HomeMy WebLinkAboutAGENDA REPORT 1993 0804 CC REG ITEM 11DITEM. �
AGENDA REPORT
TO: The Honorable City Council
FROM: Jaime Aguilera, Director of Community Development/
Paul Porter, Senior Planner
DATE: July 20, 1993 (CC meeting of August 4, 1993)
SUBJECT: DRAFT DEVELOPMENT AGREEMENT REGARDING CARLSBERG SPECIFIC
PLAN
Background
On June 18, 1993, the Department of Community Development received
the attached draft Development Agreement. At the meeting of July
8, 1993, the Community Development Committee (Mayor Lawrason and
Councilman Perez) requested that this matter be referred to the
City Council for direction. If the City Council concurs to proceed
with a Development Agreement with Carlsberg, a Council Committee
should be assigned this task along with any other direction from
the City Council.
Recommendation
Direct staff as deemed appropriate
Attachment: Draft Development Agreement
City Code on this matter
Appropriate State law
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CARLSBERG DEVELOPMENT AGREEMENT
DRAFT DATED --JUNE 18, 1993
RECEIVED
JUN 18 1993
C,'v o
l
Table of Contents
0
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. SECTIONS; DEFINITIONS AND EXHIBITS . . . . . . . . . . . 3
1.1 Sections and Paragraphs . . . . . . . . . . . . . . 3
1.2 Definitions . . . . . . . . . . . . . . . . . . . . 3
1.2.1
Agreement Date . . . . . . . . . . . . . . .
3
1.2.2
Building and Improvement Standards . . . . .
3
1.2.3
Building Code . . . . . . . . . . . . . . .
3
1.2.4
CEQA . . . . . . . . . . . . . . . . . . . .
3
1.2.5
City . . . . . . . . . . . . . . . . . . . .
3
1.2.6
City Development Agreement Ordinance . . . .
4
1.2.7
Developer . . . . . . . . . . . . . . . . .
4
1.2.8
Development . . . . . . . . . . . . . . .
4
1.2.9
Development Agreement Legislation . . . . .
4
1.2.10
Development Approval(s) . . . . . . . . . .
4
1.2.11
Development Fees . . . . . . . . . . . . . .
5
1.2.12
Effective Date . . . . . . . . . . . . . . .
5
1.2.13
Existing Land Use Regulations . . . . . . .
5
1.2.14
General Plan . . . . . . . . . . . . . . . .
5
1.2.15
Governing Policies . . . . . . . . . . . . .
6
1.2.16
Land Use Regulations . . . . . . . . . . . .
6
1.2.17
"On- Project" [ "Off - Project ") . . . . . . . .
6
1.2.18
Project . . . . . . . . . . . . . . . . . .
6
1.2.19
Property . . . . . . . . . . . . . . . . . .
6
1.2.20
Public Facilities . . . . . . . . . . . . .
7
1.2.21
Regulations . . . . . . . . . . . . . . . .
7
1.2.22
Reservations of Authority . . . . . . . . .
7
1.2.23
Residential Development Management System
7
1.2.24
Specific Plan . . . . . . . . . . . . . . .
7
1.2.25
Subdivision Ordinance . . . . . . . . . . .
7
1.2.26
Traffic and Air Quality Mitigation Fee . . .
7
1.2.27
Ventura County Improvement Standards and
Specifications . . . . . . . . . . . . . . .
8
1.2.28
Zoning Ordinance . . . . . . . . . . . . . .
8
1.3 Exhibits
. . . . . . . . . . . . . . . . . . . . .
8
2. FURTHER ENVIRONMENTAL
REVIEW . . . . . . . . . . . . . .
8
2.1 Specific
Assurances re CEQA . . . . . . . . . . . .
8
3. THE DEVELOPER'S OBLIGATIONS; PROVISION OF PUBLIC
BENEFITS .
. . . . . . . . . . . . . . . . . . . . . . .
9
3.1 Specific Plan Compliance . . . . . . . . . . . . .
9
i
4.
3.2 Dedication, Construction and Conveyance of Public
ii
Facilities . . . . . . . . . . . . . . . . . . . .
9
(a) In General . . . . . . . . . . . . . . .
9
(b) Public Works . . . . . . . . . . . . . .
9
3.3
City Assistance in Obtaining Land for Public
Facilities . . . . . . . . . . . . . . . . . . . .
9
3.4
Relationship of Parties . . . . . . . . . . . . . .
10
3.5
Surety /Assurance . . . . . . . . . . . . . . . . .
10
3.6
Subdivision Maps . . . . . . . . . . . . . . . . .
11
3.7
Residential Development Allocations . . . . . . . .
11
3.8
Park and Recreation Mitigation . . . . . . . . . .
12
3.9
Traffic and Air Quality Mitigation . . . . . . . .
12
REGULATIONS
GOVERNING THE DEVELOPMENT OF THE PROPERTY
13
4.1
Governing Policies . . . . . . . . . . . . . . . .
13
(a) Density, Building Dimensions,
Dedications . . . . . . . . . . . . . . .
13
(b) Moratoria, Phasing of Development . . . .
13
(c) Development Fees . . . . . . . . . . . .
14
4.2
Regulation of Development After Agreement Date
15
(a) In General :
15
(b) Developer Rights After the Agreement
Date. . . . . . . . . . . . . . . . . .
15
4.3
Reservations of Authority . . . . . . . . . . . . .
15
(a) Future Land Use Regulations . . . . . . .
16
(b) State and Federal Regulations . . . . . .
16
(c) Building and Improvement Standards . . .
17
(d) Processing Fees and Charges . . . . . . .
17
4.4
Taxes and Assessments . . . . . . . . . . . . . . .
17
4.5
Regulation by Other Public Agencies . . . . . . . .
18
PERIODIC
REVIEWS . . . . . . . . . . . . . . . . . . . .
18
5.1
City Review . . . . . . . . . . . . . . . . . . . .
18
BINDING
ON SUCCESSORS . . . . . . . . . . . . . . . . .
18
6.1
City's Rights and Obligations . . . . . . . . . . .
18
6.2
Developer's Rights and Obligations . . . . . . . .
19
(a) Generally Run With Land . . . . . . . . .
19
(b) Exceptions . . . . . . . . . . . . . . .
19
ii
7. TERM OF AGREEMENT . . . . . . . . . . . . . . . . . . . 20
7.1 Stated Term . . . . . . . . . . . . . . . . . . . . 20
7.2 Rights and Duties Following Termination . . . . . . 21
8. AMENDMENT . . . . . . . . . . . . . . . . . . . . . . . 21
8.1 Amendment . . . . . . . . . . . . . . . . . . . . . 21
9. PROCESSING OF REQUESTS AND APPLICATIONS; OTHER GOVERNMENT
PERMITS . . . . . . . . . . . . . . . . . . . . . . . . 21
9.1 Processing . . . . . . . . . . . . . . . . . . . . 21
9.2 Contract Services . . . . . . . . . . . . . . . . . 22
9.3 Other Governmental Permits . . . . . . . . . . . . 22
10.' GOVERNMENTAL SERVICES . . . . . . . . . . . . . . . . . . 23
10.1 Assessment District . . . . . . . . . . . . . . . . 23
10.2 Infrastructure Financing . . . . . . . . . . . . . 23
10.3 Cost of Proceedings . . . . . . . . . . . . . . . . 23
11. DEFAULT AND REMEDIES . . . . . . . . . . . . . . . . . . 23
11.1 Default of the Developer . . . . . . . . . . . . . 23
11.2 Default of the City . . . . . . . . . . . . . . . . 24
11.3 Remedies . . . . . . . . . . . . . . . . . . . . . 25
(a)
In General . . . . . . . . . . . . . .
. 25
(b)
Specific Performance . . . . . . . . .
. 25
(c)
Remedies Cumulative . . . . . . . . . .
. 27
11.4 Mortgagee
Protection; Certain Rights of Cure . .
. 27
(a)
Mortgages Not Affected . . . . . . . .
. 27
(b)
Notice of Default to Mortgagee . . . .
. 28
(c)
Estoppel Certificate . . . . . . . . .
. 28
12. THIRD PARTY LITIGATION . . . . . . . . . . . . . . . .
. 29
12.1 General Plan etc., Litigation . . . . . . . . . .
. 29
(a)
Litigation . . . . . . . . . . . . .
. . 29
(b)
Revision of General Plan . . . . . . .
. 30
(c)
Suspension of Obligations . . . . . .
. . 30
(d)
Option to Terminate . . . . . . . . .
. . 31
(e)
Opportunity to Intervene . . . . . .
. . 31
( f)
Indemnification . . . . . . . . . . .
. . 31
12.2 Revision to Project . . . . . . . . . . . . . . . 32
iii
13. HOLD HARMLESS AND WAIVER . . . . . . . . . . . . . . . . 32
13.1 Hold Harmless; Developer's Activities . . . . . . . 32
13.2 Nexus /Reasonable Relationship Challenges . . . . . 32
14. MISCELLANEOUS PROVISIONS . . . . . . . . . . . .
. . . . 33
14.1
Recordation of Agreement . . . . . . . . .
. . . . 33
14.2
Entire Agreement . . . . . . . . . . . . .
. . . . 33
14.3
Severability . . . . . . . . . . . . . . .
. . . . 33
14.4
Interpretation and Governing Law . . . . .
. . . . 34
14.5
Section Headings . . . . . . . . . . . . .
. . . . 34
14.6
Singular and Plural; Gender . . . . . . .
. . . . 34
14.7
Joint and Several Obligations . . . . . .
. . . . 34
14.8
Time of Essence . . . . . . . . . . . . .
. . . . 34
14.9
Waiver . . . . . . . . . . . . . . . . . .
. . . . 34
14.10
No Third Party Beneficiaries . . . . . . .
. . . . 35
14.11
Force Ma j eure . . . . . . . . . . . . . .
. . . . 35
14.12
Mutual Covenants . . . . . . . . . . . . .
. . . . 35
14.13
No Dedication or Lien . . . . . . . . . .
. . . . 35
14.14
Notices . . . . . . . . . . . . . . . . .
. . . . 36
14.15
Persons . . . . . . . . . . . . . . . . .
. . . . 36
14.16
Counterparts . . . . . . . . . . . . . . .
. . . . 36
1v
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
CITY OF MOORPARK
ATTN: DIRECTOR OF COMMUNITY DEVELOPMENT
799 Moorpark Avenue
Moorpark, CA 93021
CARLSBERG DEVELOPMENT AGREEMENT
THIS AGREEMENT ( "Agreement ") is entered into this day of
, 1993, by and between C.T. FINANCIAL, a California
general partnership ("C.T. Financial ") ( "Developer ") , and the City
of Moorpark, a municipal corporation located in the County of
Ventura, State of California ( "City ").
R E C I T A L S•
This Agreement is entered into based upon the following facts,
understandings and intentions of the parties:
A. When used in these Recitals, each of the terms defined in
Section 1 of this Agreement shall have the meaning given to it
therein.
B. The Development Agreement Legislation authorizes the City
to enter into binding development agreements with persons having
legal or equitable interests in real property for the development
of such property, in order to, among other things: encourage and
provide for the development of public facilities in order to
support the development of new housing; provide certainty in the
approval of development projects in order to avoid the waste of
resources and the escalation in the cost of housing and other
development to the consumer and encourage investment in and
commitment to comprehensive planning which will make maximum
agmtsk0 cdev.002 1
efficient utilization of resources at the least economic cost to
the public; and, to provide assurance to developers (1) that they
may proceed with their projects in accordance with existing
policies, rules and regulations, subject to their conditions of
approval and (2) in order to strengthen the public planning process
and encourage private participation in comprehensive planning and
reduce the economic costs of development.
C. The Developer is the holder of a legal or equitable
interest in the Property and wishes to develop the Property for the
uses and purposes set forth in the Specific Plan. Linder the
Specific Plan, the Developer will be required, prior to receiving
various permits and other approvals needed to complete such
Development, to incur major expenditures or to otherwise provide
surety for infrastructure and other facilities needed to serve the
Project or to mitigate its adverse effects.
D. The Developer is willing to incur such expenditures for
infrastructure and other facilities only if the Developer is
provided assurance that, as set forth in this Agreement, City
Regulations governing the Development Approvals needed to complete
the Project will not be changed so as to prohibit the Development
or to substantially increase its costs.
E. Pursuant to Government Code section 65865, the City has
adopted the City Development Agreement Ordinance, establishing
procedures and requirements for the consideration of proposed
development agreements. Pursuant to the provisions of that
ordinance, the Developer has applied for, and the City has adopted,
Ordinance No. approving this Agreement.
AGREEMENT
NOW, THEREFORE, for and in consideration of the foregoing
recitals of fact, the mutual covenants contained herein and other
agmts \cfcdev.002 2
consideration, the value and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. SECTIONS; DEFINITIONS AND EXHIBITS.
1.1 Sections and Paragraphs. Any reference in this Agreement
to a "Section" is a reference to the indicated numbered section or
sub - section of this Agreement and a reference to a "Paragraph" is
a reference to the indicated paragraph of a Section.
1.2 Definitions. The following terms when used in this
Agreement shall be defined as follows:
1.2.1 "Agreement Date" means the date of this Agreement,
which is the date first written above.
1.2.2 "Building and Improvement Standards" means
Regulations of the City which are of general application which
establish regulations and standards for the building, construction
and installation of structures and associated improvements such as
and including, without limitation, the Building Code.
1.2.3 "Building Code" means the City of Moorpark
Building Code, including the,various uniform codes and appendices
adopted by reference therein, as adopted by City Ordinance No.
and in effect on the Agreement Date.
1.2.4 "CEQA" means the California Environmental Quality
Act, California Public Resources Code section 21000, et seq., and
the State CEQA Guidelines, (California Code of Regulations, title
14, section 15000, et seq.) , as each is amended from time to t ime .
1.2.5 "City" means the City of Moorpark, a municipal
corporation located in the County of Ventura, State of California.
agmts \cfcdev.002 3
1.2.6 "city Development Agreement Ordinance" means
Ordinance No. 59 (City Municipal Code Sections 9.64.010- 9.64.150)
which became effective on December 16, 1985 establishing a
procedure for the consideration and approval of development
agreements pursuant to the Development Agreement Legislation.
1.2.7 "Developer" means, at any given point in time, the
person or persons having any legal or equitable interest in any
part of the Property other than the following interests: liens for
taxes and assessments; mechanic's liens; rights of way; easements
or other interests that cannot ripen into a fee; and bare legal
title, such as that created by a trust deed, held as security for
an obligation. A person having the requisite interest in only a
part of the Property is a Developer only with respect to that part
and only for so long as that person retains the requisite interest.
C.T. Financial, a California general partnership was the only
Developer as of the Agreement Date.
1.2.8 "Development" means the subdivision or improvement
of the Property for purposes of constructing the structures,
improvements and facilities comprising the Project including,
without limitation: grading, the construction and installation of
infrastructure and public facilities related to the Project whether
located within or outside the Property; the construction of
structures and buildings; and the installation of landscaping; but
not including the maintenance, repair, reconstruction or
redevelopment of any structures, improvements or facilities after
the construction and completion thereof.
1.2.9 "Development Agreement Legislation" means Sections
65864 through 65869.5 of the California Government Code as it
exists on the Agreement Date.
1.2.10 "Development Approval(s)" means site - specific
permits and other entitlements to use of every kind and nature
a9mts \cfcdev.002 4
approved or granted by the City in connection with the Development,
including but not limited to: subdivision approvals (including
tentative maps, vesting tentative maps, final maps, parcel maps and
map waivers) development permits, development allotments pursuant
to the Residential Development :Management System, conditional use
permits, variances, oak tree permits, and grading permits, building
permits, occupancy permits and other similar permits.
1.2.11 "Development Fees" means all City- adopted fees
and monetary exactions, and area of contribution fees or charges
(including, without limitation, the Tierra Rejada Road Area of
Contribution), that are designed to pay for new or expanded public
facilities needed to serve, or to mitigate the adverse effects of,
a given development project and that are imposed by the City as a
condition of approval of discretionary or ministerial permits for,
or in connection with the implementation of, that development
project. The term "Development Fees" does not include processing
fees and charges as described in Section 4.3, subdivision (e), and
taxes and assessments as described in Section 4.4.. The term
"Development Fees" also does not include requirements that
development be served by a public utility even if that public
utility imposes a capital improvement fee or similar charge as a
condition of providing service.
1.2.12 "Effective Date" means the date upon which
Ordinance No. approving and authorizing the execution of this
Agreement becomes effective.
1.2.13 "Existing Land Use Regulations" means those
certain Land Use Regulations set forth in Exhibit "B" hereof.
1.2.14 "General Plan" means the Moorpark General Plan in
effect on the Agreement Date.
agmts \cfcdev.002 5
1.2.15 "Governing Policies" means (i) the policies
specified in Section 4.1 of this Agreement; and (ii) the Existing
Land Use Regulations.
1.2.16 "Land Use Regulations" means Regulations of the
City governing the development and use of land including, but not
limited to, Regulations requiring exactions or mitigation measures
to lessen or compensate for the adverse effects of such development
or use on the environment or on other :natters of public interest or
concern. Examples of Land Use Regulations include, without
limitation, general and specific plans, zoning regulations and
subdivision regulations enacted pursuant to Title 7 (commencing
with Section 65000) of the Government Code, and building,
electrical, plumbing and mechanical codes adopted pursuant to the
State Housing Law (Health and Saf. Code, section 17910, et seq.)
The term Land Use Regulations does not include Regulations relating
to the following: the conduct of business, professions and
occupations generally; taxes and assessments; the control and
abatement of nuisances; encroachment and other permits and the
conveyances of rights and interests that provide for the use of or
entry upon public property; and any exercise of the power of
eminent domain.
1.2.17 "On- Project" rlloff- Project ll means located
within [outside] the boundaries of the Specific Plan.
1.2.18 "Pro; ect" means the development projects
contemplated by the Specific Plan with respect to the Property,
including but not limited to, On- Project and Off - Project
improvements, as such development projects are further defined, or
modified pursuant to the provisions of this Agreement.
1.2.19 "Property" means those certain lands as to which
Developer had a legal or equitable interest on the Agreement Date,
and more specifically described in Exhibit "A" hereof.
agmts \cfcdev.002 6
1.2.20 "Public Facilities" means those certain lands and
facilities to be improved, constructed and dedicated or conveyed to
the public by the Developer pursuant to the Existing Land Use
Regulations.
1.2.21 "Regulations" means constitutions, statutes, City
ordinances, and codes, resolutions, rules, regulations, programs,
and official policies and actions of the City.
1.2.22 "Reservations of Authority" means the rights and
authority excepted from the assurances and rights provided to the
Developer in Section 4.2 of this Agreement and reserved to the City
as described in Section 4.3 of this Agreement.
1.2.23 "Residential Development Management System" means
the initiative ordinance known as "Measure F" regulating the
allocation of building permits for residential development, City
Council Resolution No. 421 establishing procedures for the
implementation of said initiative ordinance and all amendments
thereto in effect as of the Agreement Date.
1.2.24 "Specific Plan" means the Carlsberg Specific Plan
adopted by the City on ,1993 by Ordinance No.
1.2.25 "Subdivision ordinance" means [cite chapter
sections of City Code] of the City Municipal Code in effect cn the
Agreement Date, including the "Ventura County Improvement Standards
and Specifications" incorporated by reference in Section c: she
Subdivision Ordinance.
1.2.26 "Traffic and Air Quality Mitigation Fee" -ej ^s
the fee as described in Section II H 5 of the Specific =:in,
established by the City to partially mitigate traffic and ::r
quality impacts caused by the Project.
a9mts \cfcdev.002 7
1.2.27 "Ventura County Improvement Standards and
Specifications" means the following six documents [should perhaps
cite City adoption of same and by Ordinance number], in effect on
the Agreement Date, and other documents incorporated by reference
therein:
(a)
Ventura County
Standard Land Development
Specifications;
(b)
Ventura County
Road Standards;
(c)
Ventura County
Water works Manual;
(d)
Ventura County
Sewerage Manual;
(e)
Ventura County
Flood Control District
Design Manual;
and
(f)
Ventura County
Flood Control District
Hydrology Manual.
1.2.28 "Zoning Ordinance" means Chapter (commencing
with Section ) of the City Municipal Code in effect on the
Agreement Date.
1.3 Exhibits. The reference to a specified "Exhibit" in this
Agreement is a reference to a certain one of the exhibits listed
below, as determined by the accompanying letter designation, which
exhibits are attached hereto and by this reference made a part
hereof.
Exhibit Designation Description
A Description of Property
B Existing Land Use Regulations
2. FURTHER ENVIRONMENTAL REVIEW.
2.1 Specific Assurances re CEO A. Except to the extent that
subsequent use of the environmental impact report for the Specific
Plan is appropriate, all future Development Approvals for which an
environmental impact report, negative declaration or mitigated
negative declaration is required by CEQA shall be processed
agmts \cfcdev.002 8
utilizing focused or supplemental environmental impact reports,
negative declarations or mitigated negative declarations, or any
combination of the above, unless otherwise required by law.
3. THE DEVELOPER'S OBLIGATIONS; PROVISION OF PUBLIC BENEFITS.
3.1 Specific Plan Compliance. The Developer shall perform
all of the duties and obligations provided for or required of the
Developer by the Specific Plan.
3.2 Dedication, Construction and Conveyance of Public
Facilities.
(a) In General. Unless expressly required to do so by
State or federal Regulations, the City shall not unilaterally
require the Developer to study, dedicate, construct or pay for
additional, expanded or extended On- Project or Off - Project
public improvements, master facility studies or other reports
beyond those required in or contemplated by the Specific Plan
or this Agreement.
(b) Public Works. To the extent the Developer
( constructs any public works facilities or other improvements
that will be dedicated to the City or any other public agency
upon completion, and if required by then applicable laws to do
so, the Developer shall perform such work subject to and in
compliance with the Regulations pertaining to the construction
of public works that are in effect at the time of such
construction.
3.3 City Assistance in Obtaininq Land for Public Facilities.
In any instance where the Developer is required by the Specific
Plan or conditions of Development Approvals to construct any public
facilities (such as infrastructure related to the Project) on lands
in which the Developer does not have and cannot reasonably obtain
a9mtslcfcdev.002 9
title or interest sufficient for such purposes, the Developer shall
promptly do all of the following:
(a) Notify the City that the Developer wishes the
City to acquire an interest in the land that is
sufficient for such purposes;
(b) Supply the City with (i) a legal description
of the interest to be acquired; (ii) a map or diagram of
the interest to be acquired sufficient to satisfy the
requirements of subdivision (e) of Section 1250.310 of
the Code of Civil Procedure; (iii) a current appraisal
report prepared by an appraiser approved by the City that
expresses an opinion as to the current fair market value
of the interest to be acquired; and (iv) a current
litigation report; and
(c) Enter into an agreement with the City,
guaranteed by such deposits or other security as the City
may require, pursuant to which the Developer will pay all
of the City's costs (including, without limitation,
attorneys' fees) of acquiring such interest.
The City shall then acquire such interest by such means as it ;gay
reasonably select, including eminent domain.
3.4 Relationship of Parties. In performing the Developer's
obligations, the Developer is acting under this Agreement as an
independent contractor and is not acting as the agent or employee
of the City nor shall anything in this Agreement be construed as
creating between the Developer and the City a partnership or joint
venture for any purpose.
3.5 Surety /Assurance. As and when the Developer is required
to provide surety or assurance pursuant to the provisions of the
agmts \cfcdev,002 i 0
Specific Plan or the conditions of any Development Approvals with
respect to the Development of the Project, an acceptable form of
surety may, at the option of the Developer, be any of the types
specified in subdivisions (a)(1), (a) (2) and (a) (3) of Section
66499 of the California Government Code as it read on the Agreement
Date.
3.6 Subdivision Maps. In accordance with California
Government Code section 66452.6 in effect on the Agreement Date,
any tentative or parcel tract map (or vesting tentative tract or
parcel map) approved or conditionally approved by the City for the
Project shall initially be approved for the maximum period allowed
by law and the City shall, upon the Developer's request, extend the
expiration of such approved or conditionally approved tentative
map(s), without changes in design or conditions, and without a fee
for doing so, for such additional periods as the Developer may
request, to enable recordation or phased recordation of final maps;
provided, however, any- such extension or extensions shall not
exceed the duration of this Agreement.
3.7 Residential Development Allocations. The Residential
Development Management System authorizes the City to award all or
a portion of the housing development allotments that have not been
used or otherwise awarded to builders. On the Agreement Date,
there is approximately 1,000 [confirm] of such allotments that have
not been used or awarded to builders. Subject to the filing of the
applicable application by the Developer, the City shall issue to
the Developer, for the benefit of the Project, 552 housing
development allotments in accordance with the following schedule:
(a) not later than six (6) months after the Agreement
Date, 500 housing development allotments; and
(b) not later than thirteen (13) months after the
Agreement Date, 52 housing development allotments.
agmts \cfcdev.002 11
For the duration of the Development Agreement, the City shall
not rescind all or any part of the housing development allotments
issued to the Developer for the Project. (This provision needs
refinement based upon City input.]
3.8 Park and Recreation Mitigation. The Specific Plan
r provides for the dedication to the City of nine (9) acres of land
within the Project for park purposes. The dedication of such land
shall constitute the full extent of the park and recreation
mitigation required of the Project and the City shall not as a
condition of Development or any Development Approval, require the
Developer to study, dedicate, construct or pay for additional or
expanded facilities, programs, reports or fees in connection with
park and recreation facilities or opportunities.
3.9 Traffic and Air Quality Mitigation. The Specific Plan
requires the Developer to construct or otherwise cause the
completion of certain road and related improvements and to
contribute funds to the Tierra Rejada Road Area of Contribution,
which partially mitigates the Project's impact upon traffic and
circulation. The Specific Plan also requires the Developer to
incorporate certain operational features and other measures into
i the Project to partially mitigate the Project's impact upon air
quality. In addition, as set forth in and in accordance with
Section II H 5 of the Specific Plan, the Developer shall pay to the
City a Traffic and Air Quality Mitigation Fee to further mitigate
traffic and air quality impacts caused by the Project. The City
and the Developer agree that collectively, the satisfaction of such
mitigation measures by the Developer constitutes the full extent of
the traffic and air pollution mitigation required of the Project
and that the City shall not, as a condition of Development or any
Development Approval (i) impose any other or additional obligation
(including, without limitation, the obligation to study, dedicate,
construct or pay for additional or expanded facilities, programs,
reports or fees) in connection with Off- Project road improvements
agmts \cfcdev.002 12
(and other improvements related thereto) needed to serve or to
mitigate the adverse effects of the Development, and (ii) impose
any other or additional requirement that the Developer study,
dedicate, construct or pay for additional or expanded facilities,
programs, reports or impact fees in connection with air quality.
4. REGULATIONS GOVERNING THE DEVELOPMENT OF THE PROPERTY.
4.1 Governing Policies. The following policies shall govern
the Development and Development Approvals in connection with the
Project on or after the Agreement Date.
(a) Density, Building Dimensions, Dedications. The
permitted uses, the density and intensity of use, the maximum
height and size of proposed buildings, and the provisions for
reservation or dedication of land for public purposes with
respect to the Property are as specifically provided in the
Specific Plan (including those provisions of the other Land
Use Regulations that are referred to and made applicable to
the Property by operation of Section IV of the Specific Plan)
and applicable provisions of the General Plan.
(b) Moratoria, Phasing of Development. The Specific
Plan provides for the phasing of the Development of the
Property. Except as expressly provided in this Section 4, no
subsequently adopted Land Use Regulation (whether enacted by
the City, imposed by voter initiative or referendum or
otherwise) imposing a moratorium or other limitation on the
conditioning, rate, timing or sequencing of the Development of
the Property or any portion thereof shall apply to or govern
the Development of the Property during the term hereof. If
any such subsequently adopted Land Use Regulation becomes
effective, the Developer shall continue to be entitled to
apply for and receive Development Approvals in accordance with
the Existing Land Use Regulations, subject only to the
agmts \cfcdev.002 13
4.2 Regulation of Development After Agreement Date.
(a) In General. Notwithstanding any future action of
the City, whether by ordinance, resolution, initiative or
otherwise, the Existing Land Use Regulations shall apply to
and govern the Development of the Property from the Agreement
Date through the remainder of the term of this Agreement,
except and subject to the Reservations of Authority and the
terms of this Agreement. No Land Use Regulations (other than
the Existing Land Use Regulations) adopted by the City before
or after the Agreement Date that conflict with the Governing
Policies or this Agreement shall apply to or govern the
Development or Development Approvals from the Agreement Date
through the term of this Agreement. No amendments or
modifications of the Existing Land Use Regulations shall apply
to the Development or Development Approvals unless such
amendments or modifications are either requested by the
Developer or are adopted in accordance with the Reservations
of Authority. To facilitate the future administration and
application of the Existing Land Use Regulations to the
Project, the entire text of each of the Existing Land Use
Regulations shall be kept by the City in a file designated
solely for that purpose and a duplicate copy of such file
shall be provided by the City to the Developer no later than
the Agreement Date.
(b) Developer Rights After the Agreement Date. in
developing the Property, the Developer has the right to
require that the Land Use Regulations of the City applicable
to and governing the Development of the Property from the
Agreement Date through the remainder of the term hereof shall
be as provided in this Section 4.2.
4.3 Reservations of Authority. Notwithstanding anything to
the contrary set forth in Section 4.2 hereinabove, in addition to
a9mts \cfcdev.002 1
exercise of the Reservations of Authority set forth in Section
4.3 and the limitations set forth in Section 4.4.
(c) Development Fees.
(i) No Development Fees shall be imposed upon the
Development except as provided in the Existing Land Use
Regulations. No increase in a Development Fee provided
for in the Existing Land Use Regulations (through either
a change in a formula pursuant to which the fee is
calculated, a change in a fixed dollar amount prescribed
for the fee, or any other method) that is adopted after
the Agreement Date shall apply to the Development unless
the increase is of general applicability to the entire
City. In the event of any such increase that is of
general applicability, the Developer shall be required to
pay the lesser of the following: the amount of the
Development Fee on the Agreement Date as adjusted by the
cumulative increases in the Construction Cost Index for
the Southern California Area (as such index is published
in the Engineering News Record) from the Agreement Date
to the date of payment of the applicable Development Fee;
and the amount of the Development Fee required by the
applicable City Regulation in effect at the time of
payment. If such publication ceases to be published, the
Developer and the City shall agree upon some other
generally accepted periodical source which publishes such
an index.
(ii) Except as provided for in this Agreement, the
City shall not by its own action, voter initiative,
referendum or otherwise impose any new or additional
Development Fees upon the Project.
agmts \cfcdev.002 14
the Existing Land Use Regulations, only the following Land Use
Regulations adopted by the City after the Agreement Date shall
apply to and govern the Development of the Property from the
Agreement Date through the remainder of the term of this Agreement
( "Reservations of Authority "):
(a) Future Land Use Regulations. Future Land Use
Regulations that are of general applicability to the entire
City and that either: are not in conflict with the Governing
Policies or this Agreement including, without limiting the
generality of the foregoing, the limitations set forth in
Section 4.1(b) hereof; or have been consented to in writing by
the Developer;
(b) State and Federal Regulations. Existing and future
State and federal Regulations, together with any City
Regulations, actions, or inaction, that are reasonably (taking
into consideration, among other things, the assurances
provided to the Developer hereunder) adopted or undertaken by
the City in order to comply with preemptory State and federal
Regulations; provided, however, that in the event that State
or federal Regulations prevent or preclude compliance with one
or more provisions of this Agreement, such provisions of this
Agreement shall be modified or suspended but only to the
extent necessary to comply with such State and federal
Regulations, in which event this Agreement shall remain in
full force and effect to the extent that it is not
inconsistent with such State and federal Regulations and to
the extent that performance of the remaining provisions of
this Agreement would not be inconsistent with the intent,
prospective accomplishment of purposes and mutual
consideration of this Agreement; and provided further that the
City shall use its best efforts to avoid conflicts with this
Agreement if reasonably possible;
agmts \cfcdev.002 16
(c) Building and Improvement Standards. Present and
future Building and Improvement Standards, except that (taking
into consideration, among other things, the assurances
provided to the Developer in Section 4) any future amendment
thereto shall be related to matters of public health or
safety, and any future amendment 'which significantly reduces
the amount of land within the Property that can be utilized
for structures and improvements or significantly increases the
amount of open space that is to be provided within the Project
under the Specific Plan shall not be considered a provision of
any of the Building and Improvement Standards included within
the exception provided by this Paragraph 4.3(c) and shall not
apply to and govern the Development of the Project unless it
complies with another exception under this Section 4.3 (such
as, for example, Paragraph 4.3(b)); and
(d) Processing Fees and Charges. Processing fees and
charges of every kind and nature imposed or required by the
City under current or future Regulations that are of general
applicability to the entire City and which cover the actual
costs of the City in (i) processing applications and requests
for permits, approvals and other actions related to the
Project; and (ii) monitoring compliance with any permits
issued or approvals granted or the performance of any
conditions with respect thereto or any performance required of
the Developer hereunder.
4.4 Taxes and Assessments. The City may impose new taxes and
assessments on the implementation of the Project as may be also
imposed on all or a portion of other land and projects within the
jurisdiction of the City, provided that the impact thereof does not
fall disproportionately on the Project vis -a -vis the rest of the
land and projects within the City's jurisdiction or portion of the
City's jurisdiction subject to the tax or assessment. The amount
of any taxes or assessments may be increased over time so long as
agmts \cfcdev.002 17
the increase is applied consistently to all land or projects
subject thereto. Nothing herein shall be construed so as to limit
the Developer from exercising whatever rights it may otherwise have
in connection with protesting or otherwise objecting to the
imposition of taxes or assessments on the Project.
4.5 Regulation by Other Public Agencies. It is acknowledged
by the parties that other public agencies not within the control of
the City may possess the authority to regulate aspects of the
Development of the Property separately from or jointly with the
City and this Agreement does not limit the authority of such other
public agencies. Nevertheless, the City shall be bound by, and
shall abide by, its covenants and obligations under this Agreement
in all respects when dealing with any such agency regarding the
Property.
5. PERIODIC REVIEWS.
5.1 City Review. Pursuant to the City Development Agreement
Ordinance, the City shall review the Developer's compliance with
the terms and provisions of this Agreement at least once every
twelve (12) month period from and after the Effective Date. The
actual costs of the City attributable to its review pursuant to
this Section 5 shall be borne by the Developer.
6. BINDING ON SUCCESSORS.
6.1 City's Rights and Obligations. If any part of ~he
Property should hereafter be included within the boundaries of a
county or another city, all of the City's rights and obligations
under this Agreement shall inure to and be binding upon that county
or other city with respect to the part of the Property included
within that county's or city's boundaries to the fullest extent
permitted by Government Code section 65865.3 and other applicab'_e
Regulations. In such an event, the City shall retain all of its
a9mts \cfcdev.002 18
rights and obligations under this Agreement with respect to the
part, if any, of the Property that remains within the boundaries of
the City.
6.2 Developer's Rights and Obligations.
(a) Generally Run With Land. Except as otherwise
provided in this Section 6.2, all of the Developer's rights
and obligations under this Agreement are appurtenant to the
Property, run with the land, and are enforceable as equitable
servitudes and covenants running with the land. Except as
otherwise provided in this Section 6.2, any person acquiring
sufficient legal or equitable interest in a part of the
Property to become a "Developer" (as defined in Section 1.2.7)
shall automatically obtain and assume all of the Developer's
rights and obligations under the Agreement with respect to
that part of the Property. Whenever a Developer, through
voluntary conveyance or otherwise, ceases to have sufficient
legal or equitable interest in any part of the Property to
remain a "Developer" with respect to that part, such person
shall cease to have any Developer's rights or obligations
under this Agreement with respect to that part of the
Property.
(b) Exceptions.
(i) C.T. Financial shall remain primarily liable
throughout the term of this Agreement for paying the
City's costs of annually reviewing compliance with this
Agreement as provided in Section 5. However, C.T.
Financial may assign such obligations subject to the
following conditions precedent: (a) said obligations
may be assigned only together with and as an incident of
the transfer and assignment of all or a portion of the
Property; and (b) C.T. Financial has provided the City
agmts\cfcdev.002 19
with notice of such assignment and as part of such notice
the assignee executes and delivers to the City an
assumption agreement in which the name and address of the
assignee is set forth and the assignee expressly and
unconditionally (excepting the right to make subsequent
assignments) assumes the obligations set forth in Section
5. The assignee may make subsequent assignments in the
same manner. Upon the satisfaction of these conditions
precedent, C.T. Financial (or its assignee) shall have no
further liability for or in connection with the payment
of such costs. If C.T. Financial (or its assignee)
thereafter should cease to exist, become insolvent, or
otherwise fail to make such payments in a timely fashion,
each and every Developer and their successors and assigns
' shall be jointly and severally liable for payment of such
costs.
(ii) A Developer that is in default in the
performance of his obligations under this Agreement shall
not, by reason of any subsequent alienation of his
equitable or legal interest in the Property or any part
thereof, be relieved of any liability he may have under
this Agreement on account of such default.
7. TERM OF AGREEMENT.
7.1 Stated Term. The term of this Agreement shall commence
on the Agreement Date and, unless earlier terminated pursuant to
the provisions of this Agreement, shall expire on the 20th
anniversary of the Agreement Date. In the event the parties
determine that a longer period is necessary to achieve the purpcses
of this Agreement, the term of this Agreement may be extended L:y
the further written agreement of the Developer and the City
accordance with Section 8.
agmtslcfcdev.002 2 0
7.2 Rights and Duties Following Termination. Upon the
termination of this Agreement, no party shall have any further
right or obligation hereunder except with respect to any obligation
that arose or was to have been performed prior to said termination
or with respect to any default in the performance of the provisions
of this Agreement which occurred prior to said termination.
8. AMENDMENT.
8.1 Amendment. This Agreement may be amended or cancelled
only in accordance with the City Development Agreement Ordinance.
Except as otherwise specifically provided in this Agreement or the
City Development Agreement Ordinance, this Agreement may be amended
or cancelled only by the mutual agreement of the parties in a
writing executed by the parties and recorded in the official
records of the County of Ventura.
9. PROCESSING OF REQUESTS AND APPLICATIONS; OTHER GOVERNMENT
PERMITS.
9.1 Processing. Upon satisfactory completion by the
Developer of all required preliminary actions, meetings, submittal
of required information and payment of appropriate processing fees,
if any, the City shall promptly commence and diligently proceed to
complete all required steps (of general applicability to the entire
City) necessary for the implementation of this Agreement and the
provisions of the Development Approvals (whether specifically
required by this Agreement or reasonably desired by the Developer
in connection with the Development of the Project) including, but
not limited to, the following: processing and checking of all
applications, maps, site plans, development plans, land use plans,
grading plans, building plans and specifications and environmental
assessments and reports and holding all required public hearings
for permits, entitlements or approvals relating to the Development
of the Project, including, but not limited to, all site plan
a9mts \cfcdev.002 2 1
approvals, final development plans, development permits, parcel
maps, subdivision maps, subdivision improvement agreements, grading
permits, building permits, lot line adjustments, encroachment
permits and related matters as necessary for the completion of the
Development of all lots, parcels and structures thereon and the
initiation, processing, approval and completion of procedures for
the formation, annexation, detachment or other changes of
organization and related special tax or assessment authorizations
related to the Project. In this regard, the Developer, in a timely
manner, will provide the City with all documents, applications,
plans and other information necessary for the City to carry out its
obligations hereunder and will cause Developer's planners,
engineers and all of its other consultants to submit in a timely
manner, all required materials and documents therefor. It is the
express intent of this Agreement that the parties cooperate and
diligently work to implement any zoning or other land use, site
plan, subdivision, grading, building or other approvals for the
Development of the Project in accordance with the Development
Approvals.
9.2 Contract Services. If requested by the Developer, at the
Developer's expense, the City shall obtain outside contractual
services as necessary to ensure prompt processing of all
Development Approvals.
9.3 Other Governmental Permits. The City shall fully
cooperate with the Developer in obtaining such other permits and
approvals as may be required from other governmental or quasi -
governmental agencies having jurisdiction over the Project as may
be required for the Development of, or provision of services to,
the Project.
a9mts \cfcdev.002 2 2
10. GOVERNMENTAL SERVICES.
10.1 Assessment District. The Developer and the City may
mutually agree to form one or more benefit assessment districts to
perform and /or finance infrastructure, improvements, facilities or
maintenance services in connection therewith and to levy an
assessment on the parcels benefitted thereby.
10.2 Infrastructure Financing. The City agrees to cooperate
with the Developer, at the Developer's request, with the creation
of financing for infrastructure and other qualifying facilities
pursuant to the Mello -Roos Community Facilities Act of 1982, as
amended.
10.3 Cost of Proceedings. The Developer shall pay the
applicable processing fees and other costs of the City in
connection with the formation of any financing program as
contemplated by Sections 10.1 or 10.2.
11. DEFAULT AND REMEDIES.
11.1 Default of the Developer. Developer shall be in default
under this Agreement (a "Developer Default ") if:
(i) the Developer fails to perform or comply in
good faith with any of its duties or obligations under
this Agreement, and such failure continues for a period
of 30 days after receipt by the Developer of written
notice from the City, or, if such failure cannot
reasonably be remedied within such 30 day period, the
Developer either fails to commence correction of such
failure within such 30 day period or fails to diligently
and continually proceed with such correction to
completion; or
a9mts \cfcdev.002 2 3
(ii) in the course of
pursuant to Section 5 of this
is made by the City pursuant
City Development Agreement 01
has not demonstrated the
compliance with the terms
Agreement.
the periodic review held
Agreement, a determination
to Section 9.64.150 of the
-dinance that the Developer
Developer's good faith
and conditions of this
It is contemplated that the Developer will be selling or otherwise
transferring portions of the Property, together with the applicable
rights and obligations of this Agreement that are appurtenant
thereto, to builders or others who will in turn develop such
portions of the Property in accordance with the Specific Plan, the
applicable Development Approvals and this Agreement. As set forth
in and subject to the limitations of Section 6.2 hereof, upon such
a sale or transfer of a portion of the Property, the Developer
shall be released from its obligations under this Agreement that
are appurtenant to that portion of the Property, so that if there
is a default under this Agreement by an owner of that portion, such
default shall not be a default by the owner(s) of other portions of
the Property and all of the rights and obligations under this
Agreement of such owner(s) of other portions of the Property shall
be unaffected thereby.
11.2 Default of the City. The City shall be in default under
this Agreement (a "City Default ") if the City fails to perform or
comply in good faith with any of the agreements, terms, covenants
or conditions of this Agreement on the City's part to be performed
or complied with, and such failure continues for a period of 30
days after receipt of written notice from the Developer, or, if
such failure cannot reasonably be remedied by the City within such
30 day period, the City either fails to commence correction of such
failure within such 30 day period or fails to diligently and
continually proceed with such correction to completion.
agmts \cfcdev.002 2 At
11.3 Remedies. Following a Developer Default, the following
rights and remedies will be available to the City under this
Agreement, and following a City Default, the following rights and
remedies will be available to the Developer under this Agreement:
(a) In General. In addition to whatever other rights or
remedies are available to the non - defaulting party at law or
in equity (including, without limitation, money damages) the
non - defaulting party may institute legal action to enforce any
agreement, term, covenant or condition herein by specific
performance of this Agreement, and to enjoin any threatened or
attempted violation of any agreement, term, covenant or
condition herein.
(b) Specific Performance. The parties hereby agree and
acknowledge that the recovery of money damages is an
inadequate remedy for the City following a Developer Default
and an inadequate remedy for the Developer following a City
Default and that specific performance of this Agreement is an
appropriate remedy for any such default under this Agreement
and should be available to the non - defaulting party following
such a default based upon the following facts and
circumstances:
(i) the uncertainty inherent in quantifying
monetary damages for such a default under this Agreement;
(ii) the Developer's obligations provided for in
Section 3 were bargained for by the City and given in
return for assurances by the City regarding the
Regulations that would be applicable to the Development
of the Property, which assurances were in turn relied
upon by the Developer in undertaking such obligations;
agmts \cfcdev.002 2 5
(iii) due to the size, nature and scope of the
Project, it will not be practical or possible to restore
the Property to its natural condition once Development of
the Property pursuant to this Agreement has begun; after
implementation of this Agreement, the Developer may be
foreclosed from other choices it may have had to develop
the Property or portions thereof; the Developer has
invested significant time and resources and performed
extensive planning for the Project in reliance upon the
terms of this Agreement and will be investing even more
significant time and resources in the Project in reliance
upon the terms of this Agreement, and it would not be
possible to determine the sums of money which would
adequately compensate the Developer for such efforts;
(iv) the inability of the Developer to recover its
capital investment in areas dedicated for open space
preservation, community facilities, and Project
infrastructure provided as part of the Developer's
obligations under this Agreement and to re -plan and
provide for different uses of the Property once such
land, facilities and infrastructure have been transferred
or completed, as the case may be;
(v) the use of the Property for the purposes and
uses described in the Specific Plan is unique; and
(vi) the critical public need and concern for the
housing, major facilities and infrastructure to be
provided by the Developer as part of the Developer's
obligations under this Agreement as well as the benefits
to the City that can be obtained from the long -term and
comprehensive planning and stability contemplated by the
Development Agreement Legislation.
a9mts \cfcdev.002 26
(c) Remedies Cumulative. Any rights or remedies
available to the non - defaulting party under this Agreement and
any other rights or remedies that such party may have at law
or in equity upon a default by the other party under this
Agreement shall be distinct, separate and cumulative rights
and remedies available to such non - defaulting party and none
of such rights or remedies, whether or not exercised by the
non - defaulting party, shall be deemed to exclude any other
rights or remedies available to the non - defaulting party. The
non - defaulting party may, in its discretion, exercise any and
all of its rights and remedies, at once or in succession, at
such time or times as the non - defaulting party considers
appropriate.
11.4 Mortgagee Protection; Certain Rights of Cure.
(a) Mortgages Not Affected. This Agreement shall be
superior and senior to any lien placed upon the Property or
any portion thereof after the date of recording this
Development Agreement, including the lien of any deed of trust
or mortgage ( "Mortgage "). Notwithstanding the foregoing, no
breach hereof shall defeat, render invalid, diminish or impair
the lien of any Mortgage made in good faith and for value, but
all of the terms and conditions contained in this Agreement
shall be binding upon and effective against any person,
including any deed of trust beneficiary or mortgagee
( "Mortgagee ") who acquires a legal or equitable interest in
any part of the Property sufficient to make such person a
"Developer" as defined in Section 1.2.7, by foreclosure,
trustee sale, deed in lieu of foreclosure, or otherwise. A
Mortgagee that becomes a Developer shall, however, be released
from liability or obligations hereunder, if any, upon transfer
of the Property in the same manner and to the same extent as
any other Developer is released from liability or obligations
a9mts \cfcdev.002
27
upon a transfer of all or a portion of the Property in
accordance with Section 6.2 hereof.
(b) Notice of Default to Mortgagee. If the City
receives a written notice from a Mortgagee specifying such
Mortgagee's address and requesting a copy of any notice given
to the Developer by the City pursuant to the periodic review
required by Section 5 or pursuant to Section 11.1(1) of this
Agreement, then the City shall deliver to such Mortgagee,
concurrently with the delivery thereof to Developer, any such
written notice given to the Developer. In addition, upon the
occurrence of a Developer Default, the City shall deliver
written notice of such Developer Default to such Mortgagee.
Such Mortgagee shall have the right to cure or correct such
Developer Default for a period of 30 days after receipt by
such Mortgagee of such written notice, or, if within such 30
day period, such Mortgagee shall have commenced judicial or
non - judicial foreclosure proceedings upon its Mortgage,
judicial proceedings for the appointment of a receiver to take
possession of that portion of the Property encumbered by its
Mortgage, or other appropriate proceedings to obtain
possession of or title to such portion of the Property, the
period of time given such Mortgagee to cure or correct such
Developer Default shall be extended until the completion of
such proceedings or until such Mortgagee shall cease to
proceed diligently and continually in the prosecution thereof.
(c) Estoppel Certificate. Either party may, at any
time, and from time to time, deliver written notice to the
other party requesting such party to certify in writing that,
to the knowledge of the certifying party, (i) this Agreement
is in full force and effect and is a binding obligation of the
parties, (ii) this Agreement has not been amended or modified
either orally or in writing, and if so amended, identifying
the amendments, and (iii) the requesting party is not in
agmts \cfcdev.002 2 8
default in the performance of its obligations under this
Agreement, or if in default, should describe therein the
nature of any such default. However, when the City receives
such a request more than 90 days after the most recent
periodic review pursuant to Section 5 of this Agreement, it
may require the requesting party to pay for another review
which shall be conducted pursuant to Section 9.64.150 of the
City Development Agreement Ordinance and shall be in addition
to the regular periodic review. The party receiving a request
hereunder shall execute and return such certificate or give a
written detailed response explaining why it will not do so
within 30 days following receipt thereof. The Director of
Community Development of the City shall have the right to
execute any certificate requested by the Developer hereunder.
The City acknowledges that a certificate hereunder may be
relied upon by assignees and transferees of the Developer and
Mortgagees. The failure of the party receiving a request for
a certificate hereunder to execute and return such certificate
within 30 days of receipt thereof shall be conclusive upon
the party receiving such request that this Agreement is in
full force and effect, has not been modified except as may be
represented by the requesting party, and that the requesting
party is not in default in the performance of its obligations
under this Agreement.'
12. THIRD PARTY LITIGATION.
12.1 General Plan etc., Litigation.
(a) Litigation. The City has determined that this
Agreement is consistent with the General Plan and the Specific
Plan and that those plans meet all of the legal requirements
of State law. The parties acknowledge that:
agmts \cfcdev.002 -)9
(i) in the future there may be challenges to the
legality, validity and adequacy of one or more of those
plans or the manner of their adoption; and
(ii) if successful, such challenges could delay or
prevent the performance of this Agreement and the
Development of the Property.
The City shall have no liability under this Agreement for
any failure of the City to perform under this Agreement or the
inability of the Developer to develop the Property as
contemplated by the Specific Plan or this Agreement as the
result of a judicial determination that this Agreement or the
General Plan, the Specific Plan or portions thereof, are
invalid or inadequate or not in compliance with law, or were
not adopted in compliance with the law.
(b) Revision of General Plan. If for any reason the
General Plan, Specific Plan or any part thereof is hereafter
judicially determined as provided above to be not in
compliance with the law, this Agreement shall remain in full
force and effect and upon the adoption or amendment of any
General Plan or Specific Plan provisions which are necessary
in order to cure such defect, together with any amendments of
other Land Use Regulations which are necessary in order to
comply with such new or revised General Plan or Specific Plan,
the references in Section 1.2.13 to the Existing Land use
Regulations shall thereafter mean and refer to such new or
amended General Plan, Specific Plan and other Land L'se
Regulations.
(c) Suspension of Obligations. In the event t::at
Development of the Property is enjoined or prevented from
proceeding by any judicial order or determination n
connection with the judicial determination referred to in this
agmts \cfcdev.002 3 0
Section above and the subsequent proceedings with respect
thereto referred to in paragraph (b) of this Section, the time
for performance of the obligations of the parties hereunder
shall be extended as provided in Section 14.11.
(d) Option to Terminate. In the event that any such
amendments of the General Plan or the Specific Plan or other
Land Use Regulations result in a reduction in the number of
residential units or the density or intensity, or timing,
sequencing or phasing of Development, the Developer may cancel
this Agreement and the City consents to such cancellation, in
accordance with Section 9.64.120, of the City Development
Agreement Ordinance.
(e) Opportunity to Intervene. In the event of a
challenge to any environmental analysis or document for the
Project, the General Plan, the Specific Plan, this agreement
or any Development Approvals) in connection with the Project,
the City shall provide notice of such action to the Developer
and the Developer may elect to intervene in any such action as
a real party in interest. The City agrees not to oppose such
intervention. This right to intervene is granted because the
City acknowledges that Developer's interests may be adversely
affected by said litigation.
(f) Indemnification. The Developer shall defend,
indemnify and hold harmless the City and its agents,
officers and employees against and from any and all
liabilities, demands, claims, actions or proceedings, and
costs and expenses incidental thereto (including costs of
defense, settlement and reasonable attorneys' fees),
which any or all of them may suffer, incur, be
responsible for or pay out as a result of or in
connection with any challenge to the legality, validity
or adequacy of any of the following: (i) the Specific
a9mts \ctcdev.002 31
Plan and this Agreement; (ii) the environmental impact
report prepared in connection with the adoption of the
Specific Plan and this Agreement; and (iii) the
proceedings undertaken in connection with the adoption of
the Specific Plan and this Agreement.
12.2 Revision to Project. In the event of a court order
issued as a result of a legal challenge to any environmental
analysis or document for the Project, the General Plan, the
Specific Plan or any Development Approval(s) for the Project, the
City shall, to the extent permitted by law or court order, in good
faith seek to comply with the court order in such a manner as will
maintain the integrity of the Project and avoid or minimize to the
greatest extent possible, any impact to the Development of the
Project as provided for in and contemplated by the General Plan,
the Specific Plan, any and all Development Approvals and this
Agreement.
13. HOLD HARMLESS AND WAIVER.
13.1 Hold Harmless; Developer's Activities. The Developer
hereby agrees to, and shall defend, save and hold the City and its
elected and appointed boards, commissions, officers, agents, and
employees harmless from any and all claims, costs and liability for
any damages, personal injury or death, which may arise, directly or
indirectly, from the Developer's or the Developer's contractors,
subcontractors, agents, or employees' operations under this
Agreement, whether such operations be by the Developer or by any of
the Developer's contractors or subcontractors or by any one or more
persons directly or indirectly employed by or acting as agent for
the Developer or any of the Developer's contractors or
subcontractors.
13.2 Nexus /Reasonable Relationship Challenges. The Developer
agrees that all of the provisions of the Specific Plan are legally
agmts \cfcdev.002 3 2
binding upon the Property as the same may be divided or subdivided
in the future. In addition, the Developer consents to, and waives
any rights it may have now or in the future to challenge the legal
validity of, the conditions, requirements, policies or programs
required by the Existing Land Use Regulations or this Agreement
(including, without limitation, any claim that they constitute an
abuse of the police power, violate substantive due process, deny
equal protection of the laws, effect a taking of property without
payment of just compensation, or impose an unlawful tax). The
Developer reserves the right to challenge the legal validity of any
condition imposed on any Development Approval that is not required
by the Existing Land Use Regulations or this Agreement.
14. MISCELLANEOUS PROVISIONS.
14.1 Recordation of Agreement. The Moorpark City Council
shall cause this Agreement and any amendment or cancellation hereof
to be recorded in the official records of the County of Ventura,
State of California within ten days after the Agreement Date in
accordance with Section 9.64.140 of the City Development Agreement
Ordinance. The cost of recordation shall be borne by the
Developer.
14.2 Entire Agreement'. This Agreement sets forth and
contains the entire understanding and agreement of the parties and
there are no oral or written representations, understandings or
ancillary covenants, undertakings or agreements which are not
contained or expressly referred to herein and no testimony or
evidence of any such representations, understandings or covenants
shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
14.3 Severability. Except as otherwise provided for in
Section 13.1(d), if any term, provision, covenant or condition of
this Agreement shall be determined invalid, void or unenforceable,
agmts \cfcdev.002 3 3
the remainder of this Agreement shall not be affected thereby to
the extent such remaining provisions are not rendered impractical
to perform taking into consideration the purposes of this
Agreement.
14.4 Interpretation and Governing Law. This Agreement and
any dispute arising hereunder shall be governed and interpreted in
accordance with the laws of the State of California.
14.5 Section Headings. All Section headings and subhE.adings
are inserted for convenience only and shall not affect any
construction or interpretation of this Agreement.
14.6 Singular and Plural; Gender. As used herein, and except
where the context requires otherwise, the singular of any word
includes the plural and vice versa, and pronouns inferring the
masculine gender shall include the feminine gender and vice versa.
14.7 Joint and Several Obligations. If any obligation of the
Developer to the City is the obligation of more than one person,
such obligation and any liability with respect thereto shall be
joint and several among the obligors.
14.8 Time of Essence. 'Time is of the essence in:
(a) The performance of the provisions of this Agreement
as to which time is an element; and
(b) The resolution of any dispute which may arise
concerning the obligations of the Developer and the City as
set forth in this Agreement.
14.9 Waiver. Failure by a party to insist upon the strict
performance of any of the provisions of this Agreement by the other
party, or the failure by a party to exercise its rights upon the
agmts \cfcdev.002 3 4
default of the other party, shall not constitute a waiver of such
party's right to insist and demand strict compliance by the other
party with the terms of this Agreement thereafter.
14.10 No Third Party Beneficiaries. The only parties to this
Agreement are the Developer and the City. There are no third party
beneficiaries and this Agreement is not intended, and shall not be
construed, to benefit or be enforceable by any other person
whatsoever.
14.11 Force Majeure. Neither party shall be deemed to be in
default where failure or delay in performance of any or all of its
obligations under this Agreement is caused by floods, earthquakes,
other Acts of God, fires, wars, riots or similar hostilities,
strikes and other labor difficulties beyond such party's control,
government regulations other than those of the City, court actions
including the pendency thereof (such as restraining orders or
injunctions) or other causes beyond such party's control. If any
such events shall occur, the time for performance by either party
of any of its obligations hereunder shall be extended by the period
of time that such events prevented such performance provided that
the term of this Agreement shall not be extended.
14.12 Mutual Covenants., The covenants contained herein are
mutual covenants and also constitute conditions to the concurrent
or subsequent performance by the party benefitted thereby of the
covenants to be performed hereunder by such benefitted party.
14.13 No Dedication or Lien. Nothing herein shall be
construed as constituting a dedication or transfer of any right or
interest in, or as creating a lien with respect to, the title to
the Property.
agmts \cfcdev.002 3 5
14.14 Notices. All notices required or provided for under
this Agreement shall be in writing and delivered in person or sent
certified mail, postage prepaid and addressed as follows:
If to the City:
Director of Community Development
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
If to the Developer:
Ronald S. Tankersley
Carlsberg Financial Corporation
2800 28th Street, Suite 200
Santa Monica, CA 90405
With Copy to:
Ferguson, Case, Orr, Paterson & Cunningham
Allen F. Camp
1050 S. Kimball Road
Ventura, CA 93004
Any notice given as required herein shall be deemed given 72
hours after deposit in the United States mail or upon receipt. A
party may change its address for notices by giving notice in
writing to the other party as required herein and thereafter
notices shall be addressed and transmitted to the new address.
14.15 Persons. As used herein, any reference to or use of the
word "person" shall mean, in addition to a natural person, any
governmental entity and any partnership, corporation, joint venture
or any other form of business entity.
14.16 Counterparts. This Agreement may be executed by the
parties in counterparts which counterparts shall be construed
together and have the same effect as if all of the parties had
executed the same instrument.
a9mts \cfcdev.002 3 6
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year first set forth above.
Developer:
By.
APPROVED AS TO FORM:
Ronald S. Tankersley,
President of Carlsberg
Financial Corporation,
General Partner
Allen F. Camp of Ferguson,
Case, Orr, Paterson & Cunningham,
Attorney for Developer
CITY:
CITY OF MOORPARK
Paul W. Lawrason, Jr., Mayor
APPROVED AS TO FORM:
Cheryl J. Kane of Burke,
Williams & Sorensen
City Attorney
Attest:
Lillian Kellerman, City Clerk
agmts \cfcdev.002 3 7
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On f before me, the
undersigned notary public, personally appeared Ronald S.
Tankersley, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the
same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On I before me, the
undersigned notary public, personally appeared Paul W. Lawrason,
Jr., personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the
same in his /her /their authorized capacity, and that by his
signature on the instrument the person, or the entity upon behalf
of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said
County and State
agmts \ctcdev.002 3 3
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
agmts \cfcdev.002 3 9
[THESE ARE IN NEED OF REFINEMENT IN
CONSULTATION WITH THE CITY.]
EXHIBIT "B"
EXISTING LAND USE REGULATIONS
The following Land Use Regulations constitute the Existing Land Use
Regulations:
1. The General Plan, as defined in Section 1.2.14 of the
Agreement.
2. The Specific Plan, as defined in Section 1.2.24 of the
Agreement.
3. The Zoning Ordinance, as defined in Section 1.2.28 of the
Agreement, to the extent that it is made applicable to the
Property by operation of Section of the Specific Plan.
4. The Subdivision Ordinance, as defined in Section 1.2.25 of the
Agreement, to the extent that it is made applicable to the
Property by operation of Section of the Specific Plan.
5. Land Use Regulations, other than the Zoning Ordinance and the
Subdivision Ordinance, set forth in the City Municipal Code as
it read on the Agreement Date, to the extent made applicable
to the Property by operation of Section of the Specific
Plan.
6. The Building Code, as defined in Section 1.2.3 of the
Agreement.
7. The City Development Agreement Ordinance, as defined in
Section 1.2.6 of the Agreement.
8. The Ventura County Improvement Standards and Specifications,
as defined in Section 1.2.27 of the Agreement.
9. The Residential Development Management System, as defined in
Section 1.2.23 of the Agreement.
10. The Ventura County Flood Plain Management Ordinance (Ordinance
No. 3841 as modified by Ordinance Nos. 3890, 3902 and 39541)
and as adopted by the City by Ordinance No. as it read on
the Agreement date.
11. The Tierra Rejada Road AOC Agreement and improvement list.
a9mts \cfcdev.002 4 0
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1-4
ORDINANCE NO. 59
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, AMENDING THE MOORPARK MUNICIPAL
CODE BY ADDING CHAPTER 9.64 RELATIVE TO
DEVELOPMENT AGREEMENTS
WHEREAS, pursuant to Government Code Section 65864
et seq., the City may enter into a development agreement
with the owner of property for the development of such
property and shall establish procedures and requirements for
the consideration of development agreements upon the request
of a property owner.
NOW, THEREFORE, The City Council of the City of
Moorpark DOES ORDAIN as follows:
SECTION 1. The Moorpark Municipal Code is hereby
amended by adding Chapter 9.64 to read as follows:
CHAPTER 9.64
DEVELOPMENT AGREEMENTS
Section 9.64.010 Purpose and Intent.
This chapter is enacted pursuant to Section 65864
et seq. of the Government Code of the State of California in
order to provide a means whereby the city and property
owners can conclude agreements on proposed plans of develop-
ment for specific property. The agreement assures the
property owner that he can develop in accordance with the
terms and conditions of said agreement and assures the city
that the property will be developed in the manner agreed to
therein. Specifically, this chapter is designed to achieve
the following purposes:
(1) To achieve consistency with the general plan
and any applicable specific plan.
(2) To contribute to strengthening the planning
process.
(3) To encourage private participation in the
planning process.
(4) To reduce the economic costs of development to
the public.
CJK /ORD1997
F
Section 9.64.020 Applicability.
The city may enter into a development agreement, as
provided for in this chapter, with any person having a legal
or equitable interest in real property within the city for
the development of such property. For the purposes of this
chapter, the parties to the agreement shall include their
successors in interest.
Section 9.64.030 Contents of Development
Agreement.
(A) A development agreement shall contain all of
the requirements set forth in Section 9.64.050;
(B) A development agreement may include
conditions, terms, restrictions and requirements for
subsequent land use entitlements with respect'to the
project, or portions thereof; provided, that such
conditions, terms, restrictions and requirements shall not
prevent development of the land for the uses and to the
density or intensity of development set forth in the
agreement.
(C) A development agreement may include a covenant
between the parties to the agreement to form any assessment
district, benefit district, maintenance district or similar
district, or undertake any other procedure, for the
installation or maintenance of required or necessary on -site
or off -site improvements or infrastructure, pursuant to the
terms and conditions described in the agreement, or it may
contain a covenant between the parties to the agreement to
refrain from forming any assessment district, benefit
district, maintenance district or similar district in return
for the giving of other consideration by the parties
thereto, in lieu of such formation.
(D) A development agreement may include terms and
conditions relating to developer financing of necessary
public facilities and subsequent reimbursement over time.
(E) A development agreement may include the
developer's agreement to change the design details of any
type of improvement to the project, as such details may be
given in any land use entitlement approved prior to the date
the application for the agreement is filed and identified in
the agreement; provided, however, that if the agreement
shall be terminated at the behest of the city, or if all or
any portion of the development agreement should be
invalidated, so that the developer does not receive the
benefit of the consideration to be given by and to him
(',TK /ORD! q97
-2-
pursuant to the agreement, the original text of the land use
entitlements, as they existed prior to the date the
application for the agreement was filed shall continue in
full force and effect, and the developer shall have his
original rights and remedies with respect thereto.
(F) A development agreement may include such other
covenants, conditions, restrictions, requirement, rules,
regulations, policies, terms and standards as may be agreed
upon by the parties.
Section 9.64.040 Preliminary Review.
No application for a development agreement shall be
filed with the director of community development, unless the
city council has decided, after a preliminary review, to
proceed with consideration of the proposal. Request for
preliminary review shall be submitted to the director of
community development and shall be accompanied by a fee, as
established by resolution of the city council. The request
shall consist of a general description of the proposed
agreement, which description shall include, at a minimum,
the identity of the parties and property, a brief
description of the project, and the term of, and
consideration for, the agreement. The director shall
conduct a review of the request. Thereafter, the director
shall transmit a report and recommendation to the city
council relative to whether the city should further consider
the proposal. The city clerk shall give the person in whose
name the request is submitted not less than ten (10) days
prior written notice of the date, time and place when the
request shall be considered and of the right of said person
to be heard. In the event the city council decides to
proceed, an application may be filed pursuant to Section
9.64.050.
Section 9.64.050 Application Requirements
Application for a development agreement shall be
filed with the director of community development on forms
provided by the director and shall be accompanied by a
filing fee, as established by resolution of the city
council, and a proposed form of the development agreement,
as specified in Section 9.64.060.
Section 21.64.060 Proposed Form of Development
Agreement.
The proposed form of the development agreement
shall consist of plans and narrative relative to the
following:
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T
(1) The identity of parties to the agreement;
(2) A legal description of the entire area of the
property subject to the agreement;
(3) The nature of the applicant's legal or
equitable interest in the property;
(4) A complete description of the project,
including: uses of the property; the
relationship to adjacent properties; the
density of residential uses; the intensity of
nonresidential uses; the maximum height and
size of structures; on -site and off -site
traffic and circulation plans; and open space
and recreation areas and facilities;
(5) A description of any geological; seismic or
other safety hazard present on the property
and measures proposed to mitigate the same;
(6) Provisions for reservation or dedication of
land for public purposes;
(7) The identification and incorporation by
reference of the land use entitlements for the
project, and any phase thereof, granted or
approved by the city prior to the date the ap-
plication for the agreement was filed;
(8) The identification of the types of land use
entitlements for the project, or any phase
thereof, which must be considered for approval
by the city for the project in order to build
the project, or the phase;
(9) The identification and incorporation by
reference of existing rules, regulations and
official policies that are applicable to the
project, and any phase thereof, at the date of
the agreement;
(10) A description of the consideration for the
agreement and a description of the dates or
conditions upon which it is to be given;
(11) The proposed starting and completion date for
I the project, and any phase thereof;
lam.
(12) The term of the agreement;
-4-
CiKiORD1997
C
(13) A statement of the relationship of the
agreement to the general plan and any
applicable specific plan;
(14) A description of the remedies of the parties
to the agreement; and
(15) A provision that the conditions of the
agreement are binding upon, and inure to the
benefit of, all successors in interest to the
parties to the agreement.
Section 9.64.070 Review of Application.
After determining that the application is complete
pursuant to Government Code Section 65940 et seq., the
director of community development shall conduct a review of
the proposed development agreement. Thereafter, the
director shall prepare a staff report and recommendation and
shall set the matter for public hearing by the planning
commission.
Section 9.64.080 Recommendation by Plannin
Commission.
The planning commission shall hold a public hearing
on each application for a development agreement at the time
and place set for such hearing. Notice of intention to
consider recommendation of an agreement shall be given as
provided for in Sections 65090 through 65094, inclusive, of
the Government Code, in addition to any other notice
required by law for other actions to be considered
concurrently with the agreement. If and when State law
prescribes a different notice requirement, notice shall be
given in that manner. The commission may, whenever it deems
such action necessary or desirable, continue such hearing to
a time, date and place certain. After the hearing, the
commission shall recommend to the city council approval,
approval with modifications, or denial of the development
agreement.
Section 9.64.090 Action by City Council.
Upon receipt by the city council of the
recommendation of the planning commission on an application
for a development agreement, the city clerk shall set the
matter for public hearing by the city council. The city
council shall hold the public hearing at the time and place
set therefore. Notice of intention to consider adoption of
an agreement shall be given as provided for in Sections
65090 through 65094, inclusive, of the Government Code, in
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CJK /ORD1997
C
addition to any other notice required by law for other
actions to be considered concurrently with the agreement.
If and when State law prescribes a different notice
requirement for development agreements, notice shall be
given in that manner. The city council may, whenever it
deems such action necessary or desirable, continue such
hearing to a time, date and place certain. After the
hearing, the council shall take action to approve, approve
with modifications or deny the agreement. Development
agreements shall be approved by ordinance of the city
council, which ordinance shall not be adopted by the city
council prior to the developer executing the agreement.
Section 9.64.100 Findings for Approval.
The planning commission shall not recommend
approval, and the city council shall not grant approval, of
a development agreement, or an amendment thereto, unless the
following findings are made:
1. The provisions of the agreement are consistent
with the general plan and any applicable
specific plan; and
2. The provisions of the agreement are consistent
with this chapter.
Section 9.64.110 Designation on Zoning Map.
Upon the effective date of approval by the city
council of a development agreement, the subject property
shall be identified on the zoning map of the city by the
designation "DA" followed by the dates of the term of the
agreement. Said identification shall be removed from the
zoning map upon termination or expiration of the agreement,
or upon completion in full of the agreement.
Section 9.64.120 Amendment or Termination B
Mutual Consent.
A development agreement may be amended or
terminated, in whole or in part, by mutual consent of the
parties to the agreement. Notice of intention to amend or
terminate an agreement and the manner thereof shall be
subject to Sections 9.64.080, 9.64.090 and, as applicable,
9.64.100 of this chapter. Amendment of the agreement shall
be by ordinance of the city council, which ordinance shall
not be adopted by the city council prior to the developer
�. executing the amendment.
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CJK /nRnl Q47
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Section 9.64.130 Regulations Effecting Development
Agreement.
(A) In the event that state or federal laws or
regulations, enacted after a development agreement has
become effective, prevent or preclude compliance with one or
more provisions of the agreement, such provisions shall be
deemed modified or suspended as necessary to comply with
such state or federal laws or regulations.
(B) A development agreement shall not prevent the
city, in subsequent actions applicable to the project, from
applying new rules, regulations and policies which do not
conflict with those rules, regulations and policies that are
applicable to the project as set forth in the agreement.
Nor shall an agreement prevent the city from denying,
conditionally approving or approving any subsequent project
proposed for the property on the basis of such rules,
regulations and policies that are applicable to the project
at the date of the denial or approval.
(C) A development agreement shall not prevent the
city from approving minor modifications to any land use
entitlement identified in the agreement, provided that the
approval is in accordance with the applicable provisions of
the zoning ordinance relative to such entitlement.
Section 9.64.140 Recordation of Agreement.
No later than ten (10) days after the ordinance
approving the development agreement, or any amendment
thereto or termination thereof, is approved by the city
council, the city clerk shall record a copy of the
agreement, amendment or termination with the county
recorder.
Section 9.64.150 Annual Review Procedures.
(A) Not less than thirty -five (35) days prior to
the annual anniversary of the effective date of the
agreement, the developer shall file an application with the
director of community development requesting review of the
agreement. The application shall be accompanied by a filing
fee, as established by resolution of the city council, and
by plans and a narrative describing the following:
(1) The completion of any aspect of the agreement
during the twelve (12) months prior to the
anniversary date;
-7-
CJK/ORD1997
C
I
(2) The progress made towards completion of all
other aspects of the agreement during the
twelve (12) months prior to the anniversary
date; and
(3) An explanation, with supporting information,
of aspects of the agreement where good faith
compliance has not been achieved during the
twelve (12) months prior to the anniversary
date, and proposals for corrective action to
achieve such compliance.
(B) After determining that the application for
review is complete, the director of community development
shall prepare a report and recommendation and transmit the
same to the city council. The city clerk shall give the
applicant not less than ten (10) days prior written notice
of the date, time and place when the report and recommen-
dation shall be considered, which shall not be more than
thirty -five (35) days after the application for review was
determined to be complete, and of the right of the applicant
to be heard. Unless the city council finds and determines,
on the basis of substantial evidence, that the developer has
complied in good faith with the agreement, it shall refer
the application to the planning commission. If there is
good faith compliance with the agreement, the annual review
process shall be deemed complete and no further action shall
be taken pursuant to this section.
(C) The planning commission shall consider any
application for review referred from the city council at a
public hearing held within thirty -five (35) days after the
applicant has paid to the city clerk a hearing fee, as
established by resolution of the city council. Notice of
intention to review the development agreement and the manner
thereof shall be subject to Section 9.64.080. If, as a
result of the public hearing, the planning commission finds
and determines, on the basis of substantial evidence, that
the developer has not complied in good faith with the
agreement, the commission shall recommend to the city
council that the agreement be amended or terminated. A
recommendation to amend the agreement shall be subject to
Section 9.64.100.
(D) Any party aggrieved by a decision of the
planning commission that the developer has complied in good
faith with the development agreement may appeal to the city
council in accordance with Sections 8163 -4.1 and 8163 -4.2 of
the County of Ventura Ordinance Code or any successor
thereto.
CJK �ORD1997
c
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(E) Within thirty -five
planning commission recommends t,
development agreement be amended
is filed, the city council shall
thereon. Notice of intention to
termination of the agreement and
subject to Section 9.64.090.
(35) days after the
D the city council that a
or terminated or an appeal
hold a public hearing
consider amendment or
the manner thereof shall be
(F) After the hearing, the city council shall take
action either to continue the development agreement in the
manner and form approved, or to amend or terminate the
agreement on the basis of substantial evidence that the
developer has not complied in good faith with the
agreement. Action to amend the agreement shall be subject
to Section 9.64.100.
(G) In the event the developer fails to execute
the amendment to the development agreement and serve it upon
the city clerk within fifteen (15) days after the city clerk
serves the developer with the amendment, as acted upon by
the city council, the agreement shall be deemed terminated
for cause. Service of said amendment shall be deemed
complete upon personal delivery or upon deposit in the U.S.
mail, postage prepaid, addressed to the city clerk at city
hall and to the developer at the mailing address shown on
the application for review. Amendment of the agreement
shall be by ordinance of the city council, which ordinance
shall not be adopted by the city council unless the executed
amendment is timely received from the developer.
SECTION 2. If any section, subsection, sentence,
clause, phrase, part or portion of this Ordinance is for any
reason held to be invalid or unconstitutional by any court
of competent jurisdiction, such decision shall not affect
the validity of the remainder of this Ordinance. The City
Council declares that it would have adopted this Ordinance
and every section, subsection, sentence, clause, phrase,
part or portion thereof, in respective of the fact that any
one or more sections, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or
unconstitutional.
SECTION 3. That this ordinance shall take effect
thirty (30) days after its passage and adoption.
SECTION 4. The City Clerk shall certify to the
passage and adoption of this ordinance; shall enter the same
in the book of original ordinances of said City; shall make
a minute of the passage and adoption thereof in the records
of the proceedings of the City Council at which the same is
passed and adopted; and shall, within fifteen (15) days
CJK /ORD1997
after the passage and adoption thereof, cause the same to be
published once in the Moorpark News, a weekly newspaper of
general circulation, as defined in Section 6008 of the
Government Code, for the City of Moorpark, and which is
hereby designated for that purpose.
Passed and adopted this 16 _ day of December
1985.
C1
MVor of the City of Moorpark
California
ATTEST:
City ler
o
a
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CJK /ORD1997
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
I , DOR
of the City of Moorpark,
foregoing Ordinance No.
the City of Moorpark, at
16th day of December
by the following vote, t,
IS D. BANKUS , City Clerk
Calfiornia, do hereby certify that the
59 was adopted by the City Council of
a regular meeting thereof, held on the
1985, and that the same was adopted
wit:
AYES: Councilmembers Yancy- Sutton, Ferguson, Prieto,
Woolard and Mayor Weak;
NOES: None;
ABSENT: None.
WITNESS my hand and the official seal of said City
this 2nd day of December , 198 5.
(SEAL)
The Planning and Zoning law
provisions of this section shall apply.
(o) Prior to the close of escrow, an owner selling, leasing, or otherwise disposing of a
development to a purchaser who does not qualify under subdivision (d) shall certify under
penalty of perjury that the owner has complied with all provisions of this section and Section
65863.10. This certification shall be recorded and shall contain a legal description of the
property, shall be indexed to the name of the owner as grantor, and may be relied upon by good
faith purchasers and encumbrancers for value and without notice of a failure to comply with
the provisions of this section.
Any person or entity acting solely in the capacity of an escrow agent for the transfer of real
property subject to this section shall not be liable for any failure to comply with this section
unless the escrow agent either had actual knowledge of the requirements of this section or
acted contrary to written escrow instructions concerning the provisions of this section.
(p) The department shall undertake the following responsibilities and duties:
(1) Publish a form by April 1, 1991, containing a summary of rights and obligations under
this section and make that information available to owners of assisted housing developments
as well as to tenant associations, local nonprofit organizations, regional or national nonprofit
organizations, public agencies, and other entities with an interest in preserving the state's
subsidized housing.
(2) Compile, maintain, and update a list of entities in subdivision (c) that have either
contacted the department with an expressed interest in purchasing a development in the
subject area or have been identified by the department as potentially having an interest in
participating in a right -of- first - refusal program. The department shall publicize the existence
of the list statewide. The initial list shall be developed by February 1, 1991.Within five working
days of the date of receipt of a notice of intent under Section 65863.10, the department shall
send the list by registered or certified mail to the owner proposing the termination or removal
of government assistance. If the department sends the list after the rive- working day period
passes, the 180 -day period specified in subdivision (b) shall be reduced by the number of days
the department is late in sending the list, with any reduction being made to the initial 120 -day �.
period. If the department does not send the list at any time, the owner shall only be required
to send a written copy of the bona fide intention to sell to the qualified entities which directly
contact the owner and to post a copy of the intention to sell in the common area pursuant to
subdivision (f).
(q) The provisions of this section maybe enforced either in law or inequity by any qualified
entity entitled to exercise the right -of- first - refusal under this section, that has been adversely
affected by an owner's failure to comply with the provisions of this section.
An owner shall be entitled to rely on the statements, claims, or representations of any person
or entity that the person or entity is a qualified entity as specified in subdivision (c), unless the
owner has actual knowledge that the purchaser is not a qualified entity. If the person or entity
is not an entity as specified in subdivision (c), that fact, in the absence of actual knowledge as
described in the preceding sentence of this subdivision, shall not give rise to any claim against
the owner for a violation of this section.
(r) It is the intent of the Legislature that the provisions of this section are in addition to, but
not preemptive of, applicable federal laws governing the sale, or other disposition of a
development which would result in either (1) a discontinuance of its use as an assisted housing
development or (2) the termination of any low- income use restrictions which apply to the
development.
(s) This section shall remain in effect only until December 31, 1995, and as of that date is
repealed, unless a later enacted statute, which is enacted on or before December 31, 1995,
deletes or extends that date.
(Added by Stats. 1990, Ch. 1437.)
Article 2.5. Development Agreements
Policy 65864. The Legislature finds and declares that:
(a) The lack of certainty in the approval of development projects can result in a waste of resources,
escalate the cost of housing and other development to the consumer, and discourage investment in
and commitment to comprehensive planning which would make maximum efficient utilization of
74 • The Planning, Zoning, and Development Laws
The Planning and Zoning Law
resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of the project, the
C applicant may proceed with the project in accordance with existing policies, rules and regulations,
and subject to conditions of approval, will strengthen the public planning process, encourage private
participation in comprehensive planning, and reduce the economic costs of development.
(c) The lack of public facilities, including, but not limited to, streets, sewerage, transportation,
drinking water, school, and utility facilities, is a serious impediment to the development of new
housing. Whenever possible, applicants and local governments may include provisions in agree-
ments whereby applicants are reimbursed over time for financing public facilities.
(Amended by Stats.1984. Ch. 143.)
65865. (a) Any city, county, or city and county, may enter into a development agreement with any
Authority to enter
person having a legal or equitable interest in real property for the development of the property as
into an agreement
provided in this article.
(b) Any city may enter into a development agreement with any person having a legal or equitable
interest in real property in unincorporated territory within that city's sphere of influence for the
development of the property as provided in this article. However, the agreement shall not become
operative unless annexation proceedings annexing the property to the city are completed within the
period of time specified by the agreement. If the annexation is not completed within the time
specified in the agreement or any extension of the agreement, the agreement is null and void.
(c) Every city, county, or city and county, shall, upon request of an applicant, by resolution or
ordinance, establish procedures and requirements for the consideration of development agreements
upon application by, or on behalf of, the property owner or other person having a legal or equitable
interest in the property.
(d) A city, county, or city and county may recover from applicants the direct costs associated with
adopting a resolution or ordinance to establish procedures and requirements for the consideration
of development agreements.
' (Amended by Stats.1984, Ch. 751; Amended by Stars. 1986, Ch. 857.)
65865.1. Procedures established pursuant to Section 65865 shall include provisions requiring periodic
Demonstration of
review at least every 12 months, at which time the applicant, or successor in interest thereto, shall
good faith compli-
be required to demonstrate good faith compliance with the terms of the agreement. If, as a result of
ante
such periodic review, the local agency finds and determines, on the basis of substantial evidence,
that the applicant or successor in interest thereto has not complied in good faith with terms or
conditions of the agreement, the local agency may terminate or modify the agreement.
(Added by Stats.1979, Ch. 934.)
65865.2. A development agreement shall specify the duration of the agreement, the permitted uses of
Agreement contents
the property, the density or intensity of use, the maximum height and size of proposed buildings, and
provisions for reservation or dedication of land for public purposes. The development agreement
may include conditions, terms, restrictions, and requirements for subsequent discretionary actions,
provided that such conditions, terms, restrictions, and requirements for subsequent discretionary
actions shall not prevent development of the land for the uses and to the density or intensity of
development set forth in the agreement. The agreement may provide that construction shall be
commenced within a specified time and that the projector any phase thereof be completed within
a specified time.
The agreement may aL% include terms and conditions relating to applicant financing of necessary
public facilities and subsequent reimbursement over time.
(Amended by Stars. 1984, Ch 143.)
65865.3. (a) Except as otherwise provided in subdivisions (b) and (c), Section 65868, or Section
Agreements for newly
65869.5, notwithstanding any other law, if a newly incorporated city or newly annexed area
annexed or newly
comprises territory that was formerly unincorporated, any development agreement entered into by
incorporated areas
the county prior to the effective date of the incorporation or annexation shall remain valid for the
duration of the agreement, or eight years from the effective date of the incorporation, whichever is
t earlier. The holder of the development agreement and the city may agree that the development
agreement shall remain valid for more than eight years, provided that the longer period shall not
exceed 15 years from the effective date of the incorporation or annexation. The holder of the
development agreement and the city shall have the same rights and obligations with respect to each
other as if the property had remained in the unincorporated territory of ille county.
Tb. f'Innnlnv. Zonln¢, and development Law% . 7c
1
The Planning and Zoning Law
(b) The city may modify or suspend the provisions of the development agreement if the city
determines that the failure of the city to do so would place the residents of the territory subject to
the development agreement, or the residents of the city, or both, in a condition dangerous to their \
health or safety, or both.
(c) Except as otherwise provided in subdivision (d), this section applies to any development
agreement which meets all of the following requirements:
(1) The application for the agreement is submitted to the county prior to the date that the first
signature was affixed to the petition for incorporation or annexation pursuant to Section 56704 or
the adoption of the resolution pursuant to Section 56800, whichever occurs first.
(2) The county enters into the agreement with the applicant prior to the date of the election on the
question of incorporation or annexation, or, in the case of an annexation without an election pursuant
to Section 57075, prior to the date that the conducting authority orders the annexation.
Health and welfare (3) The annexation proposal is initiated by the city. If the annexation proposal is initiated by a
findings petitioner other than the city, the development agreement is valid unless the city adopts written
findings that implementation of the development agreement would create a condition injurious to
the health, safety, or welfare of city residents.
(d) This section does not apply to any territory subject to a development agreement if that territory
is incorporated and the effective date of the incorporation is prior to January 1, 1987.
(Added by Slats. 1986. Ch. 857; Amended by Slats. 1989, Ch. 664.)
Note:Stats. 1986, Ch. 857 also states:
Uncodified policy SEC.4. The Legislature declares that the amendment to Section 65865.3 of the Government Code
limiting the period of time that a development agreement shall remain valid in a newly incorporated
city shall not be construed as an indication by the Legislature as to the appropriate duration of other
development agreements.
Enforceability 65865.4. Unless amended or canceled pursuant to Section 65868, or modified or suspended pursuant
to Section 65869.5, and except as otherwise provided in subdivision (b) of Section 65865.3, a
development agreement shall be enforceable by any party thereto notwithstanding any change in
any applicable general or specific plan, zoning, subdivision, or building regulation adopted by the `
city, county, orcity and county entering the agreement, which altersoramends the rules, regulations,
or policies specified in Section 65866.
(Added by Slats. 1979, Ch. 934; Amended by Slats. 1986, Ch. 857.)
Regulations gffecting " 65866. Unless otherwise provided by the development agreement, rules, regulations, and official
property subject to
policies governing permitted usesof the land, governing density, and governing design, improvement,
development
and construction standards and specifications, applicable to development of the property subject to
agreement
a development agreement, shall be those rules, regulations, and official policies in force at the time
of execution of the agreement. A development agreement shall not prevent a city, county, or city
and county, in subsequent actions applicable to the property, from applying new rules, regulations,
and policies which do not conflict with those rules, regulations, and policies applicable to the
property as set forth herein, nor shall a development agreement prevent a city, county, or city and
county from denying or conditionally approving any subsequent development project application
on the basis of such existing or new rules, regulations, and policies.
(Added by Slats. 1979. Ch. 934.)
Hearings
65867. A public hearing on an application for a development agreement shall be held by the planning
agency and by the legislative body. Notice of intention to consider adoption of a development
agreement shall be given as provided in Sections 65090 and 65091 in addition to any other notice
required by law for other actions to be considered concurrently with the development agreement.
(Amended by Slats. 1984, Ch. 1009.)
Findings of
65867.5. A development agreement is a legislative act which shall be approved by ordinance and is
consistency
subject to referendum. A development agreement shall not be approved unless the legislative body
finds that the provisions of the agreement are consistent with the general plan and any applicable
specific plan.
(Added by Slats. 1979, Ch. 934.) r
Amendment
65868. A development agreement may be amended, orcanceled in whole or in part, by mutual consent
of the parties to the agreement or their successors in interest. Notice of intention to amend or cancel
any portion of die agreement shall be given in die manner provided by Section 65867. An
76 - The Planning, Zoning, and De%elopment L.aws
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The Planning and Zoning Law
amendment to an agreement shall be subject to the provision of Section 65867.5.
(Added by Slats. 1979, Ch. 934.)
65868.5. No later than 10 days after a city. county, or city and county enters into a development
agreement, the cleric of the legislative body shall record with the county recorder a copy of the
agreement, which shall describe the land subject thereto. From and after the time of such recordation,
the agreement shall impart such notice thereof to all personsas is afforded by the recording laws of
this state. The burdens of the agreement shall be binding upon, and the benefits of the agreement shall
inure to, all successors in interest to the parties to the agreement_
(Added by Slats. 1979, Ch. 934.)
65869. A development agreement shall not be applicable to any development project located in an area
for which a local coastal program is required to be prepared and certified pursuant to the
requirements of Division 20 (commencing with Section 30000) of the Public Resources Code,
unless:
(1) the required local coastal program has been certified as required by such provisions prior to
the date on which the development agreement is entered into, or (2) in the event that the required
local coastal program has not been certified, the California Coastal Commission approves such
development agreement by formal commission action.
(Added by Slats. 1979, Ch. 934.)
Recordation
Exemption
65869.5. In the event that state or federal laws or regulations, enacted after a development agreement ModUlcationl
has been entered into, prevent or preclude compliance with one or more provisions of the suspension
development agreement. such provisions of the agreement shall be modified or suspended as may
be necessary to comply with such state or federal laws or regulations.
(Added by Slats. 1979, Ch. 934.)
Article 2.7. Covenants for Easement
65870. Any city or county may adopt an ordinance for the imposition of covenants pursuant to this Enabling ordinance
article.
(Added by Slats. 1985, Ch. 996.)
65871. (a) In addition to any other method for the creation of an easement, an easement may be created Covenant of
pursuant to an ordinance adopted implementing this article, by a recorded covenant of easement easement
made by an owner of real property to the city or county. An easement created pursuant to this article
may be for parking, ingress, egress, emergency access, light and air access, landscaping, or open -
space purposes.
(b) At the time of recording of the covenant of easement, all the real property benefited or burdened
by the covenant shall be in common ownership. The covenant shall be effective when recorded and
shall act as an easement pursuant to Chapter 3 (commencing with Section 801) of Title 2 of Part 2
of Division 2 of the Civil Code, except that it shall not merge into any other interest in the real
property. Section 1104 of the Civil Code shall be applicable to conveyance of the affected real
property.
(c) A covenant of casement recorded pursuant to this section shall describe the real property to
be subject to the easement and the real property to be benefited thereby. The covenant of easement
shall also identify the approval, permit, or designation granted which relied upon or required the
covenant.
(d) A covenant executed pursuant to this section shall be enforceable by the successors in interest
to the real property benefited by the covenant.
(Added by Slats. 1985, Ch. 996.)
65873. The covenant of easement shall be recorded in the county where all ora portion of therestricted Recordation
property is located and shall contain a legal description of the real property and be executed by the
owner of the real property. From and after the time of its recordation, the covenant shall impart notice
thereof to all persons to the extent afforded by the recording laws of this state. Upon recordation,
the burdens of the covenant shall be binding upon, and the benefits of the covenant shall inure to,
all successors in interest to the real property.
(Added by Slats. 1985, Ch. 996.)
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