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Home My WebLink AboutRES PC 2020 653 2020 0910 RESOLUTION NO. PC-2020-653 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, RECOMMENDING TO THE CITY COUNCIL APPROVAL OF RESIDENTIAL PLANNED DEVELOPMENT NO. 2018-01, DEVELOPMENT AGREEMENT NO. 2018-01, DISPOSITION AND DEVELOPMENT AGREEMENT NO. 2018-01, AND ADOPTION OF A MITIGATED NEGATIVE DECLARATION IN CONNECTION THEREWITH, FOR A MIXED-USE COMMERCIAL AND RESIDENTIAL DEVELOPMENT PROJECT ON CITY-OWNED PROPERTY LOCATED AT 226 HIGH STREET, ON THE APPLICATION OF THE DALY GROUP WHEREAS, on November 17, 2017, the City and The Daly Group (Applicant) entered into an Exclusive Negotiating Agreement (ENA) for City-owned property located at 226 High Street, while the Applicant performed studies and due-diligence toward a development proposal; and WHEREAS, on September 5, 2018, the Applicant submitted a formal development application for a mixed-use commercial and residential project consisting of 91 residential rental units, 13,656 square feet of commercial floor area, a village green space, and associated parking, hardscape and landscape; and WHEREAS, on May 15, 2019, the City Council held a publicly noticed study session to provide feedback on the proposed project; and WHEREAS, on December 20, 2019, the Applicant submitted a revised application for a Residential Planned Development (RPD) Permit, Development Agreement (DA) and Disposition and Development Agreement (DDA) for a seven building mixed-use development project consisting of 79 residential rental units, 13,628 square feet of commercial floor area, a village green space, 137 on-site parking spaces, and associated hardscape and landscape (Project); and WHEREAS, at a duly noticed public hearing on September 10, 2020, the Planning Commission considered the agenda report and any supplements thereto and written public comments; opened the public hearing and took and considered public testimony both for and against the proposal; and reached a decision on this matter; and WHEREAS, the Community Development Director has preliminarily determined that, with the incorporation of conditions of approval and mitigation measures to mitigate potentially significant impacts with respect to biology, cultural resources, geology and soils, hazards and hazardous materials, transportation, and tribal cultural resources, there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment, and a Proposed Mitigated Negative Declaration has been prepared for this project. High Street Station Resolution No. PC-2020-653 Page 2 NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. ENVIRONMENTAL DOCUMENTATION: The Planning Commission has read, reviewed and considered the Initial Study and Proposed Mitigated Negative Declaration prepared for the project prior to making a recommendation on the project. The Planning Commission concurs with the Community Development Director that there is no substantial evidence that the project or any of its aspects may cause a significant effect on the environment, and recommends adoption of the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program (MMRP) prepared for this project. SECTION 2. PLANNED DEVELOPMENT FINDINGS: Based upon the information set forth in the staff report(s), accompanying studies, and oral and written public testimony, the Planning Commission makes the following findings in accordance with City of Moorpark, Municipal Code Section 17.44.040: A. The site design provides seven separate buildings that line the High Street corridor and define a village green outdoor space. The four mixed-use buildings contain ground floor commercial tenant spaces that front directly onto the public sidewalk in order to create pedestrian-level activity. Residential units are placed behind and above, ensuring that the commercial storefronts are the focal point. The mixed-use buildings are two- to three-stories tall and reflect the height patterns along the street. The three standalone commercial buildings frame a shared-community outdoor space. These buildings are single story and utilize elements and materials that underscore Moorpark's history in an agricultural region. All buildings take their architectural cues from existing buildings on High Street and blend a mix of old and new materials and colors. Buildings have been designed with four-sided architecture and would provide an attractive gateway into downtown from the train station. Street frontage improvements provide outdoor dining areas, upgraded sidewalks, and landscaping to soften and round out the overall design. The Project is consistent with the design provisions of the DTSP, zoning code, and the goals and policies of the General Plan. B. The Project design ensures adequate provision of public access, sanitary services, and emergency services to serve the site. The Project replaces vacant, dilapidated buildings and serves to remove an existing attractive nuisance. The Project would not create negative impacts nor impair the utility of other properties because the Project is similar to adjacent commercial and residential downtown uses. Access to or utility of those adjacent uses are not hindered by this project. High Street Station Resolution No. PC-2020-653 Page 3 C. The Project contains commercial and residential uses, both of which are permitted uses within downtown. The Project combines these uses on a single site consistent with the Downtown Specific Plan, which found that mixed-uses are appropriate along High Street. The Project is compatible with existing uses in downtown and would not detract from nor impair other existing uses in the vicinity. SECTION 3. DOWNTOWN SPECIFIC PLAN GUEST PARKING FINDING: Based upon the information set forth in the staff report(s), accompanying studies, and oral and written public testimony, the Planning Commission makes the following findings in accordance with City of Moorpark Downtown Specific Plan Section 2.2.5.A.5.d: A. In 2019, the City hired Walker Consultants to conduct a Downtown Parking Study. The study identified a total of 914 public parking spaces within downtown (798 excluding street spaces on Charles Street). The utilization rate of the available parking peaks at 40% on weekdays, leaving 60% of downtown parking unused. The study found that there is abundant public parking within downtown and suggests that the City utilize this asset to support its economic development goals. The Project's need for 40 guest parking spaces can be accommodated within the public realm and there is no clear need to construct additional short- term parking within downtown. SECTION 4. DEVELOPMENT AGREEMENT FINDINGS: Based upon the information set forth in the staff report(s), accompanying studies, and oral and written public testimony, the Planning Commission makes the following findings in accordance with City of Moorpark, Municipal Code Section 15.40.100: A. The provisions of the Development Agreement are consistent with the General Plan as most recently amended in that the Project is consistent with the Specific Plan — Downtown land use designation and helps achieve the goals of the Land Use Element and Housing Element, and is consistent with the goals and policies of all other elements. B. The provisions of the Development Agreement are consistent with the Downtown Specific Plan as most recently amended in that the Project is consistent with the allowable uses, including mixed-use within the C-OT zoning district, the development standards for mixed-use projects, and various sections of the Zoning Code as referenced in the DTSP. The Project helps to achieve the goals of DTSP by revitalizing the downtown core, removing vacant and dilapidated buildings, and providing ground floor commercial tenant space and downtown residential living options along High Street. High Street Station Resolution No. PC-2020-653 Page 4 C. The provisions of the Development Agreement and the assurances that said agreement places upon the project are consistent with the provisions of Chapter 15.40 of the Moorpark Municipal Code because the Development Agreement contains the elements required by Section 15.40.030 and shall be processed through a duly-noticed public hearing process as required by law. SECTION 5. DISPOSITION AND DEVELOPMENT AGREEMENT FINDINGS: Based upon the information set forth in the staff report(s), accompanying studies, and oral and written public testimony, the Planning Commission makes the following findings in accordance with Government Code Section 65402(a): A. The provisions of the Disposition and Development Agreement are consistent with the General Plan as most recently amended in that the Project is consistent with the Specific Plan — Downtown land use designation and helps achieve the goals of the Land Use Element and Housing Element, and is consistent with the goals and policies of all other elements. The disposition of the City-owned land to the Applicant for the purposes of developing a mixed-use project in accordance with the General Plan and Downtown Specific Plan furthers the City's goals to revitalize the downtown core, achieve a well-balanced and diversified economy, and provide a variety of housing options. SECTION 6. PLANNING COMMISSION RECOMMENDATION: A. The Planning Commission recommends to the City Council approval of Residential Planned Development No. 2018-01 subject to the Special and Standard Conditions of Approval included in Exhibit A (Special and Standard Conditions of Approval), attached hereto and incorporated herein by reference. B. The Planning Commission recommends to the City Council approval of Disposition and Development Agreement No. 2018-01 and Development Agreement No. 2018-01 included in Exhibit B. SECTION 7. Filing of Resolution: The Community Development Director shall cause a certified resolution to be filed in the book of original resolutions. High Street Station Resolution No. PC-2020-653 Page 5 The action of the foregoing direction was approved by the following vote: AYES: Commissioners Aquino, Hamous, Landis, and Chair Haverstock NOES: None ABSTAIN: None ABSENT: None PASSED, AND ADOPTED this 10th of September, 2020. Adam Haverstock Chair atc )at, Kare Vaughn, AICP Community Development Director Attachments: Exhibit A: Standard and Special Conditions of Approval for Residential Planned Development Permit No. 2018-01 Exhibit B: Draft Disposition and Development Agreement No. 2018-01 and Development Agreement No. 2018-01 with Exhibits High Street Station Resolution No. PC-2020-653 Page 6 EXHIBIT A CONDITIONS OF APPROVAL OF RESIDENTIAL PLANNED DEVELOPMENT PERMIT NO. 2018-01 STANDARD CONDITIONS OF APPROVAL The applicant shall comply with Standard Conditions of Approval for Subdivisions and Planned Developments as adopted by City Council Resolution No. 2009-2799, except as modified by the following Special Conditions of Approval. In the event of conflict between a Standard and Special Condition of Approval, the Special Condition shall apply. SPECIAL PROJECT CONDITIONS FOR RPD NO. 2018-01 1 . This planned development permit will expire two (2) years from the date of its approval unless the use has been inaugurated by issuance of a building permit for construction. The Community Development Director may, at his/her discretion, grant up to two (2) additional one-year extensions for use inauguration of the development permit, if there have been no changes in the adjacent areas and if the applicant can document that he/she has diligently worked towards use inauguration during the initial period of time. The request for extension of this planned development permit shall be made in writing, at least thirty (30) days prior to the expiration date of the permit and shall be accompanied by applicable entitlement processing deposits. 2. This permit is granted for the plans on file with the Community Development Department. The project shall conform to these plans, except as otherwise specified in these conditions, or unless a permit adjustment or modification to the plans is submitted and approved. 3. Any proposed change to the Site Plan or Architecture shall be considered by the Community Development Director upon filing of a Permit Adjustment application and payment of the fee in effect at the time of application. 4. Prior to issuance of a building permit, the applicant shall submit a lighting plan for review and approval by the Community Development Director and Police Department that demonstrates compliance with the City's Lighting Ordinance. 5. Prior to issuance of grading or building permit, Applicant shall provide a "Will Serve" letter from water and wastewater purveyors. High Street Station Resolution No. PC-2020-653 Page 7 6. Prior to issuance of a building permit, Applicant shall obtain permits from Ventura County Air Pollution Control District (VCAPCD), Ventura County Watershed Protection District (VCWPD) and California Department of Transportation (Caltrans) if required. 7. A Lot Line Adjustment or Lot Consolidation may be required, prior to issuance of foundation building permit, to ensure that no building is constructed across the interior property line. 8. Applicant shall install an interpretive display with information about the history of downtown Moorpark on the project site prior to issuance of final Certificate of Occupancy/Final Inspection. Applicant shall consult with the Moorpark Historical Society on text and images to be included on the display. Final display design and location to be approved by the Community Development Director 9. Applicant shall comply with Tree Preservation Guidelines in Moorpark Municipal Code Section 12.12.060 and Pepper Tree Maintenance Plan (2006) throughout the construction of the project. 10.Applicant shall submit an Acoustical Study prior to issuance of first Building Permit for vertical construction. 11.Applicant may convert ground floor residential floor area to commercial floor area, up to the amount of commercial floor area analyzed in ISMND (not to exceed 15,018 square feet of commercial floor area project-wide), subject to the terms of the Development Agreement. Applicant shall submit a written request for review and approval by the Community Development Director. 12.Divided-lite windows shall be incorporated to ensure compatibility with older buildings within downtown and minimize large expanses of glazed windows. 13.Windows on the mixed-use buildings shall be inset a minimum of 3" or have trim surrounds to create a depth of 3" to the glass to create shadow relief and ensure compatibility with older buildings within downtown. Doors on the front of the mixed-use buildings shall be inset a minimum of 6". 14.Ground floor residential doors along the front of the mixed-use buildings shall be visually minimized so that commercial storefronts are the prominent feature. High Street Station Resolution No. PC-2020-653 Page 8 15.Windows and doors on all commercial tenant spaces shall be transparent to allow for the display of goods and services, and to ensure a visual connection from the public vantagepoint. 16.Residential parking spaces shall be reserved and assigned to individual units. Residential spaces shall be appropriately signed and numbered. 17.Applicant shall enter into a Shared Public Parking Agreement for the public use of the remaining 21 unreserved on-site parking spaces. 18.Signage for on-site shared public parking shall be conspicuously located for ease of use and to ensure that the public does not utilize the reserved residential parking for public commercial parking. 19."No Parking" signs shall be placed at each end of the emergency access drive located behind commercial Building D. 20.No guest parking shall be required on the project site. 21.Property owner shall join and participate in any future downtown shared public parking programs that do not conflict with project approvals. 22.Property owner shall join and participate in any current or future Downtown Business Improvement District that do not conflict with project approvals. 23.Site shall include pedestrian access between project site and adjacent transit commuter parking lot. 24.Applicant shall apply for an encroachment permit for the relocation of the gazebo, El Camino Real bell, historic pepper tree marker, and memorial bricks. Encroachment permit shall be issued by the Public Works Department prior to relocation of these items. 25.A total of four bicycle racks shall be installed on the project site, interspersed and proximate to the commercial uses. High Street Station Resolution No. PC-2020-653 Page 9 26.AII commercial spaces, including ground floor commercial tenant spaces shall be equipped with sanitary sewer, greasetrap and ventilation infrastructure to service future food and beverage based commercial tenants. 27.Future commercial uses are subject to Zoning Code permitting requirements. 28.Developer shall establish a Master Sign Program for the project. Commercial tenant signage shall conform to the Master Sign Program. No commercial signage is approved as part of this RPD Permit. 29.Proposed murals will need to be considered and approved through the process outlined in MMC 17.50.120, or subsequent process required as part of the City's adopted Arts Masterplan. 30.Applicant is required to provide a public art project (artwork) on-site in lieu of contributing to the Art in Public Places Fund. The artwork shall be submitted to the Community Development Director and Parks and Recreation Director for approval per MMC 17.50.120, and shall have a value corresponding to, or greater than, the contribution defined in MMC 17.50.07. Said artwork must be approved and constructed prior to issuance of Certificate of Occupancy/Final Inspection, and must be maintained for the life of the project in accordance with the applicable provision of the Moorpark Municipal Code (MMC). Said artwork will be submitted to the Art Commission, with final approval by the City Council, or per the process outlined in an adopted Arts Master Plan. 31.All existing California Pepper Trees (Schinus molle) within the public right-of way shall be protected in place. Prior to issuance of a grading permit, applicant shall submit an arborist report documenting the health and condition of each existing tree and shall detail the measures taken during construction to protect said trees. Said report shall also identify any trees that are proposed for removal and shall include a tree valuation per applicable provisions of the MMC. Applicant shall be required to provide enhanced landscaping that is of equal or greater value than the value of the trees removed. Prior to issuance of a landscape plan, applicant shall provide to the Parks and Recreation Director a summary of enhanced landscaping. 32.Applicant shall be responsible for the maintenance of any and all landscaping, decorative site features, such as low walls and raised planters, and decorative paving on the project site. Prior to issuance of a grading permit, applicant shall provide appropriate documentation validating said maintenance responsibilities. High Street Station Resolution No. PC-2020-653 Page 10 33.Prior to issuance of a grading permit, applicant shall provide an easement for public access to the City over the Community Green, and paving areas between the City's right-of-way and building frontages. 34.Applicant shall provide a minimum 12'x12' planter at all existing California Pepper Tree locations. 35.The applicant shall coordinate their private property development with the right-of-way improvements constructed by the City so that the latter will not be damaged by the former. Any right-of-way improvements damaged by the private property development will be restored at the applicant's expense. 36.No stormwater Best Management Practices (BMP) devices shall be constructed in the public right-of-way. 37.Reciprocal access to the City's parking lots directly to the east and west of the project is not guaranteed. 38.The streetlights abutting the project were purchase by the City in September 2019 and are in the process of being converted from High Pressure Sodium (HPS) to Light Emitting Diode (LED) fixtures. The applicant must protect these lights in place. 39.Applicant shall protect in place all survey monuments. Pursuant to the California Business and Professions Code Section 8771, monuments that may be affected by the work shall be located by the licensed Land Surveyor, prior to construction. A permanent monument shall be reset or a witness monument set to perpetuate the location and a corner record or record of survey shall be filed with the county surveyor prior to the recording of a certificate of completion for the project. 40.No building structure is permitted in the public right-of-way or can encroach in any public utility easement, unless approved in writing by the City or public utility easement holder. 41. All unused driveways shall be removed and reconstructed with sidewalk, curb and gutter. 42.For traffic and pedestrian safety, no visual obstruction over 3 FT high and under 7 FT high shall exist within the 5 Ft by 5 FT corner cut-off at the intersection of the street and driveway. 43.The horizontal and vertical alignments for the proposed site access shall satisfy the requirements of the Ventura County Fire Department and the City Engineer. High Street Station Resolution No. PC-2020-653 Page 11 44.All driveway pedestrian improvements along High Street shall be in compliance with Standard Plans and Specifications for Public Works Construction and with the Americans with Disabilities Act. 45.The Project Applicant shall obtain approval from the State of California for the placement of traffic control devices on State right-of-way (SR-23/Moorpark Avenue). 46.The Project Applicant shall provide guarantee for all grading and site-related storm water improvements on the project site. Such guarantee is typically in the form of a surety for labor, material, and faithful performance bonds. The guarantee amount will be determined by the City Engineer, prior to issuance of a grading permit. 47.The project shall comply with current Ventura County MS4 Storm Water Permit and the 2011 Ventura County Technical Guidance Manual for post-construction Storm Water Quality Control Measures. 48.The project shall submit a Declaration of Storm Water Treatment Maintenance Agreement. This Agreement shall be recorded in the Ventura County Recorder's Office. 49.At the completion of Rough Grading, the project Geotechnical/Soils Engineer shall submit a comprehensive Rough Grade and Compaction Report for review and acceptance by the City Engineer. After acceptance of the Rough Grade and Compaction Report, Rough Grade and Pad Certifications shall be submitted for review and acceptance by the City Engineer. Rough Grade and Pad Certifications are required prior to Building Permit issuance. 50.Prior to issuance of Certificate of Occupancy, a Fine Grade Certification shall be submitted to the City for review and acceptance by the City Engineer. 51.The project Applicant shall be responsible for all site construction and maintenance. This includes implementing all Best Management Practices to prevent debris, refuse, chemicals, and erosion from exiting the project site. Failure to comply will result in issuance of City Non-Compliance Notices and potential enforcement by the L.A. Regional Water Quality Control Board. 52.Personnel responsible for the preparation, permitting, implementation, and compliance of the SWPPP shall be appropriately trained and certified, where required. This includes Qualified SWPPP Developers (QSD) and Qualified SWPPP Practitioner(QSP). 53.Prior to issuance of an Encroachment or Grading Permit, a construction traffic control plan shall be submitted to the City Engineer for review and acceptance. Ventura County Fire Department High Street Station Resolution No. PC-2020-653 Page 12 54.Drive aisle width of 24 feet shall be required for two-way travel within project parking lot. 55.Aerial Ladder Fire Apparatus Access, Multi-Family, Commercial or Industrial Buildings or portions of buildings or facilities with perimeter eave lines exceeding 30 feet in height above the lowest level of fire department access shall require an approved aerial ladder fire apparatus access roads and driveways. Aerial fire apparatus access roads and driveways shall have a minimum clear width of 30 feet. Overhead utility and power lines shall not be located within the aerial ladder fire apparatus access roads and driveways. At least one of the required access routes meeting this condition shall be located a minimum of 15 feet and a maximum of 30 feet parallel to one side of the buildings, as approved by the Fire District. Buildings exceeding 50,000 SQFT shall have the required access route along a minimum of two sides. Parking shall be prohibited along the required width of the access roads and driveways. Landscaping and other improvements between the required access and the buildings shall not interfere with aerial ladder fire apparatus operations, as approved by the Fire District. 56.Minimum 15' wide driveway access south of Commercial Building D to tie in west and east driveways. 57.A covenant and deed restriction upon parcel 512-0-090-130 shall be recorded prior to issuance of first building permit and a copy of the record document shall be provided to the Fire District within (7) days of recordation. This covenant shall require upon the sale of any of these parcels, a reciprocal access easement be recorded on all parcels who share the access road / driveway. This easement shall allow for an access road / driveway meeting all Ventura County Fire Protection District access standards and shall be approved by the Ventura County Fire Protection District prior to recordation. 58.Prior to combustible construction, a paved all-weather access road / driveway suitable for use by a 20-ton Fire District vehicle shall be installed at locations approved by the Fire District. 59.Prior to combustible construction, all utilities located within the access road and the first lift of the access road pavement shall be installed. A minimum 20-foot clear width shall remain free of obstruction during any construction activities within the development once combustible construction starts. 60.AII access roads / driveways shall have a minimum vertical clearance of 13 feet 6 inches (13' 6"). Clear of building to sky. 61.Parking within the parking lot drive aisles and fire department emergency access driveway behind Commercial Building D is prohibited. High Street Station Resolution No. PC-2020-653 Page 13 62.The access / driveway shall be extended to within 150 feet of all portions of the exterior walls of the first story of any building and shall be in accordance with Fire District access standards. Where the access roadway cannot be provided, approved fire protection system or systems shall be installed as required and acceptable to the Fire District. 63.That the access road(s)/driveway(s) shall be certified by a registered civil engineer as having an all-weather surface in conformance with Public Works and / or Fire District standards. This certification shall be submitted to the Fire District for review and approval prior to occupancy. 64.Prior to construction the applicant shall submit two (2) site plans to the Fire District for approval of the location of fire lanes. Prior to occupancy, all fire lanes shall be posted "NO PARKING-FIRE LANE-TOW AWAY" in accordance with California Vehicle Code, the International Fire Code and current VCFPD Fire Lane Standards. All signs and or Fire Lane markings shall be within recorded access easements. 65.Approved walkways shall be provided from all building openings to the public way or fire department access road / driveway. 66.Buildings housing Group A occupancies shall front directly on or discharge to a public street not less than 20 feet in width. The exit discharge to the public street shall be a minimum 20-foot wide right of way, unobstructed and maintained only as exit discharge to the public street. The main entrance to the building shall be located on a public street or on the exit discharge. Reference California Building Code Requirements. NOTE: Fire District requires minimum 25-foot access roads. 67.Building address numbers, a minimum of ten inches (10") high, shall be installed prior to occupancy, shall be of contrasting color to the background, and shall be readily visible at night. Brass or gold-plated numbers shall not be used. Where structures are set back more than 150 feet from the street, larger numbers will be required so that they are distinguishable from the street. In the event a structure(s) is not visible from the street, the address number(s) shall be posted adjacent to the driveway entrance on an elevated post. Individual unit numbers shall be a minimum of 4 inches in height and shall be posted at the front and rear entrance to each unit. Additional address directional signs may be required at common building entrances and stairways. 68.All accessory room doors shall be labeled on the doors indicating use of the room (i.e., Electrical Room, Riser Room, Fire Alarm Panel Inside, Storage Room, Janitor, Roof Access, etc.). 69.All exit doors shall swing in the direction of travel (outwards) when leaving the building. High Street Station Resolution No. PC-2020-653 Page 14 70.AIl exit doors shall be provided with panic hardware when serving A, E, I occupancies with an occupant load of 50 or more persons. 71.AII required egress aisles shall be maintained clear of obstructions at anytime. 72.AlI emergency lights and exit signs shall be maintained in an operable condition at all times. 73.Prior to construction, the applicant shall submit plans to the Fire District for placement of fire hydrants. On plans, show existing hydrants within 500 feet of the development. Indicate the type of hydrant, number and size of outlets. 74.Fire hydrant(s) shall be provided in accordance with current adopted edition of the International Fire Code, Appendix C and adopted amendments. On-site fire hydrants may be required as determined by the Fire District. 75.Fire hydrants shall be installed and in service prior to combustible construction and shall conform to the minimum standard of the City of Moorpark Water Works Manual and the following. a. Each hydrant shall be a 6 inch wet barrel design and shall have ( 1 ) 4 inch and ( 2 ) 2 1/2 inch outlet(s). b. The required fire flow shall be achieved at no less than 20-psi residual pressure. c. Fire hydrants shall be spaced 300 feet on center and so located that no structure will be farther than 150 feet from any one hydrant. d. Fire hydrants shall be set back in from the curb face 24 inches on center. e. No obstructions, including walls, trees, light and sign posts, meter, shall be placed within three (3) feet of any hydrant. f. A concrete pad shall be installed extending 18 inches out from the fire hydrant. g. Ground clearance to the lowest operating nut shall be between 18 to 24 inches. 76.Prior to combustible construction on any parcel, a fire hydrant capable of providing the required fire flow and duration shall be installed and in service along the access road / driveway at a location approved by the Fire District, but no further than 250 feet from the building site. The owner of the combustible construction is responsible for the cost of this installation. 77.Prior to occupancy of any structure, blue reflective hydrant location markers shall be placed on the access roads in accordance with Fire District standards. If the final asphalt cap is not in place at time of occupancy, hydrant location markers shall still be installed and shall be replaced when the final asphalt cap in completed. 78.The minimum fire flow required shall be determined as specified by the current adopted High Street Station Resolution No. PC-2020-653 Page 15 edition of the International Fire Code Appendix B with adopted Amendments and the applicable Water Manual for the jurisdiction (with ever is more restrictive). The applicant shall verify that the water purveyor can provide the required volume and duration at the project prior to obtaining a building permit. 79.Plans for water systems supplying fire hydrants and / or fire sprinkler systems and not located within a water purveyor's easement, shall be submitted to the Fire District for review and approval prior to issuance of grading and/or building permits or signing of Mylar plans, whichever is first. Plans shall reflect only dedicated private fire service lines and associated appurtenances. Plan shall be design and submitted with the appropriate fees in accordance with VCFPD Standard 14.7.2. 80.All structures shall be provided with an automatic fire sprinkler system in accordance with current VCFPD Ordinance at time of building permit application. 81.Plans for all fire protection systems (sprinklers, dry chemical, hood systems, etc.) shall be submitted, with payment for plan check, to the Fire District for review and approval prior to installation. Note: Fire sprinkler systems with 6 or more heads shall be supervised by a fire alarm system in accordance with Fire District requirements. 82.A fire alarm system shall be installed in all buildings in accordance with California Building and Fire Code requirements. 83.Plans for any fire alarm system or sprinkler monitoring system shall be submitted, with payment for plan check, to the Fire District for review and approval prior to installation. 84.The building fire sprinkler system shall be serviced and maintained in a proper working order at all times. Required maintenance inspections and service personnel shall be in accordance with CCR Title 19, and VCFPD Ordinance. Service and maintenance records shall be maintained on-site and available for review by the Fire Department upon request. 85.A current Five-Year Fire Sprinkler System certification shall be maintained at all times in accordance with CCR Title-19 and VCFPD requirements. The required Five-Year Report shall be submitted to the Fire Department prior to expiration of the previous Five- Year certification. 86.The building fire alarm system shall be serviced and maintained in a proper working order at all times. Required maintenance inspections and service personnel shall be in accordance with NFPA 72. Service records shall be maintained on-site and available for review by the Fire Department upon request. 87.Building plans of all A, E, I, H, R-1, R-2 or R-4 occupancies shall be submitted, with High Street Station Resolution No. PC-2020-653 Page 16 payment for plan check, to the Fire District for review and approval prior to obtaining a building permit. 88.Fire extinguishers shall be installed in accordance with the International Fire Code. The placement of extinguishers shall be subject to review by the Fire District. 89.Commercial trash dumpsters and containers with an individual capacity of 1.5 cubic yards or greater shall not be stored or placed within 5 feet of openings, combustible walls, or combustible roof eave lines unless protected by approved automatic fire sprinklers. 90.Applicant shall obtain VCFD Form #126 "Requirements for Construction" prior to obtaining a building permit for any new structures or additions to existing structures. 91.Applicant and / or tenant shall obtain all applicable International Fire Code (IFC) permits prior to occupancy or use of any system or item requiring an IFC permit. Ventura County Air Pollution Control District 92.To ensure that fugitive dust and particulate matter that may result from site preparation, construction and/or grading activities are minimized to the greatest extent feasible, the Permittee shall comply with the provisions of applicable VCAPCD Rules and Regulations, which include but are not limited to, Rule 50 (Opacity), Rule 51 (Nuisance), and Rule 55 (Fugitive Dust). 93.In order to ensure that ozone precursor and particulate emissions from diesel-powered mobile construction equipment are reduced to the greatest amount feasible, the Permittee shall comply with the provisions of all applicable California State Laws and APCD Rules and Regulations regarding portable construction equipment and construction vehicles. 94. To ensure that discharge of air contaminants that may result from site operations are minimized to the greatest extent feasible, the facility shall be operated in accordance with the Rules and Regulations of the Ventura County Air Pollution Control District, with emphasis on Rule 51, Nuisance. High Street Station Resolution No. PC-2020-653 Page 17 EXHIBIT B High Street Station Resolution No. PC-2020-653 Page 18 DISPOSITION AND DEVELOPMENT AGREEMENT THIS DISPOSITION AND DEVELOPMENT AGREEMENT(the "Agreement") is dated as of , 2020 (the "Effective Date") and is entered into by and between the CITY OF MOORPARK, a municipal corporation(the "City"), and DALY GROUP, INC, a California corporation("Developer"). RECITALS A. City owns the real property described on Exhibit"A-1" and depicted on Exhibit "A-2" (collectively, the "Property"). B. City and Developer entered into that certain Exclusive Negotiating Agreement ("ENA"), dated June 18, 2018 whereby the City agreed to negotiate exclusively with Developer on an exclusive basis to establish the terms and conditions of a deposition and development agreement. C. City agreed to enter into the ENA based on Developer's experience, skill, reputation, expertise and ability to develop the Property. D. In reliance on the ENA and the discussions with the City, Developer has expended substantial resources investigating the condition of the Property, commissioning studies and reports analyzing the suitability of the Property for development, designing a project that complies with the City's requirements set forth in the ENA, and processing through the City the necessary approvals for development of the Property. E. Developer desires to acquire the Property from City for the purpose of developing a mixed use development project consisting of 79-residential units, approximately 13,628 sq.ft. of commercial and certain off-site improvements,which project is pending before the City pursuant to Residential Planned Development(RPD) Permit No. 2018-01 ("RPD 2018-01") . The Improvements, as defined in this Agreement, as approved by RPD 2018-01 and subject to the conditions of approval thereof are hereinafter referred to as the "Project". But for the efforts and expense incurred by Developer pursuant to the ENA,RPD 2018-01 and the entitlements and rights to develop the Property granted therein would not exist. AGREEMENT NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants contained in this Agreement,the parties hereto agree as follows: 1. DEFINITIONS. 1.1 Definitions. The following capitalized terms used in this Agreement shall have the meanings set forth below: 1.1.1 "Alta Policy" is defined in Section 2.4. 1.1.2 "Agreement"means this Disposition and Development Agreement. 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 19 1.1.3 "Building Permit" means, collectively, any and all ministerial permits issued by the City necessary to grade the Property and construct the Project. 1.1.4 "Certificate of Completion"means the certificate described in Section 3.4. 1.1.5 "City"means the City of Moorpark, a municipal corporation. 1.1.6 "City Manager"means the City Manager of the City. 1.1.7 "Close of Escrow" is defined in Section 2.3. 1.1.8 "Construction Loan" is defined in Section 2.6.4. 1.1.9 "Construction Contract" is defined in Section 3.3. 1.1.10 "Deposit" is defined in Section 2.2. 1.1.11 "Disapproved Title Exceptions" is defined in Section 2.4. 1.1.12 "Due Diligence Period" is defined in Section 2.8. 1.1.13 "Escrow" is defined in Section 2.3. 1.1.14 "Escrow Holder"means Lawyer's Title Company, 2751 Park View Court, Suite 241, Oxnard, CA 93036 (Attn: Shirley Franks, Escrow Officer, email to: sfranks@ltic.com,Phone: 805/484-2701);Noel Palacio, Title Officer, nnalaciorhltic.com (800/726-2949). 1.1.15 "FIRPTA Certificate" is defined in Section 2.9.3. 1.1.16 "Force Majeure Delay" is defined in Section 6.7. 1.1.17 "Grant Deed" is defined in Section 2.4. 1.1.18 "Hazardous Materials"means any chemical, material or substance now or hereafter defined as or included in the definition of hazardous substances, hazardous wastes, hazardous materials, extremely hazardous waste, restricted hazardous waste,toxic substances,pollutant or contaminant, imminently hazardous chemical substance or mixture, hazardous air pollutant, toxic pollutant, or words of similar import under any local, state or federal law or under the regulations adopted or publications promulgated pursuant thereto applicable to the Property, including,without limitation: the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. 9601, et seq. ("CERCLA"); the Hazardous Materials Transportation Act, as amended, 49 U.S.C. 1801, et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251, et seq.; and the Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901, et seq. ("RCRA") The term Hazardous Materials shall also include any of the following: any and all toxic or hazardous substances,materials or wastes listed in the United States Department of Transportation Table (49 CFR 172.101) or by the Environmental Protection Agency as -2- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 20 hazardous substances (40 CFR. Part 302)and in any and all amendments thereto in effect as of the Close of Escrow; oil,petroleum,petroleum products (including, without limitation, crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas usable for fuel, not otherwise designated as a hazardous substance under CERCLA; any substance which is toxic, explosive, corrosive, reactive, flammable, infectious or radioactive (including any source, special nuclear or by product material as defined at 42 U.S.C. 2011, et seq.), carcinogenic, mutagenic, or otherwise hazardous and is or becomes regulated by any governmental authority; asbestos in any form; urea formaldehyde foam insulation; transformers or other equipment which contain dielectric fluid containing levels of polychlorinated byphenyls; radon gas; or any other chemical, material or substance (i) which poses a hazard to the Property,to adjacent properties, or to persons on or about the Property, (ii) which causes the Property to be in violation of any of the aforementioned laws or regulations, or(iii) the presence of which on or in the Property requires investigation, reporting or remediation under any such laws or regulations. 1.1.19 "Holder" is defined in Section 4.2. 1.1.20 "Improvements"means all grading, ground improvements, buildings, hardscape and landscape, infrastructure, utilities, and other improvements to be built on the Property, as described in the Scope of Development and in conformance with the RPD 2018-01. 1.1.21 "Party"means any party to this Agreement, and "Parties"means all parties to this Agreement. 1.1.22 "Permitted Exceptions" is defined in Section 2.4. 1.1.23 "Plans and Specifications"means all drawings, Property scaping and grading plans, engineering drawings, final construction drawings, and any other plans or specifications for construction of the Project, as approved by the City. 1.1.24 "Project"means the Improvements placed on the Property, subject to the conditions of approval of RPD 2018-01. 1.1.25 "Project Budget" is defined in Section 2.6.3. 1.1.26 "Property"means the Property described on Exhibit"A-1" attached hereto. 1.1.27 "Purchase Price" is defined in Section 2.1. 1.1.27 "Released Parties" is defined in Section 2.7.3. 1.1.28 "Schedule of Performance"means the schedule on Exhibit "B" attached hereto and incorporated by reference herein. 1.1.29 "Scope of Development"means the description of the Project set forth in Exhibit"C" attached hereto and incorporated by reference herein. -3- Draft 9/2/2020 12853-0062\2317734v1I.doc High Street Station Resolution No. Page 21 PC-2020-653 1.1.30 "Site"means the Property. 1.1.31 "Site Designs" is defined in Section 6.7. 1.1.32 "Title Commitment" is defined in Section 2.4. 1.1.33 "Title Company" shall mean the Escrow Holder(i.e.. the Title Company and the Escrow Holder are the same). 1.1.34 "Title Due Diligence Date" is defined in Section 2.4. 1.1.35 "Title Objection Notice" is defined in Section 2.4. 1.1.36 "Title Response Notice" is defined in Section 2.4. 1.1.37 "Transfer" is defined in Section 4.1.1. 1.1.38 "Withholding Affidavit" is defined in Section 2.9.2. 2. PURCHASE AND SALE OF THE PROPERTY: PURCHASE PRICE; DEPOSIT. 2.1 Purchase and Sale; Purchase Price; Appraisal. In accordance with and subject to the terms and conditions hereinafter set forth, the City agrees to sell the Property and all rights thereto to Developer, and Developer agrees to purchase the Property and all rights thereto from the City. The "Purchase Price" for the Property to be paid by Developer shall be the fair market value of the Property as determined by an appraisal prepared by Riggs &Riggs, a qualified MAI appraiser,that is updated and obtained by the City not more than six(6)months prior to the Close of Escrow; provided, however,that if the Close of Escrow does not occur within six (6)months after the date of the updated appraisal,then the City shall obtain a further update to the appraisal and the Purchase Price shall be the fair market value of the Property as determined by the appraisal update, and if necessary, additional appraisal updates shall be obtained by City every six(6)months until the Close of Escrow and the Purchase Price shall be adjusted to fair market value as shown in the most recent update as of the Close of Escrow. At the Close of Escrow,the City shall deliver the Property to Developer without any occupants therein. The appraisal and any appraisal updates shall be based on the zoning and entitlements for the Property as of the Effective Date, irrespective of any changes to said zoning and entitlements after the Effective Date,the soil conditions affecting the Property(to the extent known as of the date of the appraisal or appraisal update), and the costs of demolishing any existing structures on the Property. Notwithstanding anything to the contrary contained herein,the Close of Escrow shall not occur until such time as the Closing Conditions, as defined in Section 2.5 and Section 2.6 hereof, have been satisfied or have been waived by the appropriate party. 2.2 Deposit. Within ten (10) business days after the Effective Date,the Developer shall deposit the sum of Twenty-five Thousand and No/100 Dollars($25,000.00)with Escrow Holder(together with all interest thereon,the "Deposit"). The Deposit shall -4- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 22 be held by Escrow Holder in an interest bearing account. The Deposit, including all interest accrued thereon, shall be credited to the Purchase Price at the Close of Escrow. In the event the Close of Escrow does not occur due to a default by Developer,the Deposit shall be delivered to and retained by the City as liquidated damages for such default. DEVELOPER AND CITY AGREE THAT BASED UPON THE CIRCUMSTANCES NOW EXISTING, KNOWN AND UNKNOWN, IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO ESTABLISH CITY'S DAMAGES BY REASON OF A DEFAULT BY DEVELOPER PRIOR TO THE CLOSE OF ESCROW. ACCORDINGLY, DEVELOPER AND CITY AGREE THAT IN THE EVENT OF A DEFAULT BY DEVELOPER PRIOR TO THE CLOSE OF ESCROW, CITY SHALL BE ENTITLED TO RETAIN THE DEPOSIT, PLUS ANY ACCRUED INTEREST THEREON,AS LIQUIDATED DAMAGES. In the event the Close of Escrow does not occur for any reason other than due to a default by Developer,the Deposit shall be returned to Developer with any interest accrued thereon. 2.3 Opening and Closing of Escrow. Within five (5)business days after the Effective Date,the City and the Developer shall cause an escrow(the "Escrow")to be opened with Escrow Holder for the sale of the Property by the City to Developer. The Parties shall deposit with Escrow Holder a fully executed duplicate original of this Agreement as the escrow instructions for the Escrow. The City and Developer shall provide such additional instructions as shall be necessary and consistent with this Agreement. Provided that each of the Closing Conditions described in Section 2.5 and 2.6 have been satisfied or waived by the appropriate party, Escrow shall close no later than December 31, 2021,which date may be extended by written mutual agreement of the parties (the "Close of Escrow"). If the Close of Escrow does not occur as contemplated in this Agreement, all the funds and documents deposited with Escrow Holder shall be promptly refunded or returned, as the case may be,by Escrow Holder to the depositing party, except that all escrow and title cancellation fees shall be paid equally by both parties, unless the Close of Escrow does not occur as a result of a default by Developer or the City, in which case the defaulting party shall pay all escrow and title cancellation fees. 2.4 Condition of Title: Title Insurance. Within ten(10)business days after the opening of Escrow, City shall deliver to Developer by email to: vine@dalygroupinc.com, a title commitment prepared by the Title Company for the Property with hyperlinks to all title commitments described therein (the "Title Commitment"). City shall also request the Title Company to plot all easements, if any, applicable to the Property. No later than the date that is twenty(20) days after delivery of the Title Commitment ("Title Due Diligence Date"), Developer shall notify City in writing ("Title Objection Notice")of any objections Developer may have to the title exceptions contained in the Title Commitment, but shall be deemed to have objected to any monetary liens as well as any liens which will materially interfere with the Project. In the event Developer fails to deliver the Title Objection Notice by the Title Due Diligence Date, Developer shall be deemed to have approved the Title Commitment, including all exceptions listed in the Title Commitment, other than any monetary liens or encumbrances. In the event Developer delivers a -5- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 23 Title Objection Notice by the Title Due Diligence Date disapproving any exceptions in the Title Commitment (collectively, "Disapproved Title Exceptions"), City shall have ten(10) business days from receipt of Developer's Title Objection Notice to notify Developer in writing("Title Response Notice") of City's election to either (i)agree to remove or cure the objectionable items prior to the Close of Escrow, or (ii)decline to remove or cure the objectionable items. If the City declines to remove or cure the objectionable items,Developer shall have the right,by written notice delivered to City no later than five(5) business days after receipt of the Title Response Notice to agree to accept the Property subject to the objectionable items or to terminate this Agreement. If Developer elects to terminate this Agreement, Escrow Holder shall return the Deposit to Developer with all accrued interest thereon and the parties shall equally pay any escrow and title cancellation fees. City's failure to deliver a Title Response Notice shall be deemed City's election to decline to remove or cure the objectionable items, but it shall not be deemed to constitute the actual Title Response Notice. The exceptions to title that Developer approves(or is deemed to approve)pursuant to this Section 2.4 shall be referred to herein as the "Permitted Exceptions." The Permitted Exceptions shall also include the standard printed exceptions and exclusions contained in the form of the Title Policy approved by Developer, real property taxes and assessments (which shall be prorated as of the Closing as set forth in Section 2.6), and the documents to be recorded through the Escrow under this Agreement. Nothing in this Agreement shall obligate Developer to proceed with the Close of Escrow in the event new liens or encumbrances on the Site are discovered or arise through no fault of Developer after the date of Title Commitment, and any such additional matters shall be removed by the City at the City's sole cost and expense. Concurrently with recordation of the grant deed for the Property (the "Grant Deed"),the form of which is attached hereto as Exhibit"D", Title Company shall provide and deliver to Developer, an ALTA Owner's Policy of title insurance (Form 1970-B) ("ALTA Policy") with a policy coverage limit in the amount of the Purchase Price. Developer shall pay for any extended coverage portion of such title policy; City shall pay for the standard coverage (formerly known as"CLTA")portion. Such title policy shall be subject to the Title Company's standard terms, conditions and exceptions and the other Permitted Exceptions described above. The Title Company shall provide the City with a copy of the ALTA Policy. In the event the Title Company requires an ALTA survey as a condition to issuance of the ALTA Policy or as a condition to elimination of any survey exception shown therein, Developer shall provide such ALTA survey at its sole cost and expense or accept title subject to an exception for survey matters in the Title Policy. The City shall execute and deliver to the Title Company such affidavits and covenants as are customarily required for the Title Company to issue the ALTA Policy. Notwithstanding anything above which is or appears to be to the contrary, Developer shall have the right to require issuance of any endorsements to the ALTA Policy which it may desire as a condition to the Close of Escrow;provided that all out-of-pocket expense or cost attributable to issuance of any such endorsement(other than endorsements to cure any defect on title) shall be the sole responsibility of Developer. -6- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 24 City shall not cause or consent to the recordation of any additional liens, encumbrances, covenants, conditions, restrictions, easements,rights of way or similar matters against the Property after the Effective Date which will not be eliminated at City's sole cost and expense prior to the Close of Escrow. 2.5 Conditions to Close of Escrow for Developer. The obligation of the Developer under this Agreement to close Escrow shall be subject to the satisfaction(or express written waiver by Developer)of each of the following conditions (collectively,the "Developer Closing Conditions"): 2.5.1 There shall have been no change to the physical condition of the Property and no new title exceptions that, in either case,would materially and adversely affect the development, use or operation of the Property. 2.5.2 The City shall have removed or caused to be removed the Disapproved Title Exceptions (and with proceeds of the Purchase Price, any monetary liens at the Close of Escrow). 2.5.3 The representations and warranties of the City contained in this Agreement shall be true and correct in all material respects. 2.5.4 The delivery by City of all documents and funds required to be delivered pursuant to Sections 2.8 and 2.9 hereof and as further identified in Exhibit "E". 2.5.5 The Title Company shall have committed to issue at the Close of Escrow an ALTA Policy, with any endorsements reasonably requested by Developer, showing fee simple title to the Property vested in Developer(or Developer's assignee as permitted by this Agreement), subject only to the Permitted Exceptions. 2.5.6 City shall have issued to Developer an approved and filed parcel map for the Property establishing that the Property is in compliance with the Subdivision Map Act under the exemption for conveyances by a public entity/city. 2.5.7 City and Developer shall have executed a sublicense agreement between City and Developer acceptable to Developer for the 20 feet of land adjacent to the railroad and the Property(approximately 18,743 square feet) on the same terms as the City's written agreement with the Ventura County Transportation for that area,which agreement shall, if required, be approved in advance by Ventura County Transportation. 2.5.8 The City and any other relevant governmental agency shall be prepared to issue all construction related permits, including without limitation: all building permits, and all entitlements for the Project(including,without limitation, a filed parcel map, any required zone change and/or overlay zone, a specific plan amendment or a variance permitting the reduced parking contemplated for the Project, if required for the Project), and there are no further discretionary approvals required by any governmental agency for the Project and all applicable appeal periods have expired without any appeal filed or if such appeal has been filed,the appeal has been resolved to the satisfaction of the Developer. -7- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 25 2.5.9 City shall have performed, observed and complied with all material covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow. 2.5.10 Developer shall have approved any conditions of approval (including any requirements for offsite improvements) imposed by the City on the Project. 2.5.11 No litigation challenging the validity of this Agreement, the DA,the Project, or any permits, approvals,relating to the Project shall be pending or threatened. 2.5.12 The City shall have received clearance from a reputable biologist (City and developer to reasonably agree on the biologist) enabling Developer to proceed with demolition of the existing improvements on the Property. 2.5.13 The approval and execution(and recording at Close of Escrow) of a Development Agreement between City and Developer in substantially the form attached hereto as Exhibit"F" (the "DA"). 2.5.14 The Planning Commission and the City Council shall have made all required consistency findings with respect to the disposition of the Property in the DDA and all required General Plan and Specific Plan consistency findings with respect to the approval of the DA. 2.6 Conditions to Close of Escrow for City. The obligation of the City under this Agreement to close Escrow shall be subject to the satisfaction(or express written waiver by City) of each of the following conditions (collectively,the "City Closing Conditions"): 2.6.1 The representations and warranties of the Developer contained in this Agreement shall be true and correct in all material respects. 2.6.2 The delivery by Developer of all documents and funds required to-be delivered pursuant to Section 2.9 hereof. 2.6.3 Developer shall have submitted to the City Manager a comprehensive Project budget(a"Project Budget") showing the estimated cost/expenditure for construction of the Project and the anticipated sources of funds. 2.6.4 Developer shall have submitted to the City Manager evidence of financing from a recognized institutional lender("Construction Loan") confirming the terms and conditions of the Construction Loan, including the loan amount, contractor bonding requirements (if required), and conditions to disbursement of loan funds to Developer. 2.6.5 Developer shall have submitted to the City Manager reasonable evidence that the Developer has obtained and irrevocably committed sufficient equity funds to cover the difference, if any, between the estimated cost of development as shown in the Project Budget and the loan amount from the construction loan. -8- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 26 2.6.6 City shall have issued to Developer an approved and filed parcel map for the Property establishing that the Property is in compliance with the Subdivision Map Act. 2.6.7 City and Developer shall have executed a sublicense agreement between City and Developer for the 20 feet of land adjacent to the railroad and the Property (approximately 18,743 square feet) in the form of the sublicense attached hereto as Exhibit "A-4". 2.6.8 Developer shall have submitted to the City Manager relevant portions of the executed Construction Contract for the Project showing that it is consistent with the Project Budget, Scope of Development and Schedule of Performance. 2.6.9 The Developer shall submit to the City Manager the legal and ownership structure of the any permitted assignee/designee of Developer(and its organizational documents)that is to take title to the Property at the Close of Escrow. 2.6.10 All entitlements for the Project have been obtained(including, without limitation, a final parcel map, any required zoning change and/or overlay zone, a specific plan amendment or a variance permitting the reduced parking contemplated for the Project, if required for the Project) and the City is prepared to issue the final building permits for the project. 2.6.11 Developer shall have performed, observed and complied with all covenants, agreements and conditions required by this Agreement to be performed, observed and complied with on its part prior to or as of the Close of Escrow. 2.6.12 No litigation challenging the validity of this Agreement shall be pending. 2.6.13 Developer's Construction Loan shall have closed (or shall close concurrently with the Close of Escrow). 2.6.14 The approval and execution(and recording at Close of Escrow)of a Development Agreement between City and Developer in substantially the form attached hereto as Exhibit "F" . 2.6.15 The Planning Commission and the City Council making any required consistency findings with respect to the DDA and the DA. 2.7 Costs; Escrow Holder Settlement Statement. 2.7.1 Except as otherwise set forth herein, Developer shall be solely responsible for all costs and expenses related to all surveys,the extended coverage portion of its title policy, all title policy endorsements thereto (other than curative endorsements), escrow charges and recording fees. City shall be solely responsible for all costs and expenses related to standard coverage portion of the title policy and any curative endorsements and any transfer taxes. -9- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 27 2.7.2 Escrow Holder is authorized on the Close of Escrow to pay and charge the Developer and City for any fees, charges and costs payable under Section 2.7.1 as set forth on the settlement statements approved by the Parties. Before such payments are made,Escrow Holder shall notify the City and Developer of the fees, charges, and costs necessary to close under the Escrow, by delivering draft settlement statements to the Parties for their mutual written approval. 2.8 Condition of the Property. 2.8.1 "As-Is" Sale. Developer acknowledges and agrees that, except as expressly set forth herein, Developer is acquiring the Property in its "AS IS" condition, WITH ALL FAULTS, IF ANY,AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, WITHOUT ANY WARRANTY,EXPRESS OR IMPLIED and neither City nor any agents, representatives, officers, or employees of City have made any representations or warranties, direct or indirect, oral or written, express or implied,to Developer or any agents, representatives, or employees of Developer with respect to the condition of the Property, its fitness for any particular purpose, or its compliance with any laws, and Developer is not aware of and does not rely upon any such representation to any other party. Except as expressly set forth herein,neither City nor any of its representatives is making or shall be deemed to have made any express or implied representation or warranty, of any kind or nature, as to (a)the physical, legal or financial status of the Property, (b) the Property's compliance with applicable laws, (c)the accuracy or completeness of any information or data provided or to be provided by City, or(d) any other matter relating to the Property. 2.8.2 Inspections by Developer. Upon the Effective Date,the City shall promptly deliver to Developer all documents in the City's possession or in the possession of a consultant to the City concerning the Property(including without limitation those documents set forth on Exhibit "E"), and until thirty(30) days after such delivery by City (the "Due Diligence Period"),Developer and its contractors and consultants who are designated in writing to City ("Developer Designees") shall have the right to enter onto the Property(without disturbing any occupants thereof) for the purpose of performing the Survey, hazardous materials inspections, soils inspections and any other physical inspections and investigations reasonably desired by Developer, including but not limited to Phase I and Phase II Environmental Site Assessments, at their sole cost and expense; provided, however,that: (a)Developer shall deliver copies of all third party inspection reports to City(excluding Developer's feasibility studies, financial reports, cost estimates, and reports protected by the attorney-client privilege); (b) no inspections or investigations shall damage the Property or any improvements thereon or shall be "invasive"unless approved in writing by the City Manager, which approval shall not be unreasonably withheld, conditioned or delayed; (c) Developer shall immediately repair all damage caused by its inspections, except: (i)Developer shall not be obligated to remedy any hazardous materials discovered by Developer; and(ii)Developer need not repair any damage if Close of Escrow occurs; and (d)neither Developer nor any of Developer's Designees shall enter the Property unless Developer has provided City reasonable written evidence (such as insurance certificates and/or copies of policies)that the activities of Developer and the Developer Designees are covered by reasonable liability insurance naming City as an additional insured. Developer shall defend, indemnify and hold City harmless from and -10- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 28 against any and all claims, liabilities, losses, damages, costs and expenses (including, without limitation, attorneys' fees and cost) resulting from the entry onto the Property, inspections or tests by Developer or Developer's Designees,provided in no event shall Developer be responsible for any pre-existing or latent conditions. If Developer disapproves or objects to any condition of the Property,then Developer may terminate this Agreement by written notice to City given on or prior to the end of the Due Diligence Period that describes the basis for the disapproval or objection. 2.8.3 Releases and Waivers. Developer acknowledges and agrees that in the event Developer does not approve of the condition of the Property under Section 2.8.2, Developer's sole right and remedy shall be to terminate this Agreement under and in accordance with Section 2.8.2, and thereupon Developer hereby waives any and all objections to or complaints regarding the Property and its condition, including, but not 1 limited to, federal, state or common law based actions and any private right of action under state and federal law to which the Property is or may be subject, including, but not limited to, CERCLA(as defined in Section 1.1.17), RCRA(as defined in Section 1.1.17),physical characteristics and existing conditions, including, without limitation, structural and geologic conditions, subsurface soil and water conditions and solid and hazardous waste and Hazardous Materials on, under, adjacent to or otherwise affecting the Property. Developer further hereby assumes the risk of changes in applicable laws and regulations relating to past,present and future environmental conditions on the Property and the risk that adverse physical characteristics and conditions, including,without limitation,the presence of Hazardous Materials or other contaminants,may not have been revealed by its investigations. Developer and anyone claiming by,through or under Developer also hereby waives its right to recover from and fully and irrevocably releases City and its council members,board members, employees, officers, directors, representatives, agents, servants, attorneys, successors and assigns in their respective capacities as sellers of the Property("Released Parties") from any and all claims,responsibility and/or liability that it may now have or hereafter acquire against any of the Released Parties for any costs, loss, liability, damage, expenses, demand, action or cause of action arising from or related to the condition of the Property (including any errors, conditions, latent or otherwise, or presence in the soil, air, structures and surface and subsurface waters of materials or substances that have been or may in the future be determined to be Hazardous Materials or otherwise toxic, hazardous or subject to regulation and that may need to be specially treated, handled and/or removed from the Property under current or future federal, state and local laws regulations or guidelines),valuation, salability or utility of the Property, or its suitability for any purpose whatsoever. This release includes claims of which Developer is presently unaware or which Developer does not presently suspect to exist which, if known by Developer, would materially affect Developer's release of the Released Parties. Developer specifically waives the provision of California Civil Code Section 1542,which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR EXPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN TO HIM MUST HAVE -11- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 29 MATERIALLY AFFECTED THE SETTLEMENT WITH THE DEBTOR." In this connection and to the extent permitted by law, Developer hereby agrees, represents and warrants that Developer realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which are presently unknown, unanticipated and unsuspected, and Developer further agrees,represents and warrants that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that Developer nevertheless hereby intends to release, discharge and acquit Released Parties from any such unknown causes of action, claims, demands, debts, controversies, damages, costs, losses and expenses which might in any way be included as a material portion of the consideration given to City by Developer in exchange for City's performance hereunder. Notwithstanding anything to the contrary herein,the foregoing release and waiver shall not apply to any statutory obligations of the City or representations or warranties of the City under this Agreement. Developer hereby agrees that, if at any time after the Close of Escrow any third party or any governmental agency seeks to hold Developer responsible for the presence of, or any loss, cost, or damage associated with, Hazardous Materials in, on, above or beneath the Property or emanating therefrom,which presence or emanation was caused by Developer or its agents, employees or contractors,then, to the extent such presence or emanation was caused by Developer, Developer waives any rights it may have against City in connection therewith, including, without limitation, under CERCLA (as defined in Section 1.1.17)and Developer agrees that it shall not(i) implead the City, (ii) bring a contribution action or similar action against City, or(iii) attempt in any way to hold City responsible with respect to any such matter. The provisions of this Section shall survive the Close of Escrow. City and Developer have each initialed this Section to further indicate their awareness and acceptance of each and every provision hereof. CITY'S INITIALS DEVELOPER'S INITIALS 2.8.4 Environmental Indemnity. From or after the Close of Escrow, Developer shall indemnify,protect, defend and hold harmless the City and its officials, officers,attorneys, employees, consultants, agents and representatives, from and against any and all claims, liabilities, suits, losses, costs, expenses and damages, including but not limited to attorneys' fees and costs, arising directly or indirectly out of any claim for loss or damage to any property, including the Property, injuries to or death of persons, or for the cost of cleaning up the Property and removing Hazardous Materials or toxic substances, materials and waste therefrom, by reason of contamination or adverse effects on the environment, or by reason of any statutes, ordinances, orders, rules or regulations of any governmental entity or agency requiring the clean -up of any Hazardous Materials caused by or resulting from any Hazardous Material, or toxic substances or waste existing on or under, any portion of the Property acquired by Developer,provided the presence of such -12- Draft 9/2/2020 12853-0062\2317734v11 doc =1 High Street Station Resolution No. PC-2020-653 Page 30 Hazardous Materials or toxic substances, materials or wastes was directly and solely caused by the Developer or its agents, employees, consultants or contractors. 2.9 City Deposits into Escrow. The City hereby covenants and agrees to deliver to Escrow Holder prior to the Close of Escrow the following documents, the delivery of each of which shall be a condition in favor of Developer to the Close of Escrow: 2.9.1 A Grant Deed duly executed and acknowledged by the City, in the form attached hereto as Exhibit"D"; 2.9.2 The affidavit as contemplated by California Revenue and Taxation Code 590 ("Withholding Affidavit"); 2.9.3 A Certification of Non Foreign Status in accordance with I.R.C. Section 1445 (the "FIRPTA Certificate"); 2.9.4 The Parcel Map; 2.9.5 A counterpart of the DA, executed by the City and acknowledged; 2.9.6 A counterpart of a subordination agreement described in Section 4.4, duly executed and acknowledged by City("Subordination Agreement") if required by Developer's construction lender; 2.9.7 A counterpart of the Sublicense Agreement described in Section 2.6.7. duly executed and acknowledged by City; and 2.9.8 Such proof of the City's authority and authorization to enter into this transaction, including but not limited to the taking of all actions as required to develop, construct and operate the Project and all portions thereof, as the Title Company may reasonably require in order to issue Developer's policy of title insurance including a zoning endorsement insuring the entitlement right to the use and operation of the Project for the purposes set forth in this Agreement for the issuance of the ALTA Policy. 2.10 Developer Deposits into Escrow. The Developer hereby consents and agrees to deliver to Escrow Holder prior to the Close of Escrow,the following funds and documents,the delivery of each of which shall be a condition in favor of City to the Close of Escrow: 2.10.1 The Purchase Price(less the Deposit); 2.10.2 A counterpart of the DA, executed by Developer and acknowledged; 2.10.3 A counterpart of the Subordination Agreement, and the deed of trust and other recordable documents required for Developer's construction loan, executed by Developer and the construction lender as applicable, and acknowledged; and ti -13- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 31 2.10.4 A counterpart of the Sublicense Agreement described in Section 2.6.7, duly executed and acknowledged by Developer. 2.11 Authorization to Record Documents and Disburse Funds. Escrow Holder is hereby authorized to record the documents and disburse the funds and documents called for hereunder upon the Close of Escrow,provided each of the following conditions has then been fulfilled: 2.11.1.1 The Title Company can issue in favor of Developer an ALTA Owner's Title Policy,with liability equal to the Purchase Price (or such lesser amount as shall have been requested by Developer), showing the Property vested in Developer subject only to the Permitted Title Exceptions. 2.11.1.2 The City shall have deposited in Escrow the documents required pursuant to Section 2.9, or otherwise reasonably required by the Title Company or Escrow, and Developer shall have deposited in Escrow the documents and items required pursuant to Section 2.10 or otherwise reasonably required by the Title Company or Escrow. 2.11.1.3 The City and Developer have confirmed in writing to Escrow Holder that all of the other closing conditions set forth in Section 2.5 and 2.6 have been satisfied or expressly waived in writing by the Party(s)benefited thereby. Unless otherwise instructed in writing, Escrow Holder is authorized to record at the Close of Escrow any instrument delivered through this Escrow if necessary or proper for issuance of Developer's title insurance policy. 2.12 Escrow's Closing Actions. Upon the satisfaction of all items set forth in Sections 2.9 and 2.10, Escrow Holder shall: 2.12.1 Record the Parcel Map,the Grant Deed, the DA, the construction lender's deed of trust and then the Subordination Agreement in the Official Records of Ventura County(in that order); 2.12.2 Issue the Title Policy(or cause the Title Company to issue the Title Policy); 2.12.3 Prorate assessments and other charges as of the Close of Escrow in accordance with the settlement statements approved by the Parties; 2.12.4 From funds deposited by Developer,pay prorated amounts and charges to be paid by or on behalf of Developer, and return any excess to Developer; 2.12.5 Prepare and deliver to both Developer and the City one signed copy of Escrow Holder's closing statement showing all receipts and disbursements of the Escrow; and 2.12.6 Deliver the FIRPTA Certificate-and the Withholding Affidavit to Developer. -14- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 32 2.13 Additional Instructions. If required by the Escrow Holder,the Parties shall execute appropriate escrow instructions,prepared by the Escrow Holder,which are not inconsistent herewith. If there is any inconsistency between the terms of this Agreement and the terms of the escrow instructions,the terms of this Agreement shall control unless an intent to amend the terms of this Agreement is expressly stated in such instructions. 3. DEVELOPMENT COVENANTS. 3.1 Development of the Project. Following the Close of Escrow,Developer shall, in good faith, develop or cause to be developed the Improvements on the Property in accordance with the Scope of Development, all requirements of any and all applicable federal, state and local laws, rules and regulations, and RPD 2018-01,the Plans and Specifications, and all other terms, conditions and requirements of this Agreement. Developer shall at all times make a good faith and commercially reasonable effort to comply with the Schedule of Performance,provided that the obligations of the Developer to be performed after the Close of Escrow shall be delayed by Force Majeure Delays, if applicable, and provided further that the City Manager may,but shall not be obligated to, extend any deadline therein in his or her reasonable discretion, so long as such extension is in writing. 3.1.1 Until a Certificate of Completion is issued,the Developer shall provide the City with periodic but no less than quarterly progress reports, commencing upon the end of the first calendar quarter after the Effective Date, and otherwise, as reasonably requested by the City, regarding the status of the construction of the Improvements. 3.1.2 Developer shall update the City Manager on any material changes to the Project Budget. 3.1.3 Developer shall provide the City Manager evidence that Developer has and shall maintain at all times from the Close of Escrow until receipt of the Certificate of Completion the following construction-related insurance policies: "all risk"builder's risk insurance, worker's compensation insurance, and general liability insurance. Upon written request, Developer shall provide to the City Manager a certificate on the insurance carrier's form setting forth the general provisions of the insurance coverage. 3.2 City's Right to Review Plans and Specifications. In connection with construction of the Project,Developer shall comply in all material respects with Plans and Specifications approved by the City. By the City's execution and approval of this Agreement,the City acknowledges that there shall be no additional discretionary approvals required for the Project, including without limitation for the use and operation of all portions of the Project in accordance with the terms of the Agreement. 3.3 No Agency Created. In performing this Agreement, Developer is an independent contractor and not the agent of the City. The City is not an agent of Developer. The City shall not have any responsibility whatsoever for payment to any contractor or -15- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 33 supplier of Developer or its contractors. Developer shall not have any responsibility whatsoever for payment to any contractor or supplier of the City. 3.4 Certificate of Completion. Upon Developer's completion of the construction of the Project, including issuance of final inspections of all building permits for all components of the Project, Developer will apply to the City for a Certificate of Completion. The City's issuance of the Certificate of Completion,the form of which is attached hereto as Exhibit"G" shall constitute the acknowledgement of the City that Developer has complied in all respects with its obligations under this Agreement. Promptly following the City's issuance of a Certificate of Completion for the Project, the City Manager on behalf of the City shall promptly execute, acknowledge and deliver the Certificate of Completion,which shall be recorded in the Official Records of Ventura County and shall include an express termination and reconveyance of the City's right to reversion under Section 6.2.2.2 of this Agreement and the Grant Deed. Upon recordation of the Certificate of Completion, this Agreement shall automatically terminate, except that Developer's defense and indemnity obligations in Sections 2.8.2, 2.8.4 and 9.6, shall remain in full force and effect and survive the termination of this Agreement. 4. LIMITATIONS ON TRANSFERS AND SECURITY INTERESTS. 4.1 Restriction on Transfer of Developer's Rights and Obligations. 4.1.1 Prior to issuance of a Certificate of Completion for the Project, Developer shall not sell, assign,transfer, lease (except for space leases conditioned upon Project completion), hypothecate, or convey(collectively, a"Transfer")the Property or any part thereof or any of Developer's rights or obligations hereunder,without the prior written consent of the City Manager, which consent may be granted or withheld in the City Manager's reasonable discretion. The City hereby delegates to the City Manager the authority to grant such consents. Notwithstanding any other provision of this Agreement to the contrary, such approval of a Transfer or other conveyance shall not be required in connection with any of the following("Permitted Transfers")provided reasonable evidence of the Permitted Transfer is delivered to the City Manager: 4.1.1.1 The execution of one or more deeds of trust and related instruments securing Developer's construction loan or other financing for the Project. 4.1.1.2 A conveyance of the Property resulting from the foreclosure thereof(or a deed in lieu of such a foreclosure), including as provided in Section 4.4 hereof. 4.1.1.3 Any Transfer to an entity or entities controlled and partially but materially owned, directly or indirectly,by Vince Daly. 4.1.1.4 Any requested assignment for financing purposes permitted pursuant to this Agreement, including the grant of a mortgage or deed of trust or sale-leaseback to secure the funds necessary for construction or permanent financing of the Project. -16- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 34 Prior to issuance of a Certificate of Completion, except for a Permitted Transfer under Section 4.1.1.3, no Transfer without the City's prior written approval shall be deemed to release Developer from the obligations of Developer hereunder. 4.1.2 After the issuance of a Certificate of Completion, Developer shall have the right to Transfer the Property to any party in its sole and absolute discretion. 4.2 Holders of Deeds of Trust. Notwithstanding any provisions of Section 4.1 to the contrary, Developer shall have the right to encumber its interest in the Property and the Project pursuant to one or more deeds of trust for the purpose of securing loans of funds to be used for financing the direct and indirect costs of the Project (including without limitation Property development costs, developer fees, loan fees and costs, and other normal and customary project costs), or for refinancing said construction financing with permanent financing, or for subsequent financings. Any lender of record holding any such deed of trust,whose name and address shall have been provided by Developer to City is referred to herein as a"Holder." The City shall provide the Holder within twenty(20) days from a written request therefor with an estoppel certificate executed by the City Manager on behalf of the City in a form and substance reasonably required by any Holder, relating to this Agreement and other matters reasonably required by Holder. Additionally, the City hereby delegates to the City Manager the authority to enter into non-substantial amendments to this Agreement and enter into such other agreements, including without limitation as provided in Section 4.4 hereof, as each may be reasonably required by a Holder as a condition to closing its loan. 4.3 Rights of Holders. The City shall deliver a copy of any notice or demand to Developer concerning any breach or default by Developer under this Agreement to each Holder who has previously made a written request to the City for special notice hereunder. Any notice of breach or default by Developer shall not be effective against any such Holder unless given to such Holder. Such Holder shall have the right at its option to cure or remedy any such default. If such breach or default can only be remedied or cured by such Holder upon obtaining possession, such Holder may remedy or cure such breach or default within a reasonable period of time after obtaining possession,provided such Holder seeks possession with diligence through a receiver or foreclosure. Any Holder completing the Improvements must assume all rights and obligations of Developer under this Agreement arising from and after the date Holder takes title and possession of the Improvements and shall then be entitled, upon written request made to the City, to a Certificate of Completion from the City. 4.4 Noninterference with Holders. The provisions of this Agreement do not limit the right of Holders (a)to foreclose or otherwise enforce any mortgage, deed of trust, or other security instrument encumbering all or any portion of the Property, and the Improvements thereon, (b) to pursue any remedies for the enforcement of any pledge or lien encumbering such portions of the Property, or(c)to accept, or cause its nominee or assignee to accept, a deed or other conveyance in lieu of foreclosure or other realization. The City Manager is hereby authorized and instructed by the City -17- Draft 9/2/2020 12853-0062\2317734v11.doc 9 High Street Station Resolution No. PC-2020-653 Page 35 to execute (and cause to be acknowledged, for recording) any reasonable subordination agreement required by any Holder, in order to subordinate City's rights under Section 6.2.2.2 to the rights of Holder. In the event of(i) a foreclosure sale under any such mortgage, deed of trust or other lien or encumbrance, (ii) a sale pursuant to any power of sale contained in any such mortgage or deed of trust, or (iii) a deed or other conveyance in lieu of any such sale (collectively, "Holder Rights"),the purchaser or purchasers and their successors and assigns, and such portions of the Property shall be, and shall continue to be, subject to all of the conditions,restrictions and covenants of all documents and instruments recorded pursuant to this Agreement, including, without limitation, the restrictions set forth in the grant deed on such property from the City to Developer. Notwithstanding the foregoing,the City hereby expressly agrees and acknowledges that the exercise by 1 any Holder of such Holder Rights shall not constitute a Reversion Event and City shall execute such further reasonable documentation, including without limitation a reasonable subordination of the City's reversion and repurchase rights set forth in Section 6.2.2 of this Agreement, regarding the rights of any Holder as is customary with respect to construction or permanent financing, as the case may be,to the extent that such documentation is reasonably requested by any Holder. 4.5 Right of City to Cure. In the event of a default or breach by the Developer of a loan by a Holder prior to the issuance of the Certificate of Completion for the Project, the City may, upon prior written notice to the Developer and with the consent of the Holder, cure the default,prior to the completion of any foreclosure. In such event, the City shall be entitled to reimbursement from the Developer of all direct costs and expenses incurred by the City in curing the default. 5. FEE PROTEST WAIVER. 5.1 Developer agrees that the fees and payments due to the City in its governmental capacity in connection with the Project, as set forth in the Development Agreement shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto. Developer further agrees that such fees are not public improvement fees collected pursuant to Government Code Section 66006 and statutes amendatory or supplementary thereto. 6. DEFAULT. REMEDIES AND TERMINATION. 6.1 Defaults. The occurrence of any or all of the following shall constitute a default ("Default")under this Agreement: 6.1.1 The failure of Developer to commence Improvements within twelve (12)months after the Close of Escrow or complete the Improvements within thirty(30) months after the Close of Escrow, as each may be extended by Force Majeure Delays; 6.1.2 Abandonment, or substantial suspension of construction of the Improvements required by this Agreement for a period of ninety(90) consecutive days, as may be extended by a Force Majeure Delay;however, if City believes that substantial -18- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 36 suspension for ninety(90)consecutive days as so extended as occurred, City shall deliver a notice thereof to Developer and Developer shall then have ten (10)days to cure the default, or describe in writing to the City what Force Majeure Delays have occurred that extend the 90 day period such that Developer is not in default(but City may disagree that a Force Majeure has occurred or is sufficient in duration, and may take the position that Developer is indeed in default); 6.1.3 Any breach of this Agreement by either Party involving the payment of money, the amount of which is not in good faith dispute, and the continuance of such breach for a period of ten (10) days after the non-defaulting Party has given written notice to the defaulting Party; 6.1.4 Except as otherwise provided in Section 6.1.1, Section 6.1.2 or 6.1.3 hereof, any breach of any term of this Agreement by any Party and failure of such Party to cure such breach within thirty(30) days after the non-defaulting Party has given written notice to the defaulting Party;provided, however, if such breach is not reasonably curable within such thirty(30) day period,then such Party shall be deemed in Default only if such Party does not commence to cure such breach within such thirty(30) day period and thereafter fails to diligently prosecute such cure to completion; 6.1.5 Developer's Transfer(other than a Permitted Transfer), or the occurrence of any involuntary Transfer, of the Property or any part thereof or interest therein, or any rights or obligations of Developer under this Agreement, in violation of this Agreement; 6.1.6 Developer's failure or refusal to keep in force and effect any material permit or approval with respect to construction of the Project, and Developer's failure to cure such breach within thirty(30) calendar days after notice from the City of Developer's breach;provided, however, if such breach is not reasonably curable within such thirty (30)day period,then Developer shall be deemed in Default only if Developer does not commence to cure such breach within such thirty(30) day period and thereafter fails to diligently prosecute such breach to completion; or 6.1.7 Filing of a petition in bankruptcy by or against any Developer or appointment of a receiver or trustee of any property of any Developer, or an assignment by any Developer for the benefit of creditors, or adjudication that Developer is insolvent by a court, and the failure of Developer to cause such petition, appointment, or assignment to be removed or discharged within ninety(90) days. 6.2 Remedies. 6.2.1 Remedies for Default Prior to the Close of Escrow. In the event of a Default by any Party prior to the Close of Escrow, the non-defaulting Party shall have the right to terminate this Agreement(provided it is not in Default of its obligation under this Agreement), by delivering written notice thereof to the defaulting Party and to Escrow Holder. If the Default was caused by Developer,then the City's remedies shall be subject to Section 2.2. If the Default was caused by the City,then Developer shall receive the Deposit and any interest accrued thereon and may seek any available remedies at law or equity, -19- Draft 9/2/2020 12853-0062\2317734v 11.doc High Street Station Resolution No. PC-2020-653 Page 37 including but not limited to,the right to receive damages (excluding damages for lost profits or consequential damages) or to pursue an action for specific performance. 6.2.2 Remedies for Default After the Close of Escrow; City Reversion Rights. In the event of a Default by any Party after the Close of Escrow, a non-defaulting party shall be entitled to the following remedies, as applicable: 6.2.2.1 Upon the occurrence of a Default,the defaulting Party shall be liable to the non-defaulting Party for all damages, costs and losses incurred by the non-defaulting Party, and the non-defaulting Party may seek against the defaulting Party any available remedies at law or equity, including but not limited to the right to receive damages (but not damages for lost profits or consequential damages) or to pursue an action for specific performance; or, 6.2.2.2 Prior to the issuance of the Certification of Completion and upon the occurrence of a Default by Developer pursuant to Sections 6.1.1, 6.1.2, 6.1.5, or 6.1.7,the City shall have the right to elect as its sole remedy the reversion of the Property as provided in this Section 6.2.2 (each, a"Reversion Event"). Upon a Reversion Event,the City shall notify Developer in writing of Developer's Default and the City's intent to exercise its rights under Section 6.2.2.2 ("Reversion Notice").The Reversion Notice shall provide Developer thirty(30) days in which to remedy the Default giving rise to the Reversion Event. If Developer fails to remedy the Default within said thirty(30) day period,then, subject to the terms and conditions of this Agreement, City may reenter and take possession of the Property,with all Improvements thereon, and revest in the City title to the Property theretofore conveyed to the Developer(or its successors in interest), and take any and all actions necessary to commence and complete the enforcement of its reversionary interest, and the Developer shall promptly take all actions and execute all documents necessary to revert title to the Property to the City(collectively,the "Right of Reversion"). Upon a resale of the Property or any portion thereof,the proceeds thereof payable to the City shall be applied as follows: (i) First to reimburse the City for all reasonable out of pocket costs and expenses incurred by the City and payable to third parties in connection with the reversion and resale of the Property or any portion thereof(less any net income derived by the City from operation or use of any part of the Property); all taxes, installments of assessments payable prior to resale, and applicable water, sewer, electricity and similar charges and liability and casualty insurance costs with respect to the Property or applicable portion thereof; any payments made or necessary to be made to discharge any encumbrances or liens existing on the Property or any portion thereof or to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts of the Developer, its successors or transferees; and any amounts owing the City under this Agreement by the Developer and its successors or transferee. (ii) Second, to reimburse the Developer, its successor or transferee, up to the amount equal to: -20- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 38 1. The sum of all reasonably documented costs and expenses incurred by Developer for the acquisition of the Property and entitlement of the Project and not included in payments made by City to discharge liens, including without limitation architectural fees, engineering fees, environmental report and studies,permitting, loan fees, and consultant fees, related to such acquisition plus; 2. The sum of all reasonably documented costs and expenses incurred for the Project and not included in payments made by City to discharge liens, including without limitation, architectural fees, engineering fees, developer fees, consulting costs, management fees,permitting fees, development impact fees, loan fees, loan disbursements, consultant fees, contractor fees, internal costs, labor and material fees, site preparation, grading, construction costs, and fees and costs paid to unrelated third parties in connection with the grading, development and construction of the Project; less (iii) Third,the balance (if any)remaining after such reimbursements shall be retained by the City as its property. 6.3 No Personal Liability. No representative, agent, attorney, consultant, or employee of any party shall personally be liable to the other party or any successor in interest of a party, in the event of any Default or breach by a party, or for any amount which may become due to a party or any successor in interest, on any obligation under the terms of this Agreement. 6.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated herein, the rights and remedies of the parties are cumulative, and the exercise by either party of one or more of such rights or remedies shall not preclude the exercise by it, at the same time or different times, of any other rights or remedies for the same default or any other default by the non-defaulting Party;provided, however,that liquidated damages specified herein shall constitute the sole damages recoverable for the default giving rise to such liquidated damages. 6.5 Inaction Not a Waiver of Default. Any failures or delays by either Party in asserting any of its rights and remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies, or deprive either such Party of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any such rights or remedies. The acceptance by a Party of less than the full amount due from the other party shall not constitute a waiver of such Party's right to demand and receive the full amount due, unless such Party executes a specific accord and satisfaction. 6.6 Force Majeure. Following the Close of Escrow, and notwithstanding anything to the contrary in this Agreement, nonperformance shall be excused when performance is prevented or delayed by reason of any circumstances reasonably beyond the control of such party(a "Force Majeure Delay"), including without limitation strike, lockout, labor slowdown or other labor or industrial disturbance (whether or not on the part of the employees of either party hereto), civil disturbance, future order claiming jurisdiction, act of the public enemy, war,riot, sabotage, blockade, -21- Draft 9/2/2020 F 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 39 embargo, disruption of financial markets, loss or malfunctions of utilities, communications or computer(software and hardware) services, inability to secure customary materials, supplies or labor through ordinary sources, severe weather, lightning, earthquake, fire, storm, hurricane,tornado, flood,washout, explosion, delays resulting from or related to COVID-19 (or any similar virus,public health crisis or pandemic),the imposition by the City or other public entity of a development moratoria unrelated to the performance of the Developer's obligations under this Agreement(including, without limitation,moratoria imposed due to the unavailability of water, sewer or other public utilities to serve the Project), any unreasonable delay caused in whole or in part by the City in its governmental capacity, unless such delay is materially caused in whole or in part by any materially incomplete, inaccurate or delayed submittal by Developer, or Developer's failure or delay in paying governmental fees not in dispute, delay caused by other third party entities required to approve plans or documents for Developer to construct the Project, or restrictions imposed or mandated by third party entities or governmental entities other than the City, litigation brought by a third party attacking the validity of this Agreement or any actions or permits authorized by this Agreement, or any other matter beyond the reasonable control of the party from whom performance is required. Any prevention, delay or stoppage due to any Force Majeure Delay shall excuse the performance of the Party affected for a period of time equal to any such prevention, delay or stoppage (except the performance of obligations of either party to pay money to the other Party or to close escrow),provided that the Party claiming the Force Majeure Delay notifies the other Party of the Force Majeure Delay within a reasonable time after the commencement of the Force Majeure Delay. 6.7 Plans and Data. If this Agreement is terminated due to a Default by Developer,then Developer shall deliver to the City, without cost or expense to the City, copies of any and all maps, architecture, engineering, subdivision approvals,permits, entitlements, rights,plans, drawings, studies, designs, and surveys pertaining to the Project and its development(collectively, "Site Designs")which are in the possession of Developer,provided, in no event shall Developer be required to deliver any data that contains intellectual property,proprietary information or financial analysis belonging to Developer or any of its agents, employees, contractors or consultants, or any data that is protected by the attorney-client privilege or constitutes attorney work product. Any Site Designs provided to the City shall be provided on an "as- is"basis and without any warranty or representation as to the truth, accuracy or completeness of the information and the City shall indemnify, defend(with counsel reasonably acceptable to Developer)and hold harmless Developer, its agents, employees, contractors and consultants from any claims arising from the City's or its successor's, assigns' or transferee's use or receipt of such Site Designs,which obligation shall survive termination of this Agreement. 7. Insurance. [INTENTIONALLY OMITTED] 8. REPRESENTATIONS AND WARRANTIES. -22- Draft 9/2/2020 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 40 8.1 Developer Representations. Developer represents and warrants to the City as of the date of this Agreement and as of the Close of Escrow that: 8.1.1.1 Developer is a limited liability company validly existing and in good standing under the laws of the State of California. 8.1.1.2 Developer has duly authorized the execution and performance of this Agreement and the execution and performance of all of the closing documents set forth herein. 8.1.1.3 Developer's execution and performance of this Agreement and the closing documents will not violate any provision of the Developer's operating agreement or any deed of trust, lease, contract, agreement, instrument, order,judgment or decree by which Developer is bound. 8.1.1.4 The Developer has not engaged a broker with respect to the purchase of the Property contemplated herein. 8.1.1.5 The Developer has received and reviewed the documents and disclosures described on Exhibit"E". 8.2 City Representations. The City hereby represents and warrants to the Developer that: 8.2.1.1 City is a municipal corporation in good standing under the laws of the State of California. 8.2.1.2 City has duly authorized the execution and performance of this Agreement and the execution and performance of all of the closing documents set forth herein. 8.2.1.3 All actions have been appropriately taken by the City and all other governmental authorities for the City for this Agreement to be binding upon the City and to permit the City's timely performance of its obligations under this Agreement. 8.2.1.4 City's execution and performance of this Agreement and the closing documents will not violate any provision of any governing document, contract, instrument, order,judgment, resolution, ordinance or decree by which City is bound. 8.2.1.5 the City has not engaged a broker with respect to the sale of the Property as contemplated herein and does not pay fees for referrals or real estate commissions or similar fees. 8.2.1.6 the City is not a"foreign person"within the parameters of FIRPTA or any similar state statute, or is exempt from the provisions of FIRPTA or any similar state statute. 8.2.1.7 City has no actual knowledge of, nor has the City received any notice of or know of any basis for, any actual, threatened or pending litigation or proceeding by -23- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 41 any person, organization, individual or government agency against the City with respect to the Property or against the Property. In the event the City receives notice of any such actual, threatened, or pending litigation or proceeding prior to the Close of Escrow, City shall promptly notify Developer thereof The representations and warranties in this Article 8 shall survive the Closing and recording of the grant deed and any other closing documents. 9. GENERAL PROVISIONS. 9.1 Notices. All notices and demands shall be given in writing by certified mail,postage prepaid, and return receipt requested, or by reputable overnight messenger. Notices shall be considered given upon the earlier of(a) one business day following deposit or delivery with a nationally recognized overnight courier delivery charges prepaid, or(b) upon delivery or attempted delivery as shown on the return receipt if sent by certified mail. Notices shall be addressed as provided below for the respective Party; provided that if any Party gives notice in writing of a change of name or address, notices to such Party shall thereafter be given as demanded in that notice: City: City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attn: City Manager Developer: The Daly Group Inc. 31255 Cedar Valley Dr., Ste. 323 Westlake Village, California 91362 Attn: Vince Daly With copy(which shall not constitute notice)to: Jonathan Block, Esq. c/o The Daly Group 31255 Cedar Valley Dr., Ste. 323 Westlake Village, California 91362 With copy(which shall not constitute notice)to: Mullen& Henzell, L.L.P. 112 East Victoria Street Santa Barbara, California 93101 Attn: Graham M. Lyons 9.2 Construction. The Parties agree that each Party and its counsel have reviewed and revised this Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not apply in the interpretation of this Agreement or any amendments or exhibits thereto. This -24- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 42 Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. 9.3 Interpretation. In this Agreement the neuter gender includes the feminine and masculine, and singular number includes the plural, and the words"person" and "party" include corporation,partnership, firm,trust, or association where ever the context so requires. Unless otherwise required by a specific provision of this Agreement,time hereunder is to be computed by excluding the first day and including the last day. If the date for performance falls on a Saturday, Sunday, or legal holiday, the date for performance shall be extended to the next business day. All references in this Agreement to a number of days in which either party shall have to consent approve or perform shall mean calendar days unless specifically stated to be business days. 9.4 Time of the Essence. Time is of the essence of this Agreement. 9.5 Warranty Against Payment of Consideration for Agreement. Developer warrants that it has not paid or given, and will not pay or give, to any third person, any money or other consideration for obtaining this Agreement, other than normal costs of conducting business and costs of professional services such as architects, engineers and attorneys. 9.6 Attorneys' Fees. If any Party brings an action to enforce the terms hereof or declare its rights hereunder,the prevailing Party in any such action shall be entitled to its reasonable attorneys' fees to be paid by the losing Party as fixed by the court. If either Party is made a party to any litigation instituted by or against the other party ("Defending Party"), then the Defending Party shall indemnify and defend the other Party from and against, and save them harmless from, all costs, expenses (including reasonable attorneys' fees), claims, liabilities, damages and losses incurred by the other Party in connection with such litigation provided,however,that in no event shall the Defending Party be obligated to pay any damages awarded to any person or entity that result from the negligence or willful misconduct of the other Party, or that of its agents, employees or contractors. 9.7 Entire Agreement Waivers and Amendments. This Agreement,together with all attachments and exhibits hereto, and all agreements and documents executed pursuant hereto, constitutes the entire understanding and agreement of the Parties. This Agreement integrates all of the terms and conditions mentioned herein or incidental hereto, and supersedes all negotiations or previous agreements between the Parties with respect to the subject matter hereof. No subsequent agreement, representation or promise made by either Party hereto, or by or to any employee, officer, agent or representative of either Party, shall be of any effect unless it is in writing and executed by the Party to be bound thereby. No person is authorized to make, and by execution hereof Developer and the City acknowledge that no person has made, any representation,warranty, guaranty or promise except as expressly set forth herein; and no agreement, statement,representation or promise made by any such person that is not contained herein shall be valid or binding on Developer or the -25- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 43 City. Notwithstanding the foregoing,the City hereby delegates to the City Manager the authority to grant such consents,waivers and technical and other amendments to this Agreement,provided such amendments do not materially and adversely lessen the interests of the City hereunder. 9.8 Severability. Each and every provision of this Agreement is, and shall be construed to be, a separate and independent covenant and agreement. If any term or provision of this Agreement or the application thereof shall to any extent be held to be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to circumstances other than those to which it is invalid or unenforceable, shall not be affected hereby, and each term and provision of this Agreement shall be valid and shall be enforced to the extent permitted by law. 9.9 Headings. All section headings and subheadings are inserted for convenience only and shall have no effect on the construction or interpretation of this Agreement. 9.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties, and there are no third party beneficiaries of this Agreement. No other person shall have any right of action based upon any provision of this Agreement. 9.11 Governing Law: Jurisdiction. This Agreement and the rights of the Parties shall be governed by California law, The Parties consent to the exclusive jurisdiction of the California Superior Court for the County of Ventura. 9.12 Survival. The provisions hereof shall not merge into,but rather shall survive, any conveyance hereunder(including,without limitation,the delivery and recordation of the Grant Deed) and the delivery of all consideration. 9.13 Estoppel Certificates. Upon written request of Developer or any Holder, City shall within twenty(20) days of the date of such request, execute and deliver to Developer or any Holder, a written statement: certifying,to the City's actual knowledge,that (a)this Agreement in full force and effect, if such is the case, and has not been modified or amended, except as shall be stated; and(b)that no default by Developer exists under this Agreement. 9.14 City Actions. In addition to any provisions of this Agreement that gives the City Manager the authority to make decisions and grant approvals, the City hereby authorizes the City Manager to deliver such approvals, consents as are contemplated by this Agreement,waive requirements under this Agreement, and modify this Agreement, on behalf of the City provided that the applicable approval, consent, waiver or modification is in writing and is not substantial (i.e., does not change the fundamental business transaction between the Developer and the City, as determined by the City Manager in his reasonable discretion). 9.15 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed as original but all of which together shall constitute one and the same instrument. -26- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 44 9.16 No Waiver. A waiver by either party of a breach of any of the covenants, conditions or agreements under this Agreement to be performed by the other party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions, or agreements of this Agreement. 9.17 Relationship Between City and Developer. The parties agree and acknowledge that the relationship between the City and Developer is not that of a partnership or joint venture and that the City and Developer shall not be deemed or construed for any purposes to be the agent of the other. Except as expressly set forth in this Agreement,the City shall have no rights,powers, duties or obligations with respect to the development, operations,maintenance, or management of the Project. 9.18 Conflicts of Interest. No member, official, or employee of the City shall have any personal interest, direct or indirect, in this Agreement, nor shall any such member, official or employee participate in any decision relating to the Agreement which affects his or her personal interests or the interests of any corporation,partnership, or association in which he or she is directly or indirectly involved. 9.19 Governmental Powers Reserved. The City is entering into this Agreement in its proprietary capacity only. Nothing in this Agreement is intended or shall be construed to waive, diminish or modify the City's governmental powers, rights or obligations. IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of the day and year first above written. DEVELOPER: CITY: THE DALY GROUP, INC., CITY OF MOORPARK a California corporation By: By: Vincent Daly, Janice Parvin, Mayor its President Ma Y ATTEST: Ky Spangler, City Clerk APPROVED AS TO FORM: By: -27- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 45 Kevin G. Ennis, City Attorney -28- Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 46 EXHIBIT "A-1" LEGAL DESCRIPTION OF PROPERTY Parcels 2 and 3 of Parcel Map No. 2017-01 in the City of Moorpark, County of Ventura, State of California, as Document No. 20190708 - 00076500- 0, comprising a combined total of 93,664 square feet(approximately 2.15 acres), as depicted on Exhibit A-2. Together with a Sublicense Agreement between the City and the Daly Group with the consent of the Ventura County Transportation Commission, attached as Exhibit A-3,of approximately 18,743 square feet of land(approximately 0.43 acres), as depicted on Exhibit A-3. A-1 -29 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 47 EXHIBIT "A-2" DEPICTION OF CITY PROPERTY TO BE CONVEYED TO DEVELOPER �q I r r b $J r.�- : QO5 Y ! i 1 J ti a qi lip t ,th c z '" era it!i I r Q my 1y i , • a Z ega ! , 4 ii JR. :'i: 2 A ,r 1 ,1 iI f °� ' i it 111 i= i,1 linin -4140 } o - OM '_ _6I n�nt I_ ; i° ) ;r` a itis r t 1. h .1 - la: i p� IV 1)i .,i.,i ililahrodamyaiigam r 1.1...,„,„1.0L•M.aa•aHta till l sa ' t .n N: '. a rte. ',. 1 _rn.naruT►_._4._... tfr. ,. e...1".. ........ h id } IlNig 'll J A-2 -30 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 48 EXHIBIT "A-3" VENTURA COUNTY TRANSIT COMMISSION LICENSE AREA SUBLICENSED TO DEVELOPER EXI-IIBIT"R° LhtiAL DESCRIEIMEI. Being a strip of lanc, 20.00 feet wide,ir the Oty of Mcoroark,County of Ventura, State of California, and being a portion of the land,40.00 feet wide, described in the Grant Deed recorded September 27, 1991,as Instrument No.91-143117 of Off"r-ial Rprords o`Vennura County,the northerly One of said strb of land described as fo lows: Beginning at a point in the nortierly line of said Grant Geed, said point bears South 8990'35" East 169.65 feet rrom:he Inte'secion of said rwrthwly line with the easterly line of Moorpark Avenue,50.00 feet wide,as shown on the map entitled"Map An. t :if Tract 0 of Maorpart Subdivision"and recorded in Book 8, Fage 13 of Miscellaneous Records(Maps) In the office of the County recorder of V^_ntura Courty,said point being the soutlnwcsterly corner of Parcel 2 of P-oposed Parcel Map No. 2017-01 and the True Point of Beginning of this desalption;thence continuing along the northerly line o=said G-ant Deed,South B9'°30'35"East 937.16 feet to the suulheasteriy corner of Pa-cel 3 of said Proposed Parcel Map No, 207-31. Containing 18,743 square feet,more or loss. r .s 2e-h' * Na 15�d9 '�*°l n 5, Fraae.P.L.S.799., Date ,' A-3 -31 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 49 MAGNOLIA ST ■m i 44 _q Q LINE" TABLE g a4, % N A SB93036 E 169.55' 1 589-30'35-r937..16' BARO ST d I tz O� g a o 4 R WALNUT ST 3 11111 OBEpNN/. BEGIN ONGF ' MOORPARK A VENUE 1 � SCALE: 1"s 2OO' PREPARED BY: EXH/BrT B" B50E6NEAST MANSTREET CARPENTER. INC. SKETCH TO ACCOMPANY SANTA PAULA, CA 93060 LEGAL OESCR/PT/ON I A-3 -32 Draft 9/2/2020 12853-006212317734v11.doc High Street Station Resolution No. PC-2020-653 DRAFT Page 50 EXHIBIT "A-4" SUBLICENSE AGREEMENT This SUBLICENSE AGREEMENT ("Agreement") is made and entered into as of , 20 , by and between the CITY OF MOORPARK, a municipal corporation ("SUBLICENSOR") and the DALY GROUP, INC., a corporation ("SUBLICENSEE") with the consent of the VENTURA COUNTY TRANSPORTATION COMMISSION, a public entity ("VCTC"); upon and in consideration of the agreements, covenants, terms, and conditions below: A. Sublicensor, as licensee, and VCTC, as licensor, have entered into a Ventura County Transportation Commission License Agreement dated , 20 which covers, among other things, the sublicensed property described herein (the "License Agreement"). Sublicensee has reviewed the License Agreement and is familiar with the terms hereof. B. Sublicensee is developing property adjacent to or near the sublicensed property described herein, and desires to supplement its development project with use of the sublicensed property. PART I - BASIC SUBLICENSE PROVISIONS 1. Description of Sublicense Property: A portion of the VCTC railroad right of way near Mile Post located in Moorpark, CA as shown on Exhibit "A" attached. 2. Approximate Area: 18,743± square feet 3. Use of Sublicense Property: Fencing, parking stalls, landscaping and other hardscape improvements as shown on Exhibit "2" attached. No other use is authorized by this Agreement. 4. Commencement Date: Effective as of the date of this Agreement. 5. Term: Five Years provided that in any event, this Sublicense shall expire upon the expiration or earlier termination of the License Agreement. 6. Sublicense Fees: A. Base Sublicense Fee: $1, payable January 1 of each calendar year. 7. Insurance Requirements: Insurance requirements are detailed in Section 16, Insurance. A4 - 33 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 51 8. Sublicensor's Address: City of Moorpark 799 Moorpark Ave. Moorpark, CA 93021 Attn: Troy Brown, City Manager 9. Sublicensee's Address: The Daly Group Inc. 31255 Cedar Valley Dr., Ste. 323 Westlake Village, California 91362 Attn: Vince Daly 10. Facility: The uses identified in Section 2 and no others. The foregoing Basic Sublicense Provisions and the General Sublicense Provisions set forth in attached Part II are incorporated into and made part of this Agreement. PART II - GENERAL SUBLICENSE PROVISIONS 11. Sublicense/Term. 9.20 Grant of License. SUBLICENSOR hereby grants to SUBLICENSEE a non- exclusive license to use the real property described on the attached Exhibit "A" and incorporated herein by reference, and described in Item 1 of the Basic License Provisions (the "Sublicensed Property"), for the limited purpose of construction, installation, operation, alteration, maintenance, reconstruction and/or removal of the Facility described in Item 9 of the Basic License Provisions, and any usual, necessary and related appurtenances thereto, for the purposes described in Item 2 of the Basic License Provisions, together with rights for access and entry through existing driveways or any replacement driveways authorized or installed by VCTC onto the Sublicensed Property as necessary or convenient for the use of the Facility. In connection with this Agreement, SUBLICENSEE, its officers, directors, employees, agents, customers, visitors, invitees, licensees, and contractors (collectively, "SUBLICENSEE Parties"), subject to the provisions hereof, may have reasonable rights of entry and access onto the Sublicensed Property, with the time and manner of such entry and access to be subject to VCTC's prior written approval. The land subject to the License Agreement, any adjoining real property (or any interest therein) of VCTC and personal property of VCTC located thereon shall hereinafter collectively be referred to as "VCTC Property." 9.21 Term of Agreement. The term of this Agreement ("Term") shall commence on the "Commencement Date" specified in Item 3 of the Basic License A4 - 34 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 52 Provisions. This Agreement shall continue in full force and effect and will automatically renew annually after the initial term, unless as provided in Item 5 of the Basic Sublicense Provisions or otherwise terminated by the parties. 9.22 Public Use. In addition to any and all other termination rights of VCTC described herein, SUBLICENSEE hereby expressly recognizes and agrees that the "Sublicensed Property" is located on VCTC Property that may be developed for public projects and programs which may be implemented by VCTC or other public agencies, such as, but not limited to: rail and bus transitways, bikeways, walkways, beautification projects, roadways, parking facilities, and/or any other public or other governmental uses (collectively and individually "Public Use"); and that SUBLICENSEE's use of such Sublicensed Property under this Sublicense is a temporary, interim use as to which SUBLICENSEE has no right to nor expectation of use for any particular length of time and that the License (and therefore this Sublicense) may be terminated by VCTC at any time with one hundred eighty (180) days' written notice to SUBLICENSOR as set forth in the License Agreement. Accordingly, as a condition to entering into this License, SUBLICENSOR expressly acknowledges and agrees that: 9.22.1.1 VCTC may terminate this Sublicense as set forth above for any Public Use, to be determined in the sole and absolute discretion of VCTC's Executive Director, or designee; 9.22.1.2 SUBLICENSEE waives any objection to, opposition, or protest at any approval proceeding; nor file suit to prevent or delay any Public Use when planned or implemented on or adjacent to the Sublicensed Property; 9.22.1.3 If VCTC's Executive Director, or designee, at any time, or from time to time, determines in his or her sole and absolute discretion, that there is a need for the Sublicensed Property or any adjoining property for a Public Use and such Public Use requires relocation or removal of Sublicensee's Improvements ("Improvements"), SUBLICENSEE shall reconstruct, alter, modify, relocate or remove its Improvements, as directed by VCTC or any parties having operating rights over the Premises, at SUBLICENSEE's sole cost and expense, with said work being completed sixty (60) days prior to expiration of termination period provided in written notice from SUBLICENSOR or VCTC; and 9.22.1.4 SUBLICENSEE expressly assumes all risk of any future Public Use as determined by VCTC and in the event VCTC terminates this License and requires SUBLICENSEE to vacate the Sublicensed Property for any Public Use, SUBLICENSEE shall not, as a result of such termination and vacation of the Sublicensed Property, be entitled to receive any: 9.22.1.5 relocation assistance, moving expenses, goodwill or other payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. sections 4601 et seq. and/or the A4 - 35 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 53 California Relocation Assistance Law, as amended, California Government Code sections 7260 et seq.; and 9.22.1.6 compensation under any eminent domain or inverse condemnation law. SUBLICENSEE shall not be entitled to any damages under California's Eminent Domain Law in the event of such termination. 9.23 Condition of Sublicensed Property. SUBLICENSEE acknowledges that it has inspected and accepts the Sublicensed Property in its present condition as suitable for the use for which this license is granted. Execution of this Agreement by SUBLICENSEE shall be conclusive to establish that the Sublicensed Property is in a condition which is satisfactory to SUBLICENSEE as of the Commencement Date. 10. Payments. 10.1 Sublicense Fee. As consideration for the rights given hereunder, SUBLICENSEE agrees to pay to SUBLICENSOR the Base Sublicense Fee specified in Item 6 of the Basic Sublicense Provisions,. The One-Time License Fee and the first month's or first year's, as the case may be, Base Sublicense Fee are due and payable upon execution of this Agreement. Thereafter, the Base Sublicense Fee, , shall be due and payable, without demand, on or before one year, as the case may be, after the Commencement Date and in each month or year, as the case may be thereafter. The Base Sublicense fee for any fractional period at the end of the Term shall be prorated on a daily basis and shall be reimbursed to SUBLICENSEE. If the Agreement is terminated, and the SUBLICENSEE is not in breach of the Agreement at such time, the Base Sublicense fee for any fractional period shall be prorated on a daily basis and shall be reimbursed to SUBLICENSEE. 10.2 Late Charge. SUBLICENSEE acknowledges that late payment by SUBLICENSEE of any payment owed under this Agreement will cause SUBLICENSOR to incur costs not contemplated by this Agreement. Therefore, if any payment due from SUBLICENSEE is not received by SUBLICENSOR within five (5) days of the date when due, SUBLICENSEE shall pay to SUBLICENSOR an additional sum of ten percent (10%) of the overdue payment as a late charge, up to a maximum amount of$10 for each late payment. The parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that SUBLICENSOR will incur by reason of a late payment by SUBLICENSEE. Acceptance of any late payment charge shall not constitute a waiver of SUBLICENSEE's default with respect to the overdue payment, and shall not prevent SUBLICENSOR from exercising any of the other rights and remedies available to A4 - 36 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 54 SUBLICENSOR under this Agreement, at law or in equity, including, but not limited to, the interest charge imposed pursuant to Section 24.5. 11. Taxes. SUBLICENSEE shall be liable for and agrees to pay promptly and prior to delinquency, any tax or assessment, including but not limited to any possessory interest tax, levied by any governmental authority: (a) against the Facility and its operations, the Sublicensed Property and/or any personal property, fixtures or equipment of SUBLICENSEE used in connection therewith, or (b) as a result of the SUBLICENSEE Parties' use of the Sublicensed Property, or the Facility. 12. Construction. All work performed or caused to be performed by SUBLICENSEE on the Sublicensed Property ("Work") shall be performed (i) in accordance with and any and all applicable laws, rules and regulations (including the VCTC's rules and regulations), and (ii) in a manner which meets or exceeds the then applicable standards of the industry for such work, and (iii) is satisfactory to VCTC. Prior to commencement of any construction, maintenance, reconstruction, installation, restoration, alteration, repair, replacement or removal (other than normal maintenance) (hereinafter, "Work") on the Sublicensed Property, SUBLICENSEE shall submit work plans to VCTC for review and approval. Any such Work must be carried out pursuant to work plans approved in writing by VCTC. In addition, SUBLICENSEE shall provide VCTC and all holders of underground utility facilities located within the Sublicensed Property with at least 10 calendar days' written notice prior to commencement of any Work on the Sublicensed Property or the Facility, except in cases of emergency, in which event SUBLICENSEE shall notify VCTC's representative personally or by phone prior to commencing any Work. Unless otherwise requested by VCTC, upon completion of any Work, SUBLICENSEE shall restore the VCTC Property to its condition immediately preceding the commencement of such Work. 13. Contractors - Approval and Insurance. Any contractors of SUBLICENSEE performing Work on the Facility or the Sublicensed Property shall first be approved in writing by VCTC. With respect to such Work, SUBLICENSEE shall, at its sole cost and expense, obtain and maintain in full force and effect, throughout the term of such Work, insurance, as required by VCTC, in the amounts and coverages specified on, and issued by insurance companies as described Section 16 below, and which names SUBLICENSOR as additional insured. Additionally, SUBLICENSEE shall cause any and all of its contractors and subcontractors which may (a) be involved with such Work, or (b) may, for any reason, need to enter onto the Sublicensed Property, to obtain and maintain in full force and effect during the Term of this Agreement, or throughout the term of such Work (as applicable), insurance, as required by VCTC, in the amounts and coverages specified on, and issued by insurance companies as described in Section 16 below. VCTC reserves the right, throughout the Term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement for the Work to be performed on the A4 - 37 Draft 9/2/2020 12853-0062\2317734v1I.doc High Street Station Resolution No. PC-2020-653 Page 55 Sublicensed Property; provided VCTC provides to SUBLICENSEE prior written notice of such change. 14. Reimbursement. SUBLICENSEE agrees to reimburse VCTC and SUBLICENSOR for all reasonable costs and expenses incurred by them in connection with Work on, or maintenance of, the Sublicensed Property or the Facility, including, but not limited to, costs incurred in furnishing any materials or performing any labor, reviewing SUBLICENSEE's Work plans and/or inspecting any Work, installing or removing protection beneath or along VCTC's tracks, furnishing of watchmen, flagmen and inspectors as VCTC deems necessary and such other items or acts as VCTC in its sole discretion deems necessary to monitor or aid in compliance with this Agreement. 15. Liens. SUBLICENSEE will fully and promptly pay for all materials joined or affixed to Facility or the Sublicensed Property, and fully and promptly pay all persons who perform labor upon said Facility or the Sublicensed Property. SUBLICENSEE shall not suffer or permit to be filed or enforced against the Sublicensed Property or the Facility, or any part thereof, any mechanics', materialmen's, contractors', or subcontractors' liens or stop notices arising from, or any claim for damage growing out of, any testing, investigation, maintenance or Work, or out of any other claim or demand of any kind. SUBLICENSEE shall pay or cause to be paid all such liens, claims or demands, including sums due with respect to stop notices, together with attorney's fees incurred by VCTC with respect thereto, within ten (10) business days after notice thereof and shall indemnify, hold harmless and defend VCTC and SUBLICENSOR from all obligations and claims made for the above described work, including attorney's fees. SUBLICENSEE shall furnish evidence of payment upon request of VCTC or SUBLICENSOR. SUBLICENSEE may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop notices to VCTC in compliance with applicable California law. If SUBLICENSEE does not discharge any mechanic's liens or stop notice for works performed for SUBLICENSEE, VCTC shall have the right to discharge same (including by paying the claimant), and SUBLICENSEE shall reimburse the cost of such discharge within ten (10) business days after billing. VCTC and SUBLICENSOR reserves the right at any time to post and maintain on the Sublicensed Property such notices as may be necessary to protect against liability for all such liens and claims. The provisions of this Section shall survive the termination of this Agreement. 16. Maintenance and Repair. SUBLICENSEE, at SUBLICENSEE's sole expense, shall maintain the Sublicensed Property and the Facility in a condition satisfactory to VCTC and in accordance with Exhibit B during the Term of this Agreement and shall be responsible for all clean up and maintenance of the Sublicensed Property and License Property resulting from its use thereof under this Sublicense. SUBLICENSEE shall be responsible for any citations issued by any agency having jurisdiction as a result of SUBLICENSEE's failure to comply with local codes. If any portion of the VCTC Property, including improvements or A4 - 38 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 56 fixtures, suffers damage by reason of the access to or use thereof by SUBLICENSEE, SUBLICENSEE's Parties, including but not limited to damage arising from any test or investigations conducted upon the Sublicensed Property, SUBLICENSEE shall, at its own cost and expense, immediately repair all such damage and restore the Sublicensed Property to as good a condition as before such cause of damage occurred. Repair of damage shall include, without limitation, regrading and resurfacing of any holes, ditches, indentations, mounds or other inclines created by an excavation by SUBLICENSEE or SUBLICENSEE Parties. 17. Landscaping/Protective Fencing. If required by VCTC, SUBLICENSEE, at its sole cost and expense, shall install barrier fencing and or landscaping to shield the railroad track area from public access and/or the Facility. VCTC shall have the right to review and approve fencing and/or landscaping plans prior to installation. All fencing and/or landscaping work shall be done in accordance with the provisions of Sections 4 and 5 above and will be subject to the maintenance and repair provisions of Section 8 above. 18. Use. The Sublicensed Property and the Facility shall be used only for the purposes specified in Item 3 of the Basic Sublicense Provisions above and for such lawful purposes as may be directly incidental thereto. No change shall be made by SUBLICENSEE in the use of the Sublicensed Property or the Facility without VCTC's prior written approval. 19. Abandonment. Should SUBLICENSEE at any time abandon the use of the Facility or the Sublicensed Property, or any part thereof, or fail at any time for a continuous period of ninety (90) days to use the same for the purposes contemplated herein, then this Agreement shall terminate to the extent of the portion so abandoned or discontinued, and in addition to any other rights or remedies, VCTC shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontinued, without the encumbrance of this Agreement. VCTC, at its option, may remove any improvements remaining on the abandoned property, at SUBLICENSEE's expense. 20. Breach. Should SUBLICENSEE breach, or fail to keep, observe or perform any agreement, covenant, term or condition on its part herein contained, then, in addition to any other available rights and remedies, SUBLICENSOR, at its option may: 20.1.1.1 perform any necessary or appropriate corrective work at SUBLICENSEE's expense, which SUBLICENSEE agrees to pay to SUBLICENSOR upon demand, or 20.1.1.2 with or without written notice or demand, immediately terminate this Agreement and at any time thereafter, recover possession of the Sublicensed Property or any part thereof, and expel and remove therefrom A4 - 39 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 57 SUBLICENSEE, or any other person occupying the Sublicensed Property, by any lawful means, and again repossess and enjoy the Sublicensed Property and the Facility, without prejudice to any of the rights and remedies that SUBLICENSOR may have under this Agreement, at law or in equity by reason of SUBLICENSEE's default or of such termination. 21. Surrender. Upon termination of this Agreement, unless otherwise requested in writing by VCTC to leave all, or any portion of, the Facility in place prior to the date of termination, SUBLICENSEE, at its own cost and expense, shall immediately remove the Facility and restore the Sublicensed Property as nearly as possible to the same state and condition as existed prior to the construction, reconstruction or installation of said Facility. Should SUBLICENSEE fail to comply with the requirements of the preceding sentence, VCTC may at its option (a) perform the same at SUBLICENSEE's expense, which costs SUBLICENSEE agrees to pay to VCTC on demand, or (b) assume title and ownership of said Facility. No termination hereof shall release SUBLICENSEE from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date the Facility is removed and the Sublicensed Property is restored. 22. Indemnification. SUBLICENSEE, on behalf of itself and its successors and assigns, agrees to indemnify, defend (by counsel satisfactory to SUBLICENSOR and VCTC), and hold harmless SUBLICENSOR, VCTC, and their subsidiaries and their respective, members, directors, partners, officers, commissioners, employees, agents, successors and assigns (individually and collectively, "Indemnitees"), to the maximum extent allowed by law, from and against all loss, liability, claims, demands, suits, liens, claims of lien, damages (including consequential damages), costs and expenses (including, without limitation, any fines, penalties, judgments, litigation expenses, and experts' and attorneys' fees), that are incurred by or asserted against Indemnitees arising out of or connected in any manner with (i) the acts or omissions to act of the SUBLICENSEE, or its officers, directors, affiliates, SUBLICENSEE Parties or anyone directly or indirectly employed by or for whose acts SUBLICENSEE is liable (collectively, "Personnel") or invitees of SUBLICENSEE in connection with the Sublicensed Property or arising from the presence upon or performance of activities by SUBLICENSEE or its Personnel with respect to the Sublicensed Property, (ii) bodily injury to or death of any person (including employees of Indemnitees) or damage to or loss of use of property resulting from such acts or omissions of SUBLICENSEE or its Personnel, or (iii) nonperformance or breach by SUBLICENSEE or its Personnel of any term or condition of this Agreement, in each case whether occurring during the Term of this Agreement or thereafter. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees, unless caused solely by the negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. Upon request of A4 -40 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 58 VCTC, SUBLICENSEE shall provide insurance coverage for possible claims or losses covered by the indemnification and defense provisions of this Agreement. Claims against the Indemnitees by SUBLICENSEE or its Personnel shall not limit the SUBLICENSEE's indemnification obligations hereunder in any way, whether or not such claims against Indemnitees may result in any limitation on the amount or type of damages, compensation, or benefits payable by or for SUBLICENSEE or its Personnel under workers' compensation acts, disability benefit acts, or other employee benefit acts or insurance. 23. Assumption of Risk and Waiver. To the maximum extent allowed by law, SUBLICENSEE assumes any and all risk of loss, damage, or injury of any kind to any person or property, including, without limitation, the Facility, the Sublicensed Property and any other property of, or under the control or custody of, SUBLICENSOR, or any SUBLICENSEE, which is on or near the Sublicensed Property. SUBLICENSEE's assumption of risk shall include, without limitation, loss or damage caused by defects in any structure or improvement, accident, fire or other casualty, or electrical discharge, noise, or vibration resulting from VCTC's transit operations. The term "VCTC" as used in this section shall include: (a) any transit or rail-related company validly operating upon or over VCTC's tracks or other property, and (b) any other persons or companies employed, retained or engaged by VCTC. SUBLICENSEE, on behalf of itself and its SUBLICENSEE or its Personnel, as a material part of the consideration for this Agreement, hereby waives all claims and demands against SUBLICENSOR and VCTC for any such loss, damage or injury of SUBLICENSEE and its Personnel. In that connection, SUBLICENSEE waives the benefit of California Civil Code Section 1542, which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. SUBLICENSEE accepts the risk that the facts or the law may later turn out to be different than SUBLICENSEE understands them to be at this time and acknowledges that this assumption of risk and waiver will not be affected by such different state of facts or law. The provisions of this Section shall survive the termination of this Agreement. 24. Insurance. A. SUBLICENSEE, at its sole cost and expense, shall procure and maintain in full force and effect insurance coverage or evidence of self-insurance as required by VCTC against claims for injuries to persons or damages to property which may arise from, or in connection with, the use of Sublicensed Property hereunder by the SUBLICENSEE, or SUBLICENSEE Parties, agents, representatives, employees, or A4 - 41 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 59 subcontractors during the entire term of this Agreement. SUBLICENSEE shall provide, at minimum, the following coverage: (i) Commercial General Liability [CGL], to include Products/Completed Operations, Independent Contractors', Contractual Liability, and Personal Injury Liability with a minimum of $2,000,000.00 of coverage per occurrence and $4,000,000 of coverage in the aggregate for bodily injury, personal injury, and property damage, with: 1. Removal of the CGL exclusion for pollution liability, or 2. A Pollution Liability policy with minimum limits of $1,000,000.00; and 3. Automobile Liability Insurance with combined single limits of a minimum of $1,000.000.00 per accident for bodily injury and property damage; and 4. Workers' Compensation with limits as required by the State of California; with a waiver of subrogation rights; and 5. Employer's Liability with limits of a minimum of $1,000,000.00 per accident for bodily injury or disease. B. VCTC, and SUBLICENSOR, and their officers, directors, employees and agents must be designated as additional insured on the SUBLICENSEE's Comprehensive General and Automobile Liability Insurance policies. SUBLICENSEE shall furnish VCTC and SUBLICENSOR with insurance endorsements and certificates, evidencing the existence, amounts and coverages of the insurance required to be maintained hereunder. C. The coverage shall be primary and any insurance or self-insurance maintained by VCTC and SUBLICENSOR shall be excess of the SUBLICENSEE's insurance and shall not contribute to it. D. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, cancelled or reduced in coverage or in limits, except only after thirty (30) days prior written notice has been given to VCTC and SUBLICENSOR. In the event SUBLICENSOR or VCTC learns that SUBLICENSEE's insurance coverage is terminated and SUBLICENSEE fails to provide adequate assurances that continuous coverage is being provided, VCTC and/or SUBLICENSOR, at its sole discretion, may obtain such coverage at SUBLICENSEE's expense. E. VCTC retains the right to increase the amounts of coverage required by this Agreement as it determines are reasonably necessary to protect itself against potential liability caused by entering into this Agreement. VCTC shall give SUBLICENSEE 60 days' notice of the need for it to increase its coverage. By the end of A4 -42 Draft 9/2/2020 12853-0062\2317734vII.doc High Street Station Resolution No. PC-2020-653 Page 60 the 60 days, SUBLICENSEE shall provide proof of such coverage in the manner set forth in this section. 25. VCTC'S Right of Access. SUBLICENSEE will permit VCTC and SUBLICENSOR and their agents, at all reasonable times and at any time in case of emergency, in such manner as to cause as little disturbance to SUBLICENSEE as reasonably practicable (a) to enter into and upon the Sublicensed Property to inspect them, to protect their interest therein, or to post notices of non responsibility, (b) to take all necessary materials and equipment onto the Sublicensed Property, and perform necessary work thereon, and (c) to perform environmental testing, monitoring, sampling, digging, drilling and analysis for Hazardous Materials on, under or about the Sublicensed Property. VCTC may at any time place on or about the Sublicensed Property (including the Improvements) any ordinary "for sale" and "for lease" signs. SUBLICENSEE shall also permit VCTC and its agents, upon request, to enter the Sublicensed Property or any part thereof, at reasonable times during normal business hours, to show the Sublicensed Property to prospective tenants, purchasers or mortgagees. 26. Assignment and Sublicensinq. SUBLICENSEE shall not assign all or any portion of its interest in this Sublicense, whether voluntarily, by operation of law or otherwise, and shall not sublicense all or any portion of the Sublicensed Property, including, but not limited to, sharing them, permitting another party to occupy them or granting concessions or licenses to another party. 27. Tests and Inspection. VCTC and SUBLICENSOR shall have the right at any time to inspect the Sublicensed Property and the Facility so as to monitor compliance with the terms of this Agreement. VCTC and SUBLICENSOR shall be permitted to conduct any tests or assessments, including but not limited to environmental assessments, of, on or about the Sublicensed Property, as it determines to be necessary in its sole judgment or useful to evaluate the condition of the Sublicensed Property, or if VCTC or SUBLICENSOR determines that any installation on, or use or condition of the Sublicensed Property may have an adverse effect on adjacent property (whether or not owned by VCTC) or operations thereon. SUBLICENSEE shall cooperate with SUBLICENSOR, VCTC and their agents in any tests or inspections deemed necessary by VCTC. SUBLICENSEE shall pay or reimburse VCTC and appropriate regulatory agencies, as appropriate, for all reasonable costs and expenses incurred due to the tests, inspections or any necessary corrective work and inspections thereafter. 28. Hazardous/Toxic Materials Use and Indemnity. SUBLICENSEE shall operate and maintain the Sublicensed Property in compliance with all applicable federal, state and local environmental, health and/or safety- related laws, regulations, standards, decisions of the courts, permits or permit conditions, currently existing or as amended or adopted in the future which are or become applicable to SUBLICENSEE, or the Sublicensed Property ("Environmental Laws"). A4 -43 Draft 9/2/2020 12853-0062\2317734v1I.doc High Street Station Resolution No. PC-2020-653 Page 61 SUBLICENSEE shall not cause or permit, or allow any of SUBLICENSEE Parties to cause or permit, any Hazardous Materials to be brought upon, stored, used, generated, treated or disposed of on or about the brought upon, stored, used, generated, treated or disposed of on the Sublicensed Property or the adjacent property. As used herein, "Hazardous Materials" means any chemical, substance or material which is now or becomes in the future listed, defined or regulated in any manner by any Environmental Law based upon, directly or indirectly, its properties or effects. SUBLICENSEE shall indemnify, defend (by counsel acceptable to VCTC and SUBLICENSOR) and hold harmless the Indemnitees (as defined in Section 14) from and against all loss, liability, claim, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses, attorneys' fees, and consulting, engineering, and construction fees and expenses) incurred by Indemnitees as a result of (a) SUBLICENSEE's breach of any prohibition or provision of this Section or (b) any release of Hazardous Materials upon or from the Facility or the Sublicensed Property or adjacent property (i) which occurs due to the use and occupancy of the Facility or the Sublicensed Property by SUBLICENSEE or SUBLICENSEE Parties, or (ii) which is made worse due to the act or failure to act of SUBLICENSEE or SUBLICENSEE Parties. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive, derivative, joint, concurring, or comparative) on the part of Indemnitees, unless caused solely by the gross negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement; and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement. In addition, in the event of any release on or contamination of the Sublicensed Property and/or any adjacent property, whether or not owned by VCTC, SUBLICENSEE, at its sole expense, shall promptly take all actions necessary to clean up all such affected property (including all affected adjacent property, whether or not owned by VCTC) and to return the affected property to the condition existing prior to such release or contamination, to the satisfaction of VCTC and any governmental authorities having jurisdiction thereover. Upon the termination of this Agreement at any time and for any reason, SUBLICENSEE shall, prior to the effective date of such termination, clean up and remove all Hazardous Materials in, on, under and/or about the Sublicensed Property and adjacent property which SUBLICENSEE, or SUBLICENSEE Parties caused or permitted to be brought upon such property, in accordance with the requirements of all Environmental Laws and to the satisfaction of VCTC and any governmental authorities having jurisdiction thereover. 29. Underground Storage Tanks. NEITHER SUBLICENSEE NOR SUBLICENSEE PARTIES, SHALL INSTALL OR USE ANY UNDERGROUND STORAGE TANKS ON THE SUBLICENSED PROPERTY. A4 -44 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 62 30. Subordinate Rights. This Agreement is subject and subordinate to the prior and continuing right and/or obligation of VCTC, SCRRA, Amtrak, Union Pacific Railroad (UPRR) and their successors and assigns, to use the Sublicensed Property in the exercise of its powers and in the performance of its duties, or for any other purpose, including but not limited to those as a public transportation body. Accordingly, there is reserved and retained unto VCTC, its successors, assigns and permittees, the right to construct, reconstruct, maintain, and use existing and future rail tracks, facilities and appurtenances and existing and future transportation, communication, pipeline and other facilities and appurtenances in, upon, over, under, across and along the Sublicensed Property, and to otherwise use the Sublicensed Property, and in connection therewith the right of VCTC, its successors and assigns, to grant and convey to others, rights to and interests in the Sublicensed Property and in the vicinity of the Facility. This Agreement is subject to all licenses, leases, easements, restrictions, conditions, covenants, encumbrances, liens, claims and other matters of title ("Title Exceptions") which may affect the Sublicensed Property now or hereafter, and no provision of this Agreement shall be construed as a covenant or warranty against the existence of any such present or future Title Exceptions, whether or not arising out of the actions of VCTC or SUBLICENSOR, its successors or assigns. Neither SUBLICENSOR nor VCTC makes any representations or warranties of any kind with regard to title to the Sublicensed Property. 31. Compliance with Laws. SUBLICENSEE shall comply with all applicable federal, state and local laws, regulations, rules and orders in its work on, or maintenance, inspection, testing or use of, the Facility and the Sublicensed Property. SUBLICENSOR and VCTC may enter the Sublicensed Property to inspect the Facility at any time, upon provision of reasonable notice of inspection to SUBLICENSEE. SUBLICENSEE shall obtain all required permits or licenses required by any governmental authority for its use of the Sublicensed Property and the Facility, at its sole cost and expense. 32. Condemnation. In the event all or any portion of the Sublicensed Property shall be taken or condemned for public use (including conveyance by deed in lieu of or in settlement of condemnation proceedings), SUBLICENSEE shall receive compensation (if any) from the Condemner only for the taking and damage to the Facility. Any other compensation or damages arising out of such taking or condemnation awarded to SUBLICENSEE are hereby assigned by SUBLICENSEE to VCTC. SUBLICENSEE shall have no rights under California law or federal law to the receipt of any damages arising out of any use or proposed use of the Sublicensed Property by VCTC or SCRRA, Amtrak, UPRR, or their respective agents, officers, contractors or employees and in entering into this Agreement expressly waives any such rights. 33. Markers. Project markers in form and size satisfactory to VCTC, identifying the Facility and its owners, will be installed and constantly maintained by and at the expense of SUBLICENSEE at such locations as VCTC shall designate. Such markers shall be relocated or removed upon request of VCTC without expense to A4 -45 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 63 VCTC. Absence of markers in or about the Sublicensed Property does not constitute a warranty by VCTC or SUBLICENSOR of the absence of subsurface installations. 34. General Provisions. 34.1 Notices. All notices and demands which either party is required to or desires to give to the other shall be made in writing by personal mail, by express courier service, or by certified mail, return receipt requested, postage prepaid, and addressed to such party at its address set forth in the Basic License Provisions. Either party may change its address for the receipt of notice by giving written notice thereof to the other party in the manner herein provided. Notices shall be effective only upon receipt by the party to whom notice or demand is given. 34.2 Non-Exclusive License. The license granted hereunder is not exclusive and VCTC has specifically reserved the right to grant other licenses within the Sublicensed Property. 34.3 Governing Law. This Agreement shall be governed by the laws of the State of California. 34.4 Severability. If any term, covenant, condition or provision of this Agreement, or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, covenants, conditions, or provisions of this Agreement, or the application thereof to any person or circumstance, shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. 34.5 Interest on Past-Due Obligations. Except as expressly herein provided, any amount due to SUBLICENSOR which is not paid when due shall bear interest, from the date due, at the maximum rate then allowable by law. Such interest will be due to SUBLICENSOR as it accrues. Payment of such interest shall not excuse or cure any default by SUBLICENSEE under this Agreement. Interest shall not be payable on late charges incurred by SUBLICENSEE. 34.6 Survival of Obligations. All obligations of SUBLICENSEE hereunder not fully performed as of the expiration or earlier termination of the Term of this Agreement shall survive the expiration or earlier termination of this Agreement, including without limitation, all payment obligations with respect to License Fees and all obligations concerning the condition of the Sublicensed Property and the Facility. 34.7 Waiver of Covenants or Conditions. The waiver by one party of the performance of any covenant or condition under this Agreement shall not A4 -46 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 64 invalidate this Agreement nor shall it be considered a waiver by it of any other covenant or condition under this Agreement. 34.8 Effective Date/Nonbinding Offer. Submission of this Sublicense for examination or signature by SUBLICENSEE does not constitute an offer or option for license, and it is not effective as a license or otherwise until executed and delivered by both SUBLICENSOR and SUBLICENSEE. Each individual executing this Sublicense on behalf of SUBLICENSOR or SUBLICENSEE represents and warrants to the other party that he or she is authorized to do so. 34.9 Assignment. This Agreement and the license granted hereunder are personal to the SUBLICENSEE. SUBLICENSEE shall not assign or transfer (whether voluntarily or involuntarily) this Agreement in whole or in part, or permit any other person or entity to use the rights or privileges granted hereunder, without the prior written consent of VCTC and SUBLICENSOR, which may be withheld in SUBLICENSOR's and VCTC's sole and absolute discretion, and any attempted act in violation of the foregoing shall be void and without effect and grant SUBLICENSOR the right to immediately terminate this Agreement. 34.10 Attorneys' Fees. In any judicial or arbitration proceeding involving performance under this Agreement, or default or breach thereof, the prevailing party shall be entitled to its reasonable attorneys' fees and costs. 34.11 Nondiscrimination. SUBLICENSEE certifies and agrees that all persons employed and any contractors retained, by either SUBLICENSEE or SUBLICENSEE's affiliates, subsidiaries, or holding companies, with respect to the Sublicensed Property, are and shall be treated equally without regard to or because of race, religion, ancestry, national origin, disability or sex, and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to the Civil Rights Act of 1964; the Unruh Civil Rights Act; the Cartwright Act; and the California Fair Employment Practices Act. 34.12 Further Acts. At SUBLICENSOR 's sole discretion, but at the sole expense of SUBLICENSEE, and without a SUBLICENSEE claim for reimbursement, SUBLICENSEE agrees to perform any further acts and to execute and deliver in recordable form any documents which may be reasonably necessary to carry out the provisions of this Agreement, including the relocation of the Facility and the license granted hereunder. 34.13 Termination for Public Project. SUBLICENSEE hereby expressly recognizes and agrees that the Sublicensed Property is located on VCTC property that may be developed for public projects and programs which may be implemented by VCTC or other public agencies, such as, but not limited to: rail and bus transitways, bikeways, walkways, beautification projects and A4 -47 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 65 other public uses (collectively "Project"), and that SUBLICENSEE's use of the Sublicensed Property under this License is an interim use. SUBLICENSEE expressly acknowledges and agrees that: (1) VCTC may terminate the License for any public project; (2) SUBLICENSEE will NOT oppose any public Project when planned or implemented on or adjacent to the Sublicensed Property, and (3) in the event VCTC terminates this License and requires SUBLICENSEE and/or any SUBLICENSEE to vacate the Sublicensed Property for any public Project, SUBLICENSEE (a) shall not be entitled to receive any relocation assistance, moving expenses, goodwill or other payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C. sections 4601 et seq. and/or the California Relocation Assistance Law, as amended, California Government Code sections 7260 et seq.; and (b) shall not be entitled to any compensation under the eminent domain law, as a result of such termination and vacation. 34.14 Acknowledgement of No Right to Claim Relocation Benefits Against VCTC. SUBLICENSEE hereby acknowledges that if VCTC asks SUBLICENSEE to vacate the property, then SUBLICENSEE is not entitled to any relocation benefits under this agreement or by virtue of state or federal law. Further, SUBLICENSEE agrees it is not entitled to loss of good will or moving expenses from VCTC, SCRRA, Amtrak or BNSF. 34.15 Time of Essence. Time is of the essence in the performance of this Agreement. 34.16 No Recording. SUBLICENSEE shall not record or permit to be recorded in the official records of the county where the Sublicensed Property is located this Agreement, any memorandum of this Agreement or any other document giving notice of the existence of this Agreement or the license granted hereunder. 34.17 Entire Agreement. This Agreement and the Exhibits hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior verbal or written agreements and understandings between the Parties with respect to the items set forth herein. All amendments, changes, revisions, and discharges of this Agreement in whole or in part, and from time to time, shall be binding upon the parties despite any lack of legal consideration, so long as the same shall be in writing and executed by the parties hereto. 34.18 Captions. The Captions included in this Agreement are for convenience only and in no way define, limit, or otherwise describe the scope or intent of this Agreement or any provisions hereof, or in any way affect the interpretation of this Agreement. A4 -48 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 66 34.19 Additional Provisions. Those additional provisions set forth in Exhibit "B", if any, are hereby incorporated by this reference as if fully set forth herein. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. SUBLICENSOR: SUBLICENSEE: CITY OF MOORPARK By: By: Attest: Ky Spangler, City Clerk Approved as to Form: Kevin Ennis City Attorney, City of Moorpark CONSENTED TO BY: VENTURA COUNTY TRANSPORTATION COMMISSION By: Darren Kettle Executive Director, VCTC Approved As To Form: By: Steve Mattas General Counsel, VCTC A4 -49 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 67 EXHIBIT "1" Description of Sublicensed Property (Attached.) A4 - 50 Draft 9/2/2020 12853-0062\2317734v11_doc High Street Station Resolution No. PC-2020-653 Page 68 EXHIBIT 2 This Sublicense is subject to the following additional terms and conditions: 1. The SUBLICENSEE agrees to execute and deliver to SCRRA (with a copy to Sublicensor), prior to commencing any work within the rail right-of-way, SCRRA Temporary Right-of-Entry agreement (Form No. 6), and deliver and secure approval of the insurance required by the two exhibits attached to SCRRA Form No.6. If the SUBLICENSEE retains a contractor to perform any of work within the rail right-of-way, then the SUBLICENSEE shall incorporate in its contract documents SCRRA Form No. 6 and Rules and Requirements for Construction on Railway Property (SCRRA Form No. 37). Mr. Christos Sourmelis with SCRRA's Right-of-Way Encroachments Office can be reached at (909) 394-3418. These forms can be accessed through SCRRA's website www.metrolinktrains.com, ("About Us," "Engineering and Construction," and "Manuals"). 2. SUBLICENSEE's contractor, at its sole cost and expense, shall obtain and maintain, in full force and effect, insurance as required by SCRRA during the entire construction period. The Contractor shall furnish copies of the insurance certificates to all affected operating railroads. 3. Third Party Safety training is required for all work near or within the railroad right- of-way. SUBLICENSEE's contractor shall contact SCRRA at 1-877-452-0205 to schedule safety training. The contractor will need a valid SCRRA project number, located in the upper right hand comer of the Right-of-Entry. No work may commence on the railroad right of way until this training has been completed. 4. The SUBLICENSEE agrees to comply and to ensure that its contractor complies with instructions of SCRRA's Employee-In-Charge (EIC) and representatives, in relation to the proper manner of protection of the tracks and the traffic moving thereon, pole lines, signals and other property of SCRRA or its member agency tenants or SUBLICENSEEs at or in the vicinity of the work, and shall perform the work at such times as not to endanger or interfere with safe and timely operation of SCRRA's track and other facilities. 5. SUBLICENSEE shall prepare and submit traffic control plan for SCRRA approval for projects that will affect vehicular traffic at an existing highway-rail grade crossing. 6. SUBLICENSEE shall install and maintain an SCRRA approved safety fence or wall at the limit of the licensed area to prevent any trespassing into the active rail corridor. A4 - 51 Draft 9/2/2020 12853-0062\2317734v1I.doc High Street Station Resolution No. PC-2020-653 Page 69 EXHIBIT "B" SCHEDULE OF PERFORMANCE This Schedule of Performance requires the submission of plans or other documents at specific times. Some of the submissions are not described in the text of the Agreement. Such plans or other documents, as submitted, must be complete and adequate for review by the City or other applicable governmental entity when submitted. Prior to the time set forth for each particular submission,the Developer shall consult with City staff informally as necessary concerning such submission in order to assure that such submission will be complete and in a proper form within the time for submission set forth herein. Action Date/ Deadline Items 1 —4 Relate to Developer Actions and Requirements Prior to the Close of Escrow 1. Opening of Escrow. The Parties shall Within five (5)business days following the open escrow with the Escrow Holder. Parties' execution of the DDA. 2. Developer Deposit. The Developer shall Within ten(10) business days after the City's deposit the Developer Deposit with execution and delivery of this Agreement. Escrow Holder. 3. Project Budget and Construction Contract. Prior to the Close of Escrow. The Developer shall submit the Project Budget and a copy of the construction contract with the Contractor for the construction of the Improvements. 4. Insurance. The Developer shall submit Prior to the Close of Escrow. evidence of insurance to the City. 5. Other Closing Conditions. The conditions in Sections 2.5.4, 2.5.9, 2.5.11, 2.5.12, and 2.5.13 shall have been submitted by Developer and satisfied. Items 6—8 Relate to the Conveyance of the Property or to Developer Actions and Requirements After the Close of Escrow,and except for the deadline for Close of Escrow, are subject to extension by Force Majeure Delays (as defined in Section 6.7 above) 6. Close of Escrow. The Developer shall No later than December 31, 2021 purchase the Property from the City(and shall concurrently close the Construction Loan, if any). 7. Completion of Grading. Developer shall Six(6)months after Close of Escrow. complete the grading for the Project. 8. Substantial Commencement of Thirty(30)months after completion of grading. Construction. B - 52 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 70 Action Date/Deadline 9. Qualification for Certificate of Two calendar years after Close of Escrow. Occupancy. The Project shall qualify for an Occupancy Certificate. B - 53 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 71 EXHIBIT "C SCOPE OF DEVELOP" MENT The Daly Group proposes to develop approximately 2.15 acres of City-owned property located at 226 High Street in downtown Moorpark. The site is adjacent to the railway corridor on the south side of High Street and currently contains several vacant buildings. The Applicant's proposal includes 79 residential rental units (studio and 2-bedroom units) and approximately 13,628 square feet of commercial tenant space. The proposal distributes the uses across seven buildings on the project site: four mixed-use commercial and residential buildings and three stand-alone commercial buildings. Site improvements would include 137 surface parking spaces located behind the buildings on the project site and the Ventura County Transportation Commission (VCTC) railway property, a community green space centered on the Bard Street/High Street intersection, and associated hardscape and landscaping throughout and along the project frontage. [jP gL i C-54 Draft 9/2/2020 12853-0062\2317734v 11.doc High Street Station Resolution No. PC-2020-653 Page 72 EXHIBIT "D" FORM OF GRANT DEED Recording Requested by and when recorded return to, and mail tax statements to: The Daly Group, Inc. 31255 Cedar Valley Dr., Suite 323 Westlake Village, California 91362 Attn: Vince Daly Exempt from Recording Fees Pursuant to Government Code Section 27383 APN(s): Documentary transfer tax is $ based on the full value of the property conveyed. GRANT DEED The undersigned grantor(s) declare(s): FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF MOORPARK("Grantor")hereby GRANTS to ("Grantee") the Property (the "Property") located in the City of Moorpark, County of Ventura, State of California described on Exhibit "A" attached hereto any incorporated herein by this reference. SUBJECT TO, all matters of record and all title matters visible upon inspection. 1. This grant of the Property is subject to the terms of a Disposition and Development Agreement entered into by and between Grantor and Grantee dated as of , 2020 (the "Agreement") the terms of which are incorporated herein by reference (and which include maintenance covenants, as well as the matters described in Section 2-5 below). A copy of the Agreement is available for public inspection at the offices of the Grantor at 799 Moorpark Avenue, Moorpark, California 93021. 2. As provided in, and subject to the provisions contained in, Section 6.2.2 of the Agreement, the Grantor shall have the right, at its option, to reenter and take possession of the Property hereby conveyed, with all improvements thereon and to terminate and revest in Grantor the Property hereby conveyed to the Grantee (which shall be binding on Grantee and any successors in interest). 3. The Grantee covenants, for itself and its successors and assigns, that there shall be no sale, transfer, assignment, conveyance, lease, pledge or encumbrance of the DDA, or the Property and the Improvements thereon or any part thereof, or of other ownership interest in the Grantee in violation of the DDA, which contains restrictions on the assignment of the DDA and the transfer of the Property prior to the issuance of a Certificate of Completion. D-55 Draft 9/2/2020 12853-0062\2317734v1I.doc High Street Station Resolution No. PC-2020-653 Page 73 5. All uses conducted on the Site, including, without limitation, all activities undertaken by the Developer pursuant to this Agreement, shall conform to the DDA and all applicable provisions of the Moorpark Municipal Code. The foregoing covenants shall run with the land. Developer further covenants and agrees that the Improvements shall not be used by any bail bond, thrift/second hand stores, check cashing, gold purchasing, body piercing/tattoos or adult businesses for perpetuity as defined in Title 17 of the City of Moorpark Municipal Code. 6. Grantee shall not subdivide the Property. 7. All covenants contained in this Grant Deed shall run with the Property and shall be binding for the benefit of Grantor and its successors and assigns and such covenants shall run in favor of the Grantor and for the entire period during which the covenants shall be in force and effect, without regard to whether the Grantor is or remains an owner of any Property adjacent to the Property or interest in such adjacent Property or any other Property. The Grantor, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies available under the Agreement or at law or in equity. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor and its successors and assigns. IN WITNESS WHEREOF, the undersigned has executed this Grant Deed as of the date set forth below. Dated: , 2020 CITY: CITY OF MOORPARK By: Print Name: Title: ATTEST: Ky Spangler, City Clerk D-56 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 74 EXHIBIT "E" LIST OF DOCUMENTS DELIVERED TO DEVELOPER; OTHER DISCLOSURES 1. Agreement(license)between City and VCTC. 2. Geohazard Report that evaluates the potential seismic related geohazards including liquefaction, dry seismic settlement, and hydroconsolidation(collapse). 3. The existing building on the Property is partially on VCTC (SCRRA)property, and Developer will need to pay for costs of SCRRA-required permits and flagmen. 4. VCTC/SCRRA permits will be required for certain activities on the VCTC property. 5. Pre-Demolition Asbestos and Lead Paint Survey dated February 7, 2017 prepared by SCG(Old Granary Building). 6. Pre-Demolition Asbestos and Lead Survey dated February 8, 2017 by SCG(Maria's Restaurant Building). 7. The appraisal prepared at the direction of the City establishing the Purchase Price. 8. The report to be prepared at the direction of the City concerning the owls at(or formerly at)the Property. 9. Preliminary Title - including plot of easements. E-57 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 75 EXHIBIT "F" FORM OF DEVELOPMENT AGREEMENT Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 F-58 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 76 DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF MOORPARK AND DALY GROUP, INC F-59 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 77 DEVELOPMENT AGREEMENT This Development Agreement the ("Agreement") is made and entered into on , 2020 by and between the CITY OF MOORPARK, a municipal corporation (referred to hereinafter as "City") and DALY GROUP, INC., a California corporation, (referred to hereinafter as "Developer"). City and Developer are referred to hereinafter individually as a "Party" and collectively as the "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, City and Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1 Pursuant to Government Code Section 65864 et seq. and Moorpark Municipal Code Chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within its boundaries for the development of such property in order to establish certainty in the development process. 1.2 Developer has entered into a Disposition and Development Agreement ("DDA") with the City to acquire ownership in fee simple of certain real property within the City of Moorpark generally referred to as 192 High St and identified in that certain legal description set forth in Exhibit "A-1", together with a sublicense agreement over that certain real property owned by the Ventura County Transportation Commission, which license agreement and its legal description are set forth in Exhibit"A-2,"which exhibits are attached hereto and incorporated by reference,referred to hereinafter collectively as the"Property". 1.3 The DDA establishes certain Developer covenants (Section 3 of the DDA), limitations on transfers of the security interests (Section 4), a Schedule of Performance (Exhibit B to the DDA), and other obligations and responsibilities of the Parties. Nothing contained herein is intended to supersede, amend or otherwise exempt either Party from compliance with the provisions of the DDA. 1.4 Prior to, and in connection with, the approval of this Agreement, the City Council reviewed the project to be developed pursuant to this Agreement as required by the California Environmental Quality Act ("CEQA"). On , 2020, at a duly noticed public hearing and after independent review and consideration, the City Council made the required environmental findings pursuant to CEQA and adopted Resolution No. 2020- , adopting that certain Mitigated Negative Declaration No. ("MND") and related Mitigation Monitoring and Reporting Program the ("MMRP")prepared for this Agreement and the Project Approvals as defined in Subsection 1.5 of this Agreement. 1.5 The Downtown Specific Plan, as Amended by Specific Plan Amendment No. and the Residential Planned Development (RPD) Permit No. 2018-01 ("RPD 2018-01") including all subsequently approved modifications, permit adjustments and amendments thereto (collectively, "the Project Approvals"; F-60 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 78 individually "a Project Approval") provide for the development of the Property with a mixed use development project consisting of 79-residential units, approximately 13,628 sq. ft of commercial and the construction of certain off-site improvements in connection therewith(collectively, "the Project"). 1.6 By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Approvals, the DDA and this Agreement. In consideration thereof, City agrees to limit the future exercise of certain of its governmental and propriety powers to the extent specified in this Agreement and the DDA. 1.7 In consideration of the public benefits provided by the Developer pursuant to this Agreement, which are in addition to any public benefits the City could require from the Developer absent this Agreement, Developer desires to obtain the binding agreement of City and the City intends to grant Developer certain vested rights to proceed with the development of the Property, pursuant to the terms and conditions of this Agreement. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and conditions imposed in this Agreement, the DDA, and in those Project Approvals that are granted by the City prior to or concurrently with the approval of this Agreement. 1.8 Developer would not enter into this Agreement to provide the public benefits and financial contributions described herein, without the assurance of the City that the Property can be developed as provided for herein. 1.9 City finds that this Agreement is consistent with the General Plan of City, as currently amended; the Downtown Specific Plan, as amended; the Zoning Ordinance of the City, except those portions exempted by the Downtown Specific Plan; and that the City has completed all necessary proceedings in accordance with the City's rules, and regulations for approval of this Agreement. 1.10 On , 2020, the Planning Commission commenced a duly noticed public hearing on this Agreement, and after independent review and consideration, recommended to the City Council adoption of this Agreement and consideration of the MND and MMR, and adoption of CEQA environmental findings in accordance with CEQA. 1.11 On , 2020, the City Council of City ("City Council") commenced a duly noticed public hearing on this Agreement, and after providing the opportunity for public comment, in its independent review and consideration closed the public hearing and introduced and provided first reading to Ordinance No. ("the Enabling Ordinance"), which authorizes execution of this Agreement; considered and certified the MND and MMR and made the required environmental findings; found that the provisions of this Agreement provide public benefits to persons residing or owning property in the City of Moorpark beyond the exactions for public benefits required or allowed to be required in the normal development review and approval process; and approved the execution F-61 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 79 and recording of this Agreement. On , 2020, the City Council gave second reading to and adopted the Enabling Ordinance. 1.12 On , 2020 upon execution of the City and Developer, the Development Agreement, in conjunction with a fully executed version of the Disposition and Development Agreement between the City of Moorpark and Daly Group, Inc. was recorded against the Property as required by California Government Code Section 65868.5 with the County of Ventura("Effective Date"). NOW, THEREFORE, with reference to the foregoing recitals and in consideration of the mutual promises, obligations and covenants herein contained, which are incorporated herein by reference and hereafter made a part of this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby agreed and acknowledged, the City and Developer agree as follows: 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may also be referred to hereinafter as "the site". 3. Binding Effect. Upon execution of this Agreement by the Parties and recordation of this Agreement,the terms of this Agreement are binding upon each Party and each successive successor in interest thereto (subject to Subsection 3.2 below) and constitute covenants and restrictions that run with the Property. This Agreement shall be recorded against the Property as required by California Government Code Section 65868.5. This Agreement will only bind and inure to the benefit of Developer and its successors in interest as permitted by Section 4.1 of the DDA ("Permitted Successor"), or such other party approved by the City. 3.1 Constructive Notice and Acceptance. Every Permitted Successor who acquires any right, title or interest in or to any portion of the Property shall be conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such Permitted Successor acquired such right, title or interest, subject to Subsection 3.2 below. 3.2 Release Upon Subsequent Transfer. Provided the applicable conveyance is permitted under the DDA or otherwise approved in writing by City, upon the conveyance of Developer's interest in the Property by Developer or its successor(s) in interest, the transferor shall be released from its obligations hereunder with respect to the Property conveyed as of the effective date of the conveyance, provided that the transferee expressly assumes all obligations of the transferred Property and a copy of the executed assignment and assumption agreement is delivered to the City prior to or in conjunction with the conveyance. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the transferee pursuant to this Agreement. F-62 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 80 3.3 Priority of the DDA. Notwithstanding anything herein to the contrary, in the event of a direct conflict between a term or provision of the DDA and a term or provision of this Agreement, the parties agree that the term or provision of the DDA shall prevail. When the terms and provisions of the DDA and the DA are not in direct conflict, then the terms of both agreements shall be given equal effect. 4. Development of the Property. The following provisions shall govern the development and use of the Property. 4.1 Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the DDA, Project Approvals and this Agreement. 4.2 Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the DDA, Project Approvals and this Agreement. 4.3 Building Standards. All construction on the Property shall adhere to all City building codes in effect at the time the building construction plans are reviewed and approved by the Building Official of City for compliance with Title 15 of the Moorpark Municipal Code and to any federal, state or local building requirements that are then in effect(collectively "the Building Codes"). 4.4 Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in Schedule 4.4 to this Agreement. 5. Vesting of Development Rights. 5.1 Vested Right to Develop; Timing of Development. Developer and its successors in interest shall have the vested right to develop the Property in accordance with the terms and provisions of the DDA, the Project Approvals and this Agreement. The Parties intend that this Agreement, together with the DDA and the Project Approvals, shall serve as the controlling documents for all subsequent actions, discretionary and ministerial, relating to the development and occupancy of the Property, including, without limitation, all Subsequent Approvals (as defined below). The Developer's rights and obligations to develop the Property, including the order, rate and times for that development shall be as provided in the DDA,the Project Approvals and this Agreement. 5.2 Conflicting Ordinances or Moratoria. No future amendment of any existing City ordinance, resolution or other action, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall F-63 12853-0062\2317734v11.doc 4 High Street Station Resolution No. PC-2020- Page 81 apply to the Property, provided the Property is developed in accordance with the DDA,the Project Approvals and this Agreement. Nothing in this subsection shall be construed to limit City's right to ensure that Developer timely provides all infrastructure required by the DDA, the Project Approvals, Subsequent Approvals and this Agreement. 5.3 Amendment of Project Approvals. No amendment, modification or revision of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.4 Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals"; individually "a Subsequent Approval") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do not include ministerial building permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the subsequent Approval is deemed complete by City (collectively "City Laws"), except City Laws that: (a) change any permitted or conditionally permitted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the number of proposed buildings or other improvements from what is allowed by the Project Approvals; (c) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, provided that all infrastructure required by the Project Approvals to serve the portion of the Property covered by the Subsequent Approval is in place or is scheduled to be in place prior to completion of construction; (d) are not uniformly applied on a citywide basis to all substantially similar types of development projects or to all properties with similar land use designations; F-64 12853-0062\2317734v11.doc 366 High Street Station Resolution No. PC-2020-653 Page 82 (e) control residential rents; or (f) modify the land use from what is permitted by RPD 2018-01 as of the Effective Date of this Agreement,the DDA and any Project Approvals. 5.5 Modification of Approvals. Throughout the term of this Agreement, Developer shall have the right, at its election and without risk to or waiver of any right that is vested in it pursuant to this Agreement, to apply to City for modification, amendments or revisions to Project Approvals and Subsequent Approvals. Such requests for modifications, amendments or revisions to the Project Approvals or Subsequent Approvals shall be made by Developer and reviewed and approved by 1 the City as permitted by the City Municipal Code, including without limitation Section 17.44.100. Notwithstanding the foregoing, in no event shall the square footage of floor area of the Project approved for commercial use be reduced without City Council approval. The approval or conditional approval of any such modification, amendment or revision shall not require an amendment to this Agreement, provided that, in addition to any other findings that may be required in order to approve or conditionally approve the modification, a finding is made that the modification is consistent with the DDA and this Agreement and does not materially alter the permitted uses, density, intensity, maximum height, size of buildings or reservations and dedications as contained in the Project Approvals or DDA. 5.6 Issuance of Building Permits. No permit for construction issued by the City's Building Official pursuant to Title 15 of the City's Municipal Code ("Building Permit") shall be unreasonably withheld or delayed (including the processing thereof) from Developer, if Developer is in compliance with this Agreement, the DDA and the Project Approvals and Subsequent Approvals, if any. In addition, no final inspection, or certificate from the Building Official that construction work has been completed in compliance with approved building plans and Title 15 of the City's Municipal Code, and is safe and allowed to be entered and occupied by the public ("Certificate of Occupancy") shall be unreasonably withheld or delayed (including the processing thereof) from Developer if all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement to serve that portion of the Project covered by the Building Permit is in place or is scheduled to be in place prior to issuance of the Certificate of Completion for the final commercial unit, or the Final Inspection of the final residential unit, the Developer is in compliance with all provisions of this Agreement, the DDA, the Project Approvals and Subsequent Approvals. Consistent with Subsection 5.4 of this Agreement, in no event shall Building Permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7 Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and Building Permits and on the finalizing of Building Permits by F-65 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 83 means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a Citywide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1 Development as a Mixed Use Project. Developer shall comply with (i) this Agreement, (ii) the DDA, (iii) the Project Approvals, (iv) all Subsequent Approvals, if any, for which it was the applicant or a successor in interest to the applicant, and (iv) the MMRP of the MND and any subsequent or supplemental environmental actions resulting from or required by any Subsequent Approvals. In the event of a conflict between the DDA, this Agreement, the Project Approvals and the Subsequent Approvals, priority shall be given first to the provisions of the DDA, second to those of this Agreement, third to the Project Approvals, and last to the Subsequent Approvals. Any administrative and support offices or other structures and amenities to serve the occupants of the Project are considered to be part of the residential use of the Property. 6.2 Condition of Dedicated or Conveyed Property. All lands and interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere with use of the land or interest for its intended purpose, as reasonably determined by City. Area of Contribution(LAAOC)Fees. 6.3 Los Angeles Avenue Developer shall pay the LAAOC fee for commercial uses of $17,754.25 based upon a commercial rate of$56,749 per acre and contemplated commercial space of 13,628 square feet (0.31 acres). The fee shall be paid prior to issuance of the Final Inspection or Certificate of Occupancy for each building (A, B1, B2, C, D, E and F). If the LAAOC Fee is not fully paid by August 31, 2022, then commencing on September 1, 2022, the unpaid portion of the LAAOC Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all such fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Long Beach/Anaheim metropolitan area by comparing the CPI for the month of October for the year in which the amount is paid with the same month in 2020; provided, however, in the event there is a decrease in the CPI, the fee shall remain at its then current amount (such process for determination being referred to herein as the "CPI Methodology"). 6.4 Traffic Mitigation Fee. As a condition of the issuance Final Inspection for each residential dwelling unit within the boundaries of the Property, Developer shall pay City a one-time traffic mitigation fee as described herein ("Citywide Traffic Fee"). The Citywide Traffic Fee may be expended by City in its sole and F-66 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 84 unfettered discretion. The amount of the Citywide Traffic Fee shall be One Thousand One Hundred and Thirty-three Dollars ($1,133) per residential unit. The Citywide Traffic Fee shall be adjusted annually commencing January 1, 2022 and annually thereafter by the change in the Caltrans Highway Bid Price Index (Bid Price Index) for Selected California Construction Items for the twelve (12) month period available on December 31 of the preceding year ("annual indexing"). In the event there is a decrease in the Bid Price Index for any annual indexing, the current amount of the fee shall remain until such time as the next subsequent annual indexing which results in an increase. 6.5 Air Quality Fees. Developer agrees that the Mitigation Measures included in the City Council approved MND and MMRP, or subsequent environmental clearance document approved by the Council, set forth the mitigation requirements for air quality impacts. Developer agrees to pay to City a one-time air quality mitigation fee, as described herein ("Air Quality Fee"), in satisfaction of the Transportation Demand Management Fund mitigation requirement for the Project. The Air Quality Fee may be expended by City in its sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. The Air Quality Fee shall be One Thousand Seven Hundred and Nine Dollars ($1,709.00)per residential dwelling within the Property to be paid prior to the issuance of a building permit for each residential dwelling unit in the Project. If the Air Quality Fee is not paid by August 31, 2022, then commencing on September 1, 2022, the unpaid portion of the Air Quality Fee shall be adjusted by any increase in the Consumer Price Index(CPI) until all such fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban area consumers within the Los Angeles/Long Beach/Anaheim metropolitan area during the prior year. The calculation shall be made using the month of October over the prior month of October. In the event there is a decrease in the CPI for any annual indexing, the fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase, such process for determination being referred to herein as the CPI Methodology. 6.6 Art in Public Places Fee. Developer agrees to pay the Art in Public Places Fee ("Art Fee") in effect for each mixed use building prior to the issuance of the building permit for that mixed use building within the Project consistent with City Resolution No. 2005-2408 or any Successor Resolution (1.0 percent of total building valuations excluding land value and off-site improvement costs, for such building); provided, however, that the amount of the Art Fee shall be offset, on a dollar-for-dollar basis, for all art installed in the Project by or on behalf of Developer. 6.7 Other Development and Processing Fees. Developer agrees to pay all City capital improvement, development, and processing fees as set forth on Exhibit F hereof. Except as set forth on "Exhibit F" hereof, the City shall not impose upon or charge any other amount to Developer associated with the Project as long as the F-67 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 85 Project is constructed in a manner consistent with Residential Planned Development 2018-01. 6.8 Processing Fees. Within thirty (30) days of the Effective Date, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, the Project Approvals and the MND. 6.9 Workforce Housing. (a) Developer shall not be entitled to any additional density bonuses or incentives or concessions as otherwise granted pursuant to State law, and further agrees, in consideration for the density obtained through the Project Approvals, to construct on site and income restrict twelve (12)residential rental units (all for moderate income levels) to eligible tenants meeting moderate income thresholds for the life of the Project. The twelve units shall consist of eight (8) studio apartments and four (4) two bedroom apartments, as identified on Exhibit D hereof; provided, however, that Developer may change the location of such units within the Project, subject to the reasonable approval of the City Manager. One studio and one two-bedroom apartment (for a total of two units) shall be handicap accessible and shall be reserved for and occupied by persons eligible for such accommodations, to the extent there is a qualified handicapped affordable person ready to occupy such unit. Should there be a qualified moderate income prospective tenant desiring to rent such unit but all such units are rented, Developer shall add such prospective tenant to the waiting list until such affordable handicap accessible units becomes available. When an affordable unit that is not handicap accessible becomes available, the non-handicapped affordable tenant who occupies the affordable handicap unit shall be relocated to another affordable unit that is not handicap accessible in order to allow the qualified handicap tenant to occupy the handicap accessible unit. Developer shall include a provision in the non-handicap affordable unit lease that the non-handicap affordable tenant agrees to be relocated, at Developer cost, as soon as the non-handicap unit becomes available. (b) "Moderate income households" shall meet the criteria of one hundred twenty percent (120%) or less of the County Median Income, adjusted for household size appropriate to the Unit. The household income amount for Moderate Income households for any year shall be based on the amount most recently published by HCD as the Household Income Limits for Ventura County ("HCD Income Limits") or such successor information in the event the referenced published information is no longer available. The household income limit, affordability threshold and the affordable rent for moderate income units must be based on an income equal or less than the amounts stated in this paragraph, in accordance with the provision of the Affordable Housing Agreement executed for the Project. (c) Rents for Moderate Income units will be calculated pursuant to Health and Safety Code Section 50053, as may be amended, which states that rents will F-68 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 86 be based on 30% of 110% of median income for the household size appropriate to the unit, regardless of the actual household size living in the unit. Per Health and Safety Code Section 50025.5 (h) "adjusted for family size appropriate to the unit" shall mean for a household of one person in the case of a studio unit and three persons in the case of a two-bedroom unit. Under no circumstance shall rent charged a moderate income household exceed the market rental rate for the project. The maximum rents allowable in the affordable units for 2020 are below. The figure adjusts annually as reflected in changes to the California Department of Housing and Community Development Department(HCD) Income Limits: Unit Type Moderate 30%of 110%of AMI Studio $1,882 2 Bedroom, 2 Bath $2,420 Illustrative Only:Figures are as of September 2020 and subject to change (d) Developer further agrees that no grading permit shall be issued until the Affordable Housing Agreement is executed by the City and Developer, which Affordable Housing Agreement shall become effective upon the issuance by the City of the Certificate of Occupancy, as contemplated in this Agreement. The Affordable Housing Agreement shall include, but not be limited to all terms addressed in this section 6.9. (e) Developer agrees not to convert the residential units in the Project to for-sale condominiums, planned development, stock cooperative or other common interest development, hotel/motel, or as congregate care or assisted living facility for the life of the Project. Developer further agrees it shall not permit any of the residential units to be used on a transient basis and shall not rent any unit for a period of less than monthly. (1) Developer agrees that the units used to house qualified moderate income tenants shall at all times and in all manner the same as the market rate units including, but not limited to the quality and maintenance of flooring, window covers, appliances, sinks, bathtubs and toilets, HVAC, storage space and type, and the number and location of required parking spaces. (g) Developer further agrees that it has the obligation to provide the required number of affordable housing units as specified above regardless of the cost to construct said housing units. (h) At no time shall any of the affordable units be rented to an employee, agent, officer, contractor, subcontractor, affiliated company or subsidiary of Developer, except as otherwise permitted by local, state or federal law. F-69 12853-0062\2317734v 11.doc High Street Station Resolution No. PC-2020-653 Page 87 (i) Developer shall place a deposit of $5,000 with the City to administer the affordable provision and other requirement of the Affordable Housing Agreement. Use of the fee shall be documented and forwarded to Developer by December 31st of each year. Any expenses charged against Developer's deposit shall be replenished by Developer on or before February 1 of each year commencing after the first residential occupancy for the Project. The maximum amount of annual deposit the City shall have on hand after February 1 of each year is $5,000. 6.10 If any conflict exists between this Agreement and the Affordable Housing Agreement, the Affordable Housing Agreement shall control to the extent of any such conflict. 6.11 Annual Review Procedures. Developer agrees to meaningfully participate with the City in compliance with Section 15.40.150 of the Moorpark Municipal Code and any provision amendatory or supplementary thereto for annual review of this Agreement and further agrees that the annual review shall include evaluation of its compliance with the approved MND and MMRP; provided, however, the failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by Developer. 6.12 Eminent Domain. Developer agrees that any election to acquire property by eminent domain shall be at City's sole discretion, and only after compliance with all legally required procedures including but not limited to a hearing on a proposed resolution of necessity. 6.13 Intentionally Deleted 6.14 Fee Protest Waiver. Developer agrees that any fees and payments specifically provided for in this Agreement for the Project shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto. Developer further agrees that the fees it has agreed to pay pursuant to Subsections 6.3, 6.4. and 6.5 of this Agreement are not public improvement fees collected pursuant to Government Code Section 66006 and statutes amendatory or supplementary thereto. 6.15 CPI Indexes. In the event the "CPI" referred to in Subsections 6.3 and 6.5 or the Bid Price Index referred to in Subsection 6.4 is discontinued or revised, a successor index with which the "CPI" and or Bid Price Index are replaced shall be used in order to obtain substantially the same result as would otherwise have been obtained if either or both the "CPI" and Bid Price Index had not been discontinued or revised. 6.16 [INTENTIONALLY LEFT BLANK]. 6.17 Insurance. F-70 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 88 6.17.1 From and after the Effective Date and the Close of Escrow, as that term is defined in the DDA, and for so long as title to the Property is held by Developer, Developer shall obtain and maintain at no cost or expense to the City, with a reputable and financially responsible insurance company reasonably acceptable to the City: (i) after the opening of the Project for business, commercially reasonable casualty insurance for the Improvements in an amount not less than the replacement cost of the Improvements (subject to commercially reasonable deductibles) with a reasonable inflation rider; (ii) commercial broad form general liability insurance, insuring against claims and liability for bodily injury, death, or property damage arising from the construction, use, occupancy, condition, or operation of the Property, which liability insurance shall provide combined single limit protection of at least $5,000,000 and shall include a reasonable inflation rider, contractual liability coverage and products and completed operations coverage, and (iii) commercial automobile liability insurance of at least $1,000,000 combined single limit. Such liability insurance policies shall name the City and its council members, board members, officers, agents and employees as additional insured. 6.17.2 Before commencement of any demolition or construction work by Developer on any portion of the Property owned by Developer, Developer shall obtain and maintain in force until completion of such work: (i) "all risk" builder's risk insurance, including coverage for vandalism and malicious mischief, in a form and amount and with a company reasonably acceptable to the City, and (ii) workers' compensation insurance covering all persons employed by Developer in connection with work on the Project, or any portion thereof. During the construction of Improvements on any portion of the Property by Developer, such builder's risk insurance shall cover improvements in place and all material and equipment at the job site furnished under contract, but shall exclude contractors', subcontractors', and construction managers' tools and equipment and property owned by contractors' and subcontractors' employees. 6.17.3 Each architect and each licensed engineer engaged by Developer for completion of the construction work shall provide professional liability insurance with a limit of liability of at least One Million Dollars ($1,000,000.00). 6.17.4 Developer shall also furnish or cause to be furnished to the City evidence satisfactory to the City that any contractor with whom it has contracted for the performance of work on the Property or otherwise pursuant to this Agreement carries workers' compensation insurance as required by law. 6.17.5 With respect to each policy of insurance required above, Developer and each of Developer's general contractors, engineers and architects shall furnish to the City a certificate on the insurance carrier's form setting forth the general provisions of the insurance coverage promptly after written F-71 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 89 request by City showing the additional insureds. The certificate shall also be furnished by Developer prior to commencement of construction of any Improvements. 6.17.6 All such policies required by this Section shall contain a waiver of the insurer of all rights of subrogation against the City and other additional insureds. All such insurance shall have deductible limits which shall be commercially reasonable. 7. City Agreements. 7.1 Commitment of Resources. At Developer's expense, City shall commit reasonable time and resources of Citystaff to work with Developer on the P expedited processing of applications for Project Approvals and all Subsequent Approvals and Building Permits for the Project area and, if requested in writing by Developer, shall use overtime and independent contractors whenever possible. 7.2 Easement and Fee Title Acquisitions. If requested in writing by Developer and limited to City's legal authority, City at its sole and absolute discretion shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer including any land which is outside City's legal boundaries. The process shall generally follow Government Code Section 66462.5 et seq. and shall include the obligation of Developer to enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, City direct costs, including without limitation staff costs and City overhead expenses. 7.3 Concurrent Entitlement Processing. City agrees that whenever possible, as determined by City in its sole discretion, to process concurrently all land use entitlements for the Project so long as the applications for such entitlements are "deemed complete" in compliance with the requirements of Chapter 4.5 Review and approval of Development Projects (Permit Streamlining Act) of the California Government Code. 7.4 Park Fees. City agrees that no Park Fee is required of Developer as the proposed Plaza space within the Project meets all of the obligations under applicable law for park land dedication. 7.5 Streetscape Improvements. City shall construct or cause to be constructed that portion of the streetscape improvements within the City's existing Right-of-Way ("R-O-W Work"), as shown on the attached Exhibit "B". The improvements shall be located within the public right-of-way on the south side of High Street along the frontage of project area. This area is approximately west of the High Street/Walnut Street Intersection and extending easterly beyond the High F-72 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020- Page 90 Street/Bard Street Intersection. Such improvements shall accommodate connection with the Project and be consistent with the Downtown Streetscape Plan, and to the extent that they can be consistent with Street Depot landscaping plans, civil engineering and Hardscape/Landscape plans approved by the City as shown on Exhibit "C". Development and construction of the streetscape and the cost of any change orders reasonably required will be borne by the City. 7.6 [INTENTIONALLY LEFT BLANK] 7.7 Ground Floor Commercial or Residential Space Conversion. The Developer shall construct a total of approximately 13,628 square feet of commercial space, including approximately 8,371 square feet of ground floor commercial space and approximately 5,257 square feet of stand-alone commercial space as part of the Project. Developer shall utilize commercially reasonable means to lease the commercial retail spaces; provided, however, in the event, despite the commercially reasonable efforts of Developer to lease the commercial retail spaces, and only and upon sufficient showing to, and approval by, the City Council (such as monthly marketing showing number of inquiries, who inquired and response efforts, marketing frequency, attempted rental rates) made at any time after the first anniversary of the Certificate of Occupancy for each commercial space, Developer may convert the commercial spaces to "active live-work," residential uses. Active uses are those uses which remain open to the public during regular business hours, generate a high volume of customer foot traffic, provide window displays to promote views into the business, and that the public may see goods that are typically carried away by customers or provide services of a personal or business nature. Developer may convert ground-floor unoccupied residential or live-work units to commercial retail spaces, with City Manager approval, provided: (i) those units are not assigned or otherwise counted towards the Project's affordable housing obligation or as a handicap accessible unit; and (ii) the amount of square footage of the unit converted together with all other commercial space in the Project does not exceed 15,018 square feet, unless that conversion is accompanied by a modification to RPD 2018-01. 8. State or Federal Law and Regulations. In the event that any state or federal law or regulation enacted after the date the Effective Date prevents or precludes compliance with any provision of the Agreement or requires changes in the plans or permits approved or issued by the City, and the City and Developer concur in those determinations, then such provision shall be suspended, or with Developer's written consent, modified or extended as necessary to comply with such state or federal law or regulation, as required by a court of competent jurisdiction or as mutually agreed by the Parties. In addition, Developer shall have the right to challenge such law or regulation, and in the event such challenge is successful, this Agreement shall remain unmodified and in full force and effect. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40 or any successor F-73 12853-0062\2317734v11.doc 375 High Street Station Resolution No. PC-2020-653 Page 91 thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of or benefits granted to Developer hereunder or render this Agreement invalid or void. At the same time as the referenced annual review, City shall also review Developer's compliance with the MMRP. 10. Authorized Delays. This Section shall not apply to the DDA, as delays thereunder are governed by Section 6.6 thereof. Performance by any Party of any obligations hereunder that are not construction obligations under the DDA, other than payment of fees , shall be excused during any period of"Excusable Delay", as hereinafter defined, provided that the Party claiming the delay gives written notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (f) damage to work in progress by reason of fire, flood, earthquake or other casualty; (g) failure, delay or inability of City or other local government entity to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (h) delay caused by a delay by other third party entities which are required to approve plans or documents for Developer to construct the Project, or restrictions imposed or mandated by such other third party entities or governmental entities other than City, (including but not limited to, Ventura County Watershed Protection District); or (i) delays resulting from or related to COVID-19 or any similar virus, public health crisis or pandemic, (j) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Project. 11. Default Provisions. 11.1 Default by Developer. The Developer shall be deemed to have breached this Agreement ("Developer Default") if it: 11.1.1 Practices any fraud or deceit upon City; or willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or 11.1.2 Fails to make any payments required under this Agreement within twenty (20) business days after City gives written notice to Developer that the same is due and payable; or 11.1.3 Breaches any of the other material provisions of this Agreement and fails to cure the same within thirty (30) days after City gives written notice to F-74 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020- Page 92 Developer of such breach (or, if the breach is not able to be cured within such thirty(30) day period, Developer fails to start to cure the same within thirty (30) days after delivery of written notice by City of such breach or fails to thereafter diligently prosecute the cure to completion). 11.1.4 Breaches the terms of the DDA, and fails to cure such breach within the cure period, if any,provided under the DDA. 11.2 Default by City. City shall be in breach of this Agreement if it breaches any of the provisions of this Agreement and fails to cure the breach within thirty (30) days after Developer gives written notice to City of the breach (or, if the breach is not able to be cured within such thirty (30) day period, City fails to start to cure the same within thirty(30)days after delivery of written notice from Developer of such breach or fails to thereafter diligently prosecute the cure to completion) ("City Default"). iof Violation. Everynotice of breach shall state in writingwith 11.3 Content of Notice specificity that it is given pursuant to this section of this Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. Every notice shall state the applicable period to cure. The notices shall be given in accordance with Section 20 hereof. 11.4 Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible of possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of this Agreement shall be limited to the remedies expressly set forth in this subsection. If the breach is a City Default, Developer shall be entitled to seek injunctive relief, declaratory relief, specific performance, but in no event shall Developer be entitled to any monetary damages, including but not limited to, damages for lost profits or consequential damages). In the event this Agreement is terminated by City pursuant to the provisions of Chapter 15.40 of the Moorpark Municipal Code, and such termination is found invalid or unenforceable by a court of competent jurisdiction, Developer shall be not entitled to monetary damages for the termination, loss profits, or consequential damages incurred that are the result of the termination. 11.5 In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.9 or 6.11 of this Agreement, City shall have the right to withhold the issuance of building permits from the date that the notice of violation was given pursuant to Subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. F-75 12853-0062\2317734v 11.doc 377 High Street Station Resolution No. PC-2020-653 Page 93 11.6 Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against Developer if it violates any City ordinance or State statute. 12. Mortgage Protection. 12.1 Discretion to Encumber. The Parties hereto agree that this Agreement shall not prevent or limit Developer, in any manner, at Developer's sole discretion, from encumbering the Property or any portion thereof or any improvements thereon then owned by such person with any mortgage, deed of trust or other security device ("Mortgage") securing financing with respect to the Property or such portion, to the extent permitted by the DDA. Any such permitted mortgagee or trust deed beneficiary of the Property or any portion thereof or any improvements thereon and its successors and assigns ("Mortgagee") shall be entitled to the following rights and privileges: 12.2 Lender Requested Modification/Interpretation. City acknowledges that the lenders providing financing to Developer for the Property may request certain interpretations and modifications of this Agreement. City therefore agrees upon request, from time to time, to meet with Developer and representatives of such lenders to discuss in good faith any such request for interpretation or modification. The City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement or the DDA, including, without limitation, Sections 4.2, 4.3 and 4.4 thereof, and the City Manager is specifically authorized to make such interpretations or modification on behalf of the City, provided, further, that any modifications of this Agreement shall be subject to the provisions of this Agreement pertaining to modifications and amendments. 12.3 Mortgage Protection. This Agreement shall be superior and senior to the lien of any Mortgage. Notwithstanding the foregoing, any lender that obtains a mortgage or deed of trust against the Property or the Project shall be entitled to the following rights and privileges: 12.3.1 Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any Mortgage made in good faith and for value, but this Agreement shall be binding and effective against every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise; provided, however, such owner shall not be responsible for any matters that occurred prior to their acquisition of the Property or such portion. 12.3.2 The mortgagee or beneficiary under any Mortgage may submit to City a written request to receive a copy of any notice of default given by City to Developer under this Agreement, but the request must include the address for notices for the mortgagee or beneficiary and a copy of the recorded Mortgage. F-76 12853-0062\2317734v 1 I.doc High Street Station Resolution No. PC-2020-653 Page 94 12.3.3 If the City timely receives a request under Section 12.3.2 above that complies with Section 12.3.2 above, then within ten (10) days after City sends to Developer a notice of default under this Agreement, City shall send a copy of such notice to the applicable mortgagee or beneficiary at the address for notices in its request. The mortgagee or beneficiary shall then have the right, but not the obligation, to cure the applicable Developer default within the cure period provided to Developer under this Agreement, subject to the provisions of Section 12.3.5, below. 12.3.4 Any mortgagee or beneficiary under a Mortgage who acquires title to or possession of the Project or any portion thereof, by any means and any person or entity who acquires title to all or any portion of or interest in the Project by deed in lieu of foreclosure, shall take title and possession of the Project subject to the terms of this Agreement, but shall not be obligated to complete the Project or pay any fees accruing after it acquires title or possession, if it elects to terminate this Agreement by written notice to City within 30 days after acquiring title or possession; however, no such termination shall affect the City's abilityto enforce all other governmental approvals or permits, and conditions of approval (including dedication requirements), for the Project. 12.3.5 If a non-monetary default is not cured by Developer within thirty (30) days after written notice by City to Developer or a monetary default is not cured within twenty (20) business days after written notice by City to Developer, then each Mortgagee shall be entitled to receive written notice from City of the applicable default by Developer under this Agreement provided the Mortgagee has delivered a written request to the City for such notice and shall have provided its address for notices in writing to the City. Each such Mortgagee shall have a further right, but not the obligation, to cure such default for an additional period of thirty (30) days after delivery of such notice of default by City to the Mortgagee. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Mortgagee to cure the same as specified herein. F-77 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 95 13. Estoppel Certificate. At any time and from time to time, Developer may deliver written notice to City and City may deliver written notice to Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within ten(10) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any consent or approval herein to be given by the City may be given by the City Manager provided it is expressed in writing. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appeal shall first be filed with the City Clerk of City within sixty (60) days after the affected Developer receives written notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any successor provisions thereof then in effect, this Agreement may be amended or terminated, in whole or in part, by mutual consent of City and Developer, or their respective successors and assigns. 16. Exemption for Amendments of Project Approvals. No amendment of the DDA, a Project Approval or Subsequent Approvals shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement and does not alter the permitted uses, density, intensity, maximum height, size of buildings or reservations and dedications as contained in the Project Approvals or Subsequent Approvals. However, any amendment to a Project Approval or Subsequent Approval which is inconsistent with the terms of the DDA shall require an amendment of the DDA. 17. Developer Indemnification. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments (collectively, "Claims") arising out of, or resulting in any way from, Developer's performance pursuant to this Agreement including, but not limited to, Developer's construction of the Project on the Property, failure to comply with provisions of the California Labor Code, including but not limited to the payment of prevailing wages, to the extent they apply to the Project, and any injury sustained by any person in connection with the construction or partial construction of buildings and improvements F-78 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 96 on the Property by or on behalf of Developer. In addition, Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement, the DDA, or any provision of this Agreement or of the DDA, the environmental documents prepared and approved in connection with the approval of the Project, or any Project Approval or Subsequent Approval or modifications thereto, or any other subsequent entitlements for the project and including any related environmental approval. Notwithstanding the foregoing, Developer shall have no obligations under this Section 17 for Claims arising out of, or resulting in any way from,the gross negligence or willful misconduct of City, its officers, employees or agents, except that if a final court judgment is rendered with respect to that Claim and the City is found not liable for gross negligence or willful misconduct, then Developer shall be obligated to reimburse City for its attorneys' fees and costs in defending itself from that Claim. 18. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 19. Operative Date. This Agreement shall become operative on the Operative Date, being the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 20. Term; Tolling and Extension During Legal Challenge or Moratoria. This Agreement shall remain in full force and effect for a term of twenty (20) years commencing on the Operative Date or until one year after the issuance of the final building permit for occupancy of the last unit of the Project, whichever occurs last, unless said term is amended or the Agreement is sooner terminated, as otherwise provided herein. Expiration of the term or earlier termination of this Agreement shall not affect any Project Approval or Subsequent Approval or Building Permit or Final Building Permit that has been granted or any right or obligation arising independently from such Project Approval or Subsequent Approval or Building Permit or Final Building Permit. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof,to the extent permitted by applicable laws. In the event this Agreement, any of the land use entitlements related to the Project, the MND, or any subsequent approvals or permits required to implement the land use entitlements for the Project or this Agreement are subjected to legal challenge and Developer is unable to proceed with development of the Project due to such legal challenge (or Developer provides written notice to the City that it is electing not to proceed with development of the Project until such legal challenge is resolved to Developer's reasonable satisfaction), the Term of this Agreement and timing for obligations imposed by this Agreement shall be extended and tolled during such legal challenge until the entry of a final order or judgment upholding this Agreement, the MND, or the land use entitlements, approvals, or permits related to this Agreement, or the litigation is dismissed by stipulation of the parties; provided, however, that F-79 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 97 notwithstanding the foregoing, Developer shall have the right to elect, in Developer's sole and absolute discretion, to proceed with development of the Project at any point by providing the City written notice that it is electing to proceed, in which event the tolling of the Term of this Agreement shall cease as of the date of such notice. Similarly, if Developer is unable to develop the Project due to the imposition by the City or other public agency of a development moratoria for a public health and safety reason unrelated to the performance of Developer's obligations under this Agreement (including without limitation, moratoria imposed due to the unavailability of water or sewer to serve the Project), then the Term of this Agreement and the timing for obligations imposed pursuant to this Agreement shall be extended and tolled for the period of time that such moratoria prevents development of the Project. 21. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third(3rd) day after deposit in the United States mail, registered or certified,postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "E" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 22. Entire Agreement. This Agreement and those exhibits and documents referenced herein contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 23. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 24. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 25. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners,joint ventures or any other association of any kind or nature between City and Developer,jointly or severally. 26. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their respective successors in interest. No other person shall have any right of action based upon any provision of this Agreement. F-80 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 98 27. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect. 28. Cooperation Between City and Developer. City and Developer shall execute and deliver to the other all such other and further instruments and documents as may be reasonably necessary or convenient to carry out the purposes of this Agreement. 29. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Purchase and Sale Agreement, the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. 30. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 31. Governing Law and Venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 32. Attorneys' Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof. 33. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. 34. Authority to Execute. Developer warrants and represents that to its knowledge as of the Operative Date and with respect to each entity that is defined as Developer: (i) it is duly organized and existing; (ii) it is duly authorized to execute and deliver this Agreement; (iii) by so executing this Agreement, Developer is formally bound to the provisions of this Agreement; (iv) Developer's entering into and performance of its obligations set forth in this Agreement do not violate any provision of any other agreement to which Developer is bound; and (v) there is no existing or threatened litigation or legal proceeding of which Developer is aware that could prevent Developer from entering into or performing its obligations set forth in this Agreement. IN WITNESS WHEREOF,the Parties have executed this Development Agreement effective as of the Operative Date. F-81 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 99 CITY OF MOORPARK Janice S. Parvin, Mayor ATTEST: Ky Spangler, City Clerk The Daly Group, Inc., a California corporation By: Vince Daly, President F-82 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 100 EXHIBIT "A-1" (PROPERTY CONVEYED BY CITY THROUGH DDA) r 1 XII i2 H 4 .. ill �1 • ll !II i. ir r 1 I ilv ? 0 ,--,!.e, t�11 x Iii 1 - 1 Va �< r' ;g n.. —•—Da, �- . { 1 �; I fi • .F Y i ,Ate l. r : )a); ii X411 aka: . I ril k ilk il � � � - f "�44�l. i 3311 i 1t - glii�i I. ist : ' " . + •• : i ••vy i til telkid w} g I jjr M11. •Mri R! I tii•lt..la1.MM .•aasa.as.::3U2 ..fr . 4 . 1 1 , 1 -y_b — — q.,0:11....kios.i.:1 0 . d`' AMA ,g bii it k;it ‘),,, F-83 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 101 EXHIBIT "A-2" (LICENSE AGREEMENT WITH PROPERTY LICENSED FROM VCTC) FILE:VCTC- VENTURA CTC-VEN URA COUNTY TRANSPORTATION COMMISSION LICENSE AGREEMENT This LICENSE AGREEMENT ("Agreement") is made and entered into as of ,2019, by and between the VENTURA COUNTY TRANSPORTATION COMMISSION,a public entity f'VCTC")and lie City of Moorpark, a municipal corporation('LICENCED"), upon and 6 consideration of the agreements,covenants.teams,and conditions below: PART I-BASIC LICENSE PROVISIONS 1. Descriptiom of license Property: A portion of the VCTC railroad right of way near Mile Post located in Moorpark.CA as shown on Exhiiit Attached. Approximate Arca: 36.065=squire feet 2. Use of License Property_ Fencing, parking stalls, landscaping and other handsoape insprovements as shown on Exhibit C.attached.No other use is authorized by tits Agreement. 3. Commaceme.t Date Effective as of the date al parties have signed this Agreement_ 4. Term: Five years beginning on the Commencement Date with automatic one-year renewals after the initial tans unless one party emirates this Agreement as provided herein 5. Licase Fees: A. allIC-LiCallSratC SI ,payable ammaly in advance. 6. Insurance Requirements: Insurance requirements are detailed in Section 16,!nsworce. 7. VLTC"s Address: VENTURA COUNTY TRANSPORTATION COMMISSION 950 County Square Drive,Suite 207 Ventura,CA 93003 7. LICENSEE'S Address: City of Moorpark 799 Moorpark Avenue Moorpark,CA 93021 9. Illicitly The uses identified n Item 2 and no others_ The foregoing Basic License Provisions and the{ieneral license Provisions set fatty in attached Part If are nncorporated into and made part of this Agreanent. Page 1 er 30 F-84 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 102 PART II-GENERAL LICENSE PROVISIONS I. LicenseTerm 1.1 Grant of License.VCTC hereby grants to LICENSEE a non-exclusive license to use the real property owned by VCTC described on the attached Exhibit A and incorporated herein by reference,and described in Item I of the Basic License Provisions(the "License Property"),for the limited purpose of construction. installation,operation,alteration, maintenance,reconstruction and/or removal of the Facility described in Item 9 of the Basic License Provisions and any usual,necessary and related appurtenances thereto,for the purposes described in Item 2 of the Basic License Provisions, together with rights for access and entry through existing driveways or any replacement dfiseways authorized or installed by VCTC onto the License Property as necessary or convenient for the use of the Facility.In connection with this Agreement, LICENSEF,its officers,directors,employees,agents, customers,visitors., invitees, licensees,and contractors(collectively,"LICENSFF Parties"),subject to the provisions hereof,may have reasonable rights of entry and access onto the License Proper,with the time and manner of such entry and access to be subject to VCTC's prior written approval The License Property,adjoining real property(or any interest therein) of VCTC and personal property of VCTC located thereon shall hereinafter collectively be referred to as"VCTC Property." LICENSEE may,upon approval by VCTC, assign its rights under this agreement and the license granted hereby in writing and in accordance with the terms of this Agreement. This Agreement shall be made an Exhibit to the document creating such assignment to a successor in interest(SUBLICEN SEE). 12 Term of Agreement. The term of this Agreement("Term")shall commence on the "Commencement Date" specified in Item 3 of the Basic License Provisions. This Agreement shall continue in full force and effect on an annual basis as provided in Item 4 of the Basic License Provisions until terminated by either party as detailed in this Agreemert.VCTC shall have the absolute tight to terminate this Agreement for Default prior to the date specified in Item 4 in its sole discretion by delivering thirty(30)days'prior written notice to LICENSEE. 1.3 Public Use. In addition to any and all other termination rights of VCTC described herein,LICENSEE hereby expressly recognizes and agrees that the"License Property"are located on VCTC property that may be developed for public projects and programs which may be implemented by VCTC or other public agencies, such as, but not limited to: rail and bus transitways, bikeways, walkways, beautification projects roadways, parking facilities, and/or any other public or other governmental uses (collectively and individually "Public Use"); and that LICENSEE or SUBLICENSEE's use of the License Property under this License is a temporary, interim use as to which LICENSEE or SUBLICENSEE has no right to nor expectation of use for any particular length of time and that may be terminated by VCTC by me hundred eighty (180) days' written notice to LICENSEE as set forth in Section 1.2 above.Accordingly.as a condition to entering into this License. LICENSFF expressly acknowledges and agrees that (a) VCTC may terminate this License as set forth above for any Public Use,to be determined in the sole and absolute discretion of VCTC's Executive Director, or designee; (b) LICENSFF waives any objection to, opposition, or protest at any approval proceeding; nor file suit to prevent or delay any Public Use when planned or implemented on or adjacent to the Premises; (c) If VCTC's Executive Director,or designee,at any time,or from time to time, determines in his or her sole and absolute discretion_ that there is a need for the Page 2 of 30 F-85 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 103 Premises or any adjoining property for a Public Use and such Public Use requires relocation or removal of the Improvements, LICENSEE shall reconstruct, alter: modify, relocate or remove its Improvements, as directed by VCTC or any parties having operating rights over the Premises, at LICENSEE'S sole cost and expense, within sixty(60)days after written notice from VCTC;and (d) LICENSEE expressly assumes all risk of any future Public Use as determined by VCTC and in the event VCTC terminates this License and requires LICENSEE and/or SUBLICENSEE to vacate the Premises for any Public Use, LICENSEE and SUBLICENSEE shall not,as a result of such termination and vacation of the Premises, be entitled to receive any: (i) relocation assistance, moving expenses, goodwill or other payments under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970,as amended 42 U.S.C. sections 4601 et seq.and/or the California Relocation Assistance Law. as amended. California Government Code sections 72b4 et seq;and (ii) compensation under any eminent domain or inverse condemnation law. LICENSEE and any SUBLICENSEE shall not be entitled to any damages under California's Eminent Domain Law in the event of such termination. 1.4 Condition of License Property. LICENSEE acknowledges that it has inspected and accepts the License Property in its present condition as suitable for the use for which this license is granted. Execution of this Agreement by LICENSEE shall be conclusive to establish that the License Property is in a condition which is satisfactory to LICENSEE as of the Commencement Date. 2. Paymeets. 2.1 License Fee.As consideration for the righs given hereunder,LICENSEE agrees to pay to VCTC the Base I krone Fee specified in Item 5 of the Basic License Provisions,as such amount may be adjusted asset forth in Section 2.2,and the additional One-Time License Fee specified in Item 5 of the Basic License Provisions.The One-Time License Fee and the first month's or first year's,as the case may be.Base License Fee are due and payable upon execution of this Agreement.Thereafter, the Base License Fee,as such foe may be adjusted pursuant to the provisions of Section 21,shall be due and payable, without demand, on or before one month or year, as the case may be, after the Commencement Date and in each month or year,as the case may be thereafter.The Base License fee for any fractional period at the end of the Term shall be pronated on a daily basis and shall be reimbursed to LICENSEE. If the Agreement is terminated,and the LICENSEE is not in breach of the Agreement at such time. the Base License fee for any fractional period shall be prorated on a daily basis and shall be reimbused to LICENSEE. 21 Late Charge. LICENSEE acknowledges that late payment by LICENSEE of any payment owed to VCTC under this Agreement will cause VCTC to incur costs not contemplated by this Agreement.Therefore,if any payment due from LICENSEE is not received by VCTC within five (5)days of the date when due,LICENSEE shall pay to VCTC an additional sum of ten percent(10%) of the overdue payment as a late charge,up to a mapmrtm amount of$544 for each late payment. The parties agree that this late charge represents a fair and reasonable estimate of the administrative costs that VCTC will incur by reason of a late payment by LICENSEE. Acceptance of any late payment Page 3,130 F-86 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 104 charge shall not constitute a waiver of LICENSEE's default with respect to the overdue payment and shall not prevent VCTC from exercising any of the other rights and remedies available to VCTC under this Agreement,at law or in equity, including,but not limited to,the interest charge imposed pursuant to Section 24.5. 3. Taxes. LICENSEE shall be liable for and agrees to pay promptly and prior to delinquency, any tax or ant, including but not limited to any possessory interest tax, levied by any governmental authority. (a)against the Facility and its operations,the License Property andtor any personal property,fixtures or equipment of LICENSEE or SUB LICENSEE used in connection therewith,or(b) as a result of the LICENSEE Parties' use of the License Property,or the Fac iii ty. 4. Construction. All work performed or caused iD be performed by LICENSEE or SUBLCENSEE on the Facility or the License Property shall be performed(i)in accordance with and any and all applicable laws,rules and regulations(including the VCTC's rules and regulations),and(i i) in a manner which meets or exceeds the then applicable standards of the industry for such work,and (iii)is satisfactory to VCTC.Prior to commencement of any construction,maintenance,reconstruction. installation, restoration, alteration, repair, replacement or removal (other than normal maintenance) (hereinafter."Work")on the License Property,LICENSEE or SUBLICENSEE shall submit work plans to VCTC for review and approval. Any such Work must be carnied out pursuant to work plans approved in writing by VCTC.In addition,LICENSEE or SUBLICENSEE shall provide VCTC and all holders of underground utility facilities located within the License Property with at least 10 calendar days' written notice prior to commencement of any Work on the License Property or the Facility, except in cases of emergency, in which event LICENSEE or SUBLICENSEE shall notify VCTC's representative personally or by phone prior to commencing any Work. Unless otherwise requested by VCTC, upon completion of any Work, LICENSEE or SUBUCENSEE shall testae the VCTC Property to its condition immediately preceding the commencement of such Work. 5. Contractors-Approval and Itssurarree. Any contractus of LICENSEE or SUBUCENSEE performing Work on the Facility or the License Property shall fist be approved in writing by VCTC. With respect to such Work LICENSEE or SUBLICENSEE shall.at its sole cost and expense,obtain and maintain in full force and effect, throughout the term of such Work, insurance, as required by VCTC,in the amounts and coceiarms specified on,and issued by insurance companies as described Section 16 below. Additionally, LICENSEE or SUBLICENSEE shall cause any and all of its contractors and subcontractors which may(a)be involved with such Work.or(b)may, for any reason.. need to enter onto the License Property,to obtain and maintain in full force and effect during the Term of this Agreement, or throughout the term of such Work (as applicable), insurance, as required by VCTC,in the amounts and coverages specified on,and issued by insurance companies as described in Section 16 below. VCTC reserves the right; throughout the Term of this Agreement, to review and change the amount and type of insurance coverage it requires in connection with this Agreement far the Work to be performed on the License Property;provided VCTC provides to LICENSEE prior written notice of such change. Page 4 of 30 F-87 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 105 6. Reimbursement. LICENSEE agrees to reimburse VCTC for all reasonable coats and expenses incurred by VCTC in connection with Work on.or maintenance of.the License Property or the Facility, inchiding, but not limited to, costs incurred by VCTC in furnishing any materials or performing any labor,reviewing LICENSEE or SUBLICENSEE's Work plans and/or inspecting any Work, installing or removing protection beneath or along VCIC's tracks.furnishing of watchmen. flagmen and inspectors as VCTC deems necessary and such other items or acts as VCTC in its sole discretion deems necessary to monitor or aid in compliance with this Agreement. 7. Liens. LICENSEE will frilly and promptly pay for all materials joined or affixed to Facilt4-or the License Property,and fully and promptly pay all persons who perform labor upon said Facility or the License Property.LICENSEE shall not suffer or permit to be filed or enforced against the License Property or the Facility, or any part thereof any mechanics', materialmen's. contractors', or subcontractors'liens or stop notices arising from,or any claim for damage growing out of.any testing, investigation,maintenance or Work,cr out elm other claim or demand deny kind.LICENSEE shall pay or cause to be paid all such liens,claims or demands, including sums due with respect to stop notices,together with attorneys fees incurred by VCFC with respect thereto,within ten(10)business days after notice thereof and shall indemnify,hold harmless and defend VCTC from all obligations and claims made against VCTC for the above described work,including attorney's fees.LICENSEE shall furnish evidence of payment upon request of VCTC. LICENSEE may contest any lien, claim or demand by furnishing a statutory lien bond or equivalent with respect to stop notices to VCTC in compliance with applicable California law.If LICENSEE does not discharge any mechanic's liens or stop notice for works perfumed for LICENSEE, VCTC shall hate the right to discharge same (including by paying the claimant), and LICENSEE shall reimburse VCTC for the cost of such discharge within ten(10)business days after billing VCTC reserves the right at any time to post and maintain on the VCTC Property and on the License Property such notices as may be necessary to protect VCFC against liability for all such liens and claims.The provisions of this Section shall survive the termination of this Agreement 8. Mainteffince sad Repair. LICENSEE, at LICENSEE's sole expense, shall maintain the License Property and the Facility in a condition satisfactory to VCTC and in accordance with Exhibit B during the Term of this Agreement and shall be responsible for all clean up and maintenance of the License Property and VCTC Property resulting from its use thereof under this License.LICENSEE or SUBLICENSEE shall be responsible fa any citations issued by any agency having jurisdiction as a result of LICENSEE or SUBLICENSEE's failure to comply with local codes. If any portion of the VCTC Property,including in movements or fixtures..suffers damage by reason of the access to or use thereof by LICENSEE. SUBLICENSEE,or LICENSEE's Parties.including but not limited to damage arising from any test or investigations conducted upon the License Property,LICENSEE shall, at its own cost and expense,immediately repair all such damage and restore the VCTC Property to as good a condition as before such cause of damage occurred Repair of damage shall include,without limitation, regrading and resurfacing of any holes,ditches,indentations,maunds or other inclines created by an excavation by LICENSEE SUBLICENSEE,or LICENSEE Parties. 9. Landscaping/Protective Fencing. If required by VCTC,LICENSEE,at its sole cost and expense, shall install barrier fencing and or landscaping to shield the railroad track area from public access and/or the Facility.VCTC shall have the right to review and approve fencing and/or landscaping plans prior to installation.All fencing and/or landscaping work shall be done in accordance with the provisions of Sections 4 and 5 above and will be subject to the maintenance and repair provisions of Section 8 above. 10. Use. The License Property and the Facility shall be used only for the purposes specified in Pape 5 of 30 F-88 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 106 Item 2 of the Basic License Provisions above and for such lawful purposes asbe directly incidental thereto. No shall be made by LICENSEE or SUBLICENSEE m the use of the License Property or the Facility without VCTC's prior written approval. I I. Abandonment. Should LICENSEE at any time abandon the use of the Facility or the License Property,or any part thereof,or fail at any time for a continuous period of ninety(90)days to use the same for the purposes contemplated herein,then this Agreement shall terminate to the extent of the portion so abandoned or discontinued, and in addition to any other rights or remedies, VCTC shall immediately be entitled to exclusive possession and ownership of the portion so abandoned or discontiared, without the encumbrance of this Agreement VCTC, at its option., may remove any improvements remaining on the abandoned property,at LICEI+ISEE's expense. 12. Breach. Should LICENSEE or SUBLICENSEE breach,or fail to keep, observe or perform any agreement covenant, term or condition on its part herein contained,then,in addition to any other available rights and remedies,VCTC,at its option may: (a) perform any necessary or appropriate corrective work at LICENSEE's expense,which LICENSEE agrees to pay to VCTC upon demand,or (b) with or without written notice or demand.immediately terminate this A,geement and at any time thereafter, recover possession of the License Property or any part thereof, and expel and remove therefrom LICENCFF SUBLICENSEE,or any other person occupying the License Property.. by any lawful means,and again repossess and enjoy the License Property and the Facility, without prejudice to any of the rights and remedies that VCTC may have under this Agreement at law or in equity by reason of LICENSEE's default or of such termination. 13. Surrender. Upon termination of this Agreement unless otherwise requested in writing by VCTC to leave all, or any portion of the Facility in place on VCTC Property prior to the date of termination, LICENSEE, at its own cost and expense. shall immediately remove the Facility and restore the License Property and VCTC Property as nearly as passible to the same state and condition as existed prior to the construction,reconstruction cr installation of said Facility. Should LICENSEE fail to comply with the requirements of the preceding sentence,VCTC may at its optic(a)perform the same at LICENSEE'S expense, which costs LICENSEE agrees to pay to VCTC on demand,or(b) assume title and ownership of said Facility. No termination hereof shall release LICENSEE or SUBLICENSEE from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from any acts,omissions or events happening prior to the date the Facility is removed and the VCTC Property is restored. 14. Indemnification.n. LICENSEE and any SUBLICENSEE approved by VCTC, on behalf of itself alai its successors and assigns, agrees to indemnify,defend(by counsel satisfactory to VCTC), and hold harmless VCTC, its subsidiaries and their respective,members,directors,partners officers commissions, employees, agents, successors and assigns (individually and collectively, "Indemnitees"),to the maximum extent allowed by law, from and against all loss,liability, claims, demands suk& liens,claims of lien,damages(including consequential damages),costs and expenses (including,without limitation, any fines,penalties,judgments,litigation expenses, and experts' and attorneys'fees),that are incurred by or asserted against Indemnitees arising out of or connected in any manner with (i) the acts or omissions to act of the LICENSEE or SUBLICENSEE, or its officers, directors,affiliates LICENSEE or SUBLICENSEE Parties or anyone directly or indirectly employed by or for whose acts LICENSEE or SUBLICENSEE is liable(collectively,"Personnel')or invitees of LICENSEE or SUBLICENSEE in connection with the License Property or arising from the presence upon or performance of activities by LICENSEE or its Personnel or SUBLICENSEE or its Personnel Page 8 of 30 F-89 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 107 with respect to the License Property,(ii)bodily injury to or death of any person(including empicyees of indemnitees) or damave to or loss of use of property resulting from such acts or omissions of LICENSFF cr its Personnel or SUBLICENSEE or its Personnel,or(iii)nonperformance or breath by LICENSEE or its Personnel or SUBUCENSEE or its Personnel of any term or condition of this Agreement in each case whether occurring during the Term of this Agreement or thereafter. The foregoing indemnity shall be effective regardless of any negligence (whether active, passive,derivative,joint concurring or comparative)on the part of Indemnitees,unless caused solely by the negligence or willful misconduct of Indemnitees;shall survive termination of this Agreement and is in addition to any other rights or remedies•.v ieh Indemnitees nay have under the law cr under this Agreement Upon request of VCTC,LICENSEE cr when applicable SUBLICENSEE shall provide insurance coverage for possible claims or losses covered by the indemnification and defense provisions ofthis Agreement. Claims agsinct the indemnitees by LICENSFF or its Personnel shall not limit the LICENSEE's indemnification obligations hereunder in any way,whether or not such claims against Indemnitees may result in any limitation on the amount or type of damages,compensation,or benefits payable by or for LICENSEE or its Personnel under workers' compensation acts disability benefit acts, or other employee benefit acts or insurance. 15. Assumption of Risk and Waiver. To the maximum extent allowed by law. LICENSEE assumes any and all risk of loss,damage,cr ini ury of any kind to any person or property, including, without limitation.the Facility,the License Property and any other property of.or under the control or custody oL LICENSFF or any SUBLICENSEE. which is on or near the License Property. UCENSEE's, or when applicable, SUBLICENSEE's assumption of risk shall include, without limitation, loss or damage caow.d by defects in any structure or improvement on the VCTC Property. accident, fire or other casualty on the VCTC Property_ or electrical discharge. noise, or vibration resulting from VCTC's transit operations on or near the VCTC Property.The tern"VCTC'as used in this section shall include_ (a) any transit or rail-related company validly operating upon or over VCTC's tracks or other property. and (b) any other persons or companies employed, retained or erimed by VCTC. LICENSEE,on behalf of itself and its Personnel (as defined in Section 14) and SUBUCENSEE or its Personnel,as a material part of the consideration for this Agreement, hereby waives all claims and demands VCTC for any such loss, damage or injury of LICENSEE andlor its Personnel and SUBUCENSEE and its Personnel. In that wnnecticm. LICENSEE and SUBLICENSEE waives the benefit of California Civil Code Section I542, which provides as follows: A general release does not extend to chtims which the creditor does not know or suspect fo exist in his or her favor at the lime of executing the release.which if known by him or her must have materially affected his or her settlement with the debtor. LICENCF.F accepts the risk that the facts cr the law may later turn out to be different than LICENSEE understands them to be at this time and acknowledges that this assumption of risk and waiver will not be affected by such different state of facts or law. The provisions of this Section shall survive the term iw t ion of this Agreement. 16. Insurance. .1 LICENSEE.at its sole cost and expense,shall procure and maintain in full force and effect inulrance coverage or evidence of self-insurance as required by VCTC against claims for injuries to Page 77of30 ' F-90 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 108 persons or damages to property which may arise frart or in connection with, the use of VCTC property hereunder by the LICENSEF, SUBLICENSEE, or LICENSEE Parties, agents, representatives,employees,or subcontractors during the entire term of this Agreement.LICENSEE shall provide,at minimum,the following coverage: 1. Commercial General Liability ICGLI, to include ProductsComple ted Operations, Independent Cmtractors',Contractual Liability,and Personal Injury Liability with a minimum of $2,000,000.00 of coverage per occurrence for bodily injury, personal injury, and property damage,with: 1. Removal of the CGL exclusion for pollution liability_or 2. A Pollution Liability policy with minimum limits of$1.000,000.00;and 3. Automobile Liability Insurance with combined single limits of a minimum of $1,000.000.00 per accident for bodily injury and property damage..and 4. Workers' Compensation with limits as required by the State of California; with a waiver of subrogation rights:and 5. Employer's Liability with limits of a minimum of$1,000,000.00 per accident for bodily injury or disease. B. Subject to prior approval by VCTC,LICENSEE may meet the requirements through(i) self- insurance,(ii)coverage through a joint powers insurance authority(JPIA) ltich is duly formed under the laws of the State of California, or (iii) utilize a combination of self-insurance and JPIA coverage.or(iiii)commercial insurance policies, C. VCTC, its officers, directors. employees and agents must be designated as additional insured on the LICENSEE's Comprehensive ive General and Automobile Liability Insurance LICENSEE shall furnish VCTC with insurance endorsements and certificates, evidencing the existence,amounts and coverages of the insurance required to be maintained hereunder. D. The coverage shall be primary and any insurance or self-insurance maintained by VCTC shall be excess of the LICENSEE's insurance and shall not contribute to it. E. Each insurance policy required by this clause shall be endorsed to sate that coverage shall not be suspended.voided,cancelled err reamed in coverage or in limits,except only after thirty(30) days prior written notice has been given to VCTC. In the event VCTC learns that LICENSEE's insurance coverage is terminated and LICENSEE fails to provide adequate assurances that continuous coverage is being provided_VCTC,at its sole discretion, may obtain such coverage at LICENSEE's expense. F. VCTC retains the right to increase the amcsmnts of covertly required by this Agreement as it determines are reasonably necessary to protect itself against potential liability caused by entering into this Agreement WIC shall give LICENSEE 60 days'notice of the need for it to increase its coverage. By the end of the 60 days,LICENSEE shall provide proof of such coverage in the manner set forth in this section. Page 8 of 30 F-91 12853-0062\2317734v 11 doc High Street Station Resolution No. PC-2020-653 Page 109 G. LICENcFF further agrees that shall require any SUBLICEN SEE to comply with the insurance requirements set forth herein and to require that any SLBLICENSEE name VCTC as an additional insured. 17. VCTC S RIGHT OF ACCESS LICENSEE will permit VCTC and its swats,at all reasonable times and at any time in case of emergency,in such manlier as to cause as little disturbance to LICENSEE as reasonably practicable(a)to enter into and upon the Premises to inspect them,to protect the VCTCs interest therein, or to post notices of non-responsibility, (b) to take all necessary materials and equipment onto the Premises, and perform necessary work thereon, and (c)to perform environmental testing, monitoring sampling,digging,drilling and analysis for Hazardous Materials on,under or about the Premises. VCTC may at any time place on or about the Premises(including the Improvements)any ordinary"for sale"and 'for lease"signs. LICENSEE shall also permit VCTC and its agents,upon request,to enter the Premises or any part there(at reasonable times during normal business hours,to show the Premises to prospective tenants,purchasers or mortgagees. 18. ASSIGNMENT AND SCBLICENSING 18.1 VCTCs Consent. The Agreement and the License granted hereunder se personal to the LICENSEE. LICENSEE shall not assign all or any portion of its interest in this License, whether voluntarily,involuntarily by operation of law or otherwise,and shall not sublicense all or my portion of the Premises,including but not limited to, sharing them,permitting another party to occupy them or granting concessions or licenses to another party,except with the prior written consent of VCTC,which VCTC may withhold in its sole and absolute discretion.Any attempted act in violation of the foregoing shall be void and without effect and grant VCrC the right to immediately terminate this Agreement 18.2 Fees. LICENSEE shall pay VCTCs reasonable attorneys' fees incurred n evaluating any proposed assignment or sublicense and documenting VCTC's consent 18.3 Procedure. Whenever LICENSEE has obtained an offer to assign any interest in this License or to sublicense all or any partial of the Premises! Licensee shall provide to VCTC the name and address of said proposed assignee or sublicensee,the base rent and all other compensation,the proposed use by the proposed assignee or sublicersee, the proposed effective date of the assignment or subleasing and any other business terms which are materialto the offer and which dimer from the provisions of this License ("Notice of Offer"). Licensee shall also provide to VCTC the rteture of business,financial statement and business experience resume for the immediately preceding five(5)years of the proposed assignee or sublicensee and such other information concerning such proposed assignee or sublicensee as VCTC may require. The foregoing information shall be in writing and shall be received by VCTC no less than sixty (60)days prior to the effective date of the proposed assignment or sublicense. Within thirty(30)days of receiving a Notice of Offer for the proposed assignment or sublicensing,VC-It shall either notify Licensee that VCTC consents to the proposed assignment or sublicensing or withholds its consent for reasons to be specified in the notice. If VCTC does not provide a notice granting its consent to Licensee within thirty(30)days of receiving a Notice of Offer,VCTC shalt be deemed to have withheld its consent to the proposed assignment or sublicens ing,.and VCTCs reasons for such action shall be firnnished to Licensee upon request Pne8 cf X� F-92 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-693 Page 110 18.4 Profits. If any interest in the License is assigned or all or any portion of the Premises are sublicensed,VCTC shall have the right to condition its consent thereto upon VCTC's receiving,some or all the"profit"to be made from such assignment or sublicensiag. 18.5 Cmtinuiae Licensee Obligations. Any such sublicerrsing or assignment even with the approval of VCTC, shall not relieve Licensee from liability for payment of all forms of Rent and other charges herein provided or from the obligations to keep and be bound by the terms,conditions and covenants of this License. 18.6 Waiver.Default and Consent The acceptance of Rent from any other person shall not be deemed to be a waiver of any of the provisions of this License or a consent to the assignment or sublicensing of the Premises. Any assignment or sublicense without the VCTCs prior written consent shall be voidable, at VCTC's election,and shall constitute a default hereunder_ Consent to any assienment or sublicensing shall not be deemed a consent to any future assignment or sublicensing. 19. Tests and Inspection VCTC shall have the right at any time to inspect the License Property and the Facility so as to monitor compliance with the terms of this Agreement.VCTC shall be permitted to conduct any tests or assessments_ including but not limited to environmental assessments,of on or about the License Property,as it determines to be necessary in its sole judgment or useful to evaluate the condition of the License Property, or if VCTC determines that any installation on, or use or condition of the License Property may have an adverse effect on the VCTC Property,adjacent property (whether or not owned by VCTC)or VCTC operations.LICENSEE shall cooperate with VCTC and its agents in any tests or inspections deemed necessary by VCTC. LICENSEE shall pay or reimburse VCTC and appropriate regulatory agencies, as appropriate, for all reasonable costs and expenses incurred due to the tests,inspections or any necessary corrective work and inspections thereafter. 20. Hat9rdousfrouc Materials Use and Indemnity. LICENSEE and any SUBLICENSEE approved by VCTC,shall operate and maintain the License Property in compliance with all applicable federal state and Local environmental, health andior safety- related laws, regulations, standards, decisions of the courts,permits or permit conditions,currently existing or as amended or adopted in the future which are or become applicable to LICENSEE, SUBLICENSEE, or the License Property ("Environmental Laws"). LICENSEE shall not cause or permit or allow SUBLICENSEE or any of LICENSEE Parties U cause or permit any Hazardous Materials to be brought upon,stored, used, generated, treated or disposed of on or about the brought upon, noted, used, generated, treated or disposed of on the License Property or the VCTC Property. As used herein, "Hazardous Materials, means any chemical, substance or material which is now or becomes in the future Med,defined or regulated in any manner by any Environmental Law based upon.directly or indirectly,its properties or effects. LICENSEE and where applicable any SUBLICENSEE, shall indemnify. defend(by conn ,I acceptable to VCTC)and hold harmless the Indemnitees(as defined in Section 14)from and against all loss, liability, claim, damage, cost or expense (including without limitation, any fines, penalties, judgments, litigation expenses,attorneys' fees,and consrlting,engineering.,and construction fees and expenses) incurred by Indemnitees as a result of(a)LICENSEE or SUBLICENSEE's breach of any prohibition or provision of this Section or(b)any release of Hazardous Materials upon or from the Facility or the License Property or VCTC Property or contamination of the VCTC Property(i)which occurs due to the use and occupancy of the Facility or the License Property by LICENSEE, SUBLICENSEE or LICENSEE Parties,or(ii)which is made worse due to the act or failure to act of LICENSEE.SUBLICENSEE or LICENSEE Parties. Page 10 ce 30 F-93 12853-0062\2317734v11_doc High Street Station Resolution No. PC-2020-653 Page 111 The foregoing indemnity shall be effective regardless of any negligence (whether active, passive,derivative,joint,concurring,cr comparative)on the part of Indemnitees,unless caused solely by the gross negligence or willful misconduct of Indemnitees; shall survive termination of this Agreement and is in addition to any other rights or remedies which Indemnitees may have under the law or under this Agreement In addition,in the event of any release on or contamination of the License Property andior any adjacent property,whether or not owned by VCTC. LICENSEE, at its sole expense, shall promptly take all actions necessary to clean up all such affected property(including the VCTC Property and all affected adjacent property,whether or not owned by VCTC) and to tete n the affected property to the condition existing prior to such release or contamination, to the satisfaction of VCTC and any governmental authorities laving jurisdiction thereover. Upon the termination of this Agreement at anytime and for any reason,LICENSEE shall,prior to the effective date of such termination,clean up and remove all Hazardous Materials in,an,under andfor about the VCTC Property which LICENSEE, SUBLICEN SEE,or LICENSEE Parties caused or permitted to be brought upon the VCTC Property, in accordance with the requirements of all Environmental Laws and to the satisfaction of VCTC and any governmental authorities having jurisdiction thereover. 19. Underground Storage Tants. NEITHER LICENSEE NOR LICENSEE PARTIES. INCLUDING ANY SUBLICENSEE, SHALL INSTALL OR USE ANY UNDERGROUND STORAGE TANKS ON THE LICENSE PROPERTY. 20. Subordinate Rights. This Agreement is subject and subordinate to the prior and continuing right and/or obligation of VCTC, SCRRA, Amtrak, Union Pacific Railroad (UPRR) and their successom and assigns,to use the VCTC Property in the exercise of its powers and in the perlioxmance of its duties or for any other purpose,including but not limited to those as a public transportation body. Accordingly,there is reserved and retained unto VCTC,its successors,assigns and permittees the right to construct reconstruct,maintain,and use existing and future rail tracks,facilities and appurtenances and exiting and future transportation,communication,pipeline and other facilities and appurtenances in,upon,over,under.across and along the VCTC Property,and to otherwise use the VCTC Property, and in connection therewith the right of VCTC. its successors and assigns,to grant and convey to others,rights to and interests in the VCTC Property on the License Property and in the vicinity of the Facility. This Agreement is subject to all licenses, leases, easement restrictions, conditions, covenants encumbrances,liens_claims and other natters of title("Title Exceptions")which may affect the VCTC Property now or hereatler, and no provision of this Agreement shall be construed as a covenant or warranty against the existence of any such present or future Title Exceptions,whether or not arising out of the actions of VCTC,its successors or assigns. VCTC makes no representations or warranties of any kind with regard to title to the License Property. 2I. Compliance with Laws. LICENSEE and any SUBLICENSEE shall comply with all applicable federal,state and local laws,regulations,rules and orders in its watt on, or maintenance, inspection, testing or use of, the Facility and the License Property. VCTC may enter the License Property to inspect the Facility at any time, upon provision of reasonable notice of inspection to LICENSEE. LICENSEE or,where applicable SUBLICENSEE shall obtain all required permits or licenses required by any governmental authority for its use of the License Property and the Facility,at its sole cost and expense. Page 11 of 30 F-94 12853-0062\2317734v11_doc High Street Station Resolution No. PC-2020-653 Page 112 22. Condemnation. In the event all or any portion of the License Property shall be taken or condemned for public use(including conveyance by deed in lieu of or in settlement of condemnation proceedings).LICENSEE shall receive compensation(if any)from the Condemner only for the taking and damage to the Facility. Any other compensation or damages arising out of such taking or condemnation awarded to LICENSFF are hereby assigned by LICENSEE to VCTC. LICENSEE shall have no rights under California law or federal law to the receipt of any damages arising out of any use cr proposed use of the License Property by VCTC or SCRRA, Amtrak, UPRR., or their respective agenta officers, contractors or employees and in entering into this Agreement expressly waives any such rights. 23. Markers. Project markers in form and size satisfactory to VCTC, identifying the Facility and its owners will be installed and constantly maintained by and at the expense of LICENSEE or SUBLICENSEE at such locations as VCTC shall designate. Such markers shall be relocated or moved upon request of VCTC without expense to VCTC.Absence of markers in or about the License Property and VCTC Property does not constitute a warranty by VCTC of the absence of subsurface installations. 24. General Provisions. 241 Notices.All notices and demands which either party is required to or desires to give to the other shall be made in writing by personal mail,by express courier service. or by certified mail, return receipt requested, postage prepaid,and addressed to such party at its address set forth in the Basic License Provisions. Either party may change its address for the receipt of notice by giving written notice thereof to the other party in the mamer herein provided.Notices shall be effective only upon receipt by the party to wham notice or demand is given. 242 Non-Exclusive License. The license granted hereunder is not exclusive and VCTC specifically reserves the right to grant other licenses within the L icense Property. 243 Governing Law. This Agreement shall be governed by the laws of the State of California. 24.4 Severability. If any term.,covenant,condition or provision of this Agreement,or the application thereof to any person or circumstance, shall to any extent be held by a court of competent jurisdiction to be invalid,void or unenforceable,the remainder of the terms,covenants,conditions,or provisions of this Agreement,or the application thereof to any person or circumstance,shall remain in full farce and effect and shall in no way be affected,impaired.or invalidated thereby. 24S Interest on Dost-flue Obligations Except as expressly herein provided,any amount due to VCTC which is not paid when due shall bear interest,from the date due,at the maximum rate then allowable by law. Such interest win be due to VCTC as it accrues.Payment of such interest shall not excuse or cure any default by LICENSEE under this Agreement Interest shall not be payable on late charges incurred by LICENSEE. 24.6 Survival suaimiLaphfigations,. All obligations of LICENSEE hereunder not fully performed as o'the expiration or earlier termination of the Term of this Agreement shall survive the expiration or earlier termination of this Agreement, including without limitation, all payment obligations with respect to License Fees and all obligations concerning the condition of the License Property and the Facility. Page 12 cf 30 F-95 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 113 24.7 Waiver of Covenants or Conditions.The waiver by one party of the performance of any covenant or condition under this Agreement shall not invalidate this Agreement nor shall it be considered awaiver by it of any other covenant or condition under this Agreement. 24.8 Effective Date/Nonbinding Offer. Submission of this License for examination or signature by LICENcFF does not constitute an offer or option for license,and it is not effective as a license ar otherwise until executed and delivered by both VCTC and LICENSEE. Each individual executing this License on behalf of VCIC or LICENSEE represents and warrants to the other party that he or she is authorized to do so. 24.9 Amendment This Agreement may be amended at any time by the written agreement of VCTC and LICENSEE. All amendments, changes, revisions: and discharges of this Agreement in whole or in part,and from time to time,shall be binding upon the parties despite any lack of legal consideration,so long as the same shall be in writing and executed by the parties hereto. 24.10 Attorneys' Fees. In any judicial or arbitration proceeding involving performance under this Agreement,or default or breach thereof,the prevailing party shall be entitled to its reasonable attorneys'fees and costs_ 24.11 Nondiscrimination. LICENSEE certifies and agrees that all persons employed and any contractors retained, by either LICENSEE or LICENSEE's affiliates, subsidiaries, or holding companies,with respect to the License Property, are and shall be treated equally without regard to or because of race,religion,ancestry,national origin,disability or sex,and in compliance with all federal and state laws prohibiting discrimination in employment, including but not limited to the Civil Rights Act of 1964;the Unruh Civil Rights Act the Cartwright Acta and the California Fair Employment Practices Act. 24.12 Further Acts. At VCTC's sole discretion,but at the sole expense of LICENSEE,and whott a LICENSEE claim for reimbursement LICENSEE agrees to perform any further acts and to execute and deliver in recordable form any documents which may be reasonably necessary,to carry out the provisions of this Agreement, including the relocation of the Facility and the license granted hereunder. 24.13 Acknowledgement of No Right to Claim Relocation Benefits Against VCTC. LICENSEE hereby acknowledges that if VCTC asks LICENSEE or SUBLICENSEE to vacate the property,then LICENSEE is not entitled to any relocation benefits under this agreement or by virtue of state or federal law. Further. LICENSEE agrees it is not entitled to loss of good will or moving expenses from VCTC,SCRRA,Amtrak or BNSF. 24.14 Time of Essence.Time is of the essence in the performance of this Agreement 24.15 No Recording. LICENSEE shall not record or permit to be recorded in the official records of the county where the License Property is located this Agreement any memorandum of this Agreement or any other document giving notice of the existence of this Agreement or the license granted hereunder. 24.16 Revocable License. LICENSEE awes that notwithstanding the improvements made by LICENSEE to the License Property or other sums expended by LICENSEE in furtherance of this Page 13 et 30 F-96 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 114 Agreement the license granted hereunder is revocable by VCTC in arauordance with the terms of this Agreement 24.17 Entire Agreement This Agreement and the Exhibits hereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior verbal or written agreements and understandings between the Parties with respect to the items set forth herein. All amendments,changes,revisions,and discharges of this Agreement in whole or in part,and from time to time.shall be binding upon the parties despite any lack of legal consideration,so long as the same shall be in writing andexecuted by the parties hereto. 24.18 Cations. The Captions included in this Agreement are ft convenience only and in no way define.limit,or otherwise describe the scope or intent of this Agreement or any provisions hereof. or in any way affect the interpretation of this Agreement 24.19 Additional Provisions.Those additional provisions set forth in Exhibit B. if any,are hereby incorporated by this reference as if fully set forth herein. IN WITNESS WHEREOF. the parties have caused this Agreement Ta be executed by their duly authorized representatives as of the date first written above. VENTURA JRA COU NTY TRANSPORTATION COMMISSION B : Darren Kettle Executive Director.VCTC Date: f _5"-' 2i Approved As To Form: Steve.%ram( General Counsel,VCTC LICENSEE- CITY OF MOORPARK By: Tkilly City Manager Date: L 12.1 ) Page 14o'30 F-97 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 115 OMNI'A Description of Licer se Property Exhibit A-1 -Area Adjacent to Poet Office Policing Lot Exhibit A-2-Area Adjacent to Parcels 2,3,4 of Parcel Map No.2017-01 Exhitit A-3-Area Adjacent to APN's:512-0-082-010,-020,-030 Page 13 of 30 F-98 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 116 EXHIBIT B This License is subject to the following additional terms and conditions: 1. The LICENSEE agrees to execute and deliver to SCRRA, prior to commencing any work within the rail right-of-way,SCRRA Temporary Right-of--Entry agreement(Form No.6),and deliver and secure approval of the insurance required by the two exhibits attached to SCRRA Form No.6.If the LICENSEE retains a contractor to perform any of work within the rail right- of-way,then the LICENSEE shall incorporate in its contract documents SCRRA Form No. 6 and Rules and Requirements for Construction on Railway Property(SCRRA Form No. 37). Mr.Christos Sourmelis with SCRRA's Right-of-Way Encroachments Office can be reached at (909) 394-3418. Thew forms can be accessed through SCRRA's website wvrw.metrtiinktrains.com,("About Us.""Engineering and Construction,"and"Manuals"). 2. LICENSEE's contractor, at its sole cost and expense,shall obtain and maintain,in full force and effect, insurance as required by SCRRA during the entire constmetion period. The Contractor shall furnish copies of the insiranoe certificates to all affected operating railroads. 3. Third Party Safety training is requited for all work near or within the railroad right-of-way. LICENSEE's contractor shall contact SCRRA at 1-877-4524205 to schedule safety training. The contractor will need a valid SCRRA project number,located in the upper right hand comer of the Right-of-Entry.No work may commence on the railroad right of way until this training has been completed. 4. The LICENSEE agrees to comply and to ensure that its contractor complies with instructions of SCRRA's Employee-In-(barge(EIC)and representatives,in relation to the proper manner of protection of the tracks and the traffic moving thereon,pole lines,signals and other property of SCRRA or its member agency tenants or LICENSEES at or in the vicinity of the work,and shall perform the work at such times as not to endanger or interfere with safe and timely operation of SCRRA's track and other facilities. 5. LICENSEE shall prepare and submit traffic control plan for SCRRA approval for projects that will affect vehicular traffic at an existing highway-rail grade crossing. 6. LICENSEE shall install and maintain an SCRRA approved safety fence or wall at the limit of the licensed area to prevent any trespassing into the active rail corridor. 2779695.1 2972531.1 Page to c130 F-99 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 117 EXHIBIT A4 LEGAL DESCRIPTION Berg a strip of land, 20.00 feet wide, in the City of Moorpark, County of Ventura, State of California, and being a portion of the land,40.00 feet wide, described in the Grant Deed recorded September 27, 1991,as Instrument No.91-143117 of Offldal Records of Ventura County, the northerly line of said strip of land described as fellows Beginning at a pout in the northerly line of said Grant Deed,bang the southeasterly corner of the land described in the Grant Deed recorded January 5,2017,as Document No.20170105-00001833 of Official Records of Ventura County;thence along the northerly Me of said Grant Deed East 403.26 feet,more or less,to the intersection with the westerly line of Moorpark Avenue, 50.00 feet wide,as shown on the map entitled "Map No. 1 of Tract 0 of Moorpark Subdivision" and recorded in Book 8, Page 13 of Miscelaneous Records(Maps)in the office of the County Recorder of Ventura County. The southerly line of said strip of land to be lengthened or shortened to terminate easterly in said westerly line of Moorpark Avenue. Containing 8,065 square feet,more or less. /1, v r Fra er,441- 3/ ND, 7998 oe Page 17 ar 30 F-100 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 118 REP. 167=LONG ma GO/TD,21119 i hIC 1 STAT 20170105- 0©ta0l8J$ CR la OF pECIAFAST 4C 2e.1 bzor `d - 4, orde ' ' A ~ 91—MIJ117, OR 1 11 SOUTHTRANSPORTATION'PACIF1C COMPANY + 1 t ,' SCALE 1'»100' PREPARED 8Y; EXHEIT PET 50r CARPENTER, itac 506 EAST MAIN SKETCH TO ACCOMPANY SANTA PAULA, CA 93060 LEGAL 9 Q 77N (805) 525-3396 Pape 180 F-101 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 119 EXHIBIT A-2 1 F( A1 DFSCRTPT1ON Being a strip of land, 20.00 feet wide,in the ay of Moorpark,County of Ventira, State of California, and being a natal of the land,40.00 feet wide,described in the Grant Deed recorded September 27, 1991,as Instrument No.91-143117 of Official Records of Ventura County,the northerly fine e(said strip of laid described as follows: Beginning at a point in the northerly line of mid Grant Deed, said point bears South 89°3035"' East 169.65 feet from the intersection of said northerly lire with die easterly line of Moorpark Avenue,50,00 feet wide,as shown on the map entitled`Map No. 1 of Tract 0 of Moorpark Subdivision"and recorded in Boole 8, Page 13 of Miseelaneous Records (Maps)in the office of the County Recorder of Ventura County, said point being the southwesteiy earner of Parcel 2 of Proposed Parcel Map No.2017-01 and the True Point of Beginning of this description;thence continuing along the northerly line of mid Grant Deed,South 89°3035"East 1101.02 feet ID the southeasterly comer of P-arcel 4 of said Proposed Parcel Map No. 2017-01. Containing 22,020 square feet, more or less. T 4 I Larry J.Fraser, P.LS,:..8 ;.to * Nov 7998 * GO, Page reofao F-102 12853-0062\2317734v11.doe High Street Station Resolution No. PC-2020-653 Page tiff, CAE;WM/2,0IS , MAGNOLIA ST J icIT� OD' --i- 4ace, ,-ol Q UAE TABiE 4 ti 1 A 58EWTSL isR65' I 589 458920'351"WW2' SMR© Si` a ` I , i 81 zii. A 4. "I maga sr q ` b 1 w 1::r.---- GOMM Lr +M001PACK AVO SCALE 1"=200' PREPARED SY; EVIENT'8' 506 EAS1 MAI8.NER AND NASSIEREEET NTERNC. SKETCH-I TO AGCOWPANY SANTA PAULk, CA 93060 LEGAL cfEsairricw Page mom 30 F-103 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 121 EXHIBIT A-3 LEGAL D1rsCRDj i lu N Being a strip of land,20.00 feet wide,in the aty of Moorpark, County of Ventura.. State of Califcrnia, and being a portion of the land, 40.00 feet wide,desated in the Grant Deed recorded September 27, 1991,as Instrument No.91-143117 of Oficial Records of Ventura County,the northerly line of said Strip of land described as follows': Beginning at a paint in the northerly ins of said Grant Deed,being the southwesterly corner of the land described in the Grant Deed recorded October 5, 1979,as Instrument No. 109905 in Book 5505, Page 302 of Official Reaords of Ventura County;thence along sad northerly tine South 8990`35"East 300.00 feet,more or less,to the southeasterly corner of the land desarbed in Parcell 1 of the Quitclaim Deed recorded August 11,2016,as Document No.20160811-00113821 of Uncial Records of Ventura County. Containing 6,000 square feet, mare or less. f cry 7. ,P.LS.7 - r *)16)%111 471. Page 21 af 30 F-104 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 122 !!R 1■Z.D.IMIa DAZE 1G/10/2D:6 .14 lace PAROL I 20180811- 00113821 0R A 6 a. PARCEL 2 , 27180811- a 00113821. OR u��5ii T. pas 5505 OR 302 s Pnwrr strzwthe SCALE 1"`8o' PREPARED BY: rJ' r 73' BENNER AND 506 T MAN STREET SKETCH NC. S'KE CH TO ACCOMPANY SANTA PAULA. CA 93000 LEGAL DESCRIPTION (805) 525-3398 Page cf 30 F-105 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 123 EXHIBIT C SITE MAP OF PROPERTY LMPROVEMENTS EXHIBIT C-1—IMPROVEMENTS ADJACENT TO POST OFFICE PROPERTY EXHIBIT C-2—EXISTING IMPROVEMENTS ALONG HIGH STREET Page 23 of 34 F-106 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 124 IMMIIMMIMMI_ •—w lurs:may • •=SS" •=T ter... � M_ I ,. ; /it:!V I, b Av......-... ... .....47 1 47 ,_..:—..._, _.:1• -.,. _..R �,. }vim :::" ...:IS _ �i �l . 1t 3 ArAta 5,../M till jist,„ x �a0r1 S[ ...._ a a.SUM _ `�7r. ,t� • I rm`sad INPI- w� .. tY 1�/iNi�a 1 "'j AWria , nese lir ,.. I — =- -_- _ � a !! .. L.,,,,,� �„� "' 1"t'f t"r-t-TT4'1-I'1 t.11-2.147111F;"-A=1-r r r r r.1r 1141 1 1 1 !.. ' c a t1 rri...u1.1.-ii_t rr-rrr-rtlY1--. ,1�n� N *-ZTZ r.il t ISI 1 1 1 'r��t I Q1 FILM o ..........---.....:- . r... ...:.1., ----- 2�- C[rY OF MOORPARY �' MEET OLAN 3..- ) MEET NIfI`AM OLLOf UM7O/ �y w��. �_'�`�� rs�>r v�r.r I1ZYr0NOMImeM10D STATION 04070140 +�� ® v`.1'� MRfO� 111.11M i 1 Page 240130 I I I i i 1 I s g!g t I I F-107 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 125 Alt ._. •.-..' � __..._.__-�" �.:. .....rr_. - . .4 1 m s1' 1 ^ • •r ! ii. s ,* , 1 i I i I i Ti I=IT.I ClZ I I '- I T I I i'TI7 : i I i i 1 1 11 : I 11 ll L I IITTIT-1 , r-3 3-r_ r-Lr r r L E-1-1 1=31 I I I I I.I 4 i L L<..i.-IS SI i I i I t t i i I I I1 i N 0.111110111111111M AM s ....�"� P .4101 • a -.. 0 a • . .. -`r --I CITY OF NOORPARK �� Ptd NEST HOI STREET RERAl aTATION la PARKINGLOT PIAL%MUM 09AIMENT ..... �A0.03mSKS@iHIWGOMIOI M0 3 •••••s t a5tMit•. Pape 25 d 30 F-108 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 126 14110.4ik ;WAN.. 14161.0� i �'LTII'LTi _.• ;�rf..},1 ,---y'La �' ---� •) ....�..s.. _ _ .tea f14, ///. ..,,/Yi: its • i. {may' �.J ""......r ._.._ .i.1.✓ IAlhe rte, ems. AWN ago • : J I ➢- i ] r. l-_ I �I Dt tio�.1;4'44 CAPING PLAN - tire CITY OF MOORPARK NEAT NE STR NAE TATK mP tun --t-- � >wrnx- !LUC WOWS rAAMufr �» MIXING kOT EMPIEMINCIDIVISION Pape alaf30 F-109 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 127 �+^If i?;r^ •,,r T :mgr, -.� - • .•,y,,� 1 '®a.� JLr... At Mir 'Ilk ( i.a.� -. O. crate 0.0 ANN mama No :I Am 1�.., r } �_ �: .. .. 1 o; ,a,.,ice./�.,,./i._::J}Y./..".':i._ G. viii, V4: t/ .- ?. 4111P'_..elit 44'`, ' ' 'L.,' ..— IS. .0 'A...A Q .0...aC t:OQ 0,..... #111.1k3720:4,170.(6.0.0°0110 A. ED _._..«- w -ate' air t ... s ___ , ,.�.. .,.i« -._-7s CITY OF MOORPARK or. .- — ,r..._ LN09CJ1Pf16 PLAN .. 0 »'— -- •._ -7:T�'- { _ NBT HIGH STNffTK9Y/tiTAT1OK ..y _._... # "`�' MILL MOMS atAlT1 Wt %H L PAlIK11K'1DT -� .fr_ .. �+:i�s�-�..rt, N6!lkluelfiurv�saV IiKOlO6 �s -s�a� l> a _ Pape Ti of 30 F-110 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 128 lior.4 AM LEGEND fCt ` zs. _ " ,, ... illaamisibt.110 .r a AM a ma NI: : \ '''''\\ -\—\\:\\\\.'''' - 0/ /Milt MOP/ .r. -=,.------- . •Ssssyacr••••••.Y`. • rr�nrw----"-- 7 ?�- - f Q fLni -.w:ter I JO, i--.,—.— CITY OF MOORPARK '4:7- IRRIGATION NAN - W.y ---.04/4014. •, , NEST NON STREET NEHABUTAnoN , _ -?---_-- �J maw wotKS oermatu+r Mr= a PANG LOT � ""' ` -y yur e•.0m }v..i/M. - y cdrj� r 4 ENGINEERING DIVISIONMr-MEI Page 28 of 30 F-111 12853-0062\2317734v1I.doc High Street Station Resolution No. PC-2020-653 Page 129 - _._ anacuroi cmc It aimisa.ron� Oa s MN 1%s a� : i w - --- ' i 1 i , 1 1 - ,il . , t . 1 . . I I i I I T -1 III LII1 I- I i_ .1 I : ? ? 7. - i PM s g Millireal... N ......._... _,...•e. m — ' yµ CITY OF MOORPARK �' i TroN�Ptl i . _>�i_ MESTl16N STIrffT QOY ._., • }.t. &PMIM OS a� 'Mat*OM 0l T MIS: PARC INCL Page 29OF30 F-1 12 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 130 EXHIBIT C-2-DEPICTION OF ACTUAL IMPROVEMENTS _ 1 a 00 IA! IP - •:.; tLr LI I' :T".1.1a 1U INF 1r at • 41 .1B CB 49 riP IL 11L D IlL11. ta IP•-.1:4 Eta, 21 - TIrtl 4V., CA 1115 40 113,4 ID1 It •TiL • I. 1 a IF ifif 11 rr ; DLE AD 71- ,r." • .1. 3 ge 30 of 3C F-113 12853-0062 k 2317734v 11 doc High Street Station Resolution No. PC-2020-653 Page 131 EXHIBIT "B" (STREETSCAPE IMPROVEMENTS) nmm ¢ >- p ! N • NN i 0!► 2 II A i,r cn el 0- --7. a_ItIi:dflJ zx o 4 a ae 4.41 zit 0 O C 04 sr 8 '�+`, OI: u i . „ 4.+ # I ' al fp!. 1 J ,t, � 13381S ANTI -� , - ,a: Z I 2 *et , _ 1111111 s �` T L s • 1 /1'' .i 4,I, is F-114 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 132 EXHIBIT "C" (HARDSCAPE/LANDSCAPE PLANS) p - C: I M WIi1 'e1i 1� gg1 ➢I d I i dsi@9iaie199c a� la'i � �ill $ � `d� �� 9j � �g�� i9pi ' S3Q F ... Aa # . , Qt C 1W y; 111d1a 08V8 - }; G i I 1 iitik -- - . - 1- 1 h &--= i ) i )1 — i i op 4111;111p * ._., fl i _ i 1 1F6aiq .1--' p ' J i i1 si i d a++ E .�..,," H J , o .111 i lii o. 4b. i7 E , s i o 3;ry® �pag�ii I"POI 10 ` - itF : "8. �p�a 9��.�gp9�i ® 0 - Nx 1111 -* m DO. 1I 1i m>�, I I •!i i ® ,_ H = i E*i g = a 133815 1fN1VM'''_ I -,........... A t'f ;z i Y II ' - e 4: , .e e. g W i I ' tali 1 41-1 # o- 1 1 r 1 1 F-115 1 12853-0062\2317734v11.doc } F F t High Street Station Resolution No. PC-2020-653 Page 133 EXHIBIT "D" (AFFORDABLE (MODERATE INCOME) UNITS) J r - - - � r - - - � r - - - � . -- t i i i i % 0�•` i i i i i i , r a-d I I I 1 I I ,r(/�/ �- L' to I 1 1 I I I W=..+ ''' '. I I I I I I I• �. I I I I g q' '� I • I y I '1, .d. III !ft :: I''� i _ Tt i �r.�` 1 I I Y I 13' ii1 -ALLIIIMIC L ''� i IM i t.-'''''`J i i '- ', IP i i i i i i - 1 v; i I is ii i : 111 3 Q • I i i a at i CO i ! i / i ; 41 — -1 a)3 J II. I i --7-,Z 1 I � I F; - 1:; a p> o ! i I i IT]� �^l' W I I r l I I H I Millar ; W- _ Fa' i1 Em, . N- U I, 1 , I I I �- 1 t L I I I, I 1 IL M 3t it }n I I I I 1 6 E. { (n It I 1: I I a I jr . rr I I I- 1 I 1 1 E �¢I I 1_ I I 1. 1_ 1 `� z .T $ I I �'I IF. I aI �� Q) 2 I 3I 1 1 I D I - I I I I I 1 I # • { i i m i i mi I g ! _ g.IT i i i i i p i i i oh i Q i i i S I i i i i i ;1: i LX:! i II!J �' II i I 6-- , • F-116 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 134 EXHIBIT "E" (ADDRESSES OF PARTIES) To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: The Daly Group, Inc. 31255 Cedar Valley Dr., Ste. 323 Westlake Village, California 91362 Attn: Vince Daly With copy(which shall not constitute notice) to: Jonathan Block, Esq. c/o The Daly Group 31255 Cedar Valley Dr., Ste. 323 Westlake Village, California 91362 With copy(which shall not constitute notice)to: Mullen&Henzell, L.L.P. 112 East Victoria Street Santa Barbara, California 93101 Attn: Graham M. Lyons, Esq. F-117 12853-0062\2317734v11 doc High Street Station Resolution No. PC-2020-653 Page 135 EXHIBIT F PROJECT FEES Developer will be required to pay all applicable fees pertaining, but not limited to condition compliance, environmental MMRP compliance,plan checks, inspections,public works permits, and building permits. Community Development Department Fees/Deposits (Resolution No. 2017-3608): Condition Compliance deposit Development Agreement Annual Review deposit Zoning Clearance fees Advance Planning fees Construction and Demolition Material Management Plan fees (Note: A 15%administrative fee is added to any work that is completed by consultants to the City.) Lot Line Adjustment/Merger, Sign Permit/Program, Temporary Banners, and Use Permits for future commercial tenants would be under separate application. Public Works Fees/Deposits (Resolution No.2008-2670): Encroachment Permit/Inspection fees Excavation Permit/Inspection fees Transportation Permit fees Geology and Geotechnical Report Review deposit Plan Check fees Inspection fees Geology and Soil Engineering Review fees (Note: A 30%administrative fee is added to any work that is completed by consultants to the City.) Building and Safety Fees/Deposits (Resolution No. 2010-2971): Building permit fees Plan Review fees Energy Conservation fees Handicapped Access fees Green Building Mandatory Measures fees Green Building Tier 1 and 2 fees Strong Motion fees Demolition Permit fees Electrical Permit fees Mechanical Permit fees Plumbing Permit fees G-118 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 136 EXHIBIT G CERTIFICATE OF COMPLETION RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: APN: This document is exempt from the payment of a recording fee (Space Above for Recorder's Use Only) pursuant to Government Code Section 27383. CERTIFICATE OF COMPLETION THIS CERTIFICATE OF COMPLETION(the"Certificate") is made by the CITY OF MOORPARK, a municipal corporation (the "City"), in favor of RECITALS A. City and Developer have entered into that certain unrecorded Disposition and Development Agreement(the "DDA")dated as of , 2020 concerning the development of certain real property situated in the City of Moorpark, California, described in Exhibit"A"attached hereto (the "Site"). B. As referenced in Section of the DDA, City is required to furnish Developer or its successors with a Certificate of Completion upon completion of construction of the "Project" (as defined in the DDA), which Certificate is required to be in such form as to permit it to be recorded in the Recorder's Office of Ventura County. This Certificate is conclusive determination of satisfactory completion of the construction and development required by the DDA. C. City has conclusively determined that the construction and development of the Project has been satisfactorily completed. NOW, THEREFORE, City hereby certifies as follows: 7. City does hereby certify that the Project to be constructed by Developer has been fully and satisfactorily completed in full conformance with the DDA. 8. This Certificate shall not constitute evidence of compliance with or satisfaction of any obligation of Developer to any holder of a mortgage, or any insurer of a mortgage, securing money loaned to finance construction work on the Site, or any part thereof. G-119 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 137 9. This Certificate shall not constitute evidence of Developer's compliance with those covenants in the DDA that survive the issuance of this Certificate. 10. This Certificate is not a Notice of Completion as referred to in California Civil Code Section 3093. 11. Nothing contained in this instrument shall modify in any other way any other provisions of the DDA(including without limitation the attachments thereto). IN WITNESS WHEREOF, City has executed this Certificate of Completion this day of , 20 . CITY OF MOORPARK pS By: Troy Brown, City Manager ATTEST: Ky Spangler, City Clerk G-120 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 138 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California ) County of ) On ,before me, (insert name and title of the officer) Notary Public,personally appeared ,who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) G-121 Draft 9/2/2020 12853-0062\2317734v11.doc High Street Station Resolution No. PC-2020-653 Page 139 EXHIBIT"A" LEGAL DESCRIPTION To be provided by owner prior to close of escrow G-122 Draft 9/2/2020 12853-0062\2317734v11.doc 1 A.