Attached] Resolution No. PC-2013-584 Page 52 EXHIBIT D MAP FOR RELOCATED POWER LINES Y . 1 1-il 7 " t¢¢ Ifj .- it le . . a2 ill P. 41i K2 j� S 3 giI §I _ 1. ,fir l i _ ' e E-., o Z id $ 2 , / - -\''''''1,, rf 1 ' tad k ,14,1 c • lam_ 1 r a I j tj 1 111 ' ' A 4 1'i1 1 t, I yd L .7a r �. G, i 1 1 I :?,,.. � I �. li i i .,_ ! io i _ pg 1 i i , iiiib 4 i 1 (...___.i il 1 ` . 0...., 1 t.701i: 1 f_________ r .{ I I / i) i,,, 1 ia 1 . , 1 „, 1 1 L 1 p 8" I I N I I Resolution No. PC-2013-584 Page 53 EXHIBIT E ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: ESSEX PORTFOLIO, L.P. Attention John D. Eudy 925 East Meadow Drive Palo Alto, CA 94303 With a Copy To: ESSEX PORTFOLIO, L.P. Attention Jordan Ritter 925 East Meadow Drive Palo Alto, CA 94303 And ESSEX PORTFOLIO, L.P. 22120 Clarendon Street, Suite 200 Woodland Hills, CA 91367 Attention: Maura Lederer