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MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Steven Kueny, City Manager
DATE: October 26, 2006 (CC Meeting of 11/15/2006)
SUBJECT: Consider the Ad Hoc Committee Recommendation on Development
Agreement No. 2004 -03 with Essex Portfolio, L.P. for Approximately
19.41 Acres South of Casey Road
BACKGROUND /DISCUSSION
A development agreement for the proposed development of a 19.41 acre site south of
Casey Road and west of Walnut Canyon Road with two - hundred (200) apartments on
11.57 acres and the remaining 8.84 acres to be sold to the City has been drafted. Other
applications in process associated with this project include General Plan Amendment
No. 2004 -05, Zone Change No. 2004 -04, and Residential Planned Development (RPD)
Permit No. 2004 -06. The Development Agreement Ad -Hoc Committee (Mayor Hunter
and Councilmember Harper) met with representatives from Essex Portfolio, L.P.
(applicant) and staff several times and most recently on February 23, 2006, to review
and finalize the negotiations on the substantive points of the attached draft development
agreement for this proposed project. Since that time, the applicant and staff have been
discussing the expectations of the various developer requirements in the draft
agreement and the related Affordable Housing Agreement for this project. Staff
recommends that the Development Agreement hearings be scheduled concurrently with
the other entitlement application hearings when the developer and staff have agreed to
the language for the Development Agreement and the Affordable Housing Agreement.
The Affordable Housing Agreement will be considered only by the City Council and
should be approved at the same time as the Development Agreement, project approval,
General Plan Amendment, and Zone Change.
STAFF RECOMMENDATION
Direct staff to set and advertise public hearings before the Planning Commission and
City Council for consideration of the development agreement, subject to final language
approval of the City Attorney and the City Manager.
Attachment: Draft Development Agreement
SACommunity Development\DEV PMTS \R P D\2004 -06 Essex Apts\Agenda Rpts \CC061115 DA Staff Report.doc
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 PORTFOLIO, LP
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.84
CC ATTACHMENT
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and entered into on ,
2006, by and between the CITY OF MOORPARK, a municipal corporation, (referred to
hereinafter as "City ") and Essex Portfolio, LP, the owner of real property within the City of
Moorpark generally referred to as Residential Planned Development Permit 2004 -06
(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 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 zoning of the Property
pursuant to Zone Change No. 2004 -04 ( "ZC 2004 -04 ").
1.3. 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 ").
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
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
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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 2003 -02.
1.7. On , the Planning Commission of City
commenced a duly noticed public hearing on this Agreement, and at the
conclusion of the hearing on recommended
approval of the Agreement.
1.8. On, , the 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 ,
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
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
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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 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 building 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 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 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
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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
(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
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.
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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 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
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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 Five - Thousand Three - Hundred
Thirty -Six Dollars ($5,336.00) per residential unit and Forty Thousand
Twenty -Eight Dollars ($40,028.00) per gross acre of institutional land on
which the use is located. The fee shall be adjusted annually commencing
January 1, 2008 by the larger increase of a) or b) as follows:
a) The Consumer Price Index (CPI) increase shall be determined by
using the information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers within the Los
Angeles /Riverside /Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction
Items for the twelve (12) month period available on December 31
of the preceding year.
In the event there is a decrease in both of the referenced 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 Five Thousand Seventy -Five
Hundred Dollars ($5,075.00) per residential unit, and Twenty -Nine
Thousand, Seven Hundred Dollars ($29,700.00) 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
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California Construction Items for the twelve (12) month period available
on December 31 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. 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 Three Thousand, Six Hundred Dollars
($3,600.00) per residential unit, and Seven Thousand Seventy Dollars
($7,070.00) per gross acre of institutional land on which the institutional
use is located. The fee shall be adjusted annually commencing on
January 1, 2008, by the larger increase of a) or b) as follows:
a) The Consumer Price Index (CPI) increase shall be determined by
using the information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers within the Los
Angeles /Riverside /Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction
Items for the twelve (12) month period available on December 31
of the preceding year.
In the event there is a decrease in both of the referenced Indicies 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.
Developer may, subject to City Attorney approval, elect to pay the
Community Services Fee annually over twenty -five (25) years or the life of
the City's Redevelopment Plan as it may be extended, whichever is
longer. The initial Community Services Fee shall be established, annual
increases determined and periodic adjustments calculated based on sale
or transfer of the Property or the Project as set forth in this section 6.5 and
section 7.14 of this Agreement. If this option is chosen, then Developer
shall pay all costs including, but not limited to City Attorney and city staff
costs plus City overhead expenses of fifteen percent (15 %) on all out of
pocket and professional services costs for preparation of an agreement to
effectuate this option. Developer must decide if it wants this option and
the referenced Agreement shall be executed prior to issuance of Project's
grading permit.
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The initial Community Services Fee under this option shall be paid prior to
the first residential occupancy of the Project and payments for subsequent
years shall be paid on each annual anniversary of the date of the initial
payment referenced above. If the payment date falls on a Saturday,
Sunday or holiday then payment shall be due on the City's next business
day. A late payment penalty equal to ten percent (10 %) of the payment
due shall be added to payments received three (3) days or more after the
due date as stated herein or when a deficient check has been given for
payment. Payments received more than ten (10) days after the due date
shall, in addition to the ten percent (10 %) penalty, accrue interest at a rate
of twelve percent (12 %) from the due date through and including the date
the payment is received by the City.
Developer agrees that the initial payment under this option shall be based
on the overall assessed value of the built, fully occupied Project as
determined by the County Tax Assessor. The initial Community Services
Fee payment may need to be adjusted since the assessed value
determination for a built fully occupied Project may not be available at the
time of the first occupancy for the Project. Developer agrees that the
initial annual payment, regardless of the assessed valuation, shall be no
less than Twenty -Two Thousand Eight Hundred Dollars ($22,800.00).
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). On the operative date
of this Agreement, the amount of the Park Fee shall be Five - Thousand
Three - Hundred Thirty- -Six Dollars ($5,336.00) for each residential
dwelling unit and Fifty Cents ($.50) per square foot of each building used
for institutional purposes within the Property. The fee shall be adjusted
annually commencing January 1, 2008 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.
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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.
6.8. Provided that prior to the issuance of the first building permit for RPD
2004 -06 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 RPD 2004 -06, 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 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 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 bond financing is authorized by the City
Council and used by Developer for the Project then in addition to the
aforementioned forty (40) units Developer shall provide ten (10)
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additional units for moderate income households for the life of the Project
as provided in the table below.
Unit Type
1 Bedroom
2 Bedroom
2 Bedroom
3
1 Bath
1 Bath
2 Bath
Bedroom
Moderate
1
4
5
(for bond financed project only)
Low
11
1
11
1
Very Low
7
1
7
1
TOTAL
18
2
18
2
TOTAL
18
3
22
7
(with bond financing)
Four (4) of the eighteen one - bedroom units affordable to Low and Very
Low Income tenants shall be handicap accessible and shall be reserved
for and occupied by tenants eligible for such accommodations.
Low income households shall meet the criteria of eighty percent (80 %) or
less of median income. Very low income households shall meet the
criteria of 50 percent (50 %) or less of median income. For a bond
financed Project households for moderate income units shall meet the
criteria of one hundred twenty percent (120 %) or less of median income,
low income fifty percent (50 %) or less of median income, and very low
income sixty percent (60 %) or less of median income. The
aforementioned forty (40) units (fifty units if bond financing is used) are
collectively referred to as the affordable housing units or affordable units.
Developer agrees that the City at its sole discretion will make all
decisions pertaining to the selection of eligible households and all
requirements placed on the rental of all affordable housing units in the
Project.
Prior to the opperative date of this Agreement Developer agrees to enter
into an Affordable Housing Agreement with City and aggress that it shall
include, but not be limited to all terms addressed in this section 6.9:
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. Developer further agrees
it shall not permit any of the units (affordable and market rate) to be used
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on a transient basis and shall not rent any unit for a period of less than
sixty (60) days.
Developer agrees that the units used to house the qualified low and very
low income tenants (and ten units for qualified moderate income tenants
if bond financing is used for the 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, 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 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 or subcontractor of Developer or any of its
contractors, subsidiaries or affiliated companies.
Developer shall pay an annual fee to City of Twenty -Four Thousand
Dollars ($24,000.00) 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
January 1, 2008 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 anytime assign or transfer or substitute the
Moorpark Redevelopment Agency for City relative to affordable housing
matters.
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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.
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.
2004 -06 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 bond financing is
used) shall prevail.
Prior to the operative date of this Agreement, Development must submit
its request, in writing, to City for bond financing. If City concurs with
Developer's request then the Regulatory Agreement for the bond
financing must be approved by the City Council prior to issuance of a
grading permit for the Project.
Developer agrees that City may at its sole discretion select the bond
counsel, underwriter, financial advisor and other professional service
providers that City deems necessary to effectuate bond financing.
Developer further agrees to fund all costs by providing City with deposits
for all bond financing related costs not contingent on the sale of bonds. In
addition, Developer will pay for all city attorney and city staff time at
applicable rates. With the exception of city staff costs all other costs
including, but not limited to out of pocket and professional services costs
shall have City overhead expense of fifteen percent (15 %) added to said
costs.
If bonds are issued Developer shall also pay an initial issuer fee to City of
Forty Thousand Dollars ($40,000.00). The fee shall be paid upon the
issuance of the bonds.
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
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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 Nine - Hundred Twenty -Nine ($929.00) per
residential unit to be paid prior to the issuance of each building permit for
the first residential unit in RPD 2004 -06. Commencing on March 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 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.
For institutional uses, the Air Quality Fee shall be calculated by the
Community Development Director 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 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
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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 Five - Thousand Nine - Hundred Thirteen Dollars ($5,913.00) and the
Gabbert Road /Casey Road Area of Contribution (AOC) fee of Two -
Thousand Thirty Dollars ($2,030.00) for each residential unit prior to the
issuance of a building permit for each building. For institutional uses, the
AOC fees shall be the dollar amount in effect at the time of issuance of
the building permit for institutional use.
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 2004 -06 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 sections 6.3 and 6.5 of this
Agreement are not public improvement fees collected pursuant to
Government Code Section 66006 and statutes amendatory or
supplementary thereto.
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 its Art in Public Places Fee for the Project shall be Two
Hundred Thousand Dollars ($200,000.00) and shall be paid prior to the
issuance of a building permit.
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, 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, 6.5, 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
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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.
6.21 Developer agrees to improve and maintain the detention basin designed
to meet NPDES requirements for the Developer's property. The basin
will be located at the westerly end of the City Site. The basin shall be
designed to connect with the adjacent Master Planned Hitch Ranch Basin
and shall be sized to include the runoff from the City Site. If a temporary
basin is allowed in lieu of a permanent basin the City may require a bond
to cover the relocation cost of moving the basin in the future. Developer
shall be fully responsible for all costs related to the basin until such time
as it is removed and its prorata share of maintenance costs if the basin is
relocated and combined with the Hitch Ranch Basin.
6.22 Prior to the occupancy of the first residential unit in the Project or July 1,
2008, whichever comes first, Developer agrees to sell City an
approximate 8.84 acre site (hereinafter referred to as City Site) as shown
in Exhibit B 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, at its sole cost and expense, prior to the date of sale, to
place an additional twelve thousand cubic yards of soil on the City Site, in
a manner meeting the City Engineer's specifications.
6.23 Developer agrees to enclose the flood control channel located on the
eastern portion of the Project including the channel as it traverses the
City Site to the satisfaction of the City Engineer and the Ventura County
Watershed Protection District.
6.24 Developer agrees, prior to occupancy of the first residential unit, 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
for emergency secondary -access to the Project.
6.25 The Developer agrees, at its sole cost and expense to relocate the
existing 66 KV overhead power lines within the Project to a point
approximately eighty feet (80') south of the City Site and to the eastern
edge of the City Site and any off site work south and west of the Project if
required by the utility company. Said relocation shall be completed prior
to the first occupancy of the Project.
6.26 Developer agrees to provide one parking space in a garage or "gang
garage" as provided in the podium designed buildings for each of the two
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hundred (200) units as well as thirty (30) parking spaces covered in a
carport with the remaining parking uncovered. The parking ratio provided
on -site shall in no case be less than 2.13 parking spaces per unit.
6.27 Developer agrees that in the event the cable television services or their
equivalent are provided to the Project under collective arrangement or
any collective means other than by a City Cable Franchisee (including,
but not limited to, programming provided over a wireless or satellite
system contained within the Project), the apartment management entity
shall pay monthly to City an access fee of five percent (5 %) of the gross
revenue generated by the provision of those services, or the highest
franchise fee required from any City Cable Franchise, whichever is
greater. "Gross revenue" is a defined in Chapter 5.6 of the Moorpark
Municipal Code and any successor amendment or supplementary
provision thereto. Developer further agrees that in the event cable
television services or their equivalent are provided to the Project by any
means other than by a City Cable Franchisee, that the City's government
channel shall be available to all units as part of any Regulatory
Agreement as part of the sale of any bonds issued by the City for Project
and the Affordable Housing Agreement.
6.28 Developer shall, upon conclusion of the Project restore the City Site to a
reasonable condition, free of debris, piles of dirt and other construction or
landscape material to the satisfaction of the City Engineer and
Community Development Director.
6.29 Prior to the occupancy of the first residential unit in the Project or July 1,
2008, whichever comes first, Developer agrees to irrevocably offer to
dedicate to City the 0.2 ± acres of the Property generally located at the
north and east of the Walnut Canyon Drain easement (or property owned
by VCWPD) as shown on attached Exhibit C. Developer shall pay all
costs to effectuate the dedication.
6.30 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.
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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 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 prior to City Council
approval of a final subdivision map. Said early grading agreement shall
be consistent with the conditions of approval for RPD 2004 -06 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.
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 section 6.7. of this
Agreement meets Developer's obligation for park land dedication
provisions of state law and City codes.
7.6 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 section 6.9 of
this Agreement.
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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.
7.8. City agrees that the Los Angeles Avenue Area of Contribution (AOC) fee
shall be Five - Thousand Nine - Hundred Thirteen Dollars ($5,913.00) per
residential unit and the Gabbert Road /Casey Road Area of Contribution
(AOC) fee shall be Two - Thousand Thirty Dollars ($2,030.00) for each
residential unit.
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 occupancy of the
first residential unit in the Project or July 1, 2008, whichever occurs first.
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 temporary access easement for emergency purposes
across the eastern portion of the City Site until such time as a permanent
emergency access is constructed by the Developer.
7.12. City agrees, at its sole cost to connect the overhead lines from the east
side of the City Site to the overhead lines relocated by Developer per
section 6.25 of this Agreement and poles currently located on City owned
property east of the Walnut Canyon drain.
7.13. City will allow a parking ratio of 2.17 spaces per dwelling unit with 52
spaces in private garages, 125 spaces in common garages and 227
spaces in uncovered parking areas. 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.
7.14. City will allow, at Developer's option, subject to City Attorney approval,
the Community Services Fee referenced in section 6.5 of this Agreement
to be paid annually over twenty -five (25) years or the life of the
Redevelopment Plan as it may be extended, whichever is longer. The
annual fee would be based Eight Hundredth of a percent (0.08 %) of the
overall assessed value of the fully built and occupied Project. For
example, if the Project had an overall assessed value of $30,000,000.00
the Project would have an annual fee of Twenty Four Thousand Dollars
($24,000.00). The fee shall be adjusted annually by two percent (2 %) per
year commencing on the first and each subsequent anniversary of the fist
occupancy for the Project. In no event shall there be a decrease in the
amount paid in any year compared to the prior year.
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In the event the parties cannot agree on the value of the property then
the parties shall agree upon a retired judge to arbitrate the value and the
parties shall share equally in the cost of such arbitration proceedings. In
the event the parties cannot agree on an arbitrator, then each party will
select a nominee and those two nominees will select a third qualified
arbitrator to conduct the arbitration proceedings.
7.15. City agrees that the Art in Public Places Fee required under section 6.17
of this Agreement meets Developer's obligation for this purpose.
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; (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 restriction imposed or mandated
by a governmental entity other than City; 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 Property.
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed to have breached this
Agreement if it:
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(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) breaches any of the provisions of the Agreement.
11.2. Default by City. City shall be deemed in breach of this Agreement if it
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 section 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 section. Prior to pursuing the
remedies set forth herein, notice and an opportunity to cure shall be
provided pursuant to section 11.3 herein.
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, 6.12, 6.13, 6.14, 6.15, 6.16, 6.17, 6.18, or section 6.19
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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.
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.
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
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
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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 Project 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 seven (7)
years commencing on its 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.
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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.
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.
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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,
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.
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IN WITNESS WHEREOF, Essex Portfolio, LP, and City of Moorpark have executed
this Development Agreement on the date first above written.
CITY OF MOORPARK
Patrick Hunter
Mayor
OWNER/DEVELOPER
Essex Portfolio, LP
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EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
ESSEX PORTFOLIO, LP
With a Copy To:
EXHIBIT "C"
AFFORDABLE HOUSING IMPLEMENTATION PLAN AND RENTAL RESTRICTION PLAN