HomeMy WebLinkAboutRES PC 2017 620 2017 0822 RESOLUTION NO. PC-2017-620
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF MOORPARK, CALIFORNIA, RECOMMENDING TO THE
CITY COUNCIL APPROVAL OF GENERAL PLAN AMENDMENT
NO. 2016-01, ZONE CHANGE NO. 2016-01, RESIDENTIAL
PLANNED DEVELOPMENT NO. 2016-01, VESTING TENTATIVE
TRACT MAP NO. 5882, DEVELOPMENT AGREEMENT NO. 2016-
01, AND ADOPTION OF A MITIGATED NEGATIVE
DECLARATION UNDER CEQA, FOR A RESIDENTIAL
DEVELOPMENT PROJECT CONSISTING OF 153 SINGLE-
FAMILY HOMES AND 131 DETACHED CONDOMINIUMS ON
38.73 ACRES ON THE SOUTH SIDE OF LOS ANGELES
AVENUE, WEST OF LETA YANCY ROAD, ON THE
APPLICATION OF PACIFIC COMMUNITIES BUILDER, INC.
WHEREAS, on April 15, 2016, applications for General Plan Amendment No.
2016-01, Zone Change No. 2016-01, Residential Planned Development No. 2016-01,
Vesting Tentative Tract Map No. 5882, and Development Agreement No. 2016-01 were
filed by Pacific Communities Builder, Inc. for a proposed residential development
consisting of 153 single-family homes and 131 detached condominiums on 38.73 acres
on the South side of Los Angeles Avenue, west of Leta Yancy Road; and
WHEREAS, at a duly noticed public hearing on August 22, 2017, the Planning
Commission considered the applications for General Plan Amendment No. 2016-01,
Zone Change No. 2016-01, Residential Planned Development No. 2016-01, Vesting
Tentative Tract Map No. 5882, and Development Agreement No. 2016-01; and
WHEREAS, at its meeting of August 22, 2017, the Planning Commission
considered the agenda report and any supplements thereto and written public
comments; opened the public hearing and took and considered public testimony both
for and against the proposal; and reached a decision on this matter; and
WHEREAS, the Community Development Director has preliminarily determined
that, with the incorporation of changes to the project or conditions of approval to
mitigate potentially significant impacts with respect to biology, hazardous materials,
hydrology, noise, and traffic issues, there is no substantial evidence that the project or
any of its aspects may cause a significant effect on the environment and a Proposed
Mitigated Negative Declaration has been prepared for this project.
Resolution No. PC-2017-620
Page 2
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. ENVIRONMENTAL DOCUMENTION: The Planning
Commission has read, reviewed and considered the Initial Study and Proposed
Mitigated Negative Declaration prepared for the project prior to making a
recommendation on the project. The Planning Commission concurs with the
Community Development Director that with the incorporation of changes to the project
or conditions of approval to mitigate potentially significant impacts with respect to
biology, hazardous materials, hydrology, noise, and traffic issues, there is no substantial
evidence that the project or any of its aspects may cause a significant effect on the
environment, and recommends adoption of the Mitigated Negative Declaration prepared
for this project.
SECTION 2. PLANNED DEVELOPMENT FINDINGS: Based upon the
information set forth in the staff report(s), accompanying studies, and oral and written
public testimony, the Planning Commission makes the following findings in accordance
with City of Moorpark, Municipal Code Section 17.44.040, with the imposition of
Standard and Special Conditions of Approval attached hereto and incorporated herein
as Exhibit A:
A. The site design, including structure locations, size, height, setbacks, massing,
scale, architectural style and colors, and landscaping, is consistent with the
goals and policies of the City's General Plan and Zoning Ordinance as
proposed to be amended by General Plan Amendment No. 2016-01 and Zone
Change No. 2016-01, in that the proposed project will provide a variety of
housing types as well as affordable housing in a design that is both comparable
in scale with surrounding residential, commercial, and industrial development,
and compatible with the use of the Arroyo Simi for floodway purposes.
B. The proposed project, with the adoption of the Mitigated Negative Declaration
and incorporation of the mitigation measures in the project to address biology,
hazardous materials, hydrology, noise, and traffic issues, would not create
negative impacts on or impair the utility of neighboring property or uses, in that
the use proposed is similar to surrounding uses, and access to or utility of those
adjacent uses are not hindered by this project.
C. The proposed project is compatible with existing and permitted land uses in the
surrounding area where the development is to be located, in that the general
character of development south of Los Angeles Avenue between Moorpark
Avenue and Tierra Rejada Road includes residential uses of varying densities,
along with small-scale commercial uses.
Resolution No. PC-2017-620
Page 3
SECTION 3. SUBDIVISION MAP ACT FINDINGS: Based on the information
set forth in the staff report(s) and accompanying maps and studies the City Council has
determined that the proposed Vesting Tentative Tract Map No. 5882, with imposition of
the attached special and standard Conditions of Approval, meets the requirements of
California Government Code Sections 66473.1, 66473.5, 66474, 66474.6, and 66478.1
et seq., in that:
Findings per Government Code Sec. 66473.1
The subdivision design provides for, to the extent feasible, passive or natural heating
and cooling opportunities with lots of sufficient size and spacing that include both
southern exposure to the future homes and opportunities for landscaping to take
advantage of shade and prevailing breezes.
Findings per Government Code Sec. 66473.5
The proposed subdivision, together with the provisions for its design and improvement,
is compatible with the goals, policies, general land uses, and programs of the City's
General Plan as proposed to be amended by General Plan Amendment No. 2016-01, in
that the proposed project will provide a variety of housing types as well as affordable
housing in a design that is both comparable in scale with surrounding residential,
commercial, and industrial development, and compatible with the use of the Arroyo Simi
for floodway purposes.
Findings per Government Code Sec. 66474
A. The proposed map is consistent with the City's General Plan as proposed to be
amended by General Plan Amendment No. 2016-01, in that it would allow for
the provision of a variety of housing types as well as affordable housing in a
design that is both compatible in scale with surrounding residential,
commercial, and industrial development, and compatible with the use of the
Arroyo Simi for floodway purposes.
B. The design and improvements of the proposed subdivision are consistent with
the City of Moorpark General Plan as proposed to be amended by General
Plan Amendment No. 2016-01, in that they will provide a variety of housing
types as well as affordable housing in a design that is both comparable in scale
with surrounding residential, commercial, and industrial development, and
compatible with the use of the Arroyo Simi for floodway purposes.
C. The site is physically suitable for the type of residential development proposed
in that the site can be engineered to allow for all required utilities to be brought
to the site, adequate ingress and egress can be obtained, and the site can be
provided with public and emergency services.
D. The development site, at over 35 acres and relatively flat, is physically suitable
for the proposed density of development at 9.0 units per acre, in that all City
development standards would be met by the proposed project at this density.
Resolution No. PC-2017-620
Page 4
E. The design of the subdivision and the proposed improvements are not likely to
cause substantial environmental damage, in that all potential impacts would be
mitigated through project design or conditions.
F. The design of the subdivision and the type of improvements are not likely to
cause serious public health problems, in that adequate sanitation is both
feasible and required as a condition of this development.
G. The design of the subdivision and the type of improvements will not conflict with
easements acquired by the public at large, for access through, or use of the
property within the proposed subdivision in that there currently are no known
public access easements on the property, and property along the Arroyo Simi
will be offered for dedication for flood control purposes.
Findings per Government Code Sec. 66474.6
The project will be connected to the community sewer system operated by the Ventura
County Water and Sanitation Division and all sewer waste will be treated at the
Moorpark Wastewater Treatment Plant. There will be no discharge of sewer waste from
the proposed subdivision in violation of existing water quality control requirements under
Water Code Section 13000 et seq.
Findings per Government Code Sec. 66478.1 et seq.
The proposed subdivision fronts upon a public waterway (Arroyo Simi) as defined in
California Government Code Section 66478.1 et seq. Public access easements
consistent with this Section will be provided per Conditions of Approval.
SECTION 4. DEVELOPMENT AGREEMENT FINDINGS: Based upon the information
set forth in the staff report(s), accompanying studies, and oral and written public
testimony, the Planning Commission makes the following findings in accordance with
City of Moorpark, Municipal Code Section 15.40.100:
A. The provisions of the development agreement are consistent with the general
plan and any applicable specific plan in that the proposed project will provide
for the orderly development of land identified in the City's General Plan and
Zoning Ordinance as appropriate for residential development and the
Development Agreement will strengthen the planning process by providing
vesting of development rights, addressing timing of development, determining
development fees, and providing affordable housing.
B. The provisions of the agreement are consistent with Chapter 15.40 of the
Moorpark Municipal Code in that the 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.
Resolution No. PC-2017-620
Page 5
SECTION 5. PLANNING COMMISSION RECOMMENDATION: The Planning
Commission recommends the following to the City Council:
A. Adoption of the Mitigated Negative Declaration prepared for General Plan
Amendment No. 2016-01, Zone Change No. 2016-01, Residential Planned
Development No. 2016-01, Vesting Tentative Tract Map No. 5882, and
Development Agreement No. 2016-01.
B. Approval of General Plan Amendment No. 2016-01, for a change in the Land
Use Designation of the project site as shown on the General Plan Map of the
Land Use Element from General Commercial (C-2), High Density Residential
(H), and Very High Residential Density (VH) to Very High Residential Density
(VH) and Floodway as shown in Exhibit A, attached.
C. Approval of Zone Change No. 2016-01, for a change in the zoning of the
project site from Commercial Planned Development (CPD) and Residential
Planned Development (RPD-7U & RPD-7.5U) to Residential Planned
Development (RPD-9U and RPD-20U) and Open Space (OS) as shown in
Exhibit B, attached.
D. Approval of Residential Planned Development No. 2016-01 and Vesting
Tentative Tract Map No. 5882, subject to the Standard and Special Conditions
of Approval included in Exhibit C, attached.
E. Approval of Development Agreement No. 2016-01 as shown in Exhibit D,
attached.
Resolution No. PC-2017-620
Page 6
SECTION 6. FILING OF RESOLUTION: The Community Development
Director shall cause a certified resolution to be filed in the book of original resolutions.
The action of the foregoing direction was approved by the following vote:
AYES: Commissioners Aquino, Haverstock, Di Cecco, Vice Chair Hamous,
and Chair Landis
NOES: None
ABSTAIN: None
ABSENT: None
PASSED, AND ADOPTED this 22nd day of August, 2017.
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Kipp ► -ndis, C'air
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David A. Bobardt, Community Development Director
Exhibit A: General Plan Amendment Maps (Existing and Proposed)
Exhibit B: Zone Change Maps (Existing and Proposed)
Exhibit C: Standard and Special Conditions of Approval for Residential Planned
Development Permit No. 2016-01 and Vesting Tentative Tract Map No.
5882
Exhibit D: Draft Development Agreement
Resolution No. PC-2017-620
Page 7
EXHIBIT A
GENERAL PLAN AMENDMENT NO. 2016-01
VESTING TENTATIVE TRACT NO. 5882
CITY OF MOORPARK,VENTURA COUNTY
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Resolution No. PC-2017-620
Page 8
VESTING TENTATIVEVENTURA COUNTY
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Resolution No. PC-2017-620
Page 9
EXHIBIT B
ZONE CHANGE NO. 2016-01
VESTING TENTATIVE TRACT NO. 5882
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Resolution No. PC-2017-620
Page 10
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Resolution No. PC-2017-620
Page 11
EXHIBIT C
CONDITIONS OF APPROVAL FOR
RESIDENTIAL PLANNED DEVELOPMENT PERMIT NO. 2016-01
AND VESTING TENTATIVE TRACT MAP NO. 5882
STANDARD CONDITIONS OF APPROVAL
The applicant shall comply with Standard Conditions of Approval for Subdivisions and
Planned Developments as adopted by City Council Resolution No. 2009-2799 (Exhibit
A), except as modified by the following Special Conditions of Approval. In the event of
conflict between a Standard and Special Condition of Approval, the Special Condition
shall apply.
SPECIAL CONDITIONS FOR RESIDENTIAL PLANNED DEVELOPMENT PERMIT
NO. 2016-01
1. This planned development permit will expire two (2) years from the date of its
approval unless the use has been inaugurated by issuance of a building permit
for construction. The Community Development Director may, at his/her
discretion, grant up to two (2) additional one-year extensions for use
inauguration of the development permit, if there have been no changes in the
adjacent areas and if the applicant can document that he/she has diligently
worked towards use inauguration during the initial period of time. The request
for extension of this planned development permit shall be made in writing, at
least thirty (30) days prior to the expiration date of the permit and shall be
accompanied by applicable entitlement processing deposits.
2. Any future homeowner improvements to the individual homes and the exclusive
use area shall follow the City's RPD (Residential Planned Development) zone
Development Standards. Said standards shall be incorporated into the
Covenants, Conditions and Restrictions for this project.
3. In the Fuchsia single-family detached home neighborhood (Lots 1-153) the
following standards shall apply:
- The minimum lot area is 3,290 square feet.
- The front yard setback for each unit shall not be less than eight (8) feet for
living space and (10) feet for garages that are side entry and eighteen (18)
feet for garages that are front entry.
- The rear yard setback for each unit shall not be less than twelve (12) feet,
except for attached unenclosed patio covers, which shall have a minimum
five (5) foot setback.
- Interior side yard setbacks shall not be less than five (5) feet. There shall
be no less than three (3') feet of unobstructed clearance between side
Resolution No. PC-2017-620
Page 12
yard block walls and allowable side yard protrusions from the house,
which may only be located on one side yard of the property.
- Street side yard setbacks for each unit shall not be less than ten (10) feet.
- Building height shall not exceed thirty-five (35) feet for the dwelling unit
and fifteen (15) feet for accessory structures.
- All other development standards shall be consistent with those for RPD
zones as provided in Title 17 of the Moorpark Municipal Code.
4. In the Verbena detached condominium neighborhood (Lots 155-162/Units 1-
131) the following standards shall apply:
- The front yard setback for each unit shall not be less than five (5) feet from
common areas.
- The rear yard setback for each unit shall not be less than three (3) feet
from common driveways.
- Side yard setbacks between units shall not be less than ten (10) feet.
- Side yard setbacks between units and common driveways shall not be
less than ten (10) feet.
- Building height shall not exceed thirty-five (35) feet for the dwelling unit
and fifteen (15) feet for accessory structures.
- Each unit shall include an unenclosed parking space reserved for that unit
with a minimum width of ten (10) feet and minimum depth of eighteen (18)
feet, in addition to required enclosed parking of two (2) spaces per unit.
- A minimum of 0.5 spaces per unit guest parking shall be provided in
locations dispersed throughout the condominium neighborhood.
- All other development standards shall be consistent with those for RPD
zones as provided in Title 17 of the Moorpark Municipal Code.
5. A soundwall shall be constructed adjacent to the Los Angeles Avenue right-of-
way. It shall be no less than eight (8') feet in height, when measured from
inside of the project, and constructed with tan-colored slumpstone with
matching mortar. The final design and height is to be approved by the
Community Development Director and City Engineer/Public Works Director,
subject to ultimate pad elevations.
6. A fence/wall plan is required. Location, design, material and height of all
fences and walls shall be approved by the Community Development Director.
Side and rear yard property line walls shall be a minimum height of six (6') feet
from the highest finished grade and constructed out of tan-colored slumpstone
with tan-colored mortar. Residential properties adjacent to the Arroyo Simi
shall have solid walls separating the property from the Arroyo. A combination
block/tube steel wall with pilasters spaced no less than thirty (30) feet apart
shall be used where common driveways and passive detention facilities are
located adjacent to the Arroyo Simi
7. Architectural enhancements, such as window reveals and plant-ons are
required on all side and rear elevations subject to the approval of the
Community Development Director.
Resolution No. PC-2017-620
Page 13
8. Amenities for the affordable housing units required by the Development
Agreement and Affordable Housing Agreement shall be identical to the base
level of amenities provided in the market-rate units, and shall include but not be
limited to concrete tile roofs, air conditioning/central heating, washer/dryer
hookups, garbage disposal, built-in dishwasher, concrete driveway, automatic
garage door opener, flooring, countertops, and window coverings to the
satisfaction of the Community Development Director.
9. There shall be no storage of recreational vehicles of any type on any lot,
driveway, or street within the subdivision. This requirement shall be reflected
on the Homeowner's Association (HOA) Covenants, Conditions, and
Restrictions (CCR's).
10. There shall be no parking within the 25-foot driveways in the detached
condominium (Verbena) area. "No Stopping at Any Time" signs shall be
installed or curbs painted red at the sole cost of the applicant to the satisfaction
of the Ventura County Fire Prevention District and the City Engineer/Public
Works Director.
11. Front yards of all homes within the "Fuchsia" development shall be shall be
landscaped, irrigated, and maintained by the Homeowner's Association.
12. All remainder areas not designated for homeowner use or vehicular
maneuvering shall be landscaped, irrigated, and maintained by the
Homeowner's Association as common area subject to the review and approval
of the Community Development Director.
13. Side by side houses of the same floor plan must use different architectural
styles and color palettes, subject to review and approval of the Community
Development Director.
14. Final colors and materials must be reviewed and approved to include a
minimum of three color schemes per architectural style subject to review and
approval of the Community Development Director.
15. Painted and decorative sectional roll up garage doors, including garage window
glazing, compatible with the architectural style of each home including the
affordable residences.
16. Durable materials are required for trim on the ground floor levels of the homes,
such as wood window trim, or %1" minimum cementous stucco coat over foam.
17. Final plotting of the homes shall be submitted for review and approval of the
Community Development Director prior to the issuance of the first building
permit.
18. Any proposed change to the Architecture shall be considered by the
Community Development Director upon filing of a Permit Adjustment
application and payment of the fee in effect at the time of application.
Resolution No. PC-2017-620
Page 14
19. Standards for patio covers and trellises shall be included in the
Homeowner's Association Covenants, Conditions, and Restrictions.
20. Noise attenuating construction shall be required on all units affected by the
noise generated from Los Angeles Avenue and the Arroyo Vista Community
Park to the satisfaction of the Community Development Director. At a minimum
the following items shall be provided:
Units facing Los Angeles Avenue in the first row of homes nearest the
roadway and nearest the Arroyo Simi in VTT 5882 (West) will require
upgraded windows, as follows:
a. For all first row units, first floor windows will require STC rating
greater than or equal to 26.
b. For all first row units with a building setback greater than 15 feet from
property line wall, second floor windows will require STC rating
greater than or equal to 33.
c. For all first row units with a building setback of 15 feet or less from
property line wall, second floor windows will require an STC rating
greater than or equal to 34.
Units facing Los Angeles Avenue and Arroyo Simi in VTT 5882 (East)
will require upgraded windows, as follows:
a. Corner lots 1 and 51 will require second floor windows facing Los
Angeles Avenue to have STC rating greater than or equal to 33.
b. For all other first row units facing Los Angeles Avenue, second floor
windows will require STC rating greater than or equal to 32.
c. For all 3-story second row units facing Los Angeles, third floor
windows will require STC rating greater than or equal to 32.
d. For all 3-story third row units facing Los Angeles, third floor
windows will require STC rating greater than or equal to 30.
The mechanical ventilation system shall be capable of providing two (2) air
changes per hour in habitable rooms with a minimum of 15 cubic feet per
minute of outside air, per occupant. The fresh air inlet duct shall be of sound
attenuating construction and shall consist of a minimum of ten (10) feet of
straight or curved duct or six (6) feet plus one (1) sharp 90 degree bend. Attic
vents facing adjacent roadways, if applicable, should include an acoustical
baffle, or the attic floor (including the access panel) should be fully insulated to
prevent vehicle noise intrusion.
28. Any gates to control vehicle access are to be located to allow a vehicle waiting
for entrance to be completely off the intersecting roadway. A minimum clear
open width of fifteen (15') feet in each direction shall be provided for separate
entry/exit gates and a minimum twenty (20) for combined entry/exit gates. If
gates are to be locked, a Knox system shall be installed. The method of gate
Resolution No. PC-2017-620
Page 15
control, including operation during power failure, shall be subject to review by
the Fire Prevention Division. Gate plan details shall be submitted to the Fire
District for approval prior to installation. A final acceptance inspection by the
Fire District is required prior to placing any gate into service. Signage is
required for the gate at the western end of the project site that it is only to be
used for emergency exiting to the satisfaction of the Fire Department and City
Engineer/Public Works Director.
29. LED street lights shall be used within the project, to be owned and maintained
by the Homeowners Association. Design of street lighting shall be to the
satisfaction of the Community Development Director and City Engineer/Public
Works Director to ensure consistency with future LED street lighting to be used
in the City.
30. Prior to issuance of building permits, the plans shall be submitted to the Police
Department for Crime Prevention Through Environmental Design (CPTED)
review and recommendations.
SPECIAL CONDITIONS OF APPROVAL FOR VESTING TENTATIVE TRACT MAP
NO. 5882
1. Vesting Tentative Tract Map No. 5882 is approved per the submitted tentative
map as modified by the conditions contained in this resolution.
2. This subdivision shall expire three (3) years from the date of its approval. The
Community Development Director may, at his/her discretion, grant up to two (2)
additional one-year extensions for map recordation, if there have been no
changes in the adjacent areas and if the applicant can document that he/she
has diligently worked towards Map recordation during the initial period of time.
The request for extension of this Map shall be made in writing, at least thirty
(30) days prior to the expiration date of the map and shall be accompanied by
applicable entitlement processing deposits.
3. Up to a maximum of 284 dwelling units may be developed under this
entitlement, including 153 single-family lots and 131 detached condominium
units.
4. Prior to issuance of a Zoning Clearance for the first building permit or the
approval of any final map for the Project: the developer shall pay the City a Five
Thousand Dollar ($5,000) Assessment District Formation Fee. The District
shall be for the purposes of funding future costs for the maintenance of
landscaping and irrigation of the landscaped area and related improvements
including but not limited to block walls and hardscape adjacent to Los Angeles
Avenue, Leta Yancy Road and the southern boundaries of the Project (Arroyo
Simi). The City shall administer the annual renewal of the Assessment District,
and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses.
Resolution No. PC-2017-620
Page 16
5. Prior to approval of any final map for the Project, the developer shall provide a
Subdivision Improvement Agreement for review and approval by the City
Council consistent with Section 66462 of the Government Code.
6. The applicant shall provide a grading and construction schedule showing
routing for grading and development from Los Angeles Avenue and Leta Yancy
Road.
7. Within thirty calendar days of submittal of the first plan check for Final Map the
applicant shall provide a copy of the Covenants, Conditions, and Restrictions
(C.C.&R.'s) to the Community Development Director and the City Attorney for
review and approval to ensure consistency with the Moorpark Municipal Code,
Vesting Tentative Tract Map No. 5882 and Residential Planned Development
Permit No. 2016-01, as conditioned. Submittal shall include a $5,000.00 deposit
to be used for the City Attorney's cost of review.
8. Improvements along Los Angeles Avenue shall include conduit behind the
sidewalk for future use for broadband to the satisfaction of the City
Engineer/Public Works Director.
9. Leta Yancy Road shall be improved to its ultimate width along its entire project
frontage, including the frontage of the 1.64 acres to be conveyed to the City.
Improvements shall include roadway, bike lane, gutter, curb and sidewalk and
undergrounding of utilities, all to City standards to the satisfaction of the City
Engineer/Public Works Director.
10. Concurrent with map recordation, the applicant shall provide, as part of the
street improvement plans, a public service easement within the private streets,
subject to approval of the Community Development Director and City
Engineer/Public Works Director.
11. Access rights shall be offered to the City of Moorpark from all lots fronting on
Los Angeles Avenue and the Arroyo Simi. The C.C.&R.'s shall include a
provision that property line walls along the perimeter of the project, including
the Los Angeles Avenue frontage and the Arroyo Simi frontage may not be
removed.
12. Specific locations shall be labelled as Fire Lanes per California Vehicle Code
Section 22500.1 to the satisfaction of the City Engineer/Public Works Director
and Ventura County Fire Protection District. Streets where curbside parking is
proposed shall meet all standards of the Ventura County Fire Protection District
for emergency vehicle access.
13. The C.C.&R.'s shall include a requirement that garages in each unit be
maintained for the parking of vehicles.
14. The applicant shall create a storm drainage easement and install permanent
drainage improvements to convey storm water from State Highway 118 to the
satisfaction of the City Engineer/Public Works Director. Upon completion of
Resolution No. PC-2017-620
Page 17
that work, the applicant shall abandon those temporary drains to the
satisfaction of the City Engineer/Public Works Director.
15. Prior to the issuance of any building permit in the FEMA identified 100-year
floodplain A Federal Emergency Management Agency (FEMA) approved
Conditional Letter of Map Revision (CLOMR) shall be provided to the City
Engineer/Public Works Director.
16. Prior to the issuance of the first building permit, the Developer shall provide the
City with a written request for the City to adopt a resolution authorizing
enforcement of applicable provisions of the California Vehicle Code and
Moorpark Municipal Code.
17. The Developer shall comply with all mitigation measures of the Mitigated
Negative Declaration. Said mitigation measures are hereby adopted by
reference and made Conditions of Approval.
18. Initial buyers shall be made aware of the future use of the 1.64 acre site for
affordable housing, the potential construction of a public recreational trail along
Arroyo Simi and the potential future expansion of improvements to Arroyo Vista
Community Park, which may include additional recreational fields, lighting and
use of the existing bridge for vehicles. Notification shall be in a form to the
satisfaction of the Community Development Director.
19. Improvements to Los Angeles Avenue as part of the project shall include a bus
turnout, a deceleration/acceleration lane at the main project entrance, and
parkway landscaping in front of the soundwall to the satisfaction of the City
Engineer/Public Works Director. If directed by the City Council and approved
by Caltrans, the applicant shall, at its sole cost and expense, install a traffic
signal at the intersection of Los Angeles Avenue (SR118) and Shasta
Avenue/Project entrance. Final design, plans and specifications shall be as
approved by the City Council and Caltrans and shall include an interconnect
system. The applicant shall also pay City's costs for plan check and inspection
plus City administrative costs.
20. A Traffic Systems Management fee shall be paid, on a per home basis,
consistent with such fee paid for Vesting Tentative Tract Map 5882, or in effect
at the time of building permit issuance, or as specified in any development
agreement adopted for this project.
21. Sidewalks shall be provided on both sides of all private streets within the tract
(not including common driveways to garages in the Verbena neighborhood).
22. Water impoundment(s) shall be maintained in a manner which will not create
mosquito breeding sources.
23. Prior to or concurrently with approval of the Final Map the applicant shall grant
the City public access easements to the Arroyo Simi for future trail and
recreational purposes. The exact location of said easements will be subject to
the approval of the Community Development Director and the City Engineer.
Resolution No. PC-2017-620
Page 18
Concurrent with the completion of the southerly block fence/wall the applicant
shall install a gate in the southern project boundary fence/wall for access to the
Arroyo by the public in the event that a trail or recreational facility is installed
along the Arroyo. The gate shall be locked until such time as a trail or such
facility is installed and access is granted.
- END -
Resolution No. PC-2017-620
Page 19
EXHIBIT D
DEVELOPMENT AGREEMENT NO. 2016-01
Resolution No. PC-2017-620
Page 20
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
M.P. Group, LLC
(Pacific Communities)
Resolution No. PC-2017-620
Page 21
DEVELOPMENT AGREEMENT
This Development Agreement ("the Agreement") is made and entered into on
, 2017 by and between the CITY OF MOORPARK, a municipal
corporation (referred to hereinafter as "City") and ., the
owner of real property within the City of Moorpark generally referred to as Residential
Planned Development Permit 2016-01 (referred to hereinafter individually as
"Developer"). City and Developer are referred to hereinafter individually as "Party" and
collectively as "Parties." In consideration of the mutual covenants and agreements
contained in this Agreement, City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the following facts and for the
following purposes, each of which is acknowledged as true and correct by the
Parties:
1.1 Pursuant to Government Code Section 65864 et seq. and Moorpark
Municipal Code Chapter 15.40, City is authorized to enter into a binding
contractual agreement with any person having a legal or equitable interest
in real property within its boundaries for the development of such property
in order to establish certainty in the development process.
1.2 Developer is the owner in fee simple of certain real property in the City of
Moorpark, as more specifically described by the legal description set forth
in Exhibit A, which exhibit is attached hereto and incorporated herein by
this reference (the "Property").
1.3 Prior to, and in connection with, the approval of this Agreement, the City
Council reviewed the project to be developed pursuant to this Agreement
as required by the California Environmental Quality Act ("CEQA.") The
City Council found that the Mitigated Negative Declaration ("MND") and
Mitigation Monitoring and Reporting Program ("the MMRP") adopted by to
be applicable to this Agreement and the Project Approvals as defined in
Section 1.4 of this Agreement and that (Additional language to be
added later)
1.4 General Plan Amendment No. 2016-01("GPA "), Zone Change No. 2016-
01("ZC "), Residential Planned Development Permit No. 2016-01 ("RPD"),
and Tentative Tract Map No. 5882 ("TTM") including all subsequently
approved modifications and permit adjustments to the RPD, TTM, and all
amendments thereto (collectively "the Project Approvals"; individually "a
Project Approval") provide for the development of the Property with 284
homes consisting of 154 small-lot detached homes and 130 detached
condominium ownership homes and the construction of certain off-site
improvements in connection therewith ("the Project").
Resolution No. PC-2017-620
Page 22
1.5 City and Developer acknowledge and agree that the previous
Development Agreement No. 1998-02 for the Property, approved by the
City Council on December 2, 1998 by Ordinance No. 257, needs to be
voided so a new Development Agreement reflecting the Project can be
adopted and implemented. City and Developer also acknowledge and
agree that by the enabling ordinance approving this new Agreement, the
City's previous approval of Development Agreement No. 1998-02
pursuant to Ordinance No. 257 is rescinded and that rescission will take
effect upon the date the enabling ordinance for this Agreement under
Government Code Section 36937 ("Enabling Ordinance") becomes
effective ("Operative Date").
1.6 City and Developer acknowledge and agree that the approval of
Residential Planned Development Permit Nos. 1996-01 and 1999-04 for
the Property, approved by City Council Resolution Nos. and
expired due to lack of Project inauguration by Developer.
1.7 By this Agreement, City desires to obtain the binding agreement of
Developer to develop the Property in accordance with the Project
Approvals and this Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its governmental and proprietary
powers to the extent specified in this Agreement.
1.8 By this Agreement, Developer desires to obtain the binding agreement of
City to permit the development of the Property in accordance with the
Project Approvals and this Agreement. In consideration thereof,
Developer agrees to waive its rights to legally challenge the limitations and
conditions imposed upon the development of the Property pursuant to the
Project Approvals and this Agreement and to provide the public benefits
and improvements specified in this Agreement.
1.9 City and Developer acknowledge and agree that the consideration that is
to be exchanged pursuant to this Agreement is fair, just and reasonable
and that this Agreement is consistent with the General Plan of City, as
currently amended.
1.10 On ,2017, the Planning Commission commenced a duly
noticed public hearing on this Agreement, and at the conclusion of the
hearing on 2017recommended approval of this
Agreement.
1.11 On ,2017, the City Council of City ("City Council")
commenced a duly noticed public hearing on this Agreement, and
following the conclusion of the hearing closed the hearing and approved
the Agreement by adoption of Ordinance No. ("the Enabling
Ordinance") on ,2017.
Resolution No. PC-2017-620
Page 23
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".
3. Binding Effect. The burdens of this Agreement are binding upon, and the
benefits of the Agreement inure to, each Party and each successive successor in
interest thereto (subject to Section 3.4 below) and constitute covenants that run
with the Property. Whenever the terms "City" and "Developer" are used herein,
such terms shall include every successive successor in interest thereto.
3.1 Constructive Notice and Acceptance. Every person who acquires any
right, title or interest in or to any portion of the Property shall be
conclusively deemed to have consented and agreed to be bound by this
Agreement, whether or not any reference to the Agreement is contained in
the instrument by which such person acquired such right, title or interest,
subject to Section 3.2 below.
3.2 Release Upon Subsequent Transfer. Upon the sale or transfer of
Developer's interests in the Project or Property to a single purchaser (or
any such purchaser or subsequent purchaser's sale of the entire Project
or entire Property), Developer, or any such subsequent purchaser (as
applicable), shall be released from its obligations hereunder with respect
to the Project or Property subsequent to the effective date of the sale or
transfer, provided that the seller or transferor (i) was not in breach of this
Agreement at the time of the sale or transfer, and (ii) prior to the sale or
transfer, delivered to City a written assumption agreement, duly executed
by the purchaser or transferee and notarized by a notary public, whereby
the purchaser expressly assumes the obligations under this Agreement
with respect to the Project or Property. Failure to provide a written
assumption agreement hereunder shall not negate, modify or otherwise
affect the liability of the purchaser or transferee pursuant to this
Agreement. Nothing contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or transfer, except as
otherwise provided in this Agreement. (Need to more specifically
address sale of a portion of the Project or Property or sale to
multiple buyers.)
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
Resolution No. PC-2017-620
Page 24
and size of buildings, that shall be applicable to the Property are set forth
in the Project Approvals and this Agreement.
4.3 Building Standards. All construction on the Property shall adhere to all
City building codes in effect at the time the plan check or permit is
approved per Title 15 of the Moorpark Municipal Code and to any federal
or state building requirements that are then in effect (collectively "the
Building Codes").
4.4 Reservations and Dedications. All reservations and dedications of land for
public purposes that are applicable to the Property are set forth in the
Project Approvals and this Agreement.
5. Vesting of Development Rights.
5.1 Timing of Development. Developer shall comply with the Schedule of
Performance attached hereto as Schedule 1, subject to Excused Delays
(as defined in Section 10) and as amended from time to time and
approved in writing by the City Council.
No future amendment of any existing City ordinance or resolution, or
future adoption of any ordinance, resolution or other action, that purports
to limit the rate or timing of development over time or alter the sequencing
of development phases, whether adopted or imposed by the City Council
or through the initiative or referendum process, shall apply to the Property
provided the Property is developed in accordance with the Project
Approvals and this Agreement. Nothing in this section shall be construed
to limit City's right to ensure that Developer timely provides all
infrastructure required by the Project Approvals, Subsequent Approvals,
and this Agreement.
5.2 Amendment of Project Approvals. No amendment of any of the Project
Approvals, whether adopted or approved by the City Council or through
the initiative or referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to the amendment.
5.3 Issuance of Subsequent Approvals. Applications for land use approvals,
entitlements and permits, including without limitation subdivision maps
(e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps),
subdivision improvement agreements and other agreements relating to the
Project, lot line adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g. site plans,
architectural plans and landscaping plans), encroachment permits, and
sewer and water connections that are necessary to or desirable for the
development of the Project (collectively "the Subsequent Approvals";
individually "a Subsequent Approval") shall be consistent with the Project
Resolution No. PC-2017-620
Page 25
Approvals and this Agreement. For purposes of this Agreement,
Subsequent Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project Approvals and by
the applicable provisions of the Moorpark General Plan, the Moorpark
Municipal Code and other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently adopted or
approved by the City Council or through the initiative or referendum
process and in effect at the time that the application for the Subsequent
Approval is deemed complete by City (collectively "City Laws"), except
City Laws that:
(a) change any permitted or conditionally permitted uses of the
Property from what is allowed by the Project Approvals;
(b) limit or reduce the density or intensity of the Project, or any part
thereof, or otherwise require any reduction in the number of
proposed buildings or other improvements from what is allowed by
the Project Approvals.
(c) limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of the
Project in any manner, provided that all infrastructure required by
the Project Approvals to serve the portion of the Property covered
by the Subsequent Approval is in place or is scheduled to be in
place prior to completion of construction;
(d) are not uniformly applied on a City-wide basis to all substantially
similar types of development projects or to all properties with similar
land use designations;
(e) control residential rents;
(f) prohibit or regulate development on slopes with grades greater than
20 percent, including without limitation Moorpark Municipal Code
Chapter 17.38 or any successor thereto, within the Property; or
(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 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
Resolution No. PC-2017-620
Page 26
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.
5.5 Issuance of Building Permits. No Building Permit shall be unreasonably
withheld or delayed from Developer if Developer is in compliance with this
Agreement and the Project Approvals and Subsequent Approvals. In
addition, no Final Building Permit final inspection or Certificate of
Occupancy will be unreasonably withheld or delayed from Developer if all
infrastructure required by the Project Approvals, Subsequent Approvals,
and this Agreement to serve the portion of the Property covered by the
Final Building Permit is in place or is scheduled to be in place prior to
completion of construction, the Developer is in compliance with all
provisions of this Agreement, the Project Approvals and Subsequent
Approvals, and all of the other relevant provisions of the Project
Approvals, Subsequent Approvals and this Agreement have been
satisfied. Consistent with section 5.1 of this Agreement, in no event shall
building permits be allocated on any annual numerical basis or on any
arbitrary allocation basis.
6. Developer Agreements.
6.1 Development as a Residential Project. Developer shall comply with (i) this
Agreement, (ii) the Project Approvals, (iii) all Subsequent Approvals for
which it was the applicant or a successor in interest to the applicant and
(iv) the MMRP of the MND and any subsequent or supplemental
environmental actions. Developer agrees not to apply for any non-
residential uses on the Property. The clubhouse and private recreational
facilities are considered to be part of the residential uses.
6.2 Condition of Dedicated or Conveyed Property. All lands and interests in
land dedicated to City shall be free and clear of liens and encumbrances
other than easements or restrictions that do not preclude or interfere with
use of the land or interest for its intended purpose, as reasonably
determined by City.
6.3 Development Fee Per Unit. As a condition of the issuance of a building
permit for each residential dwelling unit within the boundaries of the
Property, Developer shall pay City a one-time development fee as
described herein (the "Development Fee"). The Development Fee may be
expended by City in its sole and unfettered discretion. The amount of the
Resolution No. PC-2017-620
Page 27
Development Fee shall be Nine Thousand Two Hundred Dollars
($9,200.00) per residential unit. The Development Fee shall be adjusted
annually commencing January 1, 2019, by the Consumer Price Index
(CPI). The annual CPI adjustment 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.
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.
6.4 Traffic Mitigation Fee. As a condition of the issuance of building permit for
each residential dwelling unit within the boundaries of the Property,
Developer shall pay City a one-time traffic mitigation fee as described
herein ("Citywide Traffic Fee"). The Citywide Traffic Fee may be
expended by City in its sole and unfettered discretion. The amount of the
Citywide Traffic Fee shall be Twelve Thousand Five Hundred Dollars
($12,500.00) per residential unit. The Citywide Traffic Fee shall be
adjusted annually commencing January 1, 2019 and annually thereafter
by the change in the Caltrans Highway Bid Price Index (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 Bid Price 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 Los Angeles Avenue Area of Contribution (LAAOC) Fees. Developer shall
pay the LAAOC fee in effect at the time of building permit issuance.
Developer agrees it shall not be required to pay the LAAOC fee for the
first eighty-seven (87) residential units in the project since Developer
previously paid the LAAOC fee for eighty-seven (87) residential units.
6.6 Air Quality Fees. Developer agrees that the Mitigation Measures included
in the City Council approved MND and MMRP, or subsequent
environmental clearance document approved by the Council, set forth the
mitigation requirements for air quality impacts. Developer agrees to pay to
City a one-time (not annual) air quality mitigation fee, as described herein
("Air Quality Fee"), in satisfaction of the Transportation Demand
Management Fund mitigation requirement for the Project. The Air Quality
Fee may be expended by City in its sole discretion for reduction of
regional air pollution emissions and to mitigate residual Project air quality
impacts.
Resolution No. PC-2017-620
Page 28
The Air Quality Fee shall be One Thousand Seven Hundred Nine Dollars
($1,709.00) per residential dwelling unit to be paid prior to the issuance of
the building permit for the first residential building in RPD 2016-01. If the
Air Quality Fee is not paid by January 1, 2019, then commencing on
January 1, 2019, and annually thereafter, the Air Quality Fee shall be
adjusted by any increase in the Consumer Price Index (CPI) until all fees
have been paid. The CPI increase shall be determined by using the
information provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for all urban consumers within the Los
Angeles/Riverside/Orange County metropolitan area during the prior year.
The calculation shall be made using the month of October over the prior
month of October. In the event there is a decrease in the CPI for any
annual indexing, the fee shall remain at its then current amount until such
time as the next subsequent annual indexing which results in an increase.
6.7 Park Fees. Prior to the issuance of the building permit for each residential
dwelling unit within the Property, Developer shall pay a one-time fee in lieu
of the dedication of parkland and related improvements ("Park Fee"). The
amount of the Park Fee shall be Ten Thousand Five Hundred Dollars
($10,500.00) for each residential dwelling unit within the Property. If the
Park Fee is not paid by January 1, 2019, the Park Fee shall be adjusted
annually commencing January 1, 2019 by the larger increase of a) or b) as
follows:
(a) The change in the CPI. The change 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; or
(b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index (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 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.
Resolution No. PC-2017-620
Page 29
6.8 Community Services Fee. As a condition of issuance of a building permit
for each residential dwelling unit within the boundaries of the Project,
Developer shall pay City a community services fee as described herein
(Community Services Fee). The Community Services Fees may be
expended by City in its sole and unfettered discretion. The amount of the
Community Services Fees shall be Two Thousand Seven Hundred Dollars
($2,700.00) per residential unit. Commencing on January 1, 2019, and
annually thereafter, the Community Services Fee shall be adjusted by any
increase in the Consumer Price Index (CPI) until all Community Service
Fee 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 this prior year. The
calculation shall be made using the month of October over the prior month
of October or in the event there is a decrease in the CPI for any annual
indexing, the Community Service Fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
6.9 Art in Public Places Fee. Developer agrees to pay the Art in Public Places
Fee in effect at the time of building permit issuance for each building prior
to the issuance of the building permit for that residential building within the
Project consistent with City Resolution No. 2005-2408 or any Successor
Resolution (1.0 percent of total building valuations excluding land value
and off-site improvement costs). Other Development and Processing
Fees. In addition to fees specifically mentioned in this Agreement,
Developer agrees to pay all City capital improvement, development, and
processing fees at the rate and amount in effect at the time the fee is
required to be paid. Said fees include but are not limited to Library
Facilities Fees, Police Facilities Fees, Fire Facilities Fees, drainage,
entitlement processing fees, and plan check and permit fees for buildings
and public improvements. Developer further agrees that unless
specifically exempted by this Agreement, it is subject to all fees imposed
by City at the Operative Date of this Agreement and such future fees
imposed as determined by City in its sole discretion so long as such fees
are imposed on projects similar to the Project or on property similar to the
Property.
6.10 Los Angeles Avenue Improvements. Within thirty (30) days of the
Operative Date, Developer shall to pay City Two Million Dollars
($2,000.000.00) for the improvements to Los Angeles Avenue along the
frontage of the Project. (Note that the actual amount is still to be
finalized). Developer acknowledges it has reviewed the City's costs for
these improvements and that the payment amount includes a credit of
Resolution No. PC-2017-620
Page 30
One Hundred Thousand Dollars ($100,000.00) previously paid by the
Developer for the LAAOC.
6.11 Processing Fees. On the Operative Date, Developer shall pay all
outstanding City processing costs related to preparation of this
Agreement, the Project Approvals, the MND.
6.12 Landscape Maintenance Assessment District. Prior to issuance of a
Zoning Clearance for the first building permit or the approval of any final
map for the Project: Developer shall pay the City a Five Thousand Dollar
($5,000) Assessment District Formation Fee. The District shall be for the
purposes of funding future costs for the maintenance of landscaping and
irrigation of the landscaped area and related improvements including but
not limited to block walls and hardscape adjacent to Los Angeles Avenue,
Leta Yancy Road and the southern boundaries of the Project. The City
shall administer the annual renewal of the Assessment District, and any
costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses.
Developer agrees to cast affirmative ballots for the establishment of the
Assessment District, and for annual increases in the assessments
thereunder, for the purposes specified in this subsection. Developer
hereby waives any right it may have to contest or protest any such
assessments or assessment increases. In the event that any such
Assessment District has insufficient funds for its purposes, then Developer
shall pay the funds required to the Assessment District within five (5)
business days after written demand from the Assessment District from
time to time. Densities Allowed for Development and Affordable Housing.
(a) Developer agrees that densities vested and incentives and
concessions received in the Project Approvals include all densities
available as density bonuses and all incentives and concessions to
which Developer is entitled under the Moorpark Municipal Code,
Government Code Sections 65915 through 65917.5 or both;
Developer shall not be entitled to further density bonuses or
incentives or concessions and further agrees, in consideration for
the density bonus obtained through the Project Approvals that is
greater than would otherwise be available, to provide twenty-five
(25) housing units affordable to low income households and the
City Site as more specifically described in subsection 6.14 and
subsection 6.15. These twenty-five housing units may be referred
to as affordable units or units affordable to low income households.
(b) Developer explicitly acknowledges that its agreement to construct
these affordable units is given both as specific consideration for
both the density bonus and in general as consideration for City's
willingness to negotiate and enter into this Agreement and for the
Resolution No. PC-2017-620
Page 31
valuable consideration given by City through this Agreement.
Developer further acknowledges that its agreement to construct
these affordable units is not the result of an existing policy or
regulation imposed by City but instead is the result of arm's length
negotiation between Parties.
(c) Developer further agrees that it shall 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 6.14 is specifically exempt from the
requirements of subsection 7.2.
(d) Prior to recordation of the first Final Map for this Project, the parties
agree to execute an Affordable Housing Purchase and Sale
Agreement (Affordable Housing Agreement) that sets forth the
Developer's and City's obligations and provides procedures and
requirements 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 Affordable Housing Agreement 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 provision, 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, quality of and responsibility for selection of amenities
and applicability of home warranties to meet all or a portion of its
obligation and any other items determined necessary by the City.
Developer shall pay the City's direct costs for preparation and
review of the Affordable Housing Agreement up to a maximum of
Ten-Thousand Dollars ($10,000.00).
(e) All affordable units shall meet the criteria of all California Health
and Safety Code statutes and implementing regulations pertaining
to for-sale Affordable Housing units so as to qualify as newly
affordable to low income households and to satisfy a portion of the
City's RHNA obligation. The affordable units required by this
Agreement are consideration for City's entry into this Agreement
and therefor none of the affordable units 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 6.14 shall be made at City's
sole discretion. If any conflict exists between this Agreement and
Resolution No. PC-2017-620
Page 32
the Affordable Housing Agreement required by and negotiated
pursuant to this Agreement or the conditions of approval for Vesting
Tentative Tract Map No. 5882 and/or RPD No. 2016-01, then the
Affordable Housing Agreement shall prevail.
(f) In the event the monthly HOA fees exceed Two Hundred Dollars
($200.00)), Developer shall deposit One Hundred Twenty Dollars
($120.00) for each dollar or portion thereof of the monthly HOA fees
that are in excess of Two Hundred Dollars ($200.00) into a City
administered trust account to assist with future HOA fees for each
affected unit.
(g) The Affordable Sales Price for low-income buyers shall not exceed
affordable housing cost, as defined in Sec. 50052.5(b) (2) of
California Health and Safety Code. Section 50052.5(h) of the
California Health and Safety Code provides that an appropriate
household size in terms of determining purchase price, is one more
person than the number of bedrooms. This means that the pricing
for a four (4) bedroom unit will be based on a household of five (5)
regardless of the actual size of the household purchasing the unit.
For example, the monthly "affordable housing cost" for a four (4)
bedroom unit would be 30% times 70% of the current median
income for a household of five (5) in Ventura County, divided by
twelve (12). This monthly amount includes the components
identified in Section 6920 of Title 25 of the California Code of
Regulation shown below (See Section 50052.5(c) of the Health and
Safety Code). The Affordable Sales Price for a low income
household would be for a four (4) bedroom unit under current
market conditions, based upon the following assumptions:
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Low Income Buyer
Item Detail Amount
4 Bedroom
Affordable Sale $212,750
Price
Down Payment 5% of Affordable $10,638
Sales Price
Affordable Sales P
Loan Amount Price less Down $202,113
payment
Interest Rate 4.50%
Monthly 1.25% of Initial $222
Property Tax Purchase Price
LMD Not Currently N/A
HOA $200
Fire Insurance $60
Maintenance $30
Utilities $180
(h) The assumptions associated with the above purchase price figures
for low income households include a 5% down payment, based on
Affordable Sales Price of $183,500 for a four (4) bedroom unit,
mortgage interest rate of 4.50%, no mortgage insurance, property
tax rate of 1.25%, based on Affordable Sales Price, homeowners'
association dues of $200 per month, fire insurance of $60 per
month, maintenance costs of $30 per month, and utilities of $180
per month for a four (4) bedroom unit.
(i) Developer acknowledges that changes in market conditions may
result in changes to the Affordable Sales 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 Purchase and Sale
Agreement negotiated pursuant to this Agreement shall address
this potential change.
(j) 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 Affordable
Sales Price shall be based on a household size appropriate to the
number of bedrooms in the unit being purchased by the City,
consistent with all requirements of this subsection 6.14. Developer
agrees that, pursuant to City's rights under this Agreement and/or
the Affordable Housing Agreement and prior to and upon the sale
Resolution No. PC-2017-620
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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 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, shall have sole responsibility for approving any
subsequent sale of that housing unit.
(k) Developer agrees that City shall be responsible at its sole
discretion for marketing the affordable units, selecting and
qualifying eligible buyers for these units, and overseeing the escrow
processes to sell the affordable units to low income households,
providing the forms of Deed of Trust, Promissory Note, Resale
Refinance Restriction Agreement and Option to Purchase Property
and Notice of Affordability Restriction on Transfer of Property
(collectively Affordability Documents) and all necessary contracts
and related documents to ensure that the referenced affordable
units remain occupied by low income households for the longest
feasible time. Developer further agrees that the difference between
the Affordable Sales Price (as referenced in this Agreement) paid
by a qualified buyer and market value shall be retained by City as a
second deed of trust.
(I) Developer shall pay closing costs for each affordable unit, not to
exceed Eight Thousand Dollars ($8,000.00). Beginning January 1,
2019 and on January 1st for each year thereafter, the maximum
Eight Thousand Dollars ($8,000.00) 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/Riverside/Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the month of October. In the event there is a
decrease in the CPI for any annual indexing, the closing costs for
each affordable unit 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 if one or more of the required units are purchased by the
City) 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.
Resolution No. PC-2017-620
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(m) DEVELOPER warrants that the quality of materials and
construction techniques of the affordable units sold to the qualified
low income buyer, or CITY shall in all manner be identical to that of
all other units constructed in this Project and subject to all
Conditions of Approval and shall meet all Building Codes.
(n) The CITY shall have the same choices of finish options as
purchasers of market rate units in this Project and final walk-
through approval of condition of unit before close of sale. Any
options provided to buyers of market rate units shall be provided to
CITY or buyer(s) of the affordable units, including but not limited to
color and style choices for carpeting and other floor coverings,
counter tops, roofing materials, exterior stucco and trim of any type,
fixtures, and other decorative items.
(o) DEVELOPER agrees that all warranties for the affordable units
shall be the same or better than those for the market rate units, all
such warranties shall inure to the benefit of and be enforceable by
the ultimate occupants of the affordable units and that all warranties
by subcontractors and suppliers shall inure to the benefit of and be
enforceable by such occupants. The home warranties for the
affordable units shall be the same duration as the warranties for the
market rate units and not less than the maximum time required by
State law but in no event less than ten (10) years.
(p) DEVELOPER agrees to provide the same amenities and home
warranties associated with the affordable units purchased by the
low income buyer, or CITY as the amenities and home warranties
associated with the market rate units. The amenities shall include
but not be limited to concrete roof tiles; air conditioning/central
heating; garage door opener; fireplaces; washer/dryer hook-ups;
garbage disposal; built-in dishwasher, stove, oven and microwave;
windows; wood cabinets; shelving; counter-tops; floor coverings;
window coverings; electrical outlets, lighting fixtures and other
electrical items; plumbing fixtures including sinks, bathtubs and
showers; and door and cabinet hardware, and shall all be of the
same quality and quantity as provided in the Project's market rate
units as determined by the City's Community Development Director
and City staff person responsible for City's Affordable Housing
Programs.
(q) The floor plan and size of the units shall be approved by the
Community Development Director and City staff person responsible
for City's Affordable Housing Programs, and include a downstairs
bathroom.
Resolution No. PC-2017-620
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(r) The parties agree that prior to and upon the sale of an affordable
unit to a qualified buyer or City, City may at its sole discretion take
any actions and impose any conditions on buyer eligibility and on
said sale or subsequent sale of the unit to ensure ongoing
affordability to low income households and related matters.
DEVELOPER agrees if it sells any of the affordable units directly to
a qualified low income buyer, all requirements of the buyer,
including, but not limited to, completion of a CITY approved
homebuyer education training workshop, and CITY approved
documents for the transaction, including a promissory note, deed of
trust, and resale restriction agreement and option to purchase (the
"affordability Document"), shall be included as a requirement of the
sale. The language of all such documents shall be approved by
CITY at its sole discretion.
(s) In the event City is unable to provide a qualified buyer when one of
the low-income units has received final inspection approval,
Developer shall be allowed to continue to obtain building permits
and/or final inspection approval for the non-affordable units. Any
low-income units remaining unsold six (6) months after the final
inspection approval of the 280th unit will be purchased by the City,
as provided for in the Affordable Housing Agreement. Developer is
required to maintain low-income units in move-in condition until
such time as the City finds a buyer. For purposes of this schedule,
final inspection approval requires approval of the City's Building
Official and Community Development Director.
(t) Developer also agrees that subsidiaries, divisions or affiliates of
Developer may not be used to provide lending, escrow or other
services relevant to the purchase transactions for the affordable
units.
(u) If a qualified low income buyer is identified by City prior to or at the
time of final inspection approval of any of the affordable units,
Developer shall open escrow for the sale of said unit as provided
for in the Affordable Housing Agreement, and shall enter escrow
directly with the buyer identified by City, and proceed to closing of
said escrow. If a qualified low income buyer has not been identified
at the time Developer receives it final inspection approval for an
affordable unit, City, at its option, may agree to purchase the
affordable unit required to be provided by Developer for the amount
and at the time as provided for in this agreement. Developer and
City agree to use their best efforts to complete the close of escrow
within forty-five (45) days of the final inspection approval of an
affordable unit.
Resolution No. PC-2017-620
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(v) DEVELOPER shall satisfy all mechanic's, laborer's, material man's,
supplier's, or vendor's liens and any construction loan or other
financing affecting any unit or lot in the Project which has been
designated for an affordable unit, before the close of escrow for that
affordable unit.
(w) Developer agrees that the required construction of the low income
affordable units shall be completed by DEVELOPER and occupied
by qualified buyers (or at City's sole discretion sold to City) on
terms consistent with this Agreement and the Affordable Housing
Agreement as specified in the following schedule:
Prior to # of Low
Occupancy of Income
Units
Total 25
(x) The required affordable units within the Project shall be located on
unit (may also be referred to as pad or lot) numbers . The
City Manager or the City Manager's designee may approve
different unit numbers within the Project so long as the unit contains
no less than square feet.
6.13 Conveyance to City of City Site; In lieu of providing seventeen (17)
residential units for very low income households, Developer agrees to
convey to City at no cost to City (except $1.00 purchase price) an
approximate 1.6 acre site (City Site). City Site may be used for any
purposes at City's sole discretion. Developer at its sole cost and to City's
specifications shall grade the site to be suitable for multi-family residential
project and meet all of the requirements for a certified pad to allow a
Building Permit to be issued including obtaining a CLOMR and satisfying
all FEMA and NPDES requirements. Developer shall also provide all
street improvements including curb, gutter and sidewalk; stubout all
utilities to the City Site including electrical, natural gas, water, sewer,
cable, telephone, and fiber optic; six (6) foot block wall on the west and
south property lines, (any slopes on the west and north sides shall be
placed on the Property and Project or eliminated by use of retaining walls).
Developer shall not be responsible for the payment of any utility
connection fees. Grading and related improvements shall be completed to
City's satisfaction prior to issuance of the first residential building permit
Resolution No. PC-2017-620
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(excluding models) for the Project. The Developer agrees to convey the
"City Site" as shown in Exhibit "B" pursuant to the Purchase and Sale
Agreement attached hereto as Exhibit "C" (the "Purchase and Sale
Agreement") Developer shall execute and deliver the Purchase and Sale
Agreement concurrently with its execution and delivery of this Agreement
and upon delivery to Developer of a copy thereof executed by the City,
Developer shall comply with the Purchase and Sale Agreement.
Developer will defend, indemnify and hold City harmless from and against
any and all claims, liabilities, losses, damages, costs and expenses arising
from any activity by Developer or its contractors on the City Site.
6.14 Annual Review Procedures. Developer agrees to comply with Section
15.40.150 of the Moorpark Municipal Code and any provision amendatory
or supplementary thereto for annual review of this Agreement and further
agrees that the annual review shall include evaluation of its compliance
with the approved MND and MMRP.
6.15 Eminent Domain. Developer agrees that any election to acquire property
by eminent domain shall be at City's sole discretion, and only after
compliance with all legally required procedures including but not limited to
a hearing on a proposed resolution of necessity.
6.16 Street Improvement Standards. The street improvements for all streets
scheduled for dedication to the City shall be designed and constructed by
Developer to provide for a 50-year life as determined by the City Engineer.
6.17 Implementation Plan. Prior to the submittal of an application for any
subdivision, or any other development project or entitlement application,
Developer shall submit and gain approval from City Council a plan to
guarantee the agreements contained in this Section 6 and conditions of
approval for the Tract and RPD. The plan shall address the entities
responsible and method and timing of guarantee for each component of
Developer's or Developer's obligations and is subject to City approval at
its sole discretion.
6.18 Fee Protest Waiver. Developer agrees that any fees and payments
pursuant to this Agreement and for the Project shall be made without
reservation, and Developer expressly waives the right to payment of any
such fees under protest pursuant to California Government Code Section
66020 and statutes amendatory or supplementary thereto. Developer
further agrees that the fees it has agreed to pay pursuant to Section 6.3
and Section 6.8 of this Agreement are not public improvement fees
collected pursuant to Government Code Section 66006 and statutes
amendatory or supplementary thereto.
Resolution No. PC-2017-620
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6.19 CPI Indexes. In the event the "CPI" referred to in Sections 6.3, 6.6 6.7,
6.8 or 6.14 (I), or the Bid Price Index referred to in Section 6.4 or 6.7 are
discontinued or revised, a successor index with which the "CPI" and or Bid
Price 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 Bid Price Index had not been discontinued or revised.
6.20 Proposed Mello-Roos Community Facilities District. Developer agrees
that if a Mello-Roos Community Facilities District (CFD) is formed
consistent with Section 7.3 of this Agreement, Developer shall submit the
required deposit and reimbursement agreement.
Developer agrees to (i) limit its total reimbursement from the proceeds of
Bonds of CFD to $ and (ii) any funds in the Project Improvement Fund
in excess of the amount required to fund such total reimbursement, less
any CFD consultant costs associated with the redemption of Bonds shall
be applied to redeem a portion of the Bonds, consistent with applicable
provisions of State and Federal laws and regulations.
Developer also acknowledges that if a CFD is authorized, at City's
discretion the CFD shall include on-going annual special taxes for services
provided to the Project.
Developer agrees that it shall prepay all special taxes levied, or which may
be levied in the future (except for special taxes for on-going services), as
part of the CFD or any successor or any additional CFD prior to the sale of
any of the affordable units to the City or qualified buyer. The intent of this
section is that the owners of the affordable units shall at no time have any
obligations to make any special tax payments to or for the benefit of the
CFD or its bondholders except for special taxes for services.
6.21 Los Angeles Avenue Traffic Signal. If directed by the City Council and
approved by Caltrans, Developer agrees at it sole cost and expense to
install a traffic signal at the intersection of Los Angeles Avenue (SR118)
and Shasta Avenue/Project entrance. Final design, plans and
specifications shall be as approved by the City Council and Caltrans and
shall include an interconnect system. Developer shall also pay City's
costs for plan check and inspection plus City administrative costs.
6.22 City Ability to Modify. Developer acknowledges the City's ability to modify
the development standards and to change the General Plan designation
and zoning of the Property upon the termination or expiration of this
Agreement (if the Project has not been built), and Developer hereby
waives any rights they might otherwise have to seek judicial review of
such City actions to change the development standards, General Plan
designation and zoning to those development standards and density of
Resolution No. PC-2017-620
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permitted development to that in existence prior to the approval of General
Plan Amendment No. ("GPA ") and Zone Change No. ("ZC ").
6.23 Prior Development Agreement and Residential Planned Development
Permit. Developer agrees that by the Enabling Ordinance approving this
Agreement, the City's previous approval of Development Agreement No.
1998-02 Pursuant to Ordinance No. 257 is rescinded and that rescission
will take effect upon the Operative Date. Developer further agrees that the
approval of Residential Planned Development Permit Nos. 1996-01 and
1999-04 for the Property, approved by the City Council by Resolution Nos.
and have expired due to lack of Project inauguration by
Developer and that Developer will not seek final map approval for
Tenative Trust Map Nos. 5053 and 5204.
6.24 Homeowners Association. Prior to recordation of the first final map for the
Property, if required by City at its sole discretion, Developer shall form one
or more property owner associations to assume ownership and
maintenance of private recreation, private streets, parking lots, landscape
areas, flood control and NPDES facilities and other amenities within the
Project. The obligation of said Homeowners Associations shall be more
specifically defined in the conditions of approval of the first tentative tract
or parcel map for the property.
7. City Agreements.
7.1 Commitment of Resources. At Developer's expense, City shall commit
reasonable time and resources of City staff to work with Developer on the
processing of applications for Project Approvals and all Subsequent
Approvals and Building Permits for the Project area and if requested in
writing by Developer shall use overtime and independent contractors
whenever possible.
7.2 Easement and Fee Title Acquisitions. If requested in writing by Developer
and limited to City's legal authority, City at its sole and absolute discretion
shall proceed to acquire, at Developer's sole cost and expense,
easements or fee title to land in which Developer does not have title or
interest in order to allow construction of public improvements required of
Developer including any 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.
Resolution No. PC-2017-620
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7.3 Proposed Mello-Roos Community Facilities District. City agrees that upon
receipt of a landowner' petition by Developer and Developer's payment of
a deposit of Fifteen Thousand ($15,000.00) and agreement to reimburse
all City costs related to processing of the proposed Mello-Roos
Community Facilities District (CFD), as prescribed in the applicable
sections of the California Government Code, City shall commence
proceedings to form (CFD) and to incur bonded indebtedness to finance
all or portions of the development fees, 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 CFD upon the conclusion of the public
hearing required by the applicable section of the California Government
Code. 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 (except for special taxes for on-going services) in
full prior to the close of escrow on the initial sale of the developed lot by
the builder of the residence. All on-going costs for City to administer the
District shall be included in the costs to be paid by the District.
7.4 Concurrent Entitlement Processing. City agrees that whenever possible as
determined by City in its sole discretion to process concurrently all land
use entitlements for the Project so long as the application for such
entitlements are "deemed complete" in compliance with the requirements
of Chapter 4.5 Review and approval of Development Projects (Permit
Streamlining Act) of the California Government Code.
7.5 Park Fees. City agrees that the Park Fee required under Section 6.7 of
this Agreement meets all of Developer's obligation for park land dedication
provisions of state law and City codes.
7.6 Los Angeles Avenue Area of Contribution (LAAOC) Fees. City agrees
that Developer previously paid the LAAOC fee for Eighty-Seven (87)
residential units in the amount of Two Hundred Forty-One Thousand One
hundred Thirty Five Dollars and Twenty-Nine Cents ($241,135.29) on
August 3, 2001 and said payment satisfies the LAAOC fee obligation for
the first Eighty-Seven (87) residential units of the Project.
7.7 Reimbursements from other Developments. City shall facilitate the
reimbursement to Developer of any costs incurred by Developer that may
be subject to partial reimbursement from other developers as a condition
of approval of a tract map, development permit or development agreement
with one or more other developers and at City's discretion may include
provisions requiring such reimbursement to Developer for the same in
such other development project conditions of approval.
Resolution No. PC-2017-620
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7.8 Early Grading Agreement. The City Manager is authorized to sign an
early grading agreement on behalf of the 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 the
Project approved tentative map 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; construction
of on-site and off-site improvements consistent with the City Council
approved Project and Tentative Map. 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.
7.9 Acquisition by City of City Site. Provided Developer shall have duly
executed and delivered the Purchase and Sale Agreement to City, City
shall enter into the Purchase and Sale Agreement to acquire the City Site.
7.10 Prior Development Agreement and Residential Planned Development
Permit. City agrees that the previous Development Agreement No. 1998-
02 for the Property, approved by the City Council by Ordinance No. 257
are both rescinded upon the Operative Date. City further agrees that the
approval of Residential Planned Development Permit No. 1996-01 and
1999-04 approved by the City Council have expired due to lack of Project
inauguration by Developer.
8. Supersession of Agreement by Change of Law. In the event that any state or
federal law or regulation enacted after the date the Enabling Ordinance was
adopted by the City Council prevents or precludes compliance with any provision
of the Agreement, such provision shall be deemed modified or suspended to
comply with such state or federal law or regulation, as reasonably determined
necessary by City.
9. Demonstration of Good Faith Compliance. In order to ascertain compliance by
Developer with the provisions of this Agreement, the Agreement shall be
reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40.
of City or any successor thereof then in effect. The failure of City to conduct any
such annual review shall not, in any manner, constitute a breach of this
Agreement by City, diminish, impede, or abrogate the obligations of Developer
hereunder or render this Agreement invalid or void. At the same time as the
referenced annual review, City shall also review Developer's compliance with the
MMRP.
10. Authorized Delays. Performance by any Party of its obligations hereunder, other
than payment of fees, shall be excused during any period of "Excusable Delay",
as hereinafter defined, provided that the Party claiming the delay gives written
notice of the delay to the other Parties as soon as possible after the same has
Resolution No. PC-2017-620
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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 or other local government entity to
provide adequate levels of public services, facilities or infrastructure to the
Property including, by way of example only, the lack of water to serve any portion
of the Property due to drought; (h) delay caused by a delay by other third party
entities which are required to approve plans or documents for Developer to
construct the Project, or restrictions imposed or mandated by such other third
party entities or governmental entities other than City, (including but not limited
to, Ventura County Watershed Protection District); or (i) litigation brought by a
third party attacking the validity of this Agreement, a Project Approval, a
Subsequent Approval or any other action necessary for development of the
Project.
11. Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have breached
this Agreement if it:
(a) practices, or attempts to practice, any fraud or deceit upon City; or
willfully violates any order, ruling or decision of any regulatory or
judicial body having jurisdiction over the Property or the Project,
provided that Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good faith, in
which event no breach of this Agreement shall be deemed to have
occurred unless and until there is a final adjudication adverse to
Developer; or
(b) fails to make any payments required under this Agreement within
five (5) business days after City gives written notice to Developer
that the same is due and payable; or
(c) breaches any of the other provisions of this Agreement and fails to
cure the same within thirty (30) days after City gives written notice
to Developer of such breach (or, if the breach is not able to be
cured within such thirty (30) day period, Developer fails to start to
cure the same within thirty (30) days after delivery of written notice
by City of such breach or fails to thereafter diligently prosecute the
cure to completion).
11.2 Default by City. City shall be in breach of this Agreement if it breaches
any of the provisions of this Agreement and fails to cure the breach within
thirty (30) days after Developer gives written notice to City of the breach
Resolution No. PC-2017-620
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(or, if the breach is not able to be cured within such thirty (30) day period,
City fails to start to cure the same within thirty (30) days after delivery of
written notice from Developer of such breach or fails to thereafter diligently
prosecute the cure to completion).
11.3 Content of Notice of Violation. Every notice of breach shall state with
specificity that it is given pursuant to this section of this Agreement, the
nature of the alleged breach, and the manner in which the breach may be
satisfactorily cured. Every notice shall state the applicable period to cure.
The notices shall be given in accordance with Section 20 hereof.
11.4 Remedies for Breach. Each party shall have any and all remedies for
breach of this Agreement that may be available under applicable law.
Additionally, the Parties acknowledge that remedies at law, including
without limitation monetary damages, would be inadequate for breach of
this Agreement by any Party due to the size, nature and scope of the
Project. The Parties also acknowledge that it would not be feasible or
possible to restore the Property to its natural condition once
implementation of this Agreement has begun.
Consequently, the remedies for breach of this Agreement by either party
shall include injunctive relief and/or specific performance.
In addition, if Developer is in default under this Agreement, City shall have
the right to withhold the issuance of building permits to Developer from the
date that the notice of violation was given pursuant to Section 11.3 hereof
until the date that the breach is cured as provided in the notice of violation.
12. Mortgage Protection. If City gives notice to Developer of a breach, City shall
send a copy of the notice to each holder of record of any deed of trust on the
portion of the Property in which Developer has a legal interest ("Financier"),
provided that the Financier has given prior written notice of its name and mailing
address to City and the notice makes specific reference to this section. The
copies shall be sent by United States mail, registered or certified, postage
prepaid, return receipt requested, and shall be deemed received upon the third
(3rd) day after deposit.
Each Financier that has given prior notice to City pursuant to this section shall
have the right, at its option and insofar as the rights of City are concerned, to
cure any such breach within eighteen (18) days after the giving of the notice by
City. If such breach cannot be cured within such time period, the Financier shall
have such additional period as may be reasonably required to cure the same,
provided that the Financier gives notice to City of its intention to cure and
commences the cure within eighteen (18) days after giving of the notice by City
and thereafter diligently prosecutes the same to completion. City shall not
commence legal action against Developer by reason of Developer's breach
Resolution No. PC-2017-620
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without allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be binding and
effective against the Financier and every owner of the Property, or part thereof,
whose title thereto is acquired by foreclosure, trustee sale or otherwise; provided,
however, Financier and such owner shall not be responsible for any matters that
occurred prior to their acquisition of the Project.
13. Estoppel Certificate. At any time and from time to time, Developer may deliver
written notice to City and City may deliver written notice to Developer requesting
that such Party certify in writing that, to the knowledge of the certifying Party, (i)
this Agreement is in full force and effect and a binding obligation of the Parties,
(ii) this Agreement has not been amended, or if amended, the identity of each
amendment, and (iii) the requesting Party is not in breach of this Agreement, or if
in breach, a description of each such breach. The Party receiving such a request
shall execute and return the certificate within ten (10) days following receipt of
the notice. City acknowledges that a certificate may be relied upon by
successors in interest to the Developer who requested the certificate and by
holders of record of deeds of trust on the portion of the Property in which that
Developer has a legal interest.
14. Administration of Agreement. Any consent or approval herein to be given by the
City may be given by the City Manager provided it is express and is in writing.
Any decision by City staff concerning the interpretation and administration of this
Agreement and development of the Property in accordance herewith may be
appealed by the Developer to the City Council, provided that any such appeal
shall be filed with the City Clerk of City within ten (10) days after the affected
Developer receives written notice of the staff decision. The City Council shall
render its decision to affirm, reverse or modify the staff decision within thirty (30)
days after the appeal was filed. The Developer shall not seek judicial review of
any staff decision without first having exhausted its remedies pursuant to this
section.
15. Amendment or Termination by Mutual Consent. In accordance with the
provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any
successor thereof then in effect, this Agreement may be amended or terminated,
in whole or in part, by mutual consent of City and the affected Developer.
15.1 Exemption for Amendments of Project Approvals. No amendment to a
Project Approval or Subsequent Approvals shall require an amendment to
this Agreement and any such amendment shall be deemed to be
incorporated into this Agreement at the time that the amendment becomes
effective, provided that the amendment is consistent with this Agreement
and does not alter the permitted uses, density, intensity, maximum height,
size of buildings or reservations and dedications as contained in the
Project Approvals or Subsequent Approvals.
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16. Developer Indemnification. Developer shall indemnify, defend with counsel
approved by City, and hold harmless City and its officers, employees and agents
from and against any and all losses, liabilities, fines, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or resulting in any way
from, Developer's performance pursuant to this Agreement including , but not
limited to, Developer's construction of the Project on the Property and
construction of improvements on the City Site and any injury sustained by any
person in connection with the construction or partial construction of buildings and
improvements on the Property and City Site.
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, the environmental documents prepared and approved in
connection with the approval of the Project, or any Project Approval or
Subsequent Approval or modifications thereto, or any other subsequent
entitlements for the project and including any related environmental approval.
17. Time of Essence. Time is of the essence for each provision of this Agreement of
which time is an element.
18. Operative Date. As described in Section 1.5 above, this Agreement shall
become operative on the Operative Date, being the date the Enabling Ordinance
becomes effective pursuant to Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect for a term of fifteen
(15) years commencing on the Operative Date or until one year after the
issuance of the final building permit for occupancy of the last unit of the Project
whichever occurs last, unless said term is amended or the Agreement is sooner
terminated as otherwise provided herein. Expiration of the term or earlier
termination of this Agreement shall not automatically affect any Project Approval
or Subsequent Approval or Building Permit or Final Building Permit that has been
granted or any right or obligation arising independently from such Project
Approval or Subsequent Approval or Building Permit or Final Building Permit.
Upon expiration of the term or earlier termination of this Agreement, the Parties
shall execute any document reasonably requested by any Party to remove this
Agreement from the public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant to this Agreement
shall be in writing and shall be deemed received when personally delivered or
upon the third (3rd) day after deposit in the United States mail, registered or
certified, postage prepaid, return receipt requested, to the Parties at the
addresses set forth in Exhibit "D" attached hereto and incorporated herein.
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Any Party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and documents
referenced herein contain the entire agreement between the Parties regarding
the subject matter hereof, and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall not be amended,
except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of
any other provision, whether or not similar; nor shall any such waiver constitute a
continuing or subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized representative of the
Party against whom enforcement of the waiver is sought.
23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of this
Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as
an agent of any of the other Parties in any respect. Nothing contained herein or
in any document executed in connection herewith shall be construed as creating
the relationship of partners, joint ventures or any other association of any kind or
nature between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole benefit of the Parties and their successors in interest. No other person shall
have any right of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and any
amendment thereof shall be recorded with the County Recorder of the County of
Ventura by the City Clerk of City within the period required by Chapter 15.40 of
the Moorpark Municipal Code of City or any successor thereof then in effect.
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,
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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.
IN WITNESS WHEREOF, , and City of Moorpark
have executed this Development Agreement on the date first above written.
CITY OF MOORPARK
Janice S. Parvin
Mayor
a California limited partnership
By:
By:
By:
Title:
Print Name:
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EXHIBIT "A"
LEGAL DESCRIPTION
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EXHIBIT "B"
LEGAL DESCRIPTION OF CITY SITE
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EXHIBIT "C"
PURCHASE AND SALE AGREEMENT
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EXHIBIT "D"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Pacific Communities
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