HomeMy WebLinkAboutAGENDA REPORT 2006 0405 CC REG ITEM 09Eq.E.
CITY OF MOORPARK, CALIFORNIA
City Council Meeting
of 4 -b-
ACTION:
MOORPARK CITY COUNCIL BY: _
AGENDA REPORT
TO: Honorable City Council
FROM: Steven Kueny, City Manager 9--Z
DATE: March 20, 2006 (CC Meeting of 41512006)
SUBJECT: Consider the Ad Hoc Committee Recommendation on Development
Agreement No. 2006 -01 with Birdsall Group, LLC for the Property
Located East of Walnut Canyon Road at Championship Drive
BACKGROUND /DISCUSSION
A development agreement was required by the City for consideration of a proposed
General Plan Amendment that would allow the development of sixteen (16) homes, five
(5) custom home lots and one (1) open space lot on approximately 42.4 acres, east of
Walnut Canyon Road at Championship Drive, on the application of Birdsall Group, LLC.
The Development Agreement Ad Hoc Committee (Mayor Pro Tern Mikos and
Councilmember Harper) met with the applicant and staff on December 13, 2005, to
review and finalize the negotiations of the attached draft development agreement for the
proposed development project. Other applications in process associated with this
project include General Plan Amendment No. 2004 -03, Zone Change No. 2004 -02,
Vesting Tentative Tract Map No. 5437, and Residential Planned Development (RPD)
Permit No. 2004 -05. These applications are tentatively scheduled for consideration by
the City Council on May 17, 2006. The Planning Commission has already considered
these applications on November 22, 2005. The Committee determined that the
development agreement is ready for consideration by the City Council and recommends
that the Council direct staff to set public hearings and advertise consideration of the
development agreement by the Planning Commission on April 25, 2006, and by the City
Council on May 17, 2006.
STAFF RECOMMENDATION
Direct staff to set and advertise public hearings before the Planning Commission and
City Council for consideration of the attached development agreement.
Attachment: Draft Development Agreement No. 2006 -01.
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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
BIRDSALL GROUP LLC
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THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement') is made and entered into on
, by and between the CITY OF MOORPARK, a municipal
corporation, (referred to hereinafter as "City ") and, the owner of real property within the City
of Moorpark generally referred to as Vesting Tentative Tract Map 5437 Birdsall Group LLC
(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:
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. 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 subsection 1.3 of this Agreement, the City
Council of City ( "the City Council ") approved General Plan Amendment
No. 2004 -03 ( "GPA 2004 -03 "), for approximately 42.4 acres of land within
the City ( "the Property "), as more specifically described in Exhibit "A"
attached hereto and incorporated herein, and changed the zoning of the
Property pursuant to Zone Change No. 2004 -02 ( "ZC 2004 -02 ").
1.3. GPA 2004 -03, ZC 2004 -02, Vesting Tentative Tract Map 5437 (Tract
5437) and Residential Planned Development Permit No. 2004 -05 (RPD
2004 -05) [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').
1.4. 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
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limit the future exercise of certain of its governmental and proprietary
powers to the extent specified in this Agreement.
1.5. 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. Inconsideration thereof,
Developer agrees to waive its rights to legally challenge the limitations
and conditions imposed upon the development of the Property pursuant
to the Project Approvals and this Agreement and to provide the public
benefits and improvements specified in this Agreement.
1.6. 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
amended by GPA 2004 -03.
1.7. On , 2006, the Planning Commission of City commenced a
duly noticed public hearing on this Agreement, and at the conclusion of
the hearing recommended approval of the Agreement.
1.8. On , 2006, the City Council commenced a duly noticed public
hearing on this Agreement, and at the conclusion of the hearing on
2006, approved the Agreement by Ordinance No.
( "the Enabling Ordinance ") on
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 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
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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 subsection 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 the
Uniform Building Code, including the Fire Resistive Design Manual, the
National Electrical Code, the Uniform Plumbing Code, the Uniform
Mechanical Code, the Uniform Housing Code, the Uniform Code for the
Abatement of Dangerous Buildings, the Uniform Code for Building
Conservation and the Uniform Administrative Code in effect at the time
the plan check or permit is approved and to any federal or state building
requirements that are then in effect (collectively "the Building Codes ").
4.4. Reservations and Dedications. All reservations and dedications of land
for public purposes that are applicable to the Property are set forth in the
Project Approvals and this Agreement.
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5. Vesting of Development Rights.
5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo,
37 Cal.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.
In furtherance of the Parties intent, as set forth in this subsection, 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 subsection shall be
construed to limit City's right to insure that Developer timely provides all
infrastructure required by the Project Approvals, Subsequent Approvals,
and this Agreement.
5.2. Amendment of Project Approvals. No amendment of any of the Project
Approvals, whether adopted or approved by the City Council or through
the initiative or referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to the amendment.
5.3. Issuance of Subsequent Approvals. Applications for land use approvals,
entitlements and permits, including without limitation subdivision maps
(e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps),
subdivision improvement agreements and other agreements relating to
the Project, lot line adjustments, preliminary and final planned
development permits, use permits, design review approvals (e.g. site
plans, architectural plans and landscaping plans), encroachment permits,
and sewer and water connections that are necessary to or desirable for
the development of the Project (collectively "the Subsequent Approvals ";
individually "a Subsequent Approval ") shall be consistent with the Project
Approvals and this Agreement. For purposes of this Agreement,
Subsequent Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project Approvals and by
the applicable provisions of the Moorpark General Plan, the Moorpark
Municipal Code and other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently adopted or
approved by the City Council or through the initiative or referendum
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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
(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 tentative map for the
Property, or any portion thereof, shall expire ten (10) years after its
approval or conditional approval or upon the expiration or earlier
termination of this Agreement, whichever occurs first, notwithstanding the
provisions of Government Code Section 66452.6(a) or the fact that the
final map may be filed in phases. Developer hereby waives any right that
it may have under the Subdivision Map Act, Government Code Section
66410 et seq., or any successor thereto, to apply for an extension of the
time at which the tentative map expires pursuant to this subsection. No
portion of the Property for which a final map or parcel map has been
recorded shall be reverted to acreage at the initiative of City during the
term of this Agreement.
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The term of any Subsequent Approval, except a tentative map or
subdivision improvement 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 Department
of Community Development prior to the expiration of that 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 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, final inspection or
certificate of occupancy will be unreasonably withheld 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 building permit is in place or is scheduled to be in place
prior to completion of construction and all of the other relevant provisions
of the Project Approvals, Subsequent Approvals and this Agreement
have been satisfied. Consistent with subsection 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
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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.
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 or
institutional 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. On the operative date of this Agreement, the
amount of the Development Fee shall be Nine - Thousand Two - Hundred
Ninety -One Dollars ($9,291.00) per residential unit and Forty-One-
Thousand Eight- Hundred Twelve Dollars ($41,812.00) per gross acre of
institutional land on which the use is located. The fee shall be adjusted
annually commencing one (1) year after the operative date of this
Agreement 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 /Anaheim /Riverside metropolitan area during the prioryear. The
calculation shall be made using the month which is four (4) months prior
to the month in which this Agreement became effective (e.g., if this
Agreement became effective in October, then the month of June is used
to calculate the increase). In the event there is a decrease in 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.
6.4. As a condition of the issuance of a building permit for each residential or
institutional 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. On the operative date of this Agreement, the
amount of the Citywide Traffic Fee shall be Six - Thousand Five - Hundred
Thirty -One Dollars ($6,531.00) per residential unit, and Twenty -Nine-
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Thousand, Three - Hundred Ninety -One Dollars ($29,391.00) per acre of
institutional land on which the institutional use is located. Commencing
on January 1, 2008, 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.
6.5. As a condition of issuance of a building permit for each residential or
institutional use within the boundaries of the Property, Developer shall
pay City a community services fee as described herein (Community
Services Fee). The Community Services Fee may be expended by City
in its sole and unfettered discretion. The amount of the Community
Services Fee shall be Two - Thousand, Three - Hundred Forty -Nine Dollars
($2,349.00) per residential unit, and Seven - Thousand Four - Hundred
Thirty -Six Dollars ($7,436.00) per gross acre of institutional land on which
the institutional use is located. Commencing on January 1, 2008, and
annually thereafter, the Community Services Fee shall be adjusted by
any increase in the Consumer Price Index (CPI) until all Community
Services 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 /Anaheim /Riverside metropolitan area during the prior year. The
calculation shall be made using the month of August over the prior month
of August. In the event there is a decrease in the CPI for any annual
indexing, the Community Services Fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
6.6. As a condition of the issuance of a building permit for each residential or
institutional use within the boundaries of the Property, Developer shall
pay City a Public Facilities fee as described herein (the "Public Facilities
Fee "). The Public Facilities Fee may be expended by City in its sole and
unfettered discretion. On the operative date of this Agreement, the
amount of the Public Facilities Fee shall be Ten - Thousand Dollars
($10,000.00) per residential unit. The fee shall be adjusted annually
commencing one (1) year after the operative date of this Agreement 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 /Anaheim /Riverside
metropolitan area during the prior year. The calculation shall be made
using the month which is four (4) months prior to the month in which this
Agreement became effective (e.g., if this Agreement became effective in
October, then the month of June is used to calculate the increase). In the
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event there is a decrease in the referenced Index for any annual
indexing, the Public Facilities Fee shall remain at its then current amount
until such time as the next subsequent annual indexing which results in
an increase.
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). On the operative date
of this Agreement, the amount of the Park Fee shall be Fifteen- Thousand
Three - Hundred Forty -Eight Dollars ($15,348.00) for each residential
dwelling unit and Fifty Cents ($0.50) per square foot of each building
used for institutional purposes within the Property. The fee shall be
adjusted annually commencing one (1) year after the operative date of
this Agreement by any increase in the median price of single - family
detached for -sale housing in Ventura County as most recently published
by Data Quick (Housing Index). In the event there is a decrease in the
Housing Index 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.
In the event the Housing Index referred to above in this subsection is
discontinued or revised, such successor index with which it is replaced
shall be used in order to obtain substantially the same result as would
otherwise have been obtained if the Housing Index had not been
discontinued or revised.
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 se g. for the Property.
6.8. Provided that prior to recordation of the first final map for Tract 5437 or
March 31, 2008, whichever is later, 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 Tract
5437, 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, and any other public and
commonly owned landscaping and recreation areas. 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 and the
recycled water shall be in use prior to the first occupancy approval for
each City approved phase of development if such recycled water is
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available within one -half mile of the Property. Developer shall install dual
water meters and services for all locations 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.
6.9. Developer shall pay a Thirty- Thousand Dollar ($30,000.00) Affordable
Housing Fee to fulfill a portion of the Affordable Housing requirement.
The Fee shall be adjusted annually commencing one (1) year after the
operative date of this Agreement by any increase in the median price of
single - family detached for -sale housing in Ventura County as most
recently published by Data Quick (Housing Index). In the event there is a
decrease in the Housing Index for any annual indexing, the Affordable
Housing Fee shall remain at its then current amount until such time as
the next subsequent annual indexing which results in an increase.
In the event the Housing Index referred to above in this subsection is
discontinued or revised, such successor index with which it is replaced
shall be used in order to obtain substantially the same result as would
otherwise have been obtained if the Housing Index had not been
discontinued or revised.
Developer shall also provide one (1) four (4) bedroom and two bath single
family detached unit with a minimum of 1,200 square feet to be sold to a
buyer who meets the criteria for low income (80 percent or less of median
income); and one (1) four (4) bedroom and two (2) bath single family
detached unit with a minimum of 1,200 square feet to be sold to a buyer
who meets the criteria for very low income (50 percent or less of median
income). All single family detached units shall include a standard size
two -car garage with roll -up garage door and a minimum driveway length
of eighteen (18) feet measured from the back of sidewalk, meet minimum
setback requirements of the City RPD zone, include concrete roof tiles,
and other amenities typically found in moderate priced housing in the City
(e.g., air conditioning /central heating, washer /dryer hookups, garbage
disposal, built -in dishwasher, concrete driveway, automatic garage door
opener). The duplex type units in Tracts 3841, 3070 -2, 3070 -3, 3070 -4,
4170, and 5133 are considered to be single family detached units for the
purposes of this subsection 6.9.
Subject to City's sole discretion, this obligation, in whole or part, may be
met by providing attached for sale units in lieu of single family detached
units at the ratio of one and one -half (1'/z) attached for sale unit for each
single family detached unit. In the event such substitution results in any
fraction of a unit, then the requirement shall be rounded up to the next
higher whole number (e.g. the requirement of 3 single family detached
units are met by 4' /z attached for sale units, then 5 attached for sale units
are required). Each of the substituted units shall be at the income level of
the units for which they are being substituted.
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The attached for sale units shall provide the same number of bedrooms
and bathrooms and contain all of the same amenities for a single family
detached unit as described above, except the minimum driveway length.
Prior to acquiring any housing unit to meet the obligations of this
subsection 6.9, Developer must first receive the written approval of City
Manager or his /her authorized representative that the unit meets the
requirements of this Development Agreement and any applicable
Affordable Housing Agreement for Tract 5437. Developer agrees that
lack of a written response from City as specified in subsection 7.7 of this
Agreement is deemed a rejection of the Developer's request.
Developer may construct rather than purchase the housing units required
of it pursuant to this subsection 6.9 so long as Developer meets all
requirements of this Agreement and the proposed project and property on
which the units are proposed to be constructed conform to the City's
General Plan, Zoning Codes, and the Moorpark Municipal Code. Nothing
in this Agreement requires City to consider a General Plan Land Use
Amendment, Zone Change, or any other land use entitlement to allow or
permit said proposed construction.
Developer further agrees that it has the obligation to provide the required
number of 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 housing units and that this subsection 6.9 is specifically
exempt from the requirements of subsection 7.2 of this Agreement.
Prior to recordation of the Final Map for this Project, the City Council in its
sole and unfettered discretion shall approve an Affordable Housing
Implementation and Resale Restriction Plan (Plan) that provides policies
and guidelines to ensure that all of the required affordable housing units
are provided consistent with this Agreement and applicable State laws
and remains affordable for the longest feasible time. The Plan shall
include but not be limited to the following items: Initial Purchase Price,
market value, buyer eligibility, affordability and resale covenants and
restrictions, equity share and second trust deed provisions, respective
role of City and Developer, the responsibility of providing the affordable
units by each developer in the event of successors and /or assigns to this
Agreement, the final number of single family detached and single family
attached units that shall be provided to meet Developer's affordable
housing obligation, quality of and responsibility for selection of amenities
and applicability of home warranties in the event Developer constructs
housing units or purchases newly constructed units from other
developers /builders to meet all or a portion of its obligation and any other
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items determined necessary by the City. The Developer and City shall,
prior to the occupancy of the first residential unit for the Project, execute
an Affordable Housing Agreement that incorporates the Plan in total and
is consistent with this Agreement. Developer shall pay the City's direct
costs for preparation and review of the Affordable Housing
Implementation and Resale Restriction Plan and the Affordable Housing
Agreement up to a maximum of Ten - Thousand Dollars ($10,000.00).
The one (1) low income unit and one (1) very low income unit shall be
provided by Developer and occupied by qualified buyers (or at City's sole
discretion sold to City) prior to occupancy of the 15th residential unit in
Tract 5437.
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 if within the Moorpark Redevelopment Agency
project area to satisfy a portion of the 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 subsection 6.9 shall be made at City's sole discretion. If any conflict
exists between this Agreement and any Affordable Housing Agreement
required by this Agreement or the conditions of approval for Vesting
Tentative Tract Map No. 5437 and /or RPD No. 2004 -5, then the
Affordable Housing Agreement shall prevail.
All affordable housing units provided under this subsection 6.9 that
received a final inspection prior to January 1, 2007, must conform to the
Uniform Building Code in effect as of July 1, 1983. Developer shall pay at
its sole cost and expense for a city selected contractor to perform a home
inspection and /or occupancy inspection by the City Building Official, and
Developer at its sole cost and expense shall make any needed
corrections to conform to inspection reports and current building codes.
At Developer's sole cost and expense, the roof shall be inspected by a
city selected contractor and if necessary as determined by City at its sole
discretion repaired or replaced by a city selected licensed roofing
contractor and certified to have no less than a 20 -year life. Developer at
its sole cost and expense shall purchase a standard home warranty
policy for a three -year period commencing on the date the unit is first sold
to a qualified low or very low income household and shall include but not
be limited to coverage of heating and air conditioning systems, automatic
garage door opener, and all built -in appliances and include a
deductible /service call amount of no more than One Hundred Dollars
($100.00) per service request. For these units, City may approve a
composition shingle roof in lieu of a concrete tile roof if all other
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provisions of this subsection 6.9 are met. In no event shall a wood shake
or shingle roof be approved.
For housing units constructed by Developer to meet its obligation under
this subsection 6.9 or acquired by Developer that were not previously
occupied (i.e. built after the Operative Date of this Agreement and either
not previously occupied or occupied by a bona fide buyer for less than
twelve months), Developer agrees to provide the same home warranties
associated with other units in the same project as the constructed or
purchased unit, or the maximum time required by State law, whichever is
longer, but in no event less than ten (10) years. Developer agrees that all
such warranties shall inure to the benefit of and be enforceable by the
ultimate occupants of the low income and very low income units, and that
all warranties by subcontractors and suppliers shall inure to the benefit of
and be enforceable by such occupants. The qualified buyer (or City in
lieu of a qualified buyer at its sole discretion) shall have the same choices
of finish options as purchasers of other units in the project and final walk -
through approval of condition of unit before close of sale. Any options
provided to buyers of units shall be provided to buyer(s) of the required
units including but not limited to color and style choices for carpeting and
other floor coverings. Flooring selections shall be made within 10 days of
Developer's request for selection.
In the event the monthly HOA fees exceed $100.00, Developer shall
deposit $120.00 for each dollar or portion thereof of the monthly HOA
fees that are in excess of $100.00 into a City administered trust to assist
with future HOA fees for each affected unit.
The Initial Purchase Price for the low- income buyers shall not exceed
affordable housing cost, as defined in Sec. 50052.5(b) (2) of California
Health and Safety Code. For a household of 4, the current monthly
"affordable housing cost" would be 30% times 70% of $74,700, the
current median income for a household of 4 in Ventura County, divided
by 12. This monthly amount includes the components identified in
Section 6920 of Title 25 of the California Code of Regulations shown
below. (See Section 50052.5(c) of the Health and Safety Code.) The
Initial Purchase Price for a low income household of 4 or fewer would be
$158,000 under current market conditions, based upon the following
assumptions:
Low Income Buyer
Household of Four
Item
Detail
Amount
Initial Purchase Price
$158,000
Down Payment
5% of estimated market
$14,000
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The Initial Purchase Price for a low- income household of five or more
would be based on the affordable housing cost for the actual household
size. Undercurrent market conditions, that price would be $170,000 for a
household of five, $185,000 for a household of six, and $200,000 for a
household of seven.
The assumptions associated with the above purchase price figures for
low income households include a 5% down payment, based on estimated
market value of $280,000.00, mortgage interest rate of 6 %, no mortgage
insurance, property tax rate of 1.25 %, based on Initial Purchase Price,
homeowners' association dues of $50 per month, fire insurance of $30
per month, maintenance costs of $30 per month, and utilities of $186 per
month for a household of 4, assuming a 3 bedroom unit, and utilities of
$213 per month for households of 5, 6 and 7 persons, assuming a 4
bedroom unit.
The Initial Purchase Price for the very low- income buyers shall not
exceed affordable housing cost, as defined in Section 50052.5(b)(2) of
California Health and Safety Code. For a household of 4, the current
monthly "affordable housing cost" would be 30% times 50% of $74,700,
the current median income for a household of 4 in Ventura County,
divided by 12. This monthly amount includes the components identified in
Section 6920 of Title 25 of the California Code of Regulations shown
below. (See Section 50052.5(c) of the Health and Safety Code.) The
Initial Purchase Price for a very low income household of 4 or fewer
would be $98,000 under current market conditions, based upon the
following assumptions:
Very Low Income Buyer
Household of Four
Item
value
Amount
Loan Amount
Initial Purchase Price
less down payment
$144,000
Interest Rate
6.0%
$8,400
Property Tax
1.25% of Initial
Purchase Price
$172/mo.
HOA
$50 /mo.
Fire Insurance
$30 /mo.
Maintenance
$30 /mo.
Utilities
$186/mo.
The Initial Purchase Price for a low- income household of five or more
would be based on the affordable housing cost for the actual household
size. Undercurrent market conditions, that price would be $170,000 for a
household of five, $185,000 for a household of six, and $200,000 for a
household of seven.
The assumptions associated with the above purchase price figures for
low income households include a 5% down payment, based on estimated
market value of $280,000.00, mortgage interest rate of 6 %, no mortgage
insurance, property tax rate of 1.25 %, based on Initial Purchase Price,
homeowners' association dues of $50 per month, fire insurance of $30
per month, maintenance costs of $30 per month, and utilities of $186 per
month for a household of 4, assuming a 3 bedroom unit, and utilities of
$213 per month for households of 5, 6 and 7 persons, assuming a 4
bedroom unit.
The Initial Purchase Price for the very low- income buyers shall not
exceed affordable housing cost, as defined in Section 50052.5(b)(2) of
California Health and Safety Code. For a household of 4, the current
monthly "affordable housing cost" would be 30% times 50% of $74,700,
the current median income for a household of 4 in Ventura County,
divided by 12. This monthly amount includes the components identified in
Section 6920 of Title 25 of the California Code of Regulations shown
below. (See Section 50052.5(c) of the Health and Safety Code.) The
Initial Purchase Price for a very low income household of 4 or fewer
would be $98,000 under current market conditions, based upon the
following assumptions:
Very Low Income Buyer
Household of Four
Item
Detail
Amount
Initial Purchase Price
$98,000
Down Payment
3% of estimated market
value
$8,400
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Loan Amount
Initial Purchase Price
less down payment
$89,600
Interest Rate
6.0%
Property Tax
1.25% of Initial
Purchase Price
$102 /mo.
HOA
$50 /mo.
Fire Insurance
$30 /mo.
Maintenance
$30 /mo.
Utilities
$186/mo.
That Initial Purchase Price for a very low- income household of five or
more would be based on the affordable housing cost for the actual
household size. Under current market conditions, the Initial Purchase
Price would be $105,000 for a household of five, $117,000 for a
household of six, and $128,000 for a household of seven.
The assumptions associated with the above purchase price figures for
very low income households include a 3% down payment, based on
estimated market value of $280,000.00, mortgage interest rate of 6 %, no
mortgage insurance, property tax rate of 1.25 %, based on Initial
Purchase Price, homeowners' association dues of $50 per month, fire
insurance of $30 per month, maintenance costs of $30 per month, and
utilities of $186 per month for a household of 4, assuming a 3 bedroom
unit, and utilities of $213 per month for households of 5, 6 and 7 persons,
assuming a 4 bedroom unit.
Developer acknowledges that changes in market conditions may result in
changes to the Initial Purchase Price, down payment amounts, mortgage
interest rates, and other factors for both low income and very low income
buyers. Furthermore, if "affordable housing cost ", as defined in Section
50052.5 of California Health and Safety Code, should change in the
future, the above guidelines will be modified. The Affordable Housing
Implementation and Resale Restriction Plan shall address this potential
change.
In the event the City, at its sole discretion purchases one or more of the
units from Developer in lieu of a qualified buyer, the Initial Purchase Price
shall be based on a household size of 4 persons and consistent with all
requirements of this subsection 6.9. Developer agrees that prior to and
upon the sale of a required unit to a qualified buyer (or City in lieu of a
qualified buyer as determined by City at its sole discretion), City may at
its sole discretion take any actions and impose any conditions on said
sale or subsequent sale of the unit to ensure ongoing affordability to low
and very low income households and related matters. After the sale of a
housing unit by Developer to a qualified buyer (or City in lieu of a qualified
buyer as determined by City at its sole discretion), City, not Developer,
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shall have sole responsibility for approving any subsequent sale of that
housing unit.
Developer shall pay closing costs for each unit, not to exceed $6,300.
Beginning March 1, 2008, and on March 1s' for each of fifteen
subsequent years, the maximum $6,300 to be paid for closing costs shall
be increased annually by any percentage increase in the Consumer Price
Index (CPI) for All Urban Consumers for Los Angeles /Orange /Riverside
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 amount
due shall remain at its then current amount until such time as the next
subsequent annual indexing which results in an increase. The
referenced Developer funded closing costs shall be for the benefit of
qualified buyers (or City in lieu of qualified buyers as determined by City
at its sole discretion for one or more of the required units) in their
acquisition of a unit from Developer not Developer's acquisition of a unit
from one or more third parties. The Developer's escrow cost shall not
exceed the then applicable maximum amount per unit regardless of the
number of escrows that may be opened on a specific unit.
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.
At the time the Fee is due, City may at its sole discretion require
Developer to purchase equipment, vehicles, or other items, contract and
pay for services, or make improvements for which Developer shall
receive equivalent credit against Air Quality Fee payments or refund of
previous payments.
The Air Quality Fee shall be One - Thousand Seven - Hundred Nine Dollars
($1,709.00) per residential unit to be paid prior to the issuance of each
building permit for the first residential unit in Tract 5437. Commencing on
January 1, 2007, 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 /Anaheim /Riverside metropolitan area during the prioryear. The
calculation shall be made using the month of December over the prior
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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.
For institutional uses, the Air Quality Fee shall be calculated by the
Director of Community Development consistent with the then applicable
Ventura County Air Quality Management District URBEMIS Model prior to
the first occupancy approval for each institutional use.
6.11. Developer hereby waives any right that it may have under California
Government Code Section 65915 et. seq., or any successor thereto, or
any other provision of Federal, State, or City laws or regulations for
application or use of any density bonus that would increase the number
of dwelling units approved to be constructed on the Property.
6.12. 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. Developer further agrees to
form one or more property owner associations and to obligate said
associations to provide for maintenance of parkway and median
landscaping, street lighting, and if requested by the City Council, parks in
the event the aforementioned assessment district is dissolved or altered
in any way or assessments are reduced or limited in any way by a ballot
election of property owners, or if the assessment district is invalidated by
court action. Prior to recordation of the first final map for the Property, if
required by City at its sole discretion, Developer shall also form one or
more property owner associations to assume ownership and
maintenance of open space land, trails, storm water detention and /or
debris basins and related drainage facilities, landscaping, and other
amenities, and to comply with the National Pollutant Discharge
Elimination System (NPDES) requirements of the Project. The obligation
of said property owner associations shall be more specifically defined in
the conditions of approval of Tract 5437 and RPD 2004 -05.
6.13. 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
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determined by City in its sole discretion so long as said fee is imposed on
similarly situated properties.
6.14. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC)
fee for each residential lot and institutional use prior to the issuance of a
building permit for each lot or use. The AOC fee shall be the dollar
amount in effect at the time of issuance of the building permit for each
residential lot and institutional use.
6.15. 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.
6.16. Developer agrees that any fees and payments pursuant to this
Agreement 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 subsections 6.3, 6.5, 6.6 and 6.9 of this
Agreement are not public improvement fees collected pursuant to
Government Code Section 66006 and statutes amendatory or
supplementary thereto and that for purposes of Government Code
Section 65865(e) and statutes amendatory or supplementary thereto.
6.17. 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.
6.18. Developer agrees to provide City with cash deposits as City may require
at its sole discretion to pay all City and related costs for the proceedings
and related services for possible formation of a District as referenced in
subsection 7.6 of this Agreement, which may be required to be paid prior
to formation of a District, or in the event a District is not formed, after the
commencement of proceedings related thereto. Said costs may include
but are not limited to attorney fees, engineering fees, City staff costs, and
City overhead expenses of fifteen percent (15 %) on all out of pocket and
professional service costs.
Developer further agrees that City may at its sole discretion select the
bond counsel, underwriter, financial advisor and any other professional
service provider City deems necessary to process the possible formation
of a District.
6.19. Developer agrees that any election to acquire property by eminent
domain shall be at City's sole discretion, and only after compliance with
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all legally required procedures including but not limited to a hearing on a
proposed resolution of necessity.
6.20. 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.
6.21. In the event any of the "referenced Index" or "CPI" referred to in any
portion of Section 6 above, are discontinued or revised, such successor
index with which the "CPI" and or "referenced Index" are replaced shall
be used in order to obtain substantially the same result as would
otherwise have been obtained if either or both the "CPI" and "referenced
Index" had not been discontinued or revised.
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
Subsequent Approvals for the Project area and shall use overtime and
independent contractors whenever possible. Developer shall assume any
risk related to, and shall pay the additional costs incurred by City for, the
expedited and parallel processing.
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 seg. 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 prior to City Council
approval of a final subdivision map. Said early grading agreement shall
be consistent with the conditions of approval for Tract 5437 and RPD
2004 -05 and 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. In the case of failure to comply with the terms
and conditions of the early grading agreement, the City Council may by
resolution declare the surety forfeited.
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7.4. City agrees that whenever possible as determined by City in its sole
discretion to process concurrently all land use entitlements for the same
property so long as said entitlements are deemed complete.
7.5. City agrees that the Park Fee required under subsection 6.7. of this
Agreement meets Developer's obligation for park land dedication
provisions of state law and City codes.
7.6. City agrees that upon receipt of a landowners' petition by Developer and
Developer's payment of a fee, as prescribed in California Government
Code Section 53318, as well as payment for costs described in
subsection 6.18 of this Agreement, City shall commence proceedings to
form a Mello -Roos Community Facilities District ( "District ") and to incur
bonded indebtedness to finance all or portions of the public facilities,
infrastructure and services that are required by the Project and that may
be provided pursuant to the Mello -Roos Community Facilities Act of 1982
(the "Act "),- provided, however, the City Council, in its sole and unfettered
discretion, may abandon establishment of the District upon the
conclusion of the public hearing required by California Government Code
Section 53321 and /or deem it unnecessary to incur bonded indebtedness
at the conclusion of the hearing required by California Government Code
Section 53345.
The purpose of any such District may also include fees for funding public
facilities, infrastructure and services that are required by the Project to
the extent permitted by the Act as determined by bond counsel for the
District's bond indebtedness financing. City may select and retain bond
counsel, engineers, underwriters, financial advisors and any other
professional service providers it deems necessary at its sole discretion to
conduct proceedings and related services for possible formation of a
District. City further agrees that, to the extent permitted by the Act as
determined by bond counsel, Developer may be reimbursed for costs
advanced by Developer for formation and related proceedings.
In the event that a District is formed, the special tax levied against any
residential lot or residence thereon shall afford the buyer the option to
prepay the special tax in full prior to the close of escrow on the initial sale
of the developed lot by the builder of the residence.
7.7. The City agrees to appoint an affordable housing staff person to oversee
the implementation of the affordable housing requirements for the
Property required herein for the duration such units are required to be
maintained as affordable consistent with the provisions of subsection 6.9
of this Agreement and the Purchase and Sale Agreement.
City agrees that upon receipt of Developer's written request to acquire a
housing unit to meet its obligation under subsection 6.9 of this
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Agreement, the City Manager, or his /her authorized representative, shall
respond within thirty (30) calendar days accepting or rejecting the
housing unit. Failure to respond within the specified time shall be
deemed as rejection of said unit.
City further agrees Developer may construct rather than purchase the
housing units required by subsection 6.9 of the Agreement so long as
Developer meets all requirements of this Agreement and the proposed
project. The property on which the units are proposed to be constructed
must be consistent with the City's General Plan, Zoning Codes, and the
Moorpark Municipal Code.
7.8. 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.
8. Supersession of Agreement by Change of Law. In the event that any state or
federal law or regulation enacted after the date the Enabling Ordinance was
adopted by the City Council prevents or precludes compliance with any provision of
the Agreement, such provision shall be deemed modified or suspended to comply
with such state or federal law or regulation, as reasonably determined necessary by
City.
9. Demonstration of Good Faith Compliance. In order to ascertain compliance by
Developer with the provisions of this Agreement, the Agreement shall be reviewed
annually in accordance with Moorpark Municipal Code Chapter 15.40. of City or any
successor thereof then in effect. The failure of City to conduct any such annual
review shall not, in any manner, constitute a breach of this Agreement by City,
diminish, impede, or abrogate the obligations of Developer hereunder or render this
Agreement invalid or void. At the same time as the 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 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; (e) damage to work in progress
by reason of fire, flood, earthquake or other casualty; (f) 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; (g) delay caused by a restriction imposed or mandated
by a governmental entity other than City; or (h) litigation brought by a third party
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attacking the validity of this Agreement, a Project Approval, a Subsequent Approval
or any other action necessary for development of the Property.
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; or
(c) materially breaches any of the provisions of the Agreement.
11.2. Default by City. City shall be deemed in breach of this Agreement if it
materially breaches any of the provisions of the Agreement.
11.3. Content of Notice of Violation. Every notice of violation shall state with
specificity that it is given pursuant to this subsection of the 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 subsection. Prior to pursuing the
remedies set forth herein, notice and an opportunity to cure shall be
provided pursuant to subsection 11.3 herein.
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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 subsections 6.9, 6.10, 6.12, 6.13, 6.14, 6.16, 6.17, and 6.18 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 subsection 11.3 hereof until the date
that the breach is cured as provided in the notice of violation.
Nothing in this subsection 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.
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 thirty (30) days following receipt of the notice. City
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acknowledges that a certificate may be relied upon by successors in interest to the
Developer who requested the certificate and by holders of record of deeds of trust
on the portion of the Property in which that Developer has a legal interest.
14. Administration of Agreement. Any 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 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 Pro* ct Approvals. No amendment to a
Project Approval 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.
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.
19. Term. This Agreement shall remain in full force and effect for a term of twenty (20)
years commencing on its operative date or until the close of escrow on the initial
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sale of the last Affordable Housing Unit required by subsection 6.9, 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 that has been granted or any
right or obligation arising independently from such Project Approval or Subsequent
Approval.
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 "B" attached hereto and incorporated herein.
Any Party may, from time to time, by written notice to the other, designate a different
address which shall be substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and documents referenced
herein contain the entire agreement between the Parties regarding the subject
matter hereof, and all prior agreements or understandings, oral or written, are
hereby merged herein. This Agreement shall not be amended, except as expressly
provided herein.
22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of
any other provision, whether or not similar; nor shall any such waiver constitute a
continuing or subsequent waiver of the same provision. No waiver shall be binding,
unless it is executed in writing by a duly authorized representative of the Party
against whom enforcement of the waiver is sought.
23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not rendered
impractical to perform, taking into consideration the purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as an
agent of any of the other Parties in any respect. Nothing contained herein or in any
document executed in connection herewith shall be construed as creating the
relationship of partners, joint ventures or any other association of any kind or nature
between City and Developer, jointly or severally.
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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 Project Approvals or the Subsequent Approvals, the
provision of this Agreement shall prevail. Should any provision of the
Implementation Plan be found to be in conflict with any provision of this Agreement,
the provisions of the Implementation Plan shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly
and equally by the Parties, and it shall not be construed against any Party on the
ground that the Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered into, and executed in
the County of Ventura, California, and the laws of the State of California shall
govern its interpretation and enforcement. Any action, suit or proceeding related to,
or arising from, this Agreement shall be filed in the appropriate court having
jurisdiction in the County of Ventura.
31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the
enforcement or declaration of any right or obligation pursuant to, or as a result of
any alleged breach of, this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys' fees and litigation expenses and costs, and any judgment,
order or decree rendered in such action, suit or proceeding shall include an award
thereof.
32. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which constitute one and the same
instrument.
Signature Page Follows
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IN WITNESS WHEREOF, and City of Moorpark have executed this Development
Agreement on the date first above written.
CITY OF MOORPARK
Patrick Hunter
Mayor
OWNER/DEVELOPER
Birdsall Group, LLC
A California limited liability company
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EXHIBIT "B"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
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