HomeMy WebLinkAboutRES PC 2017 624 2017 1107 RESOLUTION NO. PC-2017-624
A RESOLUTION OF THE PLANNING COMMISSION OF THE
CITY OF MOORPARK, CALIFORNIA, RECOMMENDING
APPROVAL TO THE CITY COUNCIL OF GENERAL PLAN
AMENDMENT NO. 2015-02, ZONE CHANGE NO. 2015-03,
RESIDENTIAL PLANNED DEVELOPMENT NO. 2015-02,
VESTING TENTATIVE TRACT MAP NO. 5972, AND
DEVELOPMENT AGREEMENT NO. 2015-01; A REQUEST TO
DEVELOP 95 TOWNHOUSE CONDOMINIUMS AND A
RECREATION FACILITY ON APPROXIMATELY 8.3 ACRES
AT 4875 SPRING ROAD AND 384 LOS ANGELES AVENUE,
AND RECOMMENDING ADOPTION OF A MITIGATED
NEGATIVE DEVELOPMENT UNDER CEQA IN CONNECTION
THEREWITH; ON THE APPLICATION OF SPRING ROAD LLC
(MIKE ASHLEY, DON DUNCAN)
WHEREAS, on November 17, 2015, an application for General Plan Amendment
No. 2015-02, Zone Change No. 2015-03, Residential Planned Development No. 2015-
02, Vesting Tentative Tract Map No. 5972, and Development Agreement No. 2015-01
was filed by Spring Road LLC for a development of 95 townhouse units on 8.25 acres
on the west side of Spring Road, south of Los Angeles Avenue; and
WHEREAS, at a duly noticed public hearing on October 24, 2017 and November
7, 2017, the Planning Commission considered the applications for General Plan
Amendment No. 2015-02, Zone Change No. 2015-03, Residential Planned
Development No. 2015-02, Vesting Tentative Tract Map No. 5972, and Development
Agreement No. 2015-01; and
WHEREAS, at its meeting of October 24, 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, at its meeting of November 7, 2017, the Planning Commission 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 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-2017-624
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
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. 2015-02 and Zone
Change No. 2015-03, in that the proposed project will provide for an increased
variety of housing types as well as affordable housing in a design that is both
comparable in scale with surrounding residential and commercial 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 Spring Road includes residential uses of varying densities, along
with small-scale commercial uses.
Resolution No. PC-2017-624
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. 5972, 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 buildings 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. 2015-02, in
that the proposed project will provide for an increased variety of housing types as well
as affordable housing in a design that is both comparable in scale with surrounding
residential and commercial 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. 2015-02, in that it would allow for the
provision of an increased variety of housing types as well as affordable housing
in a design that is both compatible in scale with surrounding residential and
commercial 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. 2015-02, in that they will provide an increased variety of housing
types as well as affordable housing in a design that is both comparable in scale
with surrounding residential and commercial 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.
Resolution No. PC-2017-624
Page 4
D. The development site, is relatively flat, is physically suitable for the proposed
density of development at 16.5 units per acre, in that all City development
standards would be met by the proposed project at this density.
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.
Resolution No. PC-2017-624
Page 5
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.
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. 2015-02, Zone Change No. 2015-03, Residential Planned
Development No. 2015-02, Vesting Tentative Tract Map No. 5972, and
Development Agreement No. 2015-01.
B. Approval of General Plan Amendment No. 2015-02, 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 C-2 (General Commercial) and Floodway to Very High
Residential Density (VH) and Floodway as shown in Exhibit A, attached.
C. Approval of Zone Change No. 2015-03, for a change in the zoning of the project
site from Commercial Planned Development (CPD) to Residential Planned
Development (RPD-16.5U) and Open Space (OS) as shown in Exhibit B,
attached.
D. Approval of Residential Planned Development No. 2015-02 and Vesting
Tentative Tract Map No. 5972, subject to the Standard and Special Conditions of
Approval included in Exhibit C, attached.
E. Approval of Development Agreement No. 2015-01 as shown in Exhibit D,
attached.
Resolution No. PC-2017-624
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 7th day of November, 2017.
Kipp!Landis, Chair
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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. 2015-02 and Vesting Tentative Tract Map No.
5972
Exhibit D: Draft Development Agreement
Resolution No. PC-2017-624
Page 7
EXHIBIT A
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Resolution No. PC-2017-624
Page 8
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Resolution No. PC-2017-624
Page 9
EXHIBIT B
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Resolution No. PC-2017-624
Page 10
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Resolution No. PC-2017-624
Page 11
EXHIBIT C
STANDARD AND SPECIAL CONDITIONS OF APPROVAL
FOR RESIDENTIAL PLANNED DEVELOPMENT NO. 2015-02
AND VESTING TENTATIVE TRACT MAP NO. 5972
STANDARD CONDITIONS OF APPROVAL
The applicant shall comply with Standard Conditions of Approval for Planned
Development Permits 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 2015-02
1. This planned development permit will expire one year 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. All traffic entering and exiting the project shall be restricted to right-turn-in/right-
turn-out only at the Los Angeles Avenue and Spring Road driveways. The final
design of the driveways shall be subject to approval of the City Engineer/Public
Works Director and the Community Development Director.
3. The applicant shall replace the 40 trees on the site in an amount equal to the
appraised value of the removed trees, as identified in the Tree Report dated
December 2015. Should there not be sufficient space to replace the required
trees, or should appropriate trees not be available, the applicant shall pay to the
City of Moorpark an amount equal to the difference between the appraised
amount and the value of the trees planted on site.
Resolution No. PC-2017-624
Page 12
4. 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.
5. Soundwalls adjacent to Los Angeles Avenue, Spring Road, and adjacent to any
Commercially Zoned Property shall be no less than eight (8') feet in height, when
measured from inside of the project, constructed with tan-colored slumpstone
with matching mortar with the final design, height, and location to be approved by
the Community Development Director and City Engineer/Public Works Director,
subject to ultimate pad elevations.
6. Soundwalls shall extend inward at project driveway entries at Los Angeles
Avenue and Spring Road with enhanced landscaping at the entries facing the
public rights-of-way to the satisfaction of the Community Development Director,
City Engineer/Public Works Director, and Parks and Recreation Director.
7. A fence/wall plan shall be required. Location, design, material and height of all
fences and walls shall be approved by the Community Development Director.
Interior walls shall be a minimum height of six (6') feet from the highest finished
grade.
8. Architectural enhancements, such as window reveals and plant-ons are required
on all elevations subject to the approval of the Community Development Director.
9. 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.
10. Painted and decorative sectional roll up garage doors shall be provided. Such
garage doors shall include garage window glazing, compatible with the
architectural style of each home including the affordable residences. Durable
materials are required for trim on the ground floor levels of the homes, such as
wood window trim, or 1/4" minimum cementous stucco coat over foam.
11. 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-2017-624
Page 13
12. Landscaping, in the form of vines and shrubs, shall be required to be installed in
irrigated cut-outs between the garages. Permanent decorative trellis structures
will also be required to provide support for such landscaping. Such landscaping
shall be subject to the approval of the Community Development Director.
13. Clerestory windows shall be required on the second and third story of all
elevations adjacent to 2-story homes within the Ivy Lane tract. The bottom of
such windows shall not be lower than 5 feet from the adjacent floor.
14. It shall be the responsibility of the homeowner association to maintain designated
private streets, the recreation area(s), project private streets, common area
landscaping, and walls and fences. The Community Development Director and
City Engineer/Public Works Director shall make the final determination as to the
extent of homeowner association maintenance.
15. 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.
16. 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
(OCR's).
17. The final location of all community mailboxes must be approved by the
Community Development Director and City Engineer/Public Works Director prior
to installation.
18. A two-car garage with an interior clear space of not less than 20 feet by 20 feet
shall be maintained for the use of each unit. All garages must remain accessible
for the storage of two vehicles at all times and may not be rented or sold
separately. Said standards shall be incorporated into the Covenants, Conditions
and Restrictions for this project.
Resolution No. PC-2017-624
Page 14
19. 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.
20. 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.
21. 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.
22. Noise attenuation construction shall be required on all units affected by the noise
generated from Los Angeles Avenue and Spring Road to the satisfaction of the
Community Development Director. At a minimum the following items shall be
provided:
a. All second story windows along Los Angeles Avenue and Spring Road
shall be double glazed window assemblies or an equivalent with a
minimum STC 33 rating.
b. All rear and side entry doors of the homes adjacent to Los Angeles
Avenue and Spring Road, shall be gasketed (jamb, head, sill) with
interlocking or tube-type compression weather-stripping, or an effective
equivalent.
c. All exterior vents on the homes on adjacent to Los Angeles Avenue and
Spring Road shall be directed away from Los Angeles Avenue in order to
reduce noise transmissions into the house through vents and ducts.
SPECIAL CONDITIONS FOR VESTING TENTATIVE TRACT MAP 5972
1. Vesting Tentative Tract Map No. 5972 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
Resolution No. PC-2017-624
Page 15
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 95 dwelling units may be developed under this entitlement.
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, Spring
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.
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. 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.
7. The applicant shall provide a grading and construction schedule showing routing
for grading and development from Los Angeles Avenue and Spring Road subject
to review and approval by the City Engineer/Public Works Director.
8. 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 to
the Community Development Director and the City Attorney for review and
approval to ensure consistency with the Moorpark Municipal Code, Tentative
Tract Map No. 5972 and Residential Planned Development Permit No. 2015-02,
as conditioned. Submittal shall include a $5,000.00 deposit to be used for the city
attorney's cost of review.
Resolution No. PC-2017-624
Page 16
9. A public pedestrian access easement and improvements shall be provided from
Spring Road to the Arroyo Simi to the satisfaction of the Community
Development Director and City Engineer/Public Works Director.
10. Disclosure documents for all initial buyers shall include notice making buyers
aware of the potential construction of a public recreational trail along Arroyo Simi
and of a future trail connection at Spring Road, of the affordable housing required
for the project, of the Landscape Maintenance District required for the project,
and any other project conditions or terms of the Development Agreement as
determined by the Community Development Director in a form to the satisfaction
of the Community Development Director.
11. 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.
12. 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.
13. An access rights easement shall be offered to the City of Moorpark from all lots
fronting on Los Angeles Avenue, Spring Road, 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, Spring Road, and the Arroyo Simi
frontage may not be removed or modified to create a gate or similar access
opening in violation of the City of Moorpark access rights easement. The
applicant shall record an easement or other instrument prohibiting private
openings of perimeter walls or fences onto Los Angeles Avenue, Spring Road,
the Arroyo Simi, or adjacent private properties subject to review and approval of
the City Engineer and Community Development Director. This restriction shall be
reiterated in the Covenants, Conditions and Restrictions for this project.
14. 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.
Resolution No. PC-2017-624
Page 17
15. The C.C.&R.'s shall include a requirement that garages in each unit be
maintained for the parking of vehicles.
16. 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.
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. A Traffic Systems Management fee shall be paid, on a per home basis, or in
effect at the time of building permit issuance, or as specified in any development
agreement adopted for this project.
19. Intersection Improvement fees shall be paid subject to the determination of the
City Engineer/Public Works Director.
20. Water impoundment(s) shall be maintained in a manner which will not create
mosquito breeding sources.
21. A conduit for ownership and use by the City shall be installed behind the right-of-
way on Los Angeles Avenue and Spring Road, and throughout the development,
subject to review and approval of the City Engineer and Community
Development Director. Easements for this purpose, if needed, shall be granted
to the City prior to the approval of the Final Map.
Resolution No. PC-2017-624
Page 18
EXHIBIT D
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
CITY OF MOORPARK
AND
02 D2 PARTNERS, LLC, AND
DUNCAN DONALD P / ASHLEY CONSTRUCTION, INC.
(SPRING ROAD LLC)
Resolution No. PC-2017-624
Page 19
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 02 D2 Partners LLC and Duncan
Donald P / Ashley Construction, Inc., the owners of real property within the City of
Moorpark generally referred to as Residential Planned Development Permit 2015-02
(referred to hereinafter collectively as "Developer"). City and Developer are referred to
hereinafter collectively as a "Party" and collectively as the "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 identified as Parcel 1 ("Parcel 1") in the legal description set
forth in Exhibit "A" which exhibit is attached hereto and incorporated by
reference, commonly known as 4875 Spring Road. Duncan Donald P /
Ashley Construction, Inc. is the owner in fee simple of certain real property
in the City of Moorpark identified as Parcel 2 ("Parcel 2") in Exhibit "A",
commonly known as 384 Los Angeles Avenue. Parcels 1 and 2 are
referred to hereinafter collectively as 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.") On
December 6, 2017, the City Council adopted Resolution No. 2017-
adopting the Mitigated Negative Declaration ("MND") and Mitigation
Monitoring and Reporting Program the ("MMRP") prepared for this
Agreement and the Project Approvals as defined in Subsection 1.4 of this
Agreement.
1.4 General Plan Amendment (GPA) No. 2015-02, Zone Change (ZC) No.
2015-03, Residential Planned Development (RPD) No. 2015-02, Vesting
Tentative Tract Map (VTTM) No. 5972 including all subsequently
approved modifications and permit adjustments to the RPD, VTTM, and all
amendments thereto (collectively "the Project Approvals"; individually "a
Project Approval") provide for the development of the Property with 95
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Resolution No. PC-2017-624
Page 20
townhouse condominiums and the construction of certain off-site
improvements in connection therewith ("the Project").
1.5 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.
1.6 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.
1.7 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.
1.8 On October 24, 2017, the Planning Commission commenced a duly
noticed public hearing on this Agreement, and at the conclusion of the
hearing on November 7, 2017 recommended approval of this Agreement.
1.9 On December 6, 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.
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 Subsection 3.2 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 Subsection 3.2 below.
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Resolution No. PC-2017-624
Page 21
3.2 Release Upon Subsequent Transfer. Upon the conveyance of
Developer's interest in the Property or any portion thereof by Developer or
its successor(s) in interest, the transferor shall be released from its
obligations hereunder with respect to the portion of Property conveyed as
of the effective date of the conveyance, provided that the transferee
expressly assumes all obligations of the transferred portion of the Property
and a copy of the executed assignment and assumption agreement is
delivered to the City prior to the conveyance. Failure to provide a written
assumption agreement hereunder shall not negate, modify or otherwise
affect the liability of the transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City discretion to approve or
deny any such conveyance, except as provided in Subsection 6.13 of this
Agreement with respect to the sale of completed "affordable units" (as
defined in that subsection) to qualified buyers. Notwithstanding the
foregoing, this Agreement shall not be binding upon the transferee of a
Completed Unit with respect to the transferee's interest in such Completed
Unit, and the rights and obligations of Developer under this Agreement
shall not run with the portion of the Property that is conveyed with the
Completed Unit after such conveyance of the Completed Unit by
Developer or its successor in interest. For purposes of this Agreement,
"Completed Unit" means a completed residential unit within the Property
for which the City has issued a certificate of occupancy.
4. Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
4.1 Permitted Uses. The permitted and conditionally permitted uses of the
Property shall be limited to those that are allowed by the Project Approvals
and this Agreement.
4.2 Development Standards. All design and development standards, including
but not limited to density or intensity of use and maximum height and size
of buildings, that shall be applicable to the Property are set forth in the
Project Approvals and this Agreement.
4.3 Building Standards. All construction on the Property shall adhere to all
City building codes in effect at the time the plan check or permit is
approved per Title 15 of the Moorpark Municipal Code and to any federal
or state building requirements that are then in effect (collectively "the
Building Codes").
4.4 Reservations and Dedications. All reservations and dedications of land for
public purposes that are applicable to the Property are set forth in the
Project Approvals and this Agreement.
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Resolution No. PC-2017-624
Page 22
5. Vesting of Development Rights.
5.1 Vested Right to Develop; Timing of Development. Developer and its
successors in interest shall have the vested right to develop the Property
in accordance with the terms and provisions of the Project Approvals and
this Agreement. The Parties intend that this Agreement, together with the
Project Approvals, shall serve as the controlling document for all
subsequent actions, discretionary and ministerial, relating to the
development and occupancy of the Property, including, without limitation,
all Subsequent Approvals (as defined below). Developer shall have the
right, without obligation, to develop the Property in such order and at such
rate and times as Developer deems appropriate within the exercise of its
subjective business judgment.
No future amendment of any existing City ordinance or resolution, or
future adoption of any ordinance, resolution or other action, that purports
to limit the rate or timing of development over time or alter the sequencing
of development phases, whether adopted or imposed by the City Council
or through the initiative or referendum process, shall apply to the Property
provided the Property is developed in accordance with the Project
Approvals and this Agreement. Nothing in this subsection shall be
construed to limit City's right to ensure that Developer timely provides all
infrastructure required by the Project Approvals, Subsequent Approvals,
and this Agreement.
5.2 Amendment of Project Approvals. No amendment of any of the Project
Approvals, whether adopted or approved by the City Council or through
the initiative or referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to the amendment.
5.3 Issuance of Subsequent Approvals. Applications for land use approvals,
entitlements and permits, including without limitation subdivision maps
(e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps),
subdivision improvement agreements and other agreements relating to the
Project, lot line adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g. site plans,
architectural plans and landscaping plans), encroachment permits, and
sewer and water connections that are necessary to or desirable for the
development of the Project (collectively "the Subsequent Approvals";
individually "a Subsequent Approval") shall be consistent with the Project
Approvals and this Agreement. For purposes of this Agreement,
Subsequent Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project Approvals and by
the applicable provisions of the Moorpark General Plan, the Moorpark
Municipal Code and other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently adopted or
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Resolution No. PC-2017-624
Page 23
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 citywide 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
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.
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Resolution No. PC-2017-624
Page 24
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 Subsection 5.1 of this Agreement, in no event
shall building permits be allocated on any annual numerical basis or on
any arbitrary allocation basis.
5.6 Moratorium on Development. Nothing in this Agreement shall prevent
City, whether by the City Council or through the initiative or referendum
process, from adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits and on the
finalizing of building permits by means of a final inspection or certificate of
occupancy, provided that the moratorium is adopted or imposed (i) on a
Citywide basis to all substantially similar types of development projects
and properties with similar land use designations and (ii) as a result of a
utility shortage or a reasonably foreseeable utility shortage including
without limitation a shortage of water, sewer treatment capacity, electricity
or natural gas.
6. Developer Agreements.
6.1 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 Property, Developer
shall pay City a one-time development fee as described herein (the
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Resolution No. PC-2017-624
Page 25
"Development Fee"). The Development Fee may be expended by City in
its sole and unfettered discretion. The amount of the 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 for
each residential dwelling unit within the Property.
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 air quality mitigation fee, as described herein ("Air Quality
Fee"), in satisfaction of the Transportation Demand Management Fund
mitigation requirement for the Project. The Air Quality Fee may be
expended by City in its sole discretion for reduction of regional air pollution
emissions and to mitigate residual Project air quality impacts.
The Air Quality Fee shall be One Thousand Seven Hundred Nine Dollars
($1,709.00) per residential dwelling unit within the Property to be paid prior
to the issuance of a building permit for each residential dwelling unit in the
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Resolution No. PC-2017-624
Page 26
Project. 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 in
California Government Code Section 66477 et seq. for the
Property.
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 one-time community services fee as described
herein (Community Services Fee). The Community Services Fees may be
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Resolution No. PC-2017-624
Page 27
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 dwelling 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 (Art 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).
6.10 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.
6.11 Processing Fees. On the Operative Date, Developer shall pay all
outstanding City processing costs related to preparation of this
Agreement, the Project Approvals and the MND.
6.12 Landscape Maintenance Assessment District (LMD). 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
($5,000.00) LMD Formation Fee. The LMD 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
the exterior surface of the block walls and hardscape adjacent to Los
Angeles Avenue, Spring Road and the southern boundaries of the Project.
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Resolution No. PC-2017-624
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The City shall administer the annual renewal of the LMD, and any costs
related to such administration shall be charged to the fund established for
such LMD revenues and expenses. Developer agrees to cast affirmative
ballots for the establishment of the LMD, 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
LMD has insufficient funds for its purposes, then Developer shall pay the
funds required for the LMD costs within five (5) business days after written
demand from the City.
Developer shall be responsible for all LMD costs until acceptance of the
Assessment District by the City. Developer acknowledges and agrees
that the LMD will not be accepted by City until after the final occupancy is
approved for the last residential dwelling unit in the Project and Developer
has made all required LMD improvements in a manner that are acceptable
to City's Parks and Recreation Director and Developer has provided City
with a deposit for the next subsequent twelve (12) months of LMD
maintenance costs.
Prior to approval of the first final map for the Project, the City Council at its
sole discretion may determine that all or a part of the improvements
planned to be included in the LMD may instead be placed in the
Homeowners' Association for the Project.
6.13 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 fifteen (15)
housing units, with a minimum of 1,500 square feet, affordable to
low income households (not to exceed 80% of median income
adjusted for family size). These fifteen (15) housing units may be
referred to as affordable units or units affordable to low income
households or required affordable units.
(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
valuable consideration given by City through this Agreement.
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Resolution No. PC-2017-624
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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 6.13 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 6.13 shall be made at City's
sole discretion. If any conflict exists between this Agreement and
the Affordable Housing Agreement required by and negotiated
pursuant to this Agreement or the conditions of approval for
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Resolution No. PC-2017-624
Page 30
Tentative Tract Map No. 5972 and/or RPD No. 2015-02, 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) (3) 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 three (3) bedroom unit will be based on a household of four (4)
regardless of the actual size of the household purchasing the unit.
For example, the monthly "affordable housing cost" for a three (3)
bedroom unit would be 30% times 70% of the current median
income for a household of four (4) 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 purchasing a three (3) bedroom unit under current
market conditions, based upon the following assumptions:
Low Income Buyer
Item Detail Amount
3 Bedroom
Affordable Sale $191,000
Price
Down Payment 5% of Affordable $9,550
Sales Price
Affordable Sales
Loan Amount Price less Down $181,450
payment
Interest Rate 4.50%
Monthly 1.25% of Initial $199
Property Tax Purchase Price
LMD Not Currently N/A
HOA $200
Fire Insurance $60
Maintenance $30
Utilities $180
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(h) The assumptions associated with the above purchase price figures
for low income households include a 5% down payment, based on
Affordable Sales Price for a three (3) 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 three (3) 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.
Developer acknowledges that amounts listed in the "Low Income
Buyer" table in Subsection 6.13(g), above, are for illustration
purposes only and are subject to 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 6.13. Developer
agrees that, pursuant to City's rights under this Agreement and/or
the Affordable Housing Agreement and prior to and upon the sale
of a required unit to a qualified buyer (or City in lieu of a qualified
buyer as determined by City at its sole discretion), City may at its
sole discretion take any actions and impose any conditions on said
sale or subsequent sale of the unit to ensure ongoing affordability
to low 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 and
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all necessary contracts and related documents to ensure that the
referenced affordable units remain occupied by low income
households for the longest feasible time (the "Affordability
Documents"). 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.
(m) Developer warrants that the quality of materials and construction
techniques of the affordable units sold to the qualified low income
buyers, 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 basic 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
basic finish 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. City staff person
responsible for affordable housing will select basic finish options for
the affordable units.
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(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 for the affordable
units (purchased by the low income buyer, or City) as those
amenities that are provided for 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.
(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
qualified low income buyers, all requirements of the buyer,
including, but not limited to, completion of a City approved
homebuyer education training workshop and the Affordability
Documents, shall be included as a requirement of the sale. The
language of all such documents shall be approved by City at its
sole discretion. City has sole discretion in selecting lenders, escrow
and title companies and real estate professionals to assist with the
sale of the affordable units.
(s) In the event City is unable to provide a qualified buyer when one of
the low-income units has received final inspection approval,
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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 95th 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 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.
(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 must receive final inspection approval by Developer
on terms consistent with this Agreement and the Affordable
Housing Agreement as specified in the following schedule:
Prior to Number of
Occupancy of Affordable Units
40th Unit 4
60th Unit 4
85th Unit 4
90th Unit 3
Total 15
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(x) The required affordable units within the Project shall be located on
unit (may also be referred to as pad or lot) numbers in the Buildings
within the Project consistent with Exhibit "C" attached hereto and
incorporated herein. The City Manager or the City Manager's
designee may approve in writing different unit numbers within the
Project so long as the unit contains no less than 1,500 square feet.
(y) Developer shall provide the initial buyer of each Completed Unit in
the Project a disclosure that the Project includes fifteen (15)
residential dwelling units that will be sold to qualified low income
households. The disclosures shall also state that these fifteen (15)
residential dwelling units have deed restrictions recorded on their
title that restrict the re-sale of these units only to qualified low
income buyers. The form and language of the disclosure shall be
approved by the City Attorney and Community Development
Director and shall conform to all requirements of the applicable
State agencies pertaining to real estate disclosures.
(z) Developer also agrees to pay an In-Lieu Fee (In-Lieu Fee)
equivalent to seventy-three percent (73%) of the actual differential
value between the appraised value of the market rate units and the
actual calculated Affordable Sales Price consistent with this
Subsection 6.13. The In-Lieu Fee shall be paid in full prior to the
issuance of the twentieth (20th) building permit for the Project. (For
example, assuming an appraised value of Four Hundred Ninety
Thousand Dollars [$490,000.00] for a market rate unit, the In-Lieu
Fee would be Two Hundred Eighteen Thousand Two Hundred
Seventy Dollars [$218,270.00].)
6.14 Los Angeles Avenue Improvement. Within six (6) months of the Operative
Date of this Agreement, Developer shall at its sole cost irrevocably offer to
the City all rights of way, permanent easements and construction
easements (Los Angeles Avenue Right-of-way) necessary for construction
of the Project's improvements (Improvements) on Los Angeles Avenue
(SR118), herein after referred to as L.A. Avenue. Developer shall also
clear the Los Angeles Avenue Right-of-way of all structures and other
improvements to the satisfaction of the City Engineer/Public Works
Director within six (6) months of the Operative Date of this Agreement.
Within twelve (12) months of the Operative Date of this Agreement
Developer shall have prepared improvement plans for the Improvements
that are consistent with the City's plans for its Los Angeles Avenue
widening project (City Project) and Caltrans requirements as determined
by the City Engineer/Public Works Director, and finalize plans for the
Improvements so plans are submitted to Caltrans within eighteen (18)
months of the Operative Date of this Agreement. Developer shall obtain a
Caltrans encroachment permit for the construction of the Improvements
and complete construction of the Improvements to the satisfaction of the
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City Engineer/Public Works Director no later than thirty (30) months from
the Operative Date of this Agreement. Improvements shall include offsite
transitions and sound wall construction as determined necessary by the
City Engineer/Public Works Director and Caltrans. At City's sole option,
City may construct the Improvements and Developer shall reimburse City
for all costs, including but not limited to construction, permits, contract
administration, design, inspection, utility relocation and all other Caltrans
requirements.
6.15 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.
6.16 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.
6.17 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.
6.18 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 Developer agreements contained in this Agreement and in
the conditions of approval for the VTTM and RPD. The plan shall address
the entities responsible and method and timing of guarantee for each
component of Developer's obligations and is subject to City approval at its
sole discretion.
6.19 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 Subsections
6.3, 6.4 and 6.8 of this Agreement are not public improvement fees
collected pursuant to Government Code Section 66006 and statutes
amendatory or supplementary thereto.
6.20 CPI Indexes. In the event the "CPI" referred to in Subsections 6.3, 6.6,
6.7 and 6.8 or the Bid Price Index referred to in Subsections 6.4 and 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
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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.
6.21 Future Trail Connection to Spring Road. Developer shall at its cost
construct a concrete ramp from the sidewalk on the Spring Road frontage
of the Project to proposed future trail on the levee road of the Arroyo Simi.
The connection shall be constructed consistent with requirements as
determined by City Parks and Recreation Director, City Public Works
Director and Ventura County Watershed Protection District. The
Connection shall be constructed at a time determined by the City Council
but in no event later than occupancy of the 45th unit in the Project.
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
permitted development to that in existence prior to the approval of GPA
2015-02 and ZC 2015-03.
6.23 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
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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 15% on all out-of-pocket
costs.
7.3 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.
7.4 Park Fees. City agrees that the Park Fee required under Subsection 6.7 of
this Agreement meets all of Developer's obligations under applicable law
for park land dedication.
7.5 Reimbursements from other Developments. City shall facilitate the
reimbursement to Developer of any costs incurred by Developer that may
be subject to partial reimbursement from other developers as a condition
of approval of a tract map, development permit or development agreement
with one or more other developers and at City's discretion may include
provisions requiring such reimbursement to Developer for the same in
such other development project conditions of approval.
7.6 Early Grading Agreement. The City Manager is authorized 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.
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.
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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
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
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(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
(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. The Parties acknowledge that remedies at law,
including without limitation money damages, would be inadequate for
breach of this Agreement by any Party due to the size, nature and scope
of the Project. The Parties also acknowledge that it would not be feasible
of possible to restore the Property to its natural condition once
implementation of the Agreement has begun. Therefore, the Parties
agree that the remedies for breach of this Agreement shall be limited to
the remedies expressly set forth in this subsection.
The remedies for breach of the Agreement by the City shall be injunctive
relief and/or specific performance.
The remedies for breach of the Agreement by the Developer shall be
injunctive relief and/or specific performance. In addition, and
notwithstanding any other language of this Agreement, if the breach is of
Subsection 6.13, 6.14 or 6.21 of this Agreement, City shall have the right
to withhold the issuance of building permits from the date that the notice of
violation was given pursuant to Subsection 11.3 hereof until the date that
the breach is cured as provided in the notice of violation.
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Nothing in this subsection shall be deemed to preclude City from
prosecuting a criminal action against Developer if it violates any City
ordinance or State statute.
12. Mortgage Protection.
12.1 Discretion to Encumber. The Parties hereto agree that this Agreement
shall not prevent or limit Developer, in any manner, at Developer's sole
discretion, from encumbering the Property or any portion thereof or any
improvements thereon then owned by such person with any mortgage,
deed of trust or other security device ("Mortgage") securing financing with
respect to the Property or such portion. Any mortgagee or trust deed
beneficiary of the Property or any portion thereof or any improvements
thereon and its successors and assigns ("Mortgagee") shall be entitled to
the following rights and privileges.
12.2 Lender Requested Modification/Interpretation. City acknowledges that the
lenders providing financing to Developer for the Property may request
certain interpretations and modifications of this Agreement. City therefore
agrees upon request, from time to time, to meet with Developer and
representatives of such lenders to discuss in good faith any such request
for interpretation or modification. The City will not unreasonably withhold
its consent to any such requested interpretation or modification provided
such interpretation or modification is consistent with the intent and
purposes of this Agreement, provided, further, that any modifications of
this Agreement shall be subject to the provisions of this Agreement
pertaining to modifications and amendments.
12.3 Mortgage Protection. This Agreement shall be superior and senior to the
lien of any Mortgage. Notwithstanding the foregoing, no breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any
binding and effective against the Mortgagee and every owner of the
Property, or part thereof, whose title thereto is acquired by foreclosure,
trustee sale or otherwise; provided, however, Mortgagee and such owner
shall not be responsible for any matters that occurred prior to their
acquisition of the Property or such portion.
12.4 Written Notice of Default. If a non-monetary default is not cured by
Developer within thirty (30) days after written notice by City to Developer
or a monetary default is not cured with in five (5) days after written notice
by City to Developer, then each Mortgagee shall be entitled to received
written notice from City of the applicable default by Developer under this
Agreement provided the Mortgagee has delivered a written request to the
City for such notice and shall have provided its address for notices in
writing to the City. Each such Mortgagee shall have a further right, but not
the obligation, to cure such default for an additional period of thirty (30)
days after delivery of such notice of default by City to the Mortgagee. City
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shall not commence legal action against Developer by reason of
Developer's breach without allowing the Mortgagee to cure the same as
specified herein.
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.
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
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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 Subsection 1.9 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 twenty
(20) 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.
Notwithstanding the foregoing, the following shall survive the expiration or earlier
termination of this Agreement: (i) all obligations arising under this Agreement
prior to the expiration or earlier termination of this Agreement; and (ii) Subsection
6.22 of this Agreement.
20. Notices. All notices and other communications given pursuant to this Agreement
shall be in writing and shall be deemed received when personally delivered or
upon the third (3rd) day after deposit in the United States mail, registered or
certified, postage prepaid, return receipt requested, to the Parties at the
addresses set forth in Exhibit "B" attached hereto and incorporated herein.
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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,
the Project Approvals or the Subsequent Approvals, the provision of this
Agreement shall prevail.
44
Resolution No. PC-2017-624
Page 45
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.
33. Authority to Execute. Developer warrants and represents that to its knowledge
as of the Operative Date and with respect to each entity that is defined as
Developer: (i) it is duly organized and existing; (ii) it is duly authorized to execute
and deliver this Agreement; (iii) by so executing this Agreement, Developer is
formally bound to the provisions of this Agreement; (iv) Developer's entering into
and performance of its obligations set forth in this Agreement do not violate any
provision of any other agreement to which Developer is bound; and (v) there is
no existing or threatened litigation or legal proceeding of which Developer is
aware that could prevent Developer from entering into or performing its
obligations set forth in this Agreement.
45
Resolution No. PC-2017-624
Page 46
IN WITNESS WHEREOF, the Parties have executed this Development
Agreement effective as of the Operative Date.
CITY OF MOORPARK
Janice S. Parvin, Mayor
ATTEST:
Maureen Benson, City Clerk
02 D2 PARTNERS LLC,
a California limited liability company
By:
Donald P. Duncan, Partner
DUNCAN DONALD P /ASHLEY CONSTRUCTION, INC.
a California corporation
By:
Donald P. Duncan, Owner
By:
Mike Ashley, Owner
46
Resolution No. PC-2017-624
Page 47
EXHIBIT "A"
LEGAL DESCRIPTION
47
Resolution No. PC-2017-624
Page 48
EXHIBIT "B"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
02 D2 Partners LLC and Duncan Donald P /Ashley Construction, Inc.
850 W. Los Angeles Avenue
Simi Valley, CA 93065
48
Resolution No. PC-2017-624
Page 49
EXHIBIT "C"
REQUIRED AFFORDABLE UNITS
LAS' Ams ANCElES AVENAJE I Building A,Unit 1
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r - " - '------ Building C, Unit 12
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KEY: Building D, Unit 17
1 NUMBER DENOTES Building E, Unit 22
11,MII1 lit i v* STANDARD UNIT _Building F, Unit27
Tan 30,0" t r ri Building G, Unit 32
J I i tEll Building H,Unit 37
SLOG 7YPE3 0 NUMBER WI CIRCLE
DENOTES Building I,Unit 42 •
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� Building J, Unit47
!Q°��� � � "i AFFORDABL�UNt{S Building K, Unit48
MR 1 Building N,Unit 71
S Building P,Unit 72
/ s Building R,Unit 89
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