HomeMy WebLinkAboutAGENDA REPORT 2020 1007 CCSA SPC ITEM 06ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of October 7, 2020
ACTION Adopted Resolution No. 2020-
3949, Introduced Ordinance No. 484, and
Adopted Resolution No. 2020-3950. (Roll
Call Vote: 4-0, Councilmember Enegren
Recused).
BY B.Garza.
A. Consider a Resolution Adopting a Mitigated Negative Declaration and Approving
Residential Planned Development Permit No. 2018-01, an Ordinance Approving
Development Agreement No. 2018-01, and a Resolution Approving Disposition
and Development Agreement No. 2018-01, for a Mixed-Use Development
Consisting of 79 Residential Units, 13,628 Square Feet of Commercial Floor
Area, and Associated Land Improvements Located at 226 High Street in the
Downtown Specific Plan Area, Based on Findings and Subject to Conditions of
Approval, on the Application of Daly Group, Inc. Staff Recommendation: 1) Open
the public hearing, accept public testimony and close the public hearing; and 2)
Adopt Resolution No. 2020-3949 adopting the Initial Study/Mitigated Negative
Declaration and associated Mitigation Monitoring and Reporting Program
(MMRP) and conditional approval of Residential Planned Development (RPD)
No. 2018-01; and 3) Introduce Ordinance No. 484 for first reading, waive full
reading, and place ordinance on the Agenda for the October 21, 2020, Regular
meeting for second reading and adoption of the ordinance approving
Development Agreement (DA) No. 2018-01; and 4) Adopt Resolution No. 2020-
3950 approving Disposition and Development Agreement (DDA) No. 2018-01,
subject to final language approval by the City Manager and City Attorney. (Staff:
Karen Vaughn) (ROLL CALL VOTE REQUIRED)
Item: 6.A.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Karen Vaughn, Community Development Director
DATE: 10/07/2020 Special Meeting
SUBJECT: Consider a Resolution Adopting a Mitigated Negative Declaration
and Approving Residential Planned Development Permit No. 2018-01,
an Ordinance Approving Development Agreement No. 2018-01, and a
Resolution Approving Disposition and Development Agreement
No. 2018-01, for a Mixed-Use Development Consisting of 79
Residential Units, 13,628 Square Feet of Commercial Floor Area, and
Associated Land Improvements Located at 226 High Street in the
Downtown Specific Plan Area, Based on Findings and Subject to
Conditions of Approval, on the Application of Daly Group, Inc.
SUMMARY
Daly Group, Inc. (Applicant) 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, and a community green space centered on the Bard
Street/High Street intersection. The project is envisioned as a public-private
partnership, as reflected in the terms of the development agreement which provides a
pathway toward development and commits the City to certain associated hardscape and
landscaping improvements along the project frontage (Project).
The Project is located within the Commercial – Old Town (C-OT) zoning district and the
Downtown Specific Plan Overlay Zone. The Project is subject to provisions of the
Downtown Specific Plan (DTSP) and the City’s zoning ordinance. The DTSP sets forth
a vision for the downtown area which identifies certain commercial and residential
corridors within downtown as well as mixed-use development along High Street.
Item: 6.A.
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The requested entitlements include a Residential Planned Development Permit (RPD)
for the overall site design, architecture, and necessary conditions of approval; a
Development Agreement (DA) for the terms and fees associated with the development
project; and a Disposition and Development Agreement (DDA) for the terms of the land
transaction. Environmental analysis in the form of an Initial Study/Mitigated Negative
Declaration (ISMND) was prepared to identify any significant environmental impacts
attributable to the project, if approved, and necessary mitigation measures to reduce the
impacts to a less-than-significant level.
On September 10, 2020, the Planning Commission held a duly-noticed public hearing to
consider the Project. The Commission voted 4-0 to forward a recommendation that the
City Council adopt the ISMND and approve the RPD, DDA and DA (Attachment 10).
BACKGROUND
The Redevelopment Agency of the City of Moorpark acquired a 2.34 acre site, located
at 192 High Street from the Ventura County Transportation Commission (VCTC) on
August 8, 1993, at a cost of $393,451.34, as part of a plan to redevelop High Street.
This Property was part of a 4.77 acre purchase for $800,000. In 2012, the
Redevelopment Agency was dissolved and the Successor Agency to the
Redevelopment Agency of the City of Moorpark was created. As part of the dissolution
process, the Successor Agency prepared a Long Range Property Management Plan
addressing the disposition of real properties acquired by the former Redevelopment
Agency. The subject 2.15 acre site was conveyed to the City in 2016, upon the City’s
payment of $470,000 as compensation to the taxing entities.
The Project site contains five existing buildings: Two grain storage buildings, the large
granary with the train station façade, a vacant industrial building (One More
Time/Moorpark Active Seniors) and a vacant restaurant building (Maria’s Family
Restaurant). The train station façade is the most recognizable structure on the site and
was constructed in 1979. All of the buildings are vacant, dilapidated and act as an
attractive nuisance. The remainder of the site contains paved and unpaved parking
areas and an assortment of trees. Overhead utility lines bisect the site from north to
south aligned with Bard Street. The site is located within a known liquefaction zone.
Prior efforts to develop the site have occurred over the past decade. In 2009, the City
processed a DDA and a Commercial Planned Development Permit (CPD) for a 71,656
square foot commercial center consisting of two 2-story office and retail buildings
(Aszkenazy Development). This project would have occurred in two phases on the
same 2.15 acre site. The commercial project never came to fruition. In 2016, a
development application was approved to construct 16,734 square feet of restaurant,
banquet room, commercial kitchen and microbrewery (Apricot Lane Market). The CPD
and Conditional Use Permit (CUP) were approved by the City Council on November 16,
2016. A DDA for the transaction of the land was later approved by the City Council on
May 10, 2017. However, the applicant did not sign the approved DDA, no building
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permits were ever requested or issued, and the CDP and CUP have subsequently
expired.
On November 17, 2017, the City and Daly Group, Inc. entered into an Exclusive
Negotiating Agreement (ENA) while the Applicant performed studies and due-diligence
for a mixed-use development proposal. The ENA was extended several times as work
progressed on the project design and the terms of the DA and DDA were being
negotiated. A City Council ad hoc committee of Mayor Parvin and Councilmember
Simons was formed to guide staff during the DDA and DA negotiations. Staff consulted
with the ad hoc committee numerous times throughout the negotiation process.
The Applicant submitted a formal development application on September 5, 2018, for a
mixed-use project consisting of 91 residential rental units (44 studios, 39 2-bedrooms,
and eight 3-bedroom units) and 13,656 square feet of commercial floor area.
On May 15, 2019, the City Council held a study session to provide feedback on the
proposed project and to provide mixed-use policy guidance to staff. At that meeting,
members of the public as well as Council members provided comments and feedback
on the development proposal.
The project scope was subsequently reduced following input from the May 15, 2019,
study session and further DA negotiations. The number of residential units was
reduced from 91 to 79 in order to address multiple concerns. The reduction in
residential units had the effect of reducing on-site residential parking requirements as
well as the height and stories of two of the mixed-use buildings. As noted in the
Summary section above, the Project under consideration is a 79 residential unit and
13,628 square foot commercial floor area mixed-use development.
DISCUSSION
The Downtown Specific Plan (DTSP) was originally adopted in 1998 as the
implementing document for the Downtown Specific Plan Overlay Zone (MC 17.72). The
DTSP contains goals and a core vision for the revitalization of downtown to make it an
attractive and thriving place for the enjoyment and benefit of everyone. Within Section
1.1 it states, “Revitalization and image building of Old Town Moorpark will contribute to
a memorable City identity, welcoming residents and visitors to downtown Moorpark.”
While the DTSP has been modified several times since the original adoption, the intent
and vision for the downtown area has remained constant throughout: a vibrant and
active downtown core with both commercial and residential uses.
The City’s General Plan was also amended in 1998 to create the Downtown Specific
Plan (SP-D) land use designation. As noted in the General Plan, “The intent of the
Downtown plan is to create a viable central business core,” which is to be accomplished
“by establishing a variety of uses that address community needs.” It goes on to note
that, “The specific plan provides a menu of development opportunities, improvements
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and relationships structured to provide economic growth and stability within the
community core area.”
As part of the original DTSP efforts, the City performed an analysis to determine
whether mixed uses (commercial plus residential) would be appropriate in downtown.
The study consisted of a survey of City/Statewide programs to determine how
mixed-use projects succeed or fail in downtown settings. The results, outlined in
Table 3 of DTSP Section 1.4.7, determined that mixed uses would be appropriate in the
Commercial Old Town zone along the High Street corridor. The analysis further found
that “Increasing residential and office activities in downtown can foster a healthy,
diverse environment.” Mixed-use was incorporated as an allowable overlay use in the
C-OT zone, primarily along High Street.
In 2016, Keyser Marston Associates, Inc. (Keyser Marston) was contracted to perform a
commercial market analysis throughout the City. Specific to downtown, the report
notes, “Given the lack of private investment in High Street over the past thirty years, the
City could consider exploring methods for stimulating healthy commercial along this
corridor, as this area could provide an opportunity for local and regional commercial
tenants.” It goes on to suggest several methods to activate downtown, including:
• Transit oriented development – The possibility exists for a small amount of
service development adjacent to the Metrolink Station. Further, residential
transit-oriented development is becoming very popular in Southern California.
• Municipal programs – Business improvement district formation, development
standards that take into consideration remaining development potential (e.g.
reduced parking requirements near the transit station), etc.
As noted above, the City Council held a study session in May 2019 to provide feedback
on the proposed project and to provide mixed-use policy guidance to staff. The policy
guidance included an affirmation of the following statements:
• Design flexibility is appropriate for mixed-use projects.
• Higher residential densities are appropriate when located within transit-oriented
development (TOD) hubs.
• Flexible parking standards for mixed-use projects located within TOD hubs are
appropriate.
These policy statements were memorialized in recent text amendments to the DTSP,
approved by the Council on July 15, 2020.
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PROJECT ANALYSIS
General Plan
The General Plan land use designation for the project site is Downtown Specific Plan
(SP-D). This designation allows for a myriad of uses intended to activate the downtown
area. The Project is consistent with the SP-D land use designation and would help to
implement the following General Plan goals and policies:
Land Use Element Goals:
Goal 9: Promote the revitalization of the downtown commercial core.
o Policy 9.1: The visual character of the downtown commercial core shall be
strengthened in order to attract a variety of commercial uses and to promote the
economic viability of downtown Moorpark.
Goal 13: Achieve a well-balanced and diversified economy within the City which
provides a variety of economic and employment opportunities.
o Policy 13.3: The City shall encourage the coordinated revitalization of obsolete
or declining commercial areas, particularly focusing on the downtown area.
Goal 17: Enhance the physical and visual image of the community.
o Policy 17.1: New development shall be compatible with the scale and visual
character of the surrounding neighborhood.
Goal 18: Provide for and promote the revitalization of visually degraded landscaping,
building facades and deteriorated buildings in the community.
o Policy 18.1: All downtown area revitalization efforts shall preserve, as
appropriate, a historic theme reflective of the community’s origins.
o Policy 18.2: The established redevelopment authority shall be used to help
provide for the revitalization of the downtown area.
o Policy 18.3: Development in the downtown area should incorporate the careful
use of compatible or similar construction materials and architectural style, so as
not to detract from the integrity of historical features.
o Policy 18.5: Creative programs for resolving the parking problems of commercial
uses on High Street and Moorpark Avenue shall be encouraged.
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Housing Element Goals:
Goal 2: Provide residential sites through land use, zoning and specific plan
designations to provide a range of housing opportunities.
o Policy 2.4: Promote and encourage mixed-use residential and commercial uses
where appropriate as a means to facilitate development.
Goal 4: Where appropriate, mitigate unnecessary governmental constraints to the
maintenance, improvement, and development of housing.
o Policy 4.4: Support infill development at suitable locations and provide, where
appropriate, incentives to facilitate their development.
Zoning
The zoning designation for the project site is Commercial Old Town. C-OT allows
permitted and conditionally permitted commercial uses including bars, restaurants,
professional offices, retail shops and personal services. The project site is also located
within the Downtown Specific Plan Overlay Zone. The DTSP implements both the
Overlay Zone and the General Plan designations. The DTSP, as an overlay, adds
mixed-use as an additional use on top of the underlying C-OT zoning district uses.
The land use and zoning designations of the project site and adjacent sites are as
follows:
GENERAL PLAN/ZONING
Direction General Plan Zoning Land Use
Site Downtown Specific Plan
(SP-D)
Commercial Old Town (C-OT)
with
DTSP Overlay Zone
Vacant
commercial
buildings
North Downtown Specific Plan
(SP-D)
Commercial Old Town (C-OT)
with
DTSP Overlay Zone
Commercial
South Downtown Specific Plan
(SP-D)
Commercial Old Town (C-OT)
with
DTSP Overlay Zone
Railroad
East Downtown Specific Plan
(SP-D)
Commercial Old Town (C-OT)
with
DTSP Overlay Zone
Surface
parking lot
West Downtown Specific Plan
(SP-D)
Commercial Old Town (C-OT)
with
DTSP Overlay Zone
Commercial
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Residential Planned Development Permit No. 2018-01
The Project would demolish the existing buildings on-site and replace with seven new
buildings: Four mixed-use buildings and three standalone commercial buildings. The
Project includes 13,628 square feet of commercial floor area, including 5,257 square
feet of stand-alone commercial space as well as 8,371 square feet of ground floor
commercial space within the mixed-use buildings. Additionally, the Project includes 79
residential rental units within the four mixed-use commercial/residential buildings. The
breakdown of the individual buildings is as follows:
Proposed Use Per Building
Building Commercial Residential types Res. Total
A 1,665 s.f. ground floor 8 – studio units
3 – two-bedroom units 11 units
B1 3,238 s.f. ground floor 14 – studio units
18 – two-bedroom units 32 units
B2 1,734 s.f. ground floor 10 – studio units
12 – two-bedroom units 22 units
C 1,401 s.f. standalone - -
D 2,182 s.f. standalone - -
E 1,674 s.f. standalone - -
F 1,734 s.f. ground floor 10 – studio units
4 – two-bedroom units 14 units
Total 13,628 s.f. 42 studio units
37 two-bedroom units 79 units
Based on a review of the original 91-unit project pro forma, conducted by Keyser
Marston on behalf of the City, the project is financially viable and could be funded using
traditional financing tools available to private investors. Mixed-use projects by their
nature typically rely on the residential units to subsidize the commercial components of
the Project. Residential development is a lower risk investment as housing is always in
demand and financing is readily available. Also, residential vacancy periods tend to be
shorter and there are far more units to cover the occasional vacancies. Commercial
development, on the other hand, is a higher risk investment because it is market-driven
and vacancies can be much longer in duration. A project with a reduced residential
count has the impact of necessitating more creative solutions, as reflected in the terms
of the Development Agreement – to ensure the viability of the project. Put another way,
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simply reducing residential units reduces the probability that the project can be financed
on the open market using traditional financing means available to private investors.
The 2016 Keyser Marston commercial market analysis found that Moorpark has excess
commercial tenant space resulting in high vacancy rates. Leakage of retail to
neighboring cities and the trending rise of on-line purchasing continue to contribute to
the softening of the commercial/retail market in Moorpark. While the City would likely
have difficulty absorbing additional large-scale commercial square footage, the
commercial spaces within the High Street Station Project are designed more as “maker
spaces” for small, independent entrepreneurs. These spaces would provide entry into a
commercial storefront for new start-up businesses or service/retail tenants that do not
need large areas for office/inventory/storage and the associated overhead costs.
With a total of 79 residential units on 2.15 acres, the Project density is 36.7 dwelling
units per acre. The original project submitted to the City contemplated a density of 43
units per acre. As noted earlier in this report, the City Council affirmed the policy
statement that higher residential densities are appropriate in transit-oriented
development hubs. The DTSP was amended in June 2020 to incorporate this policy.
The DTSP includes both development standards and design guidelines for the
development of mixed-use projects in downtown. By focusing on the height, massing,
look and feel of downtown buildings, the DTSP is at its core a form-based code. The
constraints upon residential density are provided through the required development
standards and solidified through the RPD and DA process. Further description of the
required mixed-use development standards is provided below.
Architecture
The proposed project includes a total of seven buildings: Three stand-alone commercial
buildings and four mixed-use commercial and residential buildings.
The stand-alone commercial buildings are proposed to flank three sides of the village
green open space amenity. The rear building (Building D) is proposed at approximately
29 feet tall and one story. This building provides a buffer between the village green and
the railway corridor to the south. The side commercial buildings (Buildings C and E) are
slightly shorter at approximately 27 feet. The three stand-alone commercial buildings
are proposed to utilize material elements reminiscent of the existing buildings as well as
elements that evoke an agricultural/industrial feel. These elements include repurposed
corrugated metal, reclaimed wood veneer, bronze window and door frames, silo and
smokestacks, and roll-up doors to allow an indoor/outdoor commercial interface.
The four mixed-use buildings are proposed to reference existing building styles and
materials found in downtown. Building A at the western edge of the project is proposed
at two stories, 25’-4” feet tall. This building includes white brick paired with milky white
and light grey stone and stucco accents, similar to the existing white brick building on
the corner of High Street and Moorpark Avenue. The ground floor would include two
commercial tenant spaces (867 square feet and 798 square feet) along the High Street
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frontage, three ground-floor studio residential units tucked behind the commercial
storefronts, and eight residential units (five studios and three 2-bedroom units) on the
second floor.
Buildings B1 and B2 are proposed at three stories, 35’ feet tall. These buildings utilize
yellow and green hardi-plank board and batten siding, reminiscent of the existing
granary façade structure. These buildings would contain a total of six ground floor
commercial tenant spaces ranging from 716 square feet to 867 square feet along the
High Street frontage. Nine ground-floor residential units (five studio units in Building B1
and four studio units in Building B2) would be tucked behind the ground floor
commercial tenant spaces. The two upper floors would consist of 27 residential units
(nine studio units and 18 2-bedroom units).
Building F at the eastern edge of the project is proposed at 2 stories, 25’-3” tall. The
design includes reddish brick hues along with beige stucco, drawing inspiration from the
fire station across the street. Additional corrugated metal and bronze window framing
help to build out the design aesthetic. This building would contain two ground floor
commercial tenant space (867 square feet each) four studio residential units tucked
behind the commercial spaces, and ten residential units (six studios and four 2-bedroom
units) on the upper floor.
The four mixed-use buildings would incorporate various massing elements and roof
structures to provide a variation in the building design, create shadow relief and harken
to downtown buildings that the community has come to love. These buildings include
plinth designs along the exterior base to ensure a sense of grounding, durability and
permanence. All buildings would utilize variations of divided-lite windows in order to
play off of older buildings in downtown and carry forward the traditional architectural
theme. Mixed-use buildings A and F would include roll-up doors for the commercial
units to allow for enhanced indoor/outdoor connectivity. The roll-up doors would also
incorporate a divided-lite pattern for consistency.
Development of these buildings along the south side of High Street would help to
balance the look and feel of the corridor, with low-rise buildings flanking both sides of
High Street to create an intimate, pedestrian-scale experience.
Site Plan
The Project site is made up of two separate parcels, sandwiched between High Street
to the north and the VCTC railway to the south. The overall site dimensions are
approximately 100’ by 937’. The proposed mixed-use buildings are designed to line the
High Street corridor with prominent public commercial entrances along the frontage.
Several ground floor residential units also have entryways along the High Street
frontage, but are minimized in an effort to be inconspicuous and not interrupt the
commercial feel. Three stand-alone commercial buildings are set back from the High
Street frontage and flank an 8,100+/- square foot village green space that is centered on
the High Street/Bard Avenue intersection. The green space provides relief amongst the
buildings and creates a central outdoor meeting and living space to support gatherings
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and downtown events. Frontage improvements along High Street would include
concrete paver sidewalks, pedestrian crosswalks and bulb-outs, lighting, landscaping
and street furniture. As reflected later in this report, the City would be responsible for
constructing frontage improvements in the right-of-way fronting the project.
Coordination with the developer would ensure these improvements occurred in such a
way to enhance pedestrian experiences and blend in with the proposed project. In
addition, since the City will have ultimate design authority, the City’s participation also
provides an opportunity for the City to implement design attributes from the Downtown
Streetscape plan into the project.
At-grade surface parking is located on the project site, behind the proposed mixed-use
buildings. A total of 137 parking spaces are located on the project site as well as the
VCTC railway property immediately south of the project site. The City has a license
agreement with VCTC which allows for parking to occur in this area. Through the DDA,
the City will assign a sub-license agreement to Daly Group, Inc. for parking purposes.
The Project was designed so as to not impact the historic pepper trees that line the
public right-of-way along High Street. No historic pepper trees are proposed for
removal as part of the application. Compliance with Moorpark Municipal Code (MMC)
Section 12.12.060 Tree Preservation Guidelines and the 2006 Pepper Tree
Maintenance Plan will be required as a condition of approval.
The existing gazebo, El Camino Real bell, historic pepper tree marker, and memorial
bricks that are currently located near the Bard Street intersection are proposed to be
relocated to the frontage of the City-owned Chamber of Commerce site at the western
edge of the Project.
Parking
The Project will include 137 parking spaces on-site and along the VCTC right-of-way
directly south of the site. The City currently has a license agreement with VCTC that is
renewable every five (5) years. Through the DDA, a sub-license agreement will be
assigned to Daly Group, Inc.
Commercial Parking
Section 3.8 of the DTSP notes the unique character of the High Street area and
provides parking incentives for commercial parking in downtown, including the use of
on-street parking to be counted toward the Zoning Code parking requirements. Chapter
17.32.025 of the Zoning Code also contains parking incentives for High Street, including
a provision that restaurant uses be parked at the same 1/300 square foot ratio as
professional office uses, the allowance for parking reductions through shared parking,
and the use of in-lieu fees.
The commercial component of the Project requires 41 parking spaces. A total of 137
parking spaces are included on the project site, with 116 to be dedicated for residential
uses (see below). This leaves 21 on-site parking spaces that can be utilized as public
shared spaces to serve the commercial uses. As noted above, the DTSP allows for
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street parking to be counted toward commercial parking requirements. The remaining
20 required spaces would be accommodated with the available public parking along
High Street and within downtown in general.
Residential Parking
Section 2.2.5.5 of the DTSP requires all residential uses be fully parked on-site. The
Project includes a total of 79 residential units (42 studios and 37 2-bedroom units),
requiring 116 on-site residential parking spaces (1 space per studio and 2 spaces per 2-
bedroom unit). A total of 137 parking spaces are included on the project site, 116 of
which would be reserved and assigned to the residential units.
Guest Parking
In July 2020, the City Council adopted DTSP amendments that allow guest parking to
be modified or waived if there is sufficient public parking available within the vicinity.
The residential uses of the proposed project would require 40 guest parking spaces.
With the amended provision, the guest parking requirements may be satisfied by
utilizing nearby public parking.
In 2019, the City hired Walker Consultants to perform a Downtown Parking Study. The
study identified 914 public parking spaces in downtown (798 excluding street spaces on
Charles Street). The study was conducted to gauge a baseline understanding of public
parking capacity, utilization and turn-over within the downtown area. The study
considered on-street parking spaces as well as public parking lots throughout
downtown, including the City Hall parking lot, Post Office parking lot (city-owned), and
Metrolink parking lots. While the Metrolink lots are for the primary use of train
commuters, they are available for public use. The goal is to ensure that the spaces are
open when commuters arrive during the morning hours, thus no overnight parking is
allowed.
The parking study found that utilization of available public parking peaks at 40% on
weekdays, leaving 60% of spaces unused. Utilization on weekends was even lower at
25-29% (based on theater events). The average length of occupancy was one to two
hours for 77% of the utilized spaces. Thus, there is ample available public parking to
accommodate the short-term guest parking needs. Staff supports the waiver of guest
parking requirements for this Project.
Regional policies and state laws promote and incentivize residential development near
transit by reducing or waiving parking requirements. Connect SoCal is the 2020-2045
regional transportation plan by the Southern California Association of Governments
(SCAG). It is a long-range plan aimed at balancing mobility and housing needs with
economic, environmental and public health goals. Connect SoCal contains strategies to
focus growth near mobility options in order to reduce commute times, reduce
greenhouse gas emissions, and reduce reliance on solo automobile trips. Among the
strategies is the idea of “right sizing” parking requirements and promoting alternative
parking strategies. Further, various sections of the California Government Code allow
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for the reduction of required parking, down to 0.5 spaces per residential unit, for certain
types of housing projects located near transit.
At such time in the future that downtown parking usage nears the industry standard
utilization rate of 85%, the City has additional tools that can be deployed to manage
downtown parking, including but not limited to time limit restrictions, restriping to gain
additional spaces, shared parking agreements, permit parking programs, and/or paving
of additional areas south of the railroad tracks.
Opportunities for shared parking agreements exist within downtown. The City owns the
Chamber of Commerce property to the west of the project and the Post Office parking
lot directly across Moorpark Avenue that could be used to facilitate guest parking,
during non-business hours, for the project. Conversely, the City could enter into a
shared parking agreement with the High Street Arts Center to accommodate parking
needs for patrons of the theater to ensure its continued success.
Should the VCTC license not be renewed or the parking along the VCTC right-of-way
need to be removed, staff has included an additional condition of approval (Condition
54) that would require the property owner to secure replacement parking spaces.
High Street Streetscape
In June 2009, the City Council considered two potential streetscape options for High
Street. The preferred option selected by the Council included a curvilinear roadway
alignment that incorporated on-street parking along alternating sides of High Street
(Attachment 2). The preferred option also included enhanced pedestrian crossings,
traffic calming measures, and street furniture to elevate the downtown experience. The
pedestrian, above any other mode of transit, was considered and planned for. The cost
estimate to construct the streetscape improvements, at the time, was approximately
$4.5 million and the improvements were never funded for construction.
The Project proposes design elements from the 2009 preferred streetscape plan,
including traffic calming measures at the Walnut/High and Bard/High Street
intersections, community green space, outdoor seating and dining areas, and enhanced
sidewalks and walkways. The Project would also retain the on-street parking and bike
lanes, as well as the historic pepper trees along the High Street right-of-way. The
Project is consistent with and implements various components of the 2009 preferred
streetscape plan for High Street. The City will be the final authority on design of
frontage improvements along the project and retains the right to implement any
elements of the downtown streetscape plan. As proposed, the elements to be
integrated into the project are consistent downtown streetscape plan.
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DTSP Mixed-Use Development Standards
The Project site is located within the Downtown Specific Plan area as well as the C-OT
zoning district. Section 2.2.5.A.5 of the DTSP provides the development standards for
mixed-use projects within Commercial Old Town:
a. The primary use of the street level of a mixed-use building shall be commercial.
Residential uses on the street level of a mixed-use building shall be secondary to and
located behind the commercial use.
Buildings A, B1, B2 and F (mixed-use buildings) contain ground floor commercial floor
area along the street-side frontage. These buildings also contain ground floor
residential units located behind the commercial storefronts. Several of the ground floor
residential units have single access doors located on the High Street frontage, however,
the doors are designed to be inconspicuous and secondary to the commercial storefront
entry points. The Project is consistent with this development standard.
b. The street-facing frontage level of a mixed-use building shall be utilized for
commercial uses and not for parking.
The street-facing frontage of mixed-use buildings A, B1, B2 and F contain commercial
storefronts. On-site parking is located behind the buildings and is not visible from the
High Street frontage. The Project is consistent with this development standard.
c. The street-facing portion of the ground floor or street level, with the exception of
circulation access, shall be used for retail and other active commercial uses.
Residential dwellings or portions thereof may be permitted on the ground floor so long
as they are located behind commercial storefronts or otherwise designed to be
inconspicuous from the street frontage.
Other than the two vehicular access points onto High Street, the remainder of the street
frontage contains ground floor commercial storefronts with associated outdoor areas for
seating, eating and drinking. The Project is designed to create activity along the High
Street corridor. Ground floor residential uses as well as surface parking are located
behind the commercial storefronts. The Project is consistent with this development
standard.
d. All off-street parking spaces required by the residential use shall be provided on-site
to serve the residential units and shall be specifically designated and reserved for the
exclusive use of the residents. Residential guest parking requirements may be modified
or waived when adequate public parking capacity is found to exist in the vicinity of the
project site.
The Project contains a total of 79 residential units, which require 116 parking spaces.
The Project includes a total of 137 parking spaces on-site. The 116 parking spaces
necessary to serve the residential units would be designated and reserved for the
exclusive use of the residents, per conditions of approval. The remaining on-site
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parking spaces would be designated as public parking and will have appropriate
signage to direct visitors to the site.
A total of 40 guest parking spaces are required per Zoning Code Section 17.32.020. A
downtown parking study was performed in 2019 and identified 914 public parking
spaces distributed throughout downtown (798 excluding street spaces on Charles
Street). The study noted that current peak hour utilization of available public parking is
40%, well below the industry standard 85%. Thus, staff proposes that on-site guest
parking requirements be waived and that guest parking be allowed to utilize available
downtown public parking. The Project is consistent with this development standard.
e. Where a project consists of more than ten (10) units, the project shall be clustered in
two or more buildings to reduce building mass and create architectural interest.
The Project contains a total of 79 units dispersed among four mixed-use buildings. The
mixed-use buildings are proposed at two and three stories in height. The distribution of
residential units helps to reduce building mass. Architectural interest is achieved
through variations in building materials, balconies, awnings, etc. The Project is
consistent with this development standard.
f. Wall planes for buildings shall have design articulation consistent with the design
standards set for all buildings in the Old Town Commercial district.
The mixed-use buildings along the High Street frontage incorporate a number of design
features including massing articulation for variety and sun/shadow relief, detailed plinth
designs to visibly anchor the buildings to the ground, and combination storefront
window, door and roll-up door packages to draw interest and allow for indoor/outdoor
connectivity. Regularly spaced columns provide a familiar repetitive storefront pattern
reminiscent of early 20th century downtown commercial structures. Storefront awnings
help to create an intimate pedestrian experience along the street level. The Project is
consistent with this development standard.
g. Direct access for parking areas and driveways is discouraged along High Street.
Access for parking and driveways shall be taken from adjoining alleys or alternative
streets when available. If a parking area or driveway cannot be designed to avoid
access from High Street the driveway and parking area shall not occupy more than 40%
of the lot frontage, leaving the majority of the lot width for commercial store front
development.
Driveway access to the Project site occurs at the Walnut Street intersection and the far
eastern edge of the site, adjacent to the City commuter overflow parking lot. The site is
designed to allow for connectivity to the City-owned parcels at the western edge
(Chamber of Commerce site) as well as the eastern edge (commuter parking lot), if
desired in the future. The two driveway access points are 25’ wide each, for a total of
50’. The entire site is 937’ in length, thus the driveways only comprise 5% of the High
Street frontage. The Project is consistent with this development standard.
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h. Driveway access to parking shall be taken as close to a side lot line as is feasible,
rather than from the middle of the lot frontage. Driveway alignment with existing
intersections is encouraged, where feasible.
The Project includes two driveway access points along High Street. The westernmost
driveway is aligned with the Walnut Street intersection and the easternmost driveway is
along the east property line adjacent to the City commuter overflow parking lot. The
Project is consistent with this development standard.
i. Additions to existing buildings shall be designed to be integrated with the existing
building when the Community Development Director has determined that the existing
design is in conformance with the Downtown Specific Plan. The new addition should
match the original in terms of scale, architectural details, window and door styles and
openings, roofline, materials, color and other aspects of design.
All existing buildings on the Project site are proposed to be removed. No additions to
existing buildings are proposed. This development standard is not applicable to the
Project.
j. Where a large addition to an existing structure is developed, the entire building should
be renovated to achieve a single, coordinated appearance.
All existing buildings on the Project site are proposed to be removed. No additions to
existing buildings are proposed. This development standard is not applicable to the
Project.
DTSP Commercial Old Town Design Guidelines
Section 2.2.5.B of the DTSP provides the design guidelines for projects within
Commercial Old Town. Unlike development standards which are mandatory (shall),
design guidelines are encouraged (should) in order to maintain and enhance the charm
of downtown. Commercial Old Town design guidelines include the following topical
areas:
• Architectural Character
• Building Form and Massing
• Services Areas
• Roof Forms
• Windows and Doors
• Arcades, Porches and Covered
Walkways
• Architectural Details
• Low Walls
• Building Materials
• Color
• Lighting
This section of the DTSP notes that, “High Street was the original main street of
Moorpark and today is an eclectic mix of architecture.” The goal of the design
guidelines is to ensure high quality development that complements the existing
downtown built environment.
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The Project purposefully incorporates architectural styles, materials and colors that
already exist in downtown. By building off of the existing environment, the Project
seeks to mesh with the existing fabric rather than stand apart from it. The Project is
consistent with the design guidelines and would serve to complement the High Street
corridor.
Benefits of Mixed-Use Development and Transit-Oriented Development
Many cities are discovering the benefits of mixed-use development and transit-oriented
development. These types of projects promote walkability which can help to revitalize
downtown, promote destination tourism, support the local economy, and entice new
investment. As noted throughout this report, the 1998 Downtown Specific Plan
analyzed mixed-use development and found that it would be appropriate and beneficial
in downtown Moorpark.
Mixed-use development provides for activity during the day, evening and weekends.
Rather than a commercial corridor that is left vacant at the end of each day, mixed-use
development ensures “eyes on the street” during the quiet hours. This acts as an
additional deterrent to crimes of opportunity. It also helps to create a vibrant downtown
with activity that flows from day to evening hours.
Mixed-use also provides the opportunity for residents to live near employment, retail,
dining and personal services. It is this mix that creates a walkable neighborhood and
reduces the need for automobile trips. It also provides a built-in customer base for
downtown businesses.
TOD places residential uses near public transportation systems and provides for
opportunities to utilize public transit rather than individual automobiles for regular
commuting patterns. Reduction in automobile trips not only reduces traffic congestion
on local roads and highways, it helps to reduce emissions that directly relate to air
quality and greenhouse gas impacts.
Because TOD is usually located in a downtown setting, near public transit, they are
typically infill projects. Infill projects help to reduce sprawl, do not require expansion of
roadway or utility infrastructure, and do not convert undeveloped land.
Development Agreement No. 2018-01
Government Code Section 65864 and MMC Section 15.40 provide for Development
Agreements (DA) between the City and property owners in connection with proposed
plans of development for specific properties. DAs are designed to strengthen the
planning process, to provide developers some certainty in the development process and
to assure development in accordance with the terms and conditions of the agreement.
Vesting of development rights, timing of development, development fees, and provision
of affordable housing are addressed in the DA.
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The terms of the DA have been negotiated by the Applicant and the City Council ad hoc
committee for the Project. The DA provides for a total of 12 residential units (15%) to
be restricted to moderate income levels for the life of the project. Inclusion of deed
restricted moderate units will help the City to fulfill its mandated regional housing needs.
The moderate income level allows for workforce housing to be provided to tenants
whose household income does not exceed 120% area median income (AMI). The
current AMI for a family of four is $97,800. Thus, in 2020 a family of four could earn up
to $117,360 (120% AMI) in order to qualify. Based on 2020 rates, the monthly
apartment rental rate would not exceed $1,822 for a studio or $2,420 for a 2-bedroom
apartment at the moderate level (adjusted for utility allowance). Current market rate
(unrestricted) rental rates in the area generally run between $2,000-4,000 for a
2-bedroom unit depending on location, structure age and amenities.
The DA also provides that the City will design and construct the frontage improvements
within the public right-of-way. These improvements include installation of sidewalks,
pedestrian bulb-outs, lighting, landscaping and street furniture (generally located
between the back of curb and the property line). The City would not be responsible for
driveway approaches, utility connections or improvements, roadway repair or
improvements, or drainage improvements. Improvements depicted along the north side
of High Street are not part of this Project, but were included within the design drawings
to depict what the Walnut/High and Bard/High Street intersections could look like in
finished form. The City may want to incorporate improvements to the north side of High
Street as a CIP item in future budget years. In April 2020, City Council directed the use
of $1.5 million in bond fund proceeds to be dedicated to High Street improvements.
These funds would be utilized toward the frontage improvements for the Project.
Key terms contained within the DA are below:
Section/Title Description
4 – Development of the Property Ensure the project is developed in a manner
consistent with the proposed project.
6 – Developer Agreements Outlines fees to be paid by developer of project.
Includes: Traffic Mitigation fee (section 6.4), Los
Angeles Area of Contribution fee (section 6.3), Air
Quality Fees (section 6.5) Art in Public Spaces fee
(section 6.6) and all processing fees associated with
entitlement, inspection, plan review (section 6.7)
6.9 – Affordable Housing Requires 15% set aside for “moderate” housing units
7.5 – Streetscape Improvements Commits City to constructing frontage improvements
associated with project. City has full discretion on
design and construction.
7.7 – Ground Floor Commercial
Space Conversion
Restricts conversion of “live/work” units only, to
“active uses” subject to City Council approval.
17 - Indemnification Indemnifies City against costs associated with
litigation for the project, subject to certain conditions.
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Disposition and Development Agreement No. 2018-01
The Disposition and Development Agreement (DDA) sets forth the negotiated terms for
the land transaction and the performance schedule of the Project. The DDA contains
triggers for the reversion of land to the City should the Applicant not perform per the
agreed-upon terms.
The terms contained in the Disposition and Development Agreement (DDA) – and the
Development Agreement (DA) – reflect the public-private partnership structure of the
project. Both documents contain milestones and benchmarks which must be met prior
to transferring ownership of City owned property. Beyond providing intrinsic value to the
City by way of facilitating investment and redevelopment of the City’s downtown core,
the documents also provide significant financial and housing resources which benefit
residents and the City.
Throughout negotiations, the parties considered various scenarios which could impact
the timeliness of project completion, and addressed those through the DDA terms,
milestones and timelines. When taken in sum total, the terms of the DDA provide as
much surety to the City as possible that the proposed project is constructed in a timely
manner.
Key terms contained within the DDA are below:
Section/Title Description
2.1 – Purchase and Sale;
Appraisal Price
Requires an appraisal of the property to determine
fair market value for property.
2.5 – Conditions to Close of
Escrow for Developer
Outlines specific tasks and conditions required
prior to close of escrow.
3 – Developer Covenants Ensures project is constructed consistent with
proposed project.
4 – Limitations on Transfer and
Conveyance
Assures the project will not be sold or transferred
without proper notice and consent by the City
6.22 – City Reversionary Rights Under certain conditions, provides a mechanism
for the City to “claw back” land, subject to certain
terms and conditions.
Exhibit B – Schedule of
Performance
Outline terms and actions (performance) which
relate to Developer actions and requirements prior
to close of escrow. Also establishes terms for
conveyance of property and requires project to
commence by a time certain.
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REQUIRED FINDINGS
Residential Planned Development Permit Findings
MMC Section 17.44.040.C sets forth the required findings to approve the Residential
Planned Development Permit.
1. The site design, including structure location, size, height, setbacks, massing,
scale, architectural style and colors, and landscaping, is consistent with the
provisions of the general plan, any applicable specific plans, zoning ordinance,
and any other applicable regulations.
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.
2. The site design would not create negative impacts on or impair the utility of
properties, structures or uses in the surrounding area.
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 the Project.
3. The proposed uses are compatible with existing and permitted uses in the
surrounding area.
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
DTSP, 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.
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Downtown Specific Plan Guest Parking Finding
The DTSP sets forth the required finding to modify or waive guest parking requirements
for downtown mixed-use projects (Section 2.2.5.A.5.d):
1. Residential guest parking requirements may be modified or waived when
adequate public parking capacity is found to exist in the vicinity of the project site.
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.
Development Agreement Findings
Government Code Section 65867.5(b) requires a finding of consistency with the City’s
General Plan and any applicable specific plan for the approval of a Development
Agreement. MMC Section 15.40.100 also requires the following findings for approval of
a development agreement:
1. The Development Agreement is 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.
2. The Development Agreement is 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.
3. 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.
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Disposition and Development Agreement Finding
Government Code Section 65402(a) requires a finding of conformance with the City’s
General Plan for the approval of the disposition of City-owned property.
1. The Disposition and Development Agreement is 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.
ENVIRONMENTAL DETERMINATION
An Initial Study/Mitigated Negative Declaration (ISMND) has been prepared for the
project. A Draft ISMND was circulated for public comment in February/March 2019. As
the project design continued to progress, staff determined that the updated analysis
should be recirculated for review. A second Draft ISMND was circulated for public
comment from February 7 through March 9, 2020. A total of 11 comment letters were
received and responses to comments are included in the Final ISMND.
The environmental analysis found that the project could have potential significant
environmental effects in the areas of biology, cultural resources, geology and soils,
hazards and hazardous materials, transportation, and tribal cultural resources. Through
the application of standard conditions of approval and targeted mitigation measures, all
identified impacts can be reduced to a less-than-significant level. The Final ISMND and
Mitigation Monitoring and Reporting Program (MMRP) are included as exhibits to the
Resolution approving the RPD. The full ISMND Appendices, including all technical
reports are provided via link at the end of this report.
The Project scope was reduced in the time since the preparation of the ISMND,
reducing the number of residential units from 91 units to 79 and the commercial floor
area from 15,018 square feet to 13,628 square feet. The reduction in residential units
and commercial floor area also reduces the on-site parking requirements and allows for
height reduction of two buildings. The change in project scope does not require
additional environmental analysis as the reduced project can be expected to generate
less environmental impacts than the original larger project. A complete description of
the changes to the proposed project and the required entitlements are included in
Attachment 7.
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At the September 10, 2020, Planning Commission hearing, a commenter raised
concerns about the environmental analysis pertaining to noise, air quality, hazardous
materials and greenhouse gas. As fully described in the ISMND, the Project will not
have significant impacts related to noise. A noise study was conducted and found that
there will be temporary noise impacts during construction of the Project when heavy
equipment will be present and the existing buildings are demolished. Once the Project
is fully constructed, the construction impacts would cease and the new buildings would
provide an enhanced noise buffer between the train and downtown businesses along
High Street. While no specific issues were identified by the commenter regarding air
quality, a full assessment of potential impacts is addressed in the ISMND, no significant
air quality impacts were identified, and no mitigation measures for air quality are
required. The commenter questioned why a Phase I hazardous materials assessment
was not completed as part of the environmental analysis. The ISMND does contain a
Phase I analysis that was prepared by Rincon Consultants, Inc. in June 2018
(Appendix H of the ISMND). The assessment found small quantities of oil based
protective enamel, contact cement, polyurethane, paint, and primer on the site of the
former Maria’s Restaurant. Also, an unmarked 55-gallon drum with unknown contents
was located adjacent to the former One More Time thrift shop. Mitigation Measure
HAZ-1 requires the Applicant to perform additional soil sampling within 30 days of
acquiring the property from the City and prior to issuance of a grading permit, and
includes additional steps to remove and/or remediate soil if necessary and in
accordance with local, state and federal laws. A memorandum providing additional
information regarding the adequacy of the greenhouse gas analysis is provided in
Attachment 9.
STATE HOUSING LAWS
In 2019, Governor Newsom enacted a suite of new laws aimed at removing barriers to
housing project approvals. These laws created expedited permit processing paths,
established incentives for affordable housing projects, and directed the use of surplus
property, among other things.
SB330 declared a statewide housing emergency through January 1, 2025. It
suspended local authority to impose certain restrictions on housing developments and
amended the Permit Streamlining Act and Housing Accountability Act in order to
expedite housing approvals.
AB1486 and SB6 both address the methods of disposal of city-owned surplus property.
The law now requires the local agency to provide a written notice of availability to
housing sponsors and that the agency enter into good-faith negotiations with an
interested housing sponsor. The law prioritizes housing development of surplus land.
The project site was exempt from AB1486/SB6 because it was under an active ENA at
the time these laws became effective.
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AB1763 augments density bonus provisions for housing projects. It provides for more
incentives/concessions and adds additional benefits to affordable housing projects
located near transit. A 100% affordable housing project located within ½ mile of a major
transit stop qualifies for an additional 3 stories/33 feet above what the underlying zoning
allows. It also restricts the imposition of any maximum residential density limits by the
jurisdiction.
Government Code Section 65915 provides that affordable housing projects near a
major transit stop need only provide 0.5 parking spaces per unit, no matter the size or
number of bedrooms. It further limits local authority to ask for more parking.
These laws together would be directly applicable to the project site, should the Project
be denied. The City would be required to offer the surplus land to housing sponsors,
and would have little discretion over a future affordable housing project. On this site, a
100% affordable housing project could be 6 stories/68 feet with 0.5 parking spaces per
unit.
NOTICING
Notices were mailed to all property owners and tenants within the C-OT zoning district
plus an additional 1,000 foot radius.
A newspaper ad was published in the Ventura County Star 10 days in advance of the
public hearing.
A newspaper ad was also published in the Ventura County Star on two consecutive
weeks, September 25 and October 2, 2020, in accordance with Government Code
Section 52201 for the sale of City-owned property.
A public hearing notice was posted on the project site 10 days in advance of the
hearing.
Notice of the public hearing was published on the City’s website.
FISCAL IMPACT
Costs associated with the processing of the development application are borne by the
Applicant. Development fees contained within the DA and all subsequent permit fees
would be collected by the City.
Frontage improvements as negotiated in the DA would cost approximately $750,000 -
$1,000,000. This would be covered by remaining bond fund proceeds previously
directed toward High Street streetscape improvements by City Council.
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The transfer of the land to the Applicant relieves the City of ongoing maintenance
responsibility and costs. The City spends approximately $2,500 annually to secure and
maintain the site.
COUNCIL GOAL COMPLIANCE
This action helps to implement Strategy I: Enhance the City’s Economic Development
Program, Goal 1.1 Reinvigorate High Street and Strategy V: Enhance Quality of Life for
Moorpark Residents, Goal 5.1 Facilitate development of housing options for all income
levels.
STAFF RECOMMENDATION
1. Open the public hearing, accept public testimony and close the public hearing;
and
2. Adopt Resolution No. 2020-___ adopting the Initial Study/Mitigated Negative
Declaration and associated Mitigation Monitoring and Reporting Program
(MMRP) and conditional approval of Residential Planned Development (RPD)
No. 2018-01; and
3. Introduce Ordinance No. ___ for first reading, waive full reading, and place
ordinance on the Agenda for the October 21, 2020, Regular meeting for second
reading and adoption of the ordinance approving Development Agreement (DA)
No. 2018-01; and
4. Adopt Resolution No. 2020-____ approving Disposition and Development
Agreement (DDA) No. 2018-01, subject to final language approval by the City
Manager and City Attorney.
Attachment 1: Location Map
Attachment 2: 2009 High Street Preferred Streetscape Plan
Attachment 3: Project Architectural Exhibits (Design Submittal Package)
Attachment 4: Project Landscape Plans
Attachment 5: Project Civil Engineering Plans
Attachment 6: Vehicle Miles Traveled (VMT) supplemental analysis by Rincon
Attachment 7: Memorandum of Changed Project Scope and Required Entitlements
Attachment 8: Memorandum of Waiver of Tree Report Requirement
Attachment 9: Greenhouse Gas (GHG) analysis response
Attachment 10: Planning Commission Resolution No. 2020-653
Attachment 11: Resolution No. 2020-_____ (Initial Study/Mitigated Negative
Declaration, Mitigation Monitoring and Reporting Program, and
Residential Planned Development)
Attachment 12: Ordinance No. _____ (Development Agreement 2018-01)
Attachment 13: Resolution No. 2020-_____ (Disposition and Development Agreement)
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LINKS:
1. Downtown Specific Plan
2. Downtown Parking Study by Walker Consultants
3. Commercial Market Study by Keyser Marston Associates, Inc.
4. ISMND Full Appendices with Technical Reports
25
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26
ATTACHMENT 227
9/1/20DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaP.1CoverParking MapSite Plan / Project DataMaster Site PlanBuilding A Floor PlansBuilding B1 Floor PlansBuilding B2 Floor PlansBuilding F PlansResidential Unit PlansBuilding A Line ElevationsBuilding B1 Line ElevationsBuilding B2 Line ElevationsBuilding F Line ElevationsGreen Building Line ElevationsSite SectionsCommunity GreenCommunity Green ImagesBuilding B ImagesBuilding & Street ImagesSidewalk ViewsAerial MassingBuilding A/F ColorsBuilding B1/B2 ColorsGreen Building ColorsColor and MaterialsHigh Street Depota new mixed use community onHigh Street between Spring Road and Moorpark Avenuein the City of Moorpark CaliforniaThe Daly Group31255 Cedar Valley Drive, Suite 323Westlake Village, CA 91361Contact: Vince Daly 805.309.6100P.1P.2P.3P.4P.5P.6P.7P.8P.9P.10P.11P.12P.13P.14P.15P.16P.17P.18P.19P.20P.21P.22P.23P.24P.25Sheet IndexArchitecturalLandscapeConceptual Landscape PlanLandscape InspirationCommunity Green EnlargementBuilding A EnlargementBuilding B1 EnlargementBuilding B2 EnlargementBuilding F EnlargementStreetscape ImprovementsL.1L.2L.3L.4L.5L.6L.7L.8CivilTitle SheetGrading & Utility PlanGrading & Utility PlanGrading & Utility PlanGrading & Utility PlanC1C2C3C4C5ATTACHMENT 328
9/1/20DalyGroupHigh Street DepotParking Mapa new mixed use development in Moorpark CaliforniaP.2Moorpark AvenueWalnut StreetBard StreetMagnolia StreetSpring RoadProject SiteHigh StreetCharles StreetLegendOn-street public parkingOff-street public parkingDowntown Specific Plan boundary29
9/1/20DalyGroupHigh Street DepotSite Plana new mixed use development in Moorpark CaliforniaP.3Project SummaryZoning: C-OT Commercial Old Town(Moorpark Downtown Specific Plan)Setbacks: Front - 0' Rear - 0'Sides - 0' Interior, 5' StreetsSite Area: 2.15 Acres (93,825 s.f.)Height: 35' Maximum, 3 FloorsProject Area:Commercial: 13,628 s.f. Utility: 932 s.f. Circulation: 6,430 s.f.Residential: 55,967 s.f.Private Deck: 5,076 s.f Total: 82,033 s.f.Unit TypePlan A (studio/LW)Plan B (studio)Plan C (studio/LW)Plan D (2 beds)Area645 s.f.633 s.f.698 s.f.770 s.f.# of Units826837GSF5,160 s.f.16,458 s.f.5,584 s.f.28,490 s.f.Total # of Units: 79Density: 37 DU/ACRequired Residential Parking:1 space per Studio 42 spaces2 space per 2 Bedroom 74 spaces Total 116 spacesProvided Residential Parking: Onsite 116 spacesRequired Commercial Parking:13,628 s.f. @ 3/1000 s.f. 41 spacesProvided Shared Parking: Onsite 21 spacesOn-street adjacent 28 spaces Total 49 spacesParking available onsite, on-street and off-street adjacentPlaza Green Space 8,140 s.f.Pervious Lot Coverage20,815 s.f. 23 %Impervious Lot Coverage72,839 s.f. 77 %Site PlanScale: 1"=40'N8'-3"57'-0"44'-3"12'-6"12'-0"10'-9"8'-3"6'-0"9'-0"typ.18'-0"20'-0" 37'-10"26'-10"32'-10"29'-1"15'-0"15'-0"15'-0"10'-8"44'-0"26'-0"31'-0"25'-0"26'-0"24'-6"34'-1"26'-10"31'-10"27'-6"18'-0"36'-0"relocated gazeborelocated El Camino Real bellparking lot on City owned site to remain,not a part of proposed projectbulb outs and street improvementsshown as reference only,not a part of proposed projectbulb outs and street improvementsshown as reference only,not a part of proposed projectpotential transformerlocation, typ. of 4verify ground elevationsw/ civil drawings, typ.High StreetMoorpark AvenueWalnut StreetBard StreetMagnolia StreetVentura County Transportation CommissionSouthern Pacific RailroadTrashTrash99 Onsite Parking Spaces including21 SP (Shared Parking) Spaces1010SP11SP21141438 Onsite Parking SpacesBldg CCommercial1,401 sfBldg DCommercial2,182 sfBldg ECommercial1,674 sfPlaza15' fire access drive24Commercial867 sfBuilding ABuilding B1Building B2Building FCommercial867 sfCommercial867 sfCommercial867 sfCommercial867 sfCommercial867 sfCommercial867 sfCommercial798 sfPlanAPlanCPlanCPlanAPlanAPlanCPlanCPlanAPlanAPlanCPlanAPlanAPlanCPlanAPlanCPlanCTrashComm'l788 sfComm'l716 sfUUUUUUUU33514.78514.85514.78514.85515.52515.85516.84516.92516.98517.30517.90517.95518.14518.20518.78518.80519.08519.10519.48519.50520.44520.5011'-0"10'-10"11'-0"4'-6"30
9/1/20DalyGroupHigh Street DepotMaster Site Plana new mixed use development in Moorpark CaliforniaP.4PlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanBPlanBPlanBPlanBPlanBPlanDPlanDPlanDPlanDPlanDPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDArea for Roof EquipmentArea for Roof EquipmentArea for Roof EquipmentArea for Roof EquipmentGround PlanScale: 1"=40'NLevel 2 PlanScale: 1"=40'Level 3 PlanScale: 1"=40'Building ABuilding B1Building B2Building FRoof PlanScale: 1"=40'Building ABuilding B1Building B2Building FBuilding ABuilding B1Building B2Building F8'-3"57'-0"44'-3"12'-6"12'-0"10'-9"8'-3"6'-0"9'-0"typ.18'-0"20'-0" 37'-10"26'-10"32'-10"29'-1"15'-0"15'-0"15'-0"10'-8"44'-0"26'-0"31'-0"25'-0"26'-0"24'-6"34'-1"26'-10"31'-10"27'-6"18'-0"36'-0"relocated gazeborelocated El Camino Real bellparking lot on City owned site to remain,not a part of proposed projectbulb outs and street improvementsshown as reference only,not a part of proposed projectbulb outs and street improvementsshown as reference only,not a part of proposed projectpotential transformerlocation, typ. of 4verify ground elevationsw/ civil drawings, typ.High StreetMoorpark AvenueWalnut StreetBard StreetMagnolia StreetVentura County Transportation CommissionSouthern Pacific RailroadTrashTrash99 Onsite Parking Spaces including21 SP (Shared Parking) Spaces1010SP11SP21141438 Onsite Parking SpacesBldg CCommercial1,401 sfBldg DCommercial2,182 sfBldg ECommercial1,674 sfPlaza15' fire access drive24Commercial867 sfBuilding ABuilding B1Building B2Building FCommercial867 sfCommercial867 sfCommercial867 sfCommercial867 sfCommercial867 sfCommercial867 sfCommercial798 sfPlanAPlanCPlanCPlanAPlanAPlanCPlanCPlanAPlanAPlanCPlanAPlanAPlanCPlanAPlanCPlanCTrashComm'l788 sfComm'l716 sfUUUUUUUU33514.78514.85514.78514.85515.52515.85516.84516.92516.98517.30517.90517.95518.14518.20518.78518.80519.08519.10519.48519.50520.44520.5011'-0"10'-10"11'-0"4'-6"31
9/1/20DalyGroupHigh Street DepotBuilding A Floor Plansa new mixed use development in Moorpark CaliforniaP.559'-4"8'-0"48'-6"6'-0"36'-6"8'-5"11'-3"36'-6"2'-6"11'-2"42'-6"115'-10"56'-2"56'-2"9'-0" typ. 9'-0"18'-0" typ. 2'-0"typ.20'-0" typ.18'-9"18'-9"8'-11"UPUPCommercialCommercialPlanCPlanCPlanA867 s.f.798 s.f.UtilityUtility116 s.f.116 s.f.115'-10"6'-3" 11'-5" 1'-9" 10'-3"30'-6"57'-2"23'-3"22'-11"8'-11" 3'-1"60'-2"12'-2"48'-0"60'-2"103'-4"12'-0"115'-4"PlanBPlanBPlanBPlanBPlanBPlanDPlanDPlanDBuilding A_First FloorScale: 1"=10'NBuilding A_Second FloorScale: 1"=10'32
9/1/20DalyGroupHigh Street DepotBuilding B1 Floor Plansa new mixed use development in Moorpark CaliforniaP.660'-4"8'-0" 4'-2" 8'-0"61'-0"8'-0"59'-6"209'-0"4'-8"9'-1"12'-5"35'-8"57'-2"8'-11"9'-0" 9'-0" typ.18'-0" typ. 2'-0"typ.20'-0" typ.6'-0"37'-6"37'-6"19'-9"B1B2UPCommercialPlanCPlanAPlanAPlanACommercialPlanCCommercialCommercial867 s.f.788 s.f. 716 s.f.867 s.f.UtilityUtility116 s.f.116 s.f.13'-1"18'-10"29'-3"61'-2"209'-0"4'-8"61'-2"57'-2"23'-3"126'-5"206'-10"6'-0"6'-0"7'-2"9'-2"61'-2"B1B2UPPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanBPlanDPlanDPlanDPlanDPlanDPlanD13'-1"18'-10"29'-3"61'-2"14'-4"112'-7"25'-1"56'-4"208'-4"6'-0"57'-2"23'-3"126'-5"206'-10"6'-0"9'-2"7'-2"6'-0"53'-4"53'-4"B1B2PlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDBuilding B1_First FloorScale: 1"=10'NBuilding B1_Second FloorScale: 1"=10'Building B1_Third FloorScale: 1"=10'33
9/1/20DalyGroupHigh Street DepotBuilding B2 Floor Plansa new mixed use development in Moorpark CaliforniaP.76'-0"37'-6"59'-6"8'-0" 4'-2" 8'-0"60'-4"140'-0"37'-6"9'-3"12'-3"35'-8"57'-2"19'-9"8'-9"B1B2UPCommercialPlanAPlanCCommercialPlanAPlanC867 s.f.867 s.f.UtilityUtility116 s.f.116 s.f.4'-8"61'-2"6'-0"140'-0"13'-0"18'-11"29'-3"61'-2"57'-2"23'-3"57'-5"137'-10"61'-2"9'-0"6'-0"B1B2UPPlanBPlanBPlanBPlanBPlanBPlanBPlanDPlanDPlanDPlanD33'-4"25'-1"81'-5"6'-0"139'-10"13'-0"18'-11"21'-5"53'-4"9'-0"57'-2"23'-3"57'-5"137'-10"6'-0"6'-0"53'-4"53'-4"B1B2PlanDPlanDPlanDPlanDPlanDPlanDPlanDPlanDBuilding B2_First FloorScale: 1"=10'NBuilding B2_Second FloorScale: 1"=10'Building B2_Third FloorScale: 1"=10'34
9/1/20DalyGroupHigh Street DepotBuilding F Floor Plansa new mixed use development in Moorpark CaliforniaP.859'-4"8'-0"4'-2" 8'-0"59'-4"138'-10"9'-3"12'-3"34'-8"56'-2"9'-0" 9'-0" typ.18'-0" typ. 2'-0"typ.20'-0" typ.9'-3"12'-3"34'-8"56'-2"9'-0"18'-9"18'-9"9'-0"CommercialPlanAPlanCCommercialPlanAPlanCUP867 s.f.867 s.f.UtilityUtilityUP116 s.f.116 s.f.138'-10"60'-2"60'-2"91'-8"23'-3" 22'-11"137'-10"13'-0"47'-2"60'-2"6'-0"PlanBPlanBPlanBPlanBPlanBPlanDPlanDPlanDPlanDPlanBBuilding F_First FloorScale: 1"=10'NBuilding F_Second FloorScale: 1"=10'35
9/1/20DalyGroupHigh Street DepotResidential Unit Plansa new mixed use development in Moorpark CaliforniaP.926'-6"30'-0"22'-10"Living/DiningSleepingBathKitchenW/D22'-10"30'-0"Living/DiningSleepingW/DBathroomKitchenDeck39'-4"6'-6"17'-8"W/DBathKitchenLivingSleepingDiningMech./Elec.34'-4"19'-8"4'-0"23'-8"Bedroom10' x 11'-4"W/DBedroom10' x 10'BathroomBathroomKitchenLivingDeckPlan AScale: 1/4"=1'-0"Plan DScale: 1/4"=1'-0"645 s.f.770 s.f.Studio2 Bedroom UnitPlan BScale: 1/4"=1'-0"Plan CScale: 1/4"=1'-0"633 s.f.698 s.f.StudioStudio36
9/1/20DalyGroupHigh Street DepotBuilding A Line Elevationsa new mixed use development in Moorpark CaliforniaP.1035'-0"25'-4"B1M1W1St1M1A1M1SF1P1maximum height per zoneparapetfin. floorstudio entryroll up doorroll up door35'-0"25'-9"B1W1St2M1maximum height per zoneparapetfin. floorstudio entrystudio entry11'-0"48'-10"20'-2"25'-10"10'-9"13'-0"10'-0" 13'-0" 12'-10"10'-1"10'-1" 13'-2"12'-8"687.72 sq ft1,217.18 sq ftprimary vertical elementssecondary vertical elementsBuilding A frontScale: 1/8"=1'-0"Building A rearScale: 1/8"=1'-0"Building A leftScale: 1/8"=1'-0"Building A rightScale: 1/8"=1'-0"Facade area diagram37
9/1/20DalyGroupHigh Street DepotBuilding B1 Line Elevationsa new mixed use development in Moorpark CaliforniaP.1135'-0"25'-9"M1T1W2St3M1A2M1SF1St3S2R1P2maximum height per zonebalcony railfin. floorparapetstudio entrystudio entrystudio entry35'-0"W2M1W2St3M1S1St4St4S1R1maximum height per zonefin. floorparapetstudio entryBuilding B1 frontScale: 1/8"=1'-0"Building B1 rearScale: 1/8"=1'-0"Building B1 rightScale: 1/8"=1'-0"38
9/1/20DalyGroupHigh Street DepotBuilding B2 LineElevationsa new mixed use development in Moorpark CaliforniaP.1235'-0"25'-9"T1M1W2S2M1A2M1SF1St6S2R1P2maximum height per zonebalcony railfin. floorparapetstudio entrystudio entrystudio entry35'-0"W2M1W2St5M1S2St6St6S2R1maximum height per zonefin. floorparapetBuilding B2 frontScale: 1/8"=1'-0"Building B2 rearScale: 1/8"=1'-0"Building B2 rightScale: 1/8"=1'-0"39
9/1/20DalyGroupHigh Street DepotBuilding F Line Elevationsa new mixed use development in Moorpark CaliforniaP.1335'-0"25'-3"B2M1W1St7M1A2M1SF1P3maximum height per zoneparapetfin. floorstudio entry studio entryroll up doorroll up door35'-0"25'-3"B2St7W1St7M1St7maximum height per zoneparapetfin. floorstudio entrystudio entryBuilding F frontScale: 1/8"=1'-0"Building F rearScale: 1/8"=1'-0"Building F leftScale: 1/8"=1'-0"Building F rightScale: 1/8"=1'-0"40
9/1/20DalyGroupHigh Street DepotGreen Buildings Line Elevationsa new mixed use development in Moorpark CaliforniaP.1435'-0"maximum height per zoneBldg E 26'-10"Bldg D 29'-1"R2SM1W1M1SF1R2SM2SF1M1SF1fin. floorBldg EBldg D Bldg C35'-0"maximum height per zoneBldg C 26'-6"Bldg D 29'-1"Bldg EBldg DBldg Cfin. floorBldg DBldg CBldg EBldg DCommon Green Buildings frontScale: 1/8"=1'-0"Common Green Buildings rearScale: 1/8"=1'-0"Common Green Buildings leftScale: 1/8"=1'-0"Common Green Buildings rightScale: 1/8"=1'-0"41
9/1/20DalyGroupHigh Street DepotSite Sectionsa new mixed use development in Moorpark CaliforniaP.1524'-8"±IBW BuildingHighStreetProperty LineProperty LineParkingSouthernPacificRailroadParkingAccess Aisle37'-6"±line of existing building(Thrift store)Hearts of JadeHighStreetProperty LineProperty LineSouthernPacificRailroad80'-0"±line of existing building(Metal shed)HighStreetProperty LineProperty LineSouthernPacificRailroadBardStreet21'-9"9'-8"30'-0"aerial apparatus access lane30' maxproximity to bldg.8'-0"29'-3"37'-9"35'-3"33'-6"26°vcfd fire truck w/tillered aerial ladder& outriggersWhitaker'sHardwareHighStreetProperty LineProperty LineParkingSouthernPacificRailroadAccess Aisle27'-0"±9'-8 1/4"30'-0"aerial apparatus access lane30' maxproximity to bldg.8'-0"29'-3"35'-11"35'-3"32'-0"28°line of existing building(Grainery)vcfd fire truck w/tillered aerial ladder& outriggersCarlsonBuildingHighStreetProperty LineProperty LineParkingSouthernPacificRailroadAccess Aisle21'-6"9'-10"30'-0"aerial apparatus access lane30' maxproximity to bldg.8'-0"34'-2"35'-11"31°line of existing building(Maria's)vcfd fire truck w/tillered aerial ladder& outriggersMayflower MarketHighStreetProperty LineProperty LineParkingSouthernPacificRailroadParkingAccess Aisle19'-6" ±Lucky FoolsHighStreetProperty LineProperty LineParkingParkingAccess AisleHighStreetParkingSouthernPacificRailroadParkingAccess Aisle22'-0"9'-4"30'-0"aerial apparatus access lane30' maxproximity to bldg.34'-2"8'-0"35'-11"31°vcfd fire truck w/tillered aerial ladder& outriggersHighStreetProperty LineProperty LineArea for RoofEquipmentParkingSouthernPacificRailroadParkingAccess AisleLokah Yoga42
9/1/20DalyGroupHigh Street DepotCommunity Greena new mixed use development in Moorpark CaliforniaP.1643
9/1/20DalyGroupHigh Street DepotCommunity Green Imagesa new mixed use development in Moorpark CaliforniaP.1744
9/1/20DalyGroupHigh Street DepotBuilding B Imagesa new mixed use development in Moorpark CaliforniaP.1845
9/1/20DalyGroupHigh Street DepotBuilding & Street Imagesa new mixed use development in Moorpark CaliforniaP.1946
9/1/20DalyGroupHigh Street DepotSidewalk Viewsa new mixed use development in Moorpark CaliforniaP.2047
9/1/20DalyGroupHigh Street DepotAerial Massinga new mixed use development in Moorpark CaliforniaP.2148
9/1/20DalyGroupHigh Street DepotBuilding A / F Color Elevationsa new mixed use development in Moorpark CaliforniaP.22Note:Colors on elevations mayvary per printer. Refer toColor & Material Board formaterial specifications.Building A frontBuilding A rearBuilding A rightBuilding F frontBuilding F rearBuilding F left49
9/1/20DalyGroupHigh Street DepotBuilding B1/B2 Color Elevationsa new mixed use development in Moorpark CaliforniaP.23Note:Colors on elevations mayvary per printer. Refer toColor & Material Board formaterial specifications.Building B1 frontBuilding B1 rearBuilding B1 rightBuilding B2 frontBuilding B2 rearBuilding B2 left50
9/1/20DalyGroupHigh Street DepotGreen Buildings Color Elevationsa new mixed use development in Moorpark CaliforniaP.24Note:Colors on elevations mayvary per printer. Refer toColor & Material Board formaterial specifications.Green Buildings frontGreen Building 1 leftGreen Building 3 rightGreen Buildings rear51
9/1/20DalyGroupHigh Street DepotColor & Material Boarda new mixed use development in Moorpark CaliforniaP.25Building ABuilding B1Building B2Building FRoofCorrugated galvanized metalDoor insetsReclaimed wood veneerSiding on bookend buildingsCorrugated Galvanized metal,repurposed if possibleMetal FabricationsPowdercoat BlackWindowMilgard Montecito BronzeAwningRepurposed metal from shed buildingCorrugated Coreten sidingBrickStucco AOmega 404 Barn SwallowMetal FabricationsPowdercoat BlackWindowMilgard Montecito BronzeAwningRepurposed metal from shed buildingStucco BOmega 404 Barn SwallowRoofGAF Timberline Hunter GreenSidingEldorado Brick Tundra Hartford overgroutedStucco AMetal FabricationsPowdercoat BlackWindowMilgard Montecito ClayAwningRepurposed metal from shed buildingStucco BOmega 429 Sierra LeoneBrickEldorado Brick Tundra Chalk DustStucco AOmega 432 Milky QuartzMetal FabricationsPowdercoat BlackWindowMilgard Montecito BronzeAwningMetal Kynar Classic GreenStucco BOmega 414 Cloud CoverGreen Plaza BuildingsHardie lap and board and battenDunn Edwards DE5422 Egg NogSiding Trimmatch Southern Pacific Light BrownRoofSidingStucco AOmega 408 Plantation BeigeMetal FabricationsPowdercoat BlackWindowMilgard Montecito ClayAwningRepurposed metal from shed buildingStucco BOmega 429 Sierra LeoneHardie lap and board and battenHeathered MossSiding on brewery buildingsStorefrontKynar BlackStorefrontKynar BlackStorefrontKynar BlackStorefrontKynar BlackStorefrontKynar BlackOmega 412 Bison BeigeGAF Timberline Hunter GreenA1W1B1St1St2M1SF1A2W2S1St3St4M1SF1R1W2S2St5St6M1SF1R1T1W1B2St7St7A2 A2 A2R2W1SM1SM2M1SF1M1SF1S3Siding Trimmatch Southern Pacific Light BrownT1Note:Colors may vary per printer.Refer to actual manufacturer'sspecifications.SPRR colorsPlinthEldorado Stone Longitude24 Foggy MeadowP3PlinthEldorado Stone Longitude24 Silent GreyP1PlinthEldorado Brick Tundra AshlandP2Building B1 & B252
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COM06-11-202060’30’15’0’CONCEPTUAL LANDSCAPE PLAN - L.1LANDSCAPE NOTESGENERAL PLANTING NOTESALL PLANTING AND IRRIGATION TO BE INSTALLED PER CITY OF MOORPARK LANDSCAPE STANDARDS AND GUIDELINES1. ALL TREES WITHIN 5’ OF ANY HARDSCAPE SHALL RECEIVE ROOT BARRIERS.2. ALL SHRUBS AREAS SHALL RECEIVE A 3” MINIMUM LAYER OF SHREDDED WOOD MULCH.3. SCREENING SHALL BE PROVIDED FOR ALL UTILITIES, INCLUDING TRANSFORMERS AND TELEPHONE BOXES. NO UTILITIES SHALL CONFLICT WITH PLANTING.WATER CONSERVATION STATEMENTTHE LANDSCAPE AND IRRIGATION WILL COMPLY WITH THE CITY OF MOORPARK WATER EFFICIENT LANDSCAPE ORDINANCE (CITY COUN-CIL ORDINANCE NO. 383) AND LANDSCAPE WATER CONSERVATION STANDARDS.TO PROVIDE THE MAINTENANCE STAFF A MECHANICAL DEVICE TO DISTRIBUTE WATER AND ENSURE PLANT SURVIVAL IN THE MOST EF-FICIENT MANNER AND WITHIN A TIME FRAME THAT LEAST INTERFERES WITH THE ACTIVITIES OF THE COMMUNITY.THE IRRIGATION SYSTEM FOR EACH HYDROZONE WILL BE AUTOMATIC AND INCORPORATE LOW VOLUME DRIP EMITTERS, BUBBLER’S AND HIGH EFFICIENCY LOW ANGLE SPRAY HEADS AT TURF ONLY. DRIP IRRIGATION SYSTEMS MAY BE EMPLOYED WHERE CONSIDERED TO BE EFFECTIVE AND FEASIBLE. IRRIGATION VALVES SHALL BE SEPARATED TO ALLOW FOR THE SYSTEMS OPERATION IN RESPONSE TO ORIENTATION AND EXPOSURE.PLANTING WILL BE DESIGNED TO ENHANCE THE VISUAL CHARACTER OF THE SITE AND THE ARCHITECTURAL ELEMENTS. PLANTS SHALL BE GROUPED WITH SIMILAR WATER, CLIMATIC AND SOIL REQUIREMENTS TO CONSERVE WATER AND CREATE A DROUGHT RESPONSIVE LANDSCAPE.EACH HYDROZONE CONSISTS OF MODERATE TO LOW WATER CONSUMING PLANTS. IN AREAS OF MODERATE WATER CONSUMING PLANTS THE SHALL BE PROPERLY AMENDED TO RETAIN MOISTURE FOR HEALTHY GROWTH AND TO CONSERVE WATER.PLANT MATERIAL WITHIN EACH HYDROZONE SHALL BE SPECIFIED IN CONSIDERATION OF NORTH, SOUTH, EAST AND WEST EXPOSURES.SOIL SHALL BE PREPARED AND EMENDED TO PROVIDE FOR MAXIMUM MOISTURE DETENTION AND PERCOLATION. PLANTED BEDS SHALL BE MULCHED TO RETAIN SOIL MOISTURE AND REDUCE EVAPOTRANSPORATION.TO AVOID WASTED WATER, THE CONTROLS WILL BE OVERSEEN BY A FLOW MONITOR THAT WILL DETECT ANY BROKEN SPRINKLER HEADS TO STOP THAT STATION’S OPERATION, ADVANCING TO THE NEXT WORKABLE STATION. IN THE EVENT OF PRESSURE SUPPLY LINE BREAKAGE, IT WILL COMPLETELY STOP THE OPERATION OF THE SYSTEM. ALL MATERIAL WILL BE NONFERROUS, WITH THE EXCEPTION OF THE BRASS PIPING INTO AND OUT OF THE BACK-FLOW UNITS. ALL WORK WILL BE IN THE BEST ACCEPTABLE MANNER IN ACCOR-DANCE WITH APPLICABLE CODES AND STANDARDS PREVAILING IN THE INDUSTRY.PLANT PALETTEBOTANICAL NAME: COMMON NAME: EXISTING STREET TREES - PROTECT IN PLACESCHINUS MOLLE CALIFORNIA PEPPERPROPOSED STREET TREES - 48” BOXQUERCUS AGRIFOLIA COAST LIVE OAKTREES AGONIS FLEXUOSA PEPPERMINT TREEARBUTUS MENZIESII MADRONEOLEA EUROPAEA ‘WILSONII’ FRUITLESS OLIVEPLANTANUS RACEMOSA CALIFORNIA SYCAMOREPRUNUS CAROLINIANA CAROLINA LAUREL CHERRYQUERCUS AGRIFOLIA COAST LIVE OAKQUERCUS WISLIZENI INTERIOR LIVE OAKVINESFICUS PUMLIA CREEPING FIGPARTHENOCISSUS QUINQUEFOLIA VIRGINIA CREEPERVINES ON MTA FENCEDISTICTIS BUCCINATORIA RED TRUMPET VINELONICERA JAPONICA “HALLIANA” JAPANESE HONEYSUCKLEBACKGROUND SHRUBSCISTUS LADANIFER CRIMSON SPOT ROCKROSEFREMONTODENDRON ‘KEN TAYLOR’ FANNEL BUSHGREVILLEA SPECIES GREVILLEA RHAMNUS CALIFORNICA CALIFORNIA COFFEEBERRYRHUS INTEGRIFOLIA LEMONADE BERRYRHUS OVATA SUGAR BUSHRIBES INDECORUM WHITE FLOWERING CURRANTRHAPHIOLEPIS SPECIES HAWTHORNSALVIA SPECIES SAGEWESTRINGIA FRUTICOSA ‘MUNDI’ DWARF COAST ROSEMARY FOREGROUND SHRUBS & GROUNDCOVERS/ACCENTSACHILLEA MILLEFOLIUM ‘MOONSHINE’ YARROWAGAVE SPECIES AGAVE ARCTOSTAPHYLOS ‘EMERALD CARPET’ EMERALD CARPETCISTUS SALVIIFOLIUS SAGELEAF ROCKROSEERIGERON GLAUCUS EASIDE DAISYESCHSCHOLZIA CALIFORNICA CALIFORNIA POPPYFESTUCA OVINA GLAUCA BLUE FESCUEFESTUCA MAIREI ATLAS FESCUEFRAGARIA CHILOENSIS WILD STRAWBERRYHELICTOTRICHON SEMPERVIRENS BLUE OAT GRASSIRIS DOUGLASIANA DOUGLAS IRISLAVANDULA SPECIES LAVENDER LEYMUS CONDENSATUS ‘CANYON PRIDE’ WILD RYELIMONIUM PEREZII SEA LAVENDERMUHLENBERGHIA RIGENS DEER GRASSPENSTEMON SPECIES BEARD TONGUEPUNICA GRANATUM ‘NANA’ DWARF POMEGRANATEPYRACANTHA ‘SANTA CRUZ’ FIRETHORNROMNEYA COULTERI MATILIJA POPPYROSMARINUS SPECIES ROSEMARYROSA X ‘ICE CAP’ ROSESISYRINCHIUM BELLUM BLUE EYED GRASSWATER QUALITY SHRUBSBACCHARIS DOUGLASII MARSH BACCHARISJUNCUS PATENS CALIFORNIA GRAY RUSHLEYMUS CONDENSATUS ‘CANYON PRIDE’ WILD RYEMUHLENBERGHIA RIGENS DEER GRASSTURF SODDED TALL-TYPE WATER CONSERVING HYBRID BERMUDAHIGH STREETVENTURA COUNTY TRANSPORTATION COMMISSIONWALNUT STREETBARD STREETBUILDING Asee sheet L.4BUILDING B1see sheet L.5BUILDING B2see sheet L.6BUILDING Fsee sheet L.7COMMERCIALPLATFORMCOMMERCIALCOMMERCIALCOMMUNITY GREEN• see sheet L.3EXISTING ASH TREE - PROTECT IN PLACECHIP SEAL PARKING6’-4” H. WELDED WIRE FENCE WITH VINES per metrolink standardHIGH ST. STREETSCAPE• protect existing pepper trees• widen sidewalk with tree wells• access to ground level commercialRELOCATED GAZEBO, EL CAMINO REAL BELL, MEMORIAL PLAQUE & BRICK PAVINGCROSSWALKS AT HIGH STREETATTACHMENT 453
54
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COM20’10’5’0’06-11-2020COMMUNITY GREEN ENLARGEMENT - L.3COMMUNITY GREEN• existing pepper tree canopy• synthetic turf (50’ X 100’)• seat wall• lawn games• movie night• landscape buffer at high street• extend paving for outdoor dining• monument sign or art in public (seperate submittal)THE SILO• repurposed steel shade structure• outdoor dining• silo “tank”• access to game / picnic area to the SouthUNSTRUCTURED GAME AREA WITH MOVEABLEFURNITUREWATER QUALITY PLANTER (TYP.)COMMERCIALCOMMERCIALTRASHTRASHCOMMERCIALHIGH STREET NOTE: SEE EXHIBIT L.8 FOR HIGH STREET IMPROVEMENTS55
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COM20’10’5’0’06-11-2020BUILDING ‘A’ ENLARGEMENT - L.4CONNECTION TO SIDEWALKWATER QUALITY PLANTER (TYP.)EXISTING ASH TREE - PROCTECT IN PLACECHIP SEAL PARKINGWELDED WIRE FENCE WITH VINES PER MTACOMMERCIAL ENTRIES• protect existing pepper trees• eclectic design for each entry including: linear concrete pavers, bick pavers, concrete paving and pottery• widened sidewalk• access to ground level commercial• native plantingPROJECT ENTRY• paver crosswalk• accent trees with up lighting• native plantingHIGH STREETBUILDING ABIKE RACKSCOMMERCIALCOMMERCIALRELOCATED EXISTING GAZEBORELRELRELOCAOCAOCATEDTEDTEDEXEXEXISTSTISTINGINGINGGAGAGAZEBZEBZEBOOORELOCATED MEMORIAL PLAQUE, EL CAMINO REAL BELL & BRICK PAVINGWALNUT STREET NOTE: SEE EXHIBIT L.8 FOR HIGH STREET IMPROVEMENTSWATER QUALITY PLANTER (TYP.)56
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COMWATER QUALITY PLANTER (TYP.)20’10’5’0’06-11-2020BUILDING ‘B1’ ENLARGEMENT - L.5CHIP SEAL PARKINGWELDED WIRE FENCE WITH VINES PER MTACOMMERCIAL ENTRIES• access to ground level commercial• native plantingHIGH STREETWALNUT STREETBIKE RACKS BIKE RACKSBUILDING B1COMMERCIALCOMMERCIAL NOTE: SEE EXHIBIT L.8 FOR HIGH STREET IMPROVEMENTS57
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COM20’10’5’0’06-11-2020BUILDING ‘B2’ ENLARGEMENT - L.6CHIP SEAL PARKINGWELDED WIRE FENCE WITH VINES PER MTACOMMERCIAL ENTRIES• protect existing pepper trees • access to ground level commercial• native plantingCOBBLE with DECORATIVE BOULDERSHIGH STREETBUILDING B2COMMERCIALCOMMERCIALCOMMERCIAL NOTE: SEE EXHIBIT L.8 FOR HIGH STREET IMPROVEMENTS58
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COM20’10’5’0’06-11-2020BUILDING ‘F’ ENLARGEMENT - L.7CHIP SEAL PARKINGWELDED WIRE FENCE WITH VINES PER MTACOMMERCIAL ENTRIES• access to ground level commercial• native plantingHIGH STREETBUILDING FCOMMERCIALCOMMERCIAL NOTE: SEE EXHIBIT L.8 FOR HIGH STREET IMPROVEMENTSPROPOSEDMTA PARKING LOTEXISTING PEPPER TREE - PROTECT IN PLACEWATER QUALITY PLANTER (TYP.)59
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COMBUILDING ABUILDING B1BUILDING B2BUILDING F0’06-11-202040’20’10’HIGH STREET - STREETSCAPE IMPROVEMENTS - L.8HIGH STREETHIGH STREETMATCHLINE - SEE BOTTOM LEFTMATCHLINE - SEE TOP RIGHTBENCH with CENTER ARMRESTTRASH RECEPTICLEBIKE RACKTHEME STREET LIGHT WITH BANNERS +/- 45’ O.C.THTHTHEMEMEMEESTSTSTOTAL: 19BIBIBIKEKEKERRACACKTOTAL: 24TRTRTRASASASH H RRTOTAL: 6BEBEBENCNCNCHHwwTOTAL: 7********LINEAR CONCRETE PAVERS1BRICK PAVERS13CONCRETE PAVING WITH DECORATIVE SCORING12CONCRETE PAVER CROSSWALK - ZEBRA STRIPE14NEE NHLLINICOMMUNITY GREEN MONUMENT SIGNMAINTENANCE NOTE: PROPERTY MANAGEMENT COMPANY OR OWNER WILL MAINTAIN NON-STANDARD PAVING MATERIALS AND LANDSCAPE IN THE PUBLIC R.O.W. (SUBJECT TO AN APPROVED AND EXECUTED MAINTENANCE AGREEMENT):• 2,581 S.F. LANDSCAPE AREA• 3,873 S.F. CONCRETE PAVERS• 293 S.F. BRICK PAVERS• 630 S.F. TURF11131212131442260
38%/,&:25.6'(3$570(17&,7<2)02253$5.&7,7/(6+((7(1*,1((5,1*',9,6,21*5$',1* 87,/,7<3/$1+,*+675((7'(327&,7<2)02253$5.+,*+675((7'(327+,*+675((7352-(&76,7(6+((7,1'(;ATTACHMENT 561
($6(0(17/(*(1'38%/,&:25.6'(3$570(17&,7<2)02253$5.(1*,1((5,1*',9,6,21+,*+675((7'(327+,*+675((7&6,7(3/$162
38%/,&:25.6'(3$570(17&,7<2)02253$5.(1*,1((5,1*',9,6,21+,*+675((7'(327+,*+675((7&*5$',1* 87,/,7<3/$1&216758&7,21127(6/(*(1'*5$',1*$1'87,/,7<127(6.(<0$36+((7& 6+((7& 6+((7&6+((7&63
38%/,&:25.6'(3$570(17&,7<2)02253$5.(1*,1((5,1*',9,6,21+,*+675((7'(327+,*+675((7&*5$',1* 87,/,7<3/$1&216758&7,21127(6/(*(1'*5$',1*$1'87,/,7<127(6.(<0$36+((7& 6+((7& 6+((7&6+((7&64
38%/,&:25.6'(3$570(17&,7<2)02253$5.(1*,1((5,1*',9,6,21+,*+675((7'(327+,*+675((7&*5$',1* 87,/,7<3/$1&216758&7,21127(6/(*(1'*5$',1*$1'87,/,7<127(6.(<0$36+((7& 6+((7& 6+((7&6+((7&65
38%/,&:25.6'(3$570(17&,7<2)02253$5.(1*,1((5,1*',9,6,21+,*+675((7'(327+,*+675((7&*5$',1* 87,/,7<3/$1&216758&7,21127(6/(*(1'*5$',1*$1'87,/,7<127(6.(<0$36+((7& 6+((7& 6+((7&6+((7&66
Rincon Consultants, Inc.
Environmental Scientists Planners Engineers
M E M O R A N D U M
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Ventura, California 93003
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info@rinconconsultants.com www.rinconconsultants.com
Date: June 12, 2020
To: Karen Vaughn
Project: High Street Station Mixed Use Development
From: Lexi Journey and Joe Power
E-mail:ljourney@rinconconsultants.com; jpower@rinconconsultants.com
cc:
Re: High Street Station Mixed Use Development Final IS-MND
VMT Memorandum
This memorandum provides additional information evaluating the projects transportation impacts as
they relate to vehicle miles traveled (VMT) is also provided in accordance with Senate Bill (SB) 743.
Vehicle Miles Traveled Analysis per SB 743
Overview
As required by SB 743, this analysis evaluates the project utilizing vehicle miles traveled (VMT) as the
metric to evaluate the project’s transportation impacts. As signed into law in 2013, SB 743 (Steinberg)
calls on future traffic studies prepared under CEQA to use vehicle miles traveled (VMT) as the metric to
evaluate a project’s transportation impacts. In the absence of any formal guidelines and data from the
City of Moorpark, Ventura County Transportation Commission (VCTC), or Southern California Association
of Governments (SCAG), this analysis summarizes an approach that is consistent with the intent of SB
743.
ATTACHMENT 6
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Pursuant to the December 2018 guidance from the California Office of Planning and Research (OPR)
(“Technical Advisory on Evaluating Transportation Impacts in CEQA”), lead agencies have the discretion
to choose the most appropriate methodology for evaluating project VMT. Based on OPR’s
recommendations, this analysis includes the following general assumptions applicable to a mixed-use
development:
• The VMT metric applies to light-duty vehicles and trucks. Given the nature of mixed-use
development, medium- and heavy-duty truck VMT was not evaluated.
• The VMT analysis looks at entirety of VMT throughout the county and even region, not just
travel within the City of Moorpark.
• While estimating VMT is best done through tour-based modeling using a regional travel
demand model, this analysis uses publicly-available information. This includes demographic
and growth data and forecasts, but does not include any new modeling from the regional travel
demand model or other analytical tools.
As of July 2020, the City has not approved a methodology or thresholds of significance relating to traffic
studies prepared pursuant to SB 743. It continues discussion with VCTC and SCAG for resolution of VMT-
based analyses under SB 743. The following presumptions based on OPR guidance have been made to
produce a VMT-based analysis of traffic impacts from the proposed project.
Threshold of Significance
The first step of a VMT analysis is to determine what type of analysis, if any, is needed. The Office of
Planning and Research’s (OPR) Technical Advisory on Evaluating Transportation Impacts in CEQA
(Technical Advisory) suggests three screening criteria that agencies may use to quickly identify if a
proposed project is expected to cause a less-than-significant impact without conducting a detailed
study: project size, project location in a low VMT area, and project accessibility to transit. OPR guidance
suggests that projects located in a Transit Priority Area (TPA) or along a High-Quality Transit Corridor
(HQTC) may also be screened out from conducting a VMT analysis because they are presumed to have a
less than significant VMT impact absent substantial evidence to the contrary. TPAs are defined in the
OPR Technical Advisory as a 0.5-mile radius around an existing or planned major transit stop or an
existing stop along an HQTC. The project site is adjacent to the Moorpark Metrolink station and the
proposed mixed-use development is within ½-mile from the station’s platforms. Although the project is
assumed to have less than significant on VMT based on proximity to an existing major transit stop, a
detailed VMT analysis for the proposed mixed-use development has been provided.
Per OPR Guidance, lead agencies can evaluate each component of a mixed-use project independently
and apply the significance threshold for each project type included (e.g., residential and retail).
Alternatively, a lead agency may consider only the project’s dominant use. For residential components,
in the absence of formal guidance or policies from local agencies, the project is assumed to have a less
than significant impact if daily VMT would be 15 percent or more lower than the average daily per capita
VMT in Ventura County1. Based on data from SCAG, the baseline average daily VMT per capita is 21.8 in
Ventura County in 2020, and would be 21.7 in Ventura County in 2021, the projected operational date of
the proposed project. This calculation is based on VMT and population forecasts from the Southern
California Association of Governments’ 2016 Regional Transportation Plan adopted growth forecast.
Based on this, a 15 percent reduction would result in an average daily per capita VMT target of 18.5
1 While the City’s travel data were considered for this analysis, the only data on vehicle travel activity is through the EMFAC2017 model, which
does not provide City-level travel demand data. Countywide travel data were used based on the relative size of the City and the abundance of
work and other destinations for residences in the County of Ventura and local incorporated cities. When VCTC can provide travel demand data
at the City level, these can be incorporated into VMT-based analyses.
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when compared to a 2020 base year and 18.4 when compared to a 2021 baseline. For retail
components, in the absence of formal guidance or policies from local agencies, the project is assumed to
have a less than significant impact if there is no net increase in total VMT and proposed retail
opportunities are added into the existing urban area where local-serving retail development has the
potential to shorten trips and reduce VMT.
Estimating Project VMT
The residential portion of the Project could generate about 7,247 daily VMT, based on average
household density in the City of Moorpark and the average per capita VMT for Ventura County and
assuming no transit demand use2. These would represent an increase in VMT that would increase
vehicle activity, as well as carbon-based greenhouse gases and criteria pollutants. However, given the
immediate proximity of the Moorpark Metrolink station, a shift in mode share from drive alone
commutes to rail transit is appropriate for two key reasons3. First, almost half of residents in Ventura
County have long-distance commutes, with 48.1 percent of county residents commuting to work outside
the county, forcing longer commutes on congested freeways that make fixed-guideway express rail
service more attractive4. Second, while the countywide mode split for public transit is 1.1 percent, the
mode share is two to five times higher for development near transit stations based on a major analysis
released in April 20205.
As such, a modest Metrolink transit mode share of five percent for multi-family residents, would shift 33
daily vehicle trips from multi-family homes to Metrolink6. The mode shift of future residents from auto
to Metrolink reduces 2,511 average VMT per day from projected 2021 daily VMT. Because each
Metrolink trip reduces 34.2 miles of VMT, the per capita VMT would be approximately 14.2, a 22.8
percent reduction from the Countywide average7.
New commercial retail development typically redistributes trips rather than creating new trips (OPR
2018). By adding retail opportunities into the urban fabric and thereby improving retail destination
proximity, local-serving retail development tends to shorten trips and reduce VMT. Although the project
proposes new development, the commercial retail components of the project would be located adjacent
to the proposed multi-family residential units, the Moorpark Metrolink station, and be located in the
existing urban area where local-serving retail development has the potential to shorten trips and reduce
VMT.
Conclusion
Until the City, VCTC, and/or SCAG develop formal protocols and policies for judging the VMT impacts of
projects, this analysis is consistent with OPR guidance. As such, this analysis finds that the proposed
mixed-use project would not result in a significant VMT related impact, as the project site is located in a
2Assumes 3.67 persons per dwelling unit (SCAG 2016 RTP growth forecast for City of Moorpark in 2026) and 21.7 per capita daily VMT. This
assumption pending more detailed housing density data from the City and/or the regional travel demand model.
3 The Moorpark Metrolink Station Platform is located adjacent to the southeastern portion of the project site.
4 SCAG 2019 Local Profiles based on U.S. Census Bureau, 2017, LODES Data; Longitudinal-Employer Household Dynamics Program:
https://lehd.ces.census.gov/data/lodes/
5 Victoria Transport Policy Institute “Rail Transit in America: Comprehensive Evaluation of Benefits”, April 29, 2020. The study finds a four
percent rail or ferry mode split for residents who live and work more than 0.5 miles from a station, but 28 percent for those who live more than
one mile from a station but less than 0.5 miles from a station near work.
6 Assumes Metrolink mode share of 5.0 percent for the multi- family units, based on their proximity to commuter rail service. Represents
incremental mode share beyond baseline 0.85 percent public transit mode share (US Census American Communities Survey 5- Year Estimate,
2017). Also assumes a weighted mode share of 1.0 percent for the multi-family homes, which factors in the likely use of Metrolink trains
commute purposes. Assumes 33 percent of average daily travel is commute related and 4.3 average weekly days for Metrolink riders (Metrolink
2018 Origin-Destination Study for Ventura County stations). For example, the VMT from multi-family homes (7,247 VMT) is adjusted as follows:
7,247 VMT x 5% incremental Metrolink mode share x 0.614 (4.3 days/7 days per week average Metrolink use) x 0.33 (percent of VMT that is
work-related) x 34.2 average trip length for Metrolink users = 7,247-2,511 = 4,736 VMT
7 Assumes average trip length of Metrolink trips from Ventura County stations of 34.2 miles (Metrolink 2018 Origin-Destination study).
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Transit Priority Area, adjacent to the Moorpark Metrolink station, and is within ½-mile from the station’s
platforms. Using the recommended thresholds for residential development, transit mode share from
Metrolink use would reduce 22.8 percent of VMT from the proposed residential based VMT, resulting in
a daily per capita rate of 14.2. Because this result is lower than the 18.5 per capita target that represents
a 15 percent reduction from a 2021 Countywide per capita target, and because the commercial retail
portions of the project would be located in the existing urban area where local-serving retail
development has the potential to shorten trips and reduce VMT, traffic impacts would be less than
significant.
Table 1 Summary of Project Impacts Compared to VMT Per Capita Target
VMT Per Capita Target
(2020 Base Year)
VMT Per Capita
Target
(2021 Project
Horizon Year)
Residential VMT Per
Capita
Proposed Project 18.5 18.4 14.2
70
CITY OF MOORPARK
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
Date: August 25, 2020
To: High Street Station Project File
From: Karen Vaughn, Community Development Director
Subject: Description of Change of Project Scope and Required Entitlements for the High
Street Station Mixed-Use Development Project
Memorandum to High Street Station Final IS/MND
Purpose:
This memorandum describes changes to the proposed project and the required project
approvals since the public circulation of the Draft IS/MND.
Original Project Scope:
The original project description as analyzed in the Draft IS/MND included a mixed-use
project consisting of four mixed-use commercial/residential buildings and three stand-
alone commercial buildings containing, in total, 91 residential units and 15,018 square
feet of commercial floor area. The four mixed-use commercial/residential buildings
were proposed at three stories in height and included a mix of residential studios, one-,
two- and three-bedroom units. The original project included hardscape of walkways and
ground floor sidewalk and patio space, 139 on-site parking spaces, two points of
ingress/egress from High Street, a 7,178 square foot “village green” outdoor passive
green space, and various landscaping.
Revised Project Scope:
In the time since the Draft IS/MND was prepared and circulated for public review, the
applicant has reduced the project scope to 79 residential units (mix of studio and 2-
bedroom units only) and 13,628 square feet of commercial floor area. Two of the
mixed-use commercial/residential buildings are proposed at two stories (Buildings A and
F) while the other two (Buildings B1 and B2) remain at three stories. A drive connection
has been included behind the stand-alone commercial buildings to allow emergency
accessibility throughout the site without the need for a turnaround and the project would
include a total of 137 on-site parking spaces.
ATTACHMENT 7
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The reduction in the number of residential units as well as the change in the mix of unit
types would serve to reduce traffic trips through nearby intersections and, in turn,
decrease related air quality and greenhouse gas effects. The reduction in commercial
floor area would similarly reduce traffic trips and associated effects.
While parking is not considered an environmental issue, the project reduction in
residential units and commercial floor area would reduce parking requirements of the
proposed uses.
The reduction in building height for Buildings A and F helps to create a softer project
aesthetic by transitioning to lower building heights at either end of the project site.
Because both Buildings A and F are located in areas where no existing buildings are
located, they will provide sound attenuation of train-related noise even at their reduced
heights.
The increase of the “village green” passive green space to 8,140 square feet (an
increase of 962 or 0.02 acre) would help to increase impervious surface area which in
turn decreases runoff. From an aesthetic standpoint, the expanded green space helps
to soften the built environment and provide a respite for downtown employees and
residents.
The inclusion of an emergency driveway behind the standalone commercial buildings
would allow emergency services vehicles to traverse the project site from end-to-end
without performing backing or turning maneuvers. This provides additional service
performance to stage and operate on the project site during an emergency. The
driveway slightly increases impervious surface area, which is offset by the increase in
the village green space.
None of the proposed project modifications would create new environmental impacts
nor increase already identified impacts beyond those that were analyzed in the Draft
IS/MND. No further CEQA analysis is required and no additional mitigation measures
would be warranted.
Required Entitlements:
The Draft IS/MND identified the following required approvals:
• Zoning Map Amendment to apply Mixed-Use Overlay Zone to project site
• Residential Planned Development Permit for conditions of approval for
architecture and site development activities
• Disposition and Development Agreement for the transaction of the land from the
City to the Developer
• Development Agreement for the terms of development
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Staff had initially proposed the creation of a Mixed-Use Overlay Zone as a tool to apply
to underdeveloped and/or underperforming commercial properties within the City. This
tool would allow the addition of residential uses within commercial zoning districts. In
reviewing the text of the Downtown Specific Plan and the associated implementing
zoning ordinance Section 17.72, it was determined that the DTSP itself was adopted as
an overlay zone which added mixed commercial/residential uses (Section 2.2.5) as an
allowable use to the underlying Old Town Commercial (C-OT) zoning district located
primarily along High Street. With mixed commercial/residential uses being identified as
appropriate and allowable within the DTSP overlay, the need for a separate Mixed-Use
Overlay Zone for this particular project is redundant. Thus, the Zoning Map Amendment
is no longer necessary for the approval or implementation of the proposed High Street
Station development project.
Consideration of citywide mixed-use development tools will be rolled into the
Comprehensive General Plan Update, which is fully funded and currently underway.
73
CITY OF MOORPARK
COMMUNITY DEVELOPMENT DEPARTMENT
MEMORANDUM
Date: August 17, 2020
To: High Street Station Project File
From: Karen Vaughn, Community Development Director
Subject: Waiver of Tree Report Requirements
Memorandum Waiving High Street Station Tree Report Requirements
Purpose:
This memorandum describes the waiver of tree survey requirements by the Community
Development Director.
Relevant Municipal Code Sections:
Section 12.12.050 of the Moorpark Municipal Code describes the conditions for when a
tree report is required and when the requirement can be waived.
Section 12.12.050.A states, “Where one or more native oak trees, historic trees or
mature trees are associated with any proposal for urban development, the director of
community development or his or her designated representative, shall cause a report to
be prepared on those trees,…”
Section 12.12.050.D states, “The director of community development, or his or her
designated representative, may waive the requirement for a tree report or may waive
the requirement for survey of one (1) or more trees based upon the director’s judgment
that the tree(s) would have little or no value in that location.”
Historic Pepper Trees:
The Historic Pepper Trees located in the High Street public right-of-way are not
proposed to be removed as part of the proposed project and are not the subject of this
memo.
Project Site:
The High Street Station project site includes a total of fifteen (15) trees. Per the tree
survey plan for the project, eleven on-site trees are proposed to be removed and four
are proposed to be retained. The trees to be removed are primarily palm trees
ATTACHMENT 8
74
9/6/18DalyGroupHigh Street DepotCovera new mixed use development in Moorpark CaliforniaD I C E C C O887 PATRIOT DRIVE, SUITE C MOORPARK, CALIFORNIA 93021ARCHITECTUREINCORPORATED805.552.0088 DICECCOARCH.COMTHIS TREE SURVEY AND REPORT PROVIDES A SUMMARY OF THE TREE/PALM INVENTORY AND EVALUATION AT THE PROPOSED HIGH STREET DEPOT DEVELOPMENT SITE. 4 ON-SITE TREES ARE IMPACTED AND PROPOSED TO BE REMOVED DUE TO PROPOSED IMPROVEMENTS.7 ON-SITE PALMS ARE IMPACTED AND PROPOSED TO BE REMOVED DUE TO PROPOSED IMPROVEMENTS.4 ON-SITE TREES AND 16 STREET TREES ARE TO BE PROTECTED IN PLACE.HIGH STREET TREESTree # Botanical Name Common Name DBH Remarks1 Schimus molle California Pepper 16"PROTECT IN PLACE2 Schimus molle California Pepper 20"PROTECT IN PLACE3 Schimus molle California Pepper 24"PROTECT IN PLACE4 Schimus molle California Pepper 3"PROTECT IN PLACE5 Schimus molle California Pepper 3"PROTECT IN PLACE6 Schimus molle California Pepper 4"PROTECT IN PLACE7 Schimus molle California Pepper 14"PROTECT IN PLACE8 Schimus molle California Pepper 44"PROTECT IN PLACE9 Schimus molle California Pepper 60"PROTECT IN PLACE10 Schimus molle California Pepper 24"PROTECT IN PLACE11 Schimus molle California Pepper 16"PROTECT IN PLACE12 Schimus molle California Pepper 10"PROTECT IN PLACE14 Schimus molle California Pepper 20"PROTECT IN PLACE15 Schimus molle California Pepper 20"PROTECT IN PLACE16 Schimus molle California Pepper 7"PROTECT IN PLACE17 Schimus molleCalifornia Pepper 7"PROTECT IN PLACE16160Total Trees:Total Trees to be Saved:Total Trees to be Removed:ON-SITE TREESTree # Botanical Name Common Name DBH Remarks13 Schimus molle California Pepper 24" PROTECT IN PLACE18 Schimus molle California Pepper 10" REMOVE19 Platanus Racemosa Western Sycamore 14" REMOVE20 Schimus molle California Pepper 10" REMOVE21 Ficus benjamina Weeping Fig n/a REMOVE22 Fraxinus velutina Arizona Ash 70" PROTECT IN PLACE23 Schimus molle California Pepper 38" PROTECT IN PLACE24 Unknown Unknown 8" PROTECT IN PLACE844Total Trees:Total Trees to be Saved:Total Trees to be Removed:ON-SITE PALMSTree # Botanical Name Common Name DBH Remarks25 Washingtonia robusta Mexican Fan Palm 16" REMOVE26 Washingtonia robusta Mexican Fan Palm 16" REMOVE27 Washingtonia robusta Mexican Fan Palm 16" REMOVE28 Washingtonia robusta Mexican Fan Palm 16" REMOVE29 Washingtonia robusta Mexican Fan Palm 16" REMOVE30 Washingtonia robusta Mexican Fan Palm 16" REMOVE31 Washingtonia robusta Mexican Fan Palm 16" REMOVE707Total Palms:Total Palms to be Saved:Total Palms to be Removed:SITE TREE INVENTORY & REVIEW OCCURED ON JULY 30, 2020TREES & PALMS HAVE BEEN REVIEWED BY A CALIFORNIA REGISTERED LANDSCAPE ARCHITECT.03.31.202107.30.2020EXISTING TREE INVENTORYPROJECT LOCATIONVICINITY MAPEXISTING TREE IMAGES20’10’5’0’07-30-202020’20’10’10’5’5’00’0’60’30’15’0’EXISTING TREE SURVEY and REPORT#1#14#2#15#3#16#4#17#5#18#6#19#7#20#8#21#22#9#10#23#11#24#12#25#13#26#27#28#29)RXQG,3)RXQG,3)RXQG/ 7 HIGH ST.WALNUT ST.BARD ST.VENTURA COUNTY TRANSPORTATION COMMISSIONEXISTING BUILDINGEXISTING BUILDINGEXISTING BUILDING#30#3175
Page 2
associated with the now-vacant Maria’s Restaurant building and trees near the
southeastern portion of the site along the VCTC right of way.
The trees proposed to be removed are not native oaks or identified historic trees. In
their present location, they pose little value and would not warrant the redesign of the
development project to save them. The proposed project includes significant
landscaping that will upgrade the downtown flora environment.
Decision:
Based on the above information, the Community Development Director has authorized
the waiver of a tree survey for the High Street Station project.
76
Rincon Consultants, Inc.
180 North Ashwood Avenue
Ventura, California 93003
805 644 4455 OFFICE AND FAX
info@rinconconsultants.com
www.rinconconsultants.com
E n v i r o n m e n t a l S c i e n t i s t s P l a n n e r s E n g i n e e r s
September 17, 2020
Project No: 18-05844
Karen Vaughn
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Subject: Responses to Advocates for the Environment Comments Regarding the Greenhouse
Gas Emissions Analysis for the High Street Station Mixed Use Development Project
Final IS-MND, Moorpark, CA 93021
Dear Ms. Vaughn:
Rincon Consultants, Inc. (Rincon) has prepared a response to the comment letter dated September 8,
2020 submitted by Dean Wallraff of Advocates for the Environment on the Initial Study-Mitigated
Negative Declaration (IS-MND) for the High Street Station Mixed Use Development Project (herein
referred to as “proposed project” or “project”). The responses prepared by Rincon focus on the
comments under the Greenhouse Gases subsection of the commenter’s letter, which pertain to the
greenhouse gas (GHG) analysis of the IS-MND.
Response to Comments
Each separate issue raised by the commenter has been assigned a number. See Attachment 1 for the
annotated comment letter.
Response 1
The commenter states confusion about how the total GHG emissions estimate presented in Table 12 of
the Final IS-MND was calculated based on the California Emissions Estimator Model (CalEEMod) results
included in Appendix C.
The GHG emissions estimates in Table 12 are based largely on the emissions estimate in the CalEEMod
run labelled “High Street Station – 2030 – Ventura County, Annual” in Appendix C. The Annual results
are used because GHG emissions are estimated in terms of metric tons (MT) of carbon dioxide
equivalents (CO2e) per year. As stated on page 56 of the Final IS-MND, “operational emissions are
modeled for the year 2030 to be consistent with the State’s next GHG emission reduction milestone
target of achieving 40 percent reduction in 1 990 GHG emission levels by 2030.” This approach provides
an “apples-to-apples” comparison of the project’s emissions to the locally-appropriate, project-specific
efficiency threshold of significance, which is based on the State’s 2030 target GHG emissions level
outlined in the California Air Resources Board’s 2017 Climate Change Scoping Plan (see pages 52 to 55 of
the Final IS-MND). This approach is consistent with guidance from the Association of Environmental
Professionals in its Final White Paper Beyond 2020 and Newhall, which states on page 4:
ATTACHMENT 9
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When the State has comprehensive planning to achieve a reduction target…and a project will be
fully built before that milestone year, then the milestone year should be used as a threshold
basis.1
Table 12 includes emissions estimates from Table 2.1 of the CalEEMod run for amortized construction
emissions (14.0 MT of CO2e per year, as calculated in Table 11 of the Final IS-MND) and emissions
estimates from Table 2.2 of the CalEEMod run for area, energy, solid waste, and water source emissions
under the Operational heading and CO2 and CH4 mobile source emissions under the Mobile heading
(1,005.0 MT of CO2e per year). In addition, as stated on page 55 of the Final IS-MND, “because
CalEEMod does not calculate N2O [nitrous oxide] emissions from mobile sources, N2O emissions were
quantified using guidance from CARB [California Air Resources Board] and the EMFAC2017 Emissions
Inventory for the Ventura County region.” Therefore, Table 12 also includes an emissions estimate from
the spreadsheet labelled “N2O Operational GHG Emission Mobile Calculations” in Appendix C for N2O
mobile source emissions under the Mobile heading (16.5 MT of CO2e per year). In total, the project’s
annual GHG emissions are estimated to be approximately 1,035.5 MT of CO2e per year (14.0 + 1,005.0 +
16.5).
Response 2
The commenter states a concern that the carbon intensity factors adjusted for the 2030 Renewables
Portfolio Standard (RPS) were incorrectly used to estimate the project’s GHG emissions in its anticipated
buildout year of 2021.
The carbon intensity factors in CalEEMod are the utility-specific quantities of GHG emissions of CO2, CH4,
and N2O emitted by electricity generation in terms of pounds per megawatt-hour. These factors are
used to estimate the GHG emissions generated by a project’s electricity usage. The commenter is
correct in noting that the carbon intensity factors in the CalEEMod runs labelled “High Street Station –
2021 – Ventura County, Annual” and “High Street Station – 2021 – Ventura County, Winter” in Appendix
C were adjusted for the 2030 RPS. However, the emissions estimates from these CalEEMod runs for year
2021 were only used to estimate the project’s criteria air pollutant emissions, and the carbon intensity
factors only affect the project’s GHG emissions.2 Therefore, the use of carbon intensity factors adjusted
for the 2030 RPS in the CalEEMod runs for year 2021 is irrelevant to the analysis in the Final IS-MND
because the project’s GHG emissions are based on the CalEEMod results for year 2030, not year 2021.
See Response 1 for an explanation of why the emissions estimates for year 2030 instead of year 2021
were used to evaluate the project’s GHG emissions.
Response 3
The commenter states an opinion that the GHG emissions analysis in the Final IS-MND misinterprets the
California Air Resources Board’s 2017 Climate Change Scoping Plan.
As noted by the commenter, the 2017 Climate Change Scoping Plan states on pages 99 to 100 under the
heading Recommended Local Plan-Level Greenhouse Gas Emission Reduction Goals:
1 Association of Environmental Professionals. 2016. Beyond Newhall and 2020: A Field Guide to New CEQA Greenhouse Gas Threshold s and
Climate Action Plan Targets for California. October 18, 2016. https://califaep.org/docs/AEP-2016_Final_White_Paper.pdf (accessed September
2020).
2 California Air Pollution Control Officers Association (CAPCOA). 2017. California Emissions Estimator Model User’s Guide Version 2016.3.2.
November 2017.
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CARB recommends statewide targets of no more than six metric tons CO2e per capita by 2030
and no more than two metric tons CO2e per capita by 2050…CARB recommends that local
governments evaluate and adopt robust and quantitative locally-appropriate goals that align
with the statewide per capita targets and the State’s sustainable development objectives and
develop plans to achieve the local goals.3
The 2017 Climate Change Scoping Plan also states on page 102 under the heading Project-Level
Greenhouse Gas Emissions Reduction Actions and Thresholds:
Lead agencies have the discretion to develop evidence-based numeric thresholds (mass
emissions, per capita, or per service population) consistent with this Scoping Plan, the State’s
long-term GHG goals, and climate change science.4
As discussed on pages 52 through 55 of the Final IS-MND, the City calculated a locally-appropriate,
project-specific, evidence-based numeric threshold on a per service population basis to evaluate the
significance of the project’s GHG emissions. This threshold was developed in light of the State’s GHG
emissions targets contained in the 2017 Climate Change Scoping Plan and the State’s GHG goal for 2030,
both of which rely on climate change science. Therefore, the GHG emissions analysis does not
misinterpret the 2017 Climate Change Scoping Plan but rather is consistent with its guidance on project-
level thresholds.
Response 4
The commenter states a concern that using a service population threshold double counts persons who
are employees and that the threshold used in the IS-MND skews the analysis by using a higher ratio of
residents to employees for the project than the statewide ratio.
The service population of a project is the number of residents and employees the project would
accommodate. GHG emissions are generated by people at home and at their places of employment;
therefore, it is appropriate to allocate emissions to both residents and employees. As discussed on
pages 52 through 55 of the Final IS-MND, the locally-appropriate, project-specific efficiency threshold is
calculated on a per service person basis (i.e., annual emissions per service person); therefore, using the
project’s service population to estimate GHG emissions on a per service person basis provides an
“apples-to-apples” comparison between the project’s emissions and the threshold of significance.
The statewide ratio of residents to employees is irrelevant for calculating the service population for the
project. The service population of any given development project is based on the number of residents
and employees that the project accommodates. For example, a project that only includes residential
land uses would not include any employees in its service population and a project that only includes
commercial land uses would not include any residents in its service population. As discussed on page 20
of the Final IS-MND, the project’s service population was calculated based on the number of residential
units, the City’s current average household size, the estimated square footage of the commercial
component, and the average rates of employees per square foot for each anticipated use of the
3 California Air Resources Board. 2017. California’s 2017 Climate Change Scoping Plan. November 2017.
https://ww2.arb.ca.gov/sites/default/files/classic//cc/scopingplan/scoping_plan_2017.pdf (accessed September 2020).
4 Ibid.
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commercial component. Therefore, the methodology used to calculate the project’s emissions on a per
service population basis is neither flawed nor inconsistent with the 2017 Climate Change Scoping Plan.
Response 5
The commenter states an opinion that the IS-MND should use 2050 as the target year for the GHG
emissions analysis.
As stated on page 4 of the Association of Environmental Professionals’ Final White Paper Beyond 2020
and Newhall:
When the State has comprehensive planning to achieve a reduction target…and a project will be
fully built before that milestone year, then the milestone year should be used as a threshold
basis. When a project’s horizon is beyond the milestone for which the state has comprehensive
planning, a “substantial progress” threshold can be identified that is linearly interpolated
between the current milestone target for which an effective statewide plan exists…and the next
milestone target for which an effective statewide plan does not exist (such as for 2050).5
As explained on page 55 of the Final IS-MND, at this time the State has comprehensive planning to
achieve its target of a 40 percent reduction below 1990 emissions levels by 2030 (Senate Bill [SB] 32) in
the form of the California Air Resources Board’s 2017 Climate Change Scoping Plan. The proposed
project would be fully built prior to 2030; therefore, it is appropriate to evaluate project emissions in
light of a threshold based on the 2030 target. Furthermore, as SB 32 is considered an interim target
toward meeting the 2045 State goal, consistency with SB 32 is considered contributing substantial
progress toward meeting the State’s long-term 2045 and 2050 goals. Therefore, because the project’s
GHG emissions of 2.7 MT of CO2e per service person would be less-than-significant in light of SB 32
targets, the project would not impede substantial progress toward meeting the State’s 2045 and 2050
goals and impacts would be less than significant. In addition, the proposed project would participate in
applicable future requirements adopted to meet the State’s long-term 2045 and 2050 goals. For
example, electricity provided to the proposed project would be increasingly sourced by renewable
energy per the requirements of Senate Bill 100; residents living in the project would have the
opportunity to utilize the immediately adjacent Metrolink commuter rail service ; and vehicles used by
residents, employees, guests, and patrons would emit fewer GHG emissions over time due to
increasingly stringent federal and state fuel efficiency standards. In addition, it is important to note that
the GHG analysis in the Final IS-MND conservatively assumes that all vehicle trips to the project site
represent net new GHG emissions. However, in reality, most of these emissions are likely already being
generated by residents and employees currently living in and working in other locations in California
who would relocate to become future residents and employees of the proposed project. Therefore,
most of the project’s mobile source emissions are not net new emissions and the actual increase in GHG
emissions associated with the project would likely be lower than those estimated in the Final IS-MND.
5 Association of Environmental Professionals. 2016. Beyond Newhall and 2020: A Field Guide to New CEQA Greenhouse Gas Threshold s and
Climate Action Plan Targets for California. Octob er 18, 2016. https://califaep.org/docs/AEP-2016_Final_White_Paper.pdf (accessed September
2020).
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Response 6
The commenter states an opinion that the project’s GHG emissions are significant and that all feasible
mitigation is required under CEQA.
As stated on page 57 of the Final IS-MND, the project’s GHG emissions would not exceed the locally-
appropriate, project-specific threshold of 3.2 MT of CO2e per year. Based on the above responses to the
commenter’s concerns, no substantial evidence has been provided that suggests the project’s GHG
emissions impacts would be significant or that the conclusions of the Final IS-MND regarding the
significance of the project’s impacts should be revised. Therefore, the project’s GHG emissions remain
less than significant and no mitigation is required.
Thank you for the opportunity to assist with this assignment. Please do not hesitate to contact us if you
have questions about the responses provided in this letter.
Sincerely,
Rincon Consultants, Inc.
Lexi Journey, MESM Joe Power
Senior Environmental Planner Principal/Vice President
Attachment
Attachment 1 Annotated Comment Letter
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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 THEREW ITH,
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.
ATTACHMENT 10
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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.
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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.
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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.
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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.
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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.
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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.
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26. All 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.
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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.
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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
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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. All 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.
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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.
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70. All exit doors shall be provided with panic hardware when serving A, E, I occupancies
with an occupant load of 50 or more persons.
71. All required egress aisles shall be maintained clear of obstructions at anytime.
72. All 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
½ 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
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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
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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.
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EXHIBIT B
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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.
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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
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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.
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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
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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: vince@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
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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.
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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.
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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.
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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.
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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
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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
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
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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
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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
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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.
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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
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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.
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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
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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
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
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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,
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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:
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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,
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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.
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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
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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
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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
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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.
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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:
THE DALY GROUP, INC.,
a California corporation
By:
Vincent Daly,
its President
CITY:
CITY OF MOORPARK
By:
Janice Parvin,
Mayor
ATTEST:
Ky Spangler , City Clerk
APPROVED AS TO FORM:
By:
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Kevin G. Ennis, City Attorney
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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.
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EXHIBIT "A-2"
DEPICTION OF CITY PROPERTY TO BE CONVEYED TO DEVELOPER
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EXHIBIT “A-3”
VENTURA COUNTY TRANSIT COMMISSION LICENSE AREA SUBLICENSED TO
DEVELOPER
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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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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 Sublicensing. 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”).
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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.
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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
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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
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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
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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.
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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:
CITY OF MOORPARK
By:
SUBLICENSEE:
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
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EXHIBIT “1”
Description of Sublicensed Property
(Attached.)
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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.
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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
open escrow with the Escrow Holder.
Within five (5) business days following the
Parties’ execution of the DDA.
2.Developer Deposit. The Developer shall
deposit the Developer Deposit with
Escrow Holder.
Within ten (10) business days after the City's
execution and delivery of this Agreement.
3.Project Budget and Construction Contract.
The Developer shall submit the Project
Budget and a copy of the construction
contract with the Contractor for the
construction of the Improvements.
Prior to the Close of Escrow.
4.Insurance. The Developer shall submit
evidence of insurance to the City.
Prior to the Close of Escrow.
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
purchase the Property from the City (and
shall concurrently close the Construction
Loan, if any).
No later than December 31, 2021
7.Completion of Grading. Developer shall
complete the grading for the Project.
Six (6) months after Close of Escrow.
8.Substantial Commencement of
Construction.
Thirty (30) months after completion of grading.
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Action Date / Deadline
9.Qualification for Certificate of
Occupancy. The Project shall qualify for
an Occupancy Certificate.
Two calendar years after Close of Escrow.
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EXHIBIT "C"
SCOPE OF DEVELOPMENT
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.
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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.
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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
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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.
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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
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DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
DALY GROUP, INC
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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”;
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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
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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.
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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
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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;
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(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
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
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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.
6.3 Los Angeles Avenue Area of Contribution (LAAOC) Fees.
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
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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
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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
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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.
(f)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.
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(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.
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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
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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 City staff to work with Developer on the
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
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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 successo r
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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
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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”).
11.3 Content of Notice of Violation. Every notice of breach shall state in writing with
specificity that it is given pursuant to this section of this Agreement, the nature of
the alleged breach, and the manner in which the breach may be satisfactorily
cured. Every notice shall state the applicable period to cure. The notices shall be
given in accordance with Section 20 hereof.
11.4 Remedies for Breach. The Parties acknowledge that remedies at law, including
without limitation money damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and scope of the Project. The
Parties also acknowledge that it would not be feasible of possible to restore the
Property to its natural condition once implementation of the Agreement has
begun. Therefore, the Parties agree that the remedies for breach of this
Agreement shall be limited to the remedies expressly set forth in this subsection.
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.
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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.
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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 ability to 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.
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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
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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
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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.
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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.
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CITY OF MOORPARK
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
The Daly Group, Inc.,
a California corporation
By:
Vince Daly, President
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EXHIBIT “A-1”
(PROPERTY CONVEYED BY CITY THROUGH DDA)
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EXHIBIT “A-2”
(LICENSE AGREEMENT WITH PROPERTY LICENSED FROM VCTC)
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EXHIBIT "B"
(STREETSCAPE IMPROVEMENTS)
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EXHIBIT "C"
(HARDSCAPE/LANDSCAPE PLANS)
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EXHIBIT "D"
(AFFORDABLE (MODERATE INCOME) UNITS)
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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.
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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
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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
pursuant to Government Code Section 27383.
(Space Above for Recorder’s Use Only)
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the “Certificate”) is made by the CITY OF
MOORPARK, a municipal corporation (the “City”), in favor of .
R E C I T A L S
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.
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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
By:
Troy Brown, City Manager
ATTEST:
Ky Spangler, City Clerk
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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)
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.
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EXHIBIT “A”
LEGAL DESCRIPTION
To be provided by owner prior to close of escrow
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RESOLUTION NO. 2020-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, ADOPTING A MITIGATED NEGATIVE
DECLARATION AND APPROVING RESIDENTIAL PLANNED
DEVELOPMENT PERMIT NO. 2018-01 FOR A MIXED-USE
COMMERCIAL AND RESIDENTIAL DEVELOPMENT PROJECT
LOCATED AT 226 HIGH STREET, ON THE APPLICATION OF DALY
GROUP, INC.
WHEREAS, on September 5, 2018, applications for Residential Planned
Development Permit No. 2018-01, Disposition and Development Agreement No. 2018-
01, and Development Agreement No. 2018-01 (collectively, the “Project”) were filed by
Jasch Janowicz for Daly Group, Inc., to develop a mixed-use commercial and
residential project on city-owned property located at 226 High Street in downtown
Moorpark; and
WHEREAS, on September 10, 2020, the Planning Commission adopted
Resolution No. PC-2020-653, recommending that the City Council adopt a Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program and approve
Residential Planned Development Permit No. 2018-01, Disposition and Development
Agreement No. 2018-01, and Development Agreement No. 2018-01; and
WHEREAS, at a duly noticed public hearing on October 7, 2020 the City Council
considered Residential Planned Development Permit No. 2018-01, Disposition and
Development Agreement No. 2018-01, and Development Agreement No. 2018-01, as
well as the accompanying Mitigated Negative Declaration and Mitigation Monitoring and
Reporting Program, and any supplements thereto and written public comments, opened
the public hearing on the above-referenced applications and took and considered public
testimony both for and against the proposal, and reached a decision on this matter; and
WHEREAS, the City Council has read, reviewed, and considered the proposed
Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program
prepared for the Project together with any comments received during the public review
process and determined that there is no evidence that the Project or any of its aspects
may cause a significant effect on the environment and a Mitigated Negative Declaration
has been prepared for this project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. ENVIRONMENTAL FINDINGS: The City Council finds and declares
as follows:
A.The Initial Study and Mitigated Negative Declaration prepared for the
project are complete and have been prepared in compliance with the California
Environmental Quality Act (CEQA), and the City CEQA Procedures.
ATTACHMENT 11
221
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Page 2
B. On the basis of the whole record before the City Council (including the
Initial Study and any comments received), the City Council finds that there is no
substantial evidence that the project will have a significant effect on the environment.
All potentially significant environmental impacts of the Project can be mitigated to a
Less-than-Significant level through the application of mitigation measures outlined in the
Mitigation Monitoring and Reporting Program.
C. The Mitigated Negative Declaration reflects the independent judgment and
analysis of the City Council.
D. SECTION 2. ADOPTION OF MITIGATED NEGATIVE DECLARATION:
The Mitigated Negative Declaration as proposed in Exhibit A attached hereto and
incorporated herein for the proposed development of a 79 unit/13,628 square foot
commercial and residential mixed-use project located at 226 High Street, including
Residential Planned Development Permit No. 2018-01, Disposition and Development
Agreement No. 2018-01, and Development Agreement No. 2018-01, is hereby adopted.
The location and custodian of the documents or other material which constitute the
record of proceedings upon which this decision is based are as follows: Karen Vaughn,
Community Development Director, City of Moorpark, 799 Moorpark Avenue, Moorpark,
CA 93021.
SECTION 3. ADOPTION OF MITIGATION MONITORING AND REPORTING
PROGRAM: The Mitigation Monitoring and Reporting Program as proposed in Exhibit B
attached hereto and incorporated herein for the proposed development of a 79
unit/13,628 square foot commercial and residential mixed-use project located at 226
High Street, including Residential Planned Development Permit No. 2018-01,
Disposition and Development Agreement No. 2018-01, and Development Agreement
No. 2018-01, is hereby adopted. The Mitigation Monitoring and Reporting Program will
be implemented by changes to the project or made a condition of approval of the
Project.
SECTION 4. PLANNED DEVELOPMENT FINDINGS: Based upon the
information set forth in the staff report(s), accompanying studies, and oral and written
public testimony, the City Council makes the following findings in accordance with City
of Moorpark, Municipal Code Section 17.44.040:
A. The Project’s site design, including structure location, size, height, setbacks,
massing, scale, architectural style and colors, and landscaping, is consistent
with the provisions of the general plan, the Downtown Specific Plan, zoning
ordinance, and all other applicable regulations. 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
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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, including brick, board and
batten, and stucco. 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 Downtown Specific Plan,
zoning code, and the goals and policies of the General Plan.
B. The site design would not create negative impacts on or impair the utility of
properties, structures, or uses in the surrounding area. 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.
Based on the findings of the Mitigated Negative Declaration, all impacts that
might impair uses in the surrounding area have been mitigated to a less than
significant level.
C. The proposed uses are compatible with existing and permitted uses in the
surround area. 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 5. 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. Therefore, the Project’s
residential guest parking requirements are hereby waived because adequate
public parking capacity is found to exist in the vicinity of the Project site.
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SECTION 6. CITY COUNCIL APPROVAL: The City Council approves
Residential Planned Development No. 2018-01, subject to the Standard and Special
Conditions of Approval included in Exhibit C, attached hereto and incorporated herein
by reference.
SECTION 7. EFFECTIVE DATE: The effective date of the Residential Planned
Development Permit No. 2018-01 shall be concurrent with the effective date of the
Ordinance for Development Agreement No. 2018-01.
SECTION 8. CERTIFICATION OF ADOPTION: The City Clerk shall certify to the
adoption of this resolution and shall cause a certified resolution to be filed in the book of
original resolutions.
PASSED AND ADOPTED this 7th day of October, 2020.
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
Exhibit A: Initial Study and Mitigated Negative Declaration with Responses to
Comments
Exhibit B: Mitigation Monitoring and Reporting Program
Exhibit C: Standard and Special Conditions of Approval for Residential Planned
Development Permit No. 2018-01
224
High Street Station Mixed Use Development
Final Initial Study – Mitigated Negative Declaration
Project Nos. RPD2018-01, ZC2018-01, DDA2018-01 and
DA2018-01
prepared by
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
prepared by
Rincon Consultants, Inc.
180 North Ashwood Avenue
Ventura, California 93003
July 2020
EXHIBIT AResolution No. 2020-____
Page 5
225
High Street Station Mixed Use Development
Final Initial Study – Mitigated Negative Declaration
Project Nos. RPD2018-01, ZC2018-01, DDA 2018-01 and
DA2018-01
prepared by
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
prepared by
Rincon Consultants, Inc.
180 North Ashwood Avenue
Ventura, California 93003
July 2020
Resolution No. 2020-____
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226
This report prepared on 50% recycled paper with 50% post-consumer content.
Resolution No. 2020-____
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Table of Contents
Final Initial Study – Mitigated Negative Declaration i
Table of Contents
Initial Study ............................................................................................................................................. 1
1.Project Title ......................................................................................................................... 1
2.Lead Agency Name and Address ......................................................................................... 1
3.Contact Person and Phone Number ................................................................................... 1
4.Project Location .................................................................................................................. 1
5.Existing Setting .................................................................................................................... 1
6.Project Applicant’s Name and Address ............................................................................... 1
7.General Plan Designation .................................................................................................... 4
8.Zoning.................................................................................................................................. 4
9.Description of Project ......................................................................................................... 4
10.Surrounding Land Uses and Setting .................................................................................... 9
11.Required Approvals ............................................................................................................. 9
Environmental Factors Potentially Affected .........................................................................................11
Determination ......................................................................................................................................11
Environmental Checklist .......................................................................................................................13
1 Aesthetics ..........................................................................................................................13
2 Agriculture and Forestry Resources ..................................................................................17
3 Air Quality .........................................................................................................................19
4 Biological Resources ..........................................................................................................29
5 Cultural Resources ............................................................................................................33
6 Energy ...............................................................................................................................37
7 Geology and Soils ..............................................................................................................41
8 Greenhouse Gas Emissions ...............................................................................................49
9 Hazards and Hazardous Materials ....................................................................................61
10 Hydrology and Water Quality ...........................................................................................67
11 Land Use and Planning ......................................................................................................73
12 Mineral Resources ............................................................................................................75
13 Noise .................................................................................................................................77
14 Population and Housing ....................................................................................................97
15 Public Services ...................................................................................................................99
16 Recreation .......................................................................................................................103
17 Transportation ................................................................................................................105
18 Tribal Cultural Resources ................................................................................................113
19 Utilities and Service Systems ..........................................................................................117
20 Wildfire............................................................................................................................123
21 Mandatory Findings of Significance ................................................................................127
References ..........................................................................................................................................129
Bibliography ................................................................................................................................129
List of Preparers ..........................................................................................................................134
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City of Moorpark
High Street Station Mixed Use Development
ii
Tables
Table 1 Project Summary ................................................................................................................. 6
Table 2 Project Construction Schedule ............................................................................................ 8
Table 3 Proposed Project Employment Forecasts .........................................................................21
Table 4 Project Construction Emissions.........................................................................................23
Table 5 Project Operational Emissions ..........................................................................................25
Table 6 Proposed Project Construction Energy Usage ..................................................................38
Table 7 Project Compliance with Energy Efficiency Goals and Policies .........................................40
Table 8 SB 32 Scoping Plan Emissions Sector Targets ...................................................................54
Table 9 SB 32 Locally-Appropriate Project-Specific Threshold ......................................................55
Table 10 SCE Energy Intensity Factors .............................................................................................56
Table 11 Estimated Construction Emissions of Greenhouse Gases ................................................57
Table 12 Combined Annual Emissions of Greenhouse Gases .........................................................58
Table 13 Construction Equipment Noise Standards ........................................................................79
Table 14 Residential HVAC Equipment Noise Standards .................................................................80
Table 15 Exterior Noise Limits .........................................................................................................80
Table 16 Interior Noise Limits ..........................................................................................................81
Table 17 Significance of Changes in Roadway Noise Exposure .......................................................81
Table 18 Short-Term Sound Level Monitoring Results ....................................................................82
Table 19 24-Hour Sound Level Monitoring Results .........................................................................84
Table 20 Construction Noise Levels by Phase..................................................................................86
Table 21 Mitigated Construction Noise Levels by Phase .................................................................88
Table 22 Existing Plus Project Roadway and Railway Noise Levels .................................................92
Table 23 Cumulative Plus Project Roadway and Railway Noise Levels ...........................................93
Table 24 Vibration Level for Construction Equipment ....................................................................94
Table 25 Existing Peak Hour Levels of Service ...............................................................................106
Table 26 Project Weekday Peak Hour Trip Generation .................................................................107
Table 27 Existing Plus Project Peak Hour Levels of Service ...........................................................107
Table 28 Cumulative Development Projects Trip Generation .......................................................109
Table 29 Cumulative and Cumulative plus Project AM and PM Peak Hour Levels of Service .......110
Table 30 Average Daily Wastewater Generation ..........................................................................118
Table 31 Multiple Dry Years Water Supply and Demand ..............................................................119
Table 32 Average Daily Solid Waste Generation ...........................................................................121
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Table of Contents
Final Initial Study – Mitigated Negative Declaration iii
Figures
Figure 1 Regional Location ................................................................................................................ 2
Figure 2 Project Location .................................................................................................................. 3
Figure 3 Project Site Plan .................................................................................................................. 5
Figure 4 Sound Level Measurement Locations ...............................................................................83
Appendices
Appendix A Project Renderings
Appendix B Preliminary Hydrologic and Hydraulic/Stormwater Quality Report
Appendix C Air Quality and Greenhouse Gas Modeling
Appendix D Traffic and Parking Study
Appendix E Cultural Resources Assessment Report
Appendix F Energy Calculations
Appendix G Preliminary Geohazard Report
Appendix H Phase I Environmental Site Assessment
Appendix I Noise Data and Modeling Worksheets
Appendix J Will-Serve Letters
Appendix K Mitigation Monitoring and Reporting Program
Appendix L Response to Comments on the First Public Review Draft
Appendix M Response to Comments on the Second Public Review Draft
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Initial Study
Final Initial Study – Mitigated Negative Declaration 1
Initial Study
1.Project Title
High Street Station Mixed Use Development
Project Nos. RPD2018-01, ZC2018-01, DDA2018-01 and DA2018-01
2.Lead Agency Name and Address
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
3.Contact Person and Phone Number
Karen Vaughn, Community Development Director
(805) 517-6281
4.Project Location
The project site is located along the south side of High Street, roughly in between Walnut Street and
Magnolia Street, in the City of Moorpark in Ventura County, California. The project site’s Assessor
Parcel Number (APN) is 512-0-090-115.
Figure 1 shows the location of the site in the region and Figure 2 shows the project site in its
neighborhood context.
5.Existing Setting
The project site is located along the south side of High Street in an area largely characterized by
commercial uses. The site is currently developed with a non-operational granary warehouse and
other non-operational industrial and commercial buildings. The site is surrounded by the railroad
immediately to the south, one- and two-story office and retail buildings and Ventura County Fire
Station 42 to the north and northeast, Metrolink transit parking to the east and south, and the one-
story Moorpark Chamber of Commerce building and surface parking lot to the west.
6.Project Applicant’s Name and Address
Daly Group Inc.
31255 Cedar Valley Drive, Suite 323
Westlake Village, California 91362
Contact: Jasch Janowicz
(805) 309-6100
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City of Moorpark
High Street Station Mixed Use Development
2
Figure 1 Regional Location
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Initial Study
Final Initial Study – Mitigated Negative Declaration 3
Figure 2 Project Location
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City of Moorpark
High Street Station Mixed Use Development
4
7.General Plan Designation
Downtown Specific Plan – Old Town Commercial (C-OT)
8.Zoning
Commercial Old Town (C-OT) (Moorpark Downtown Specific Plan)
9.Description of Project
The High Street Station Mixed Use Development (proposed project) involves development of 91
multi-family residential units, 15,018 sf of commercial development, and associated surface parking
spaces. The project site is approximately 2.15 acres and is within the Moorpark Downtown Specific
Plan Area. Table 1 shows the project summary details. Figure 3 shows the proposed project’s site
plan, and Appendix A shows conceptual renderings of the proposed project.
Residential Component
The 91 multi-family residential units would be for-rent and would be constructed within four
individual buildings located across the project site, each with a maximum of three floors. The
proposed project would include 18 ground-floor studios, 26 one-bedroom units, 39 two-bedroom
units, and 8 three-bedroom units. The residential portion of the project would include
approximately 69,834 gross sf. The Moorpark Downtown Specific Plan and Zoning Code do not
permit residential uses as part of mixed use developments in the Old Town Commercial (C-OT) zone;
therefore, project entitlements include a zoning ordinance amendment to allow mixed
residential/commercial uses on the project site.
Commercial Component
The proposed project includes approximately 15,018 sf of commercial retail space. Of that total,
6,618 sf would be standalone commercial space in three separate buildings surrounding the
proposed village green. A brewery, winery or similar use is anticipated to occupy the 3,824-sf
commercial building located immediately south of the village green; restaurants or similar uses are
anticipated to occupy the 1,386-sf commercial building located immediately east of the village green
the approximately 1,408-sf commercial building located west of the village green. In addition to the
commercial space surrounding the village green, the proposed project includes approximately 8,400
sf of ground-floor commercial space (including retail and office uses) along High Street within the
four residential buildings.
Landscaping and Public Recreational Space
An outdoor village green is proposed in the central portion of the site, south of the High Street/Bard
Street intersection. The village green would be open to the public and would be used as a
recreational amenity by on-site residents and patrons of the commercial uses. Streetscape
landscaping is proposed along the project frontage within both the project site and the public right-
of-way and additional areas of landscaping are proposed in the western portion of the site near the
intersection of High Street and Walnut Street, around each building, and along the southern
boundary of the property.
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Initial Study
Final Initial Study – Mitigated Negative Declaration 5
Figure 3 Project Site Plan
Source: Dicecco Architecture Incorporated 2018
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City of Moorpark
High Street Station Mixed Use Development
6
Table 1 Project Summary
Component Building Area (sf) Height
Residential 69,834 35’ (3 floors)
Commercial 15,018
Circulation 8,870
Private Open Space 6,542
Total 98,812
Landscaping
Village Green 7,178
Parking Spaces
Residential 139 spaces
Commercial and
Guest
Provided on High Street and in shared
City-owned parking lots off-site
Total 139 spaces
The site currently contains 17 mature trees that include palm, cypress, ash, and pepper trees. Some
of the mature trees on-site would be removed over the course of construction activities, but the
project would preserve the existing pepper trees along High Street, which are designated Ventura
County Landmark #72 (County of Ventura 2016), and the existing large ash trees along the southern
portion of the property. The City of Moorpark Tree Preservation Guidelines (Moorpark Municipal
Code 12.12.060) would be enforced to ensure the pepper trees are not impacted by nearby
construction. During construction, conditions of approval would require the establishment of a
physical barrier (flagging or see-through safety fencing) to be installed around any adjacent pepper
trees that are situated near any mechanized equipment. Continued pepper tree maintenance would
be completed in accordance with the City’s California Pepper Trees Maintenance Plan (2006b).
Access and Parking
Two vehicle access driveways are proposed, one at the High Street/Walnut Street intersection and
another approximately 230 feet east of the High Street/Bard Street intersection. Sidewalks and
streetscape landscaping are proposed along High Street, providing pedestrian access to the project.
Additional emergency access to the site could also be available from the existing Metrolink parking
lot adjacent to the eastern project boundary or the existing Chamber of Commerce parking lot
adjacent to the western project boundary.
The project includes 139 on-site parking spaces that will be assigned as reserved parking to serve
the residential units, per Section 2.2.5.5.d of the Moorpark Downtown Specific Plan (DTSP). The site
would also provide up to 26 on-street parking spaces along its High Street frontage that would be
counted toward the required parking per Section 3.8 of the DTSP. Residential guest parking and
parking to serve the commercial component would occur within public parking areas in the
downtown area, including public parking lots and street parking.1
1 According to the Downtown Moorpark Parking Study prepared by Walker Consultants in December 2019, maximum utilization of the
914 available parking spaces in downtown Moorpark only reached 40 percent during peak times.
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Initial Study
Final Initial Study – Mitigated Negative Declaration 7
In 2019, the City of Moorpark prepared a Downtown Parking Study to quantify and analyze public
parking assets within Downtown Moorpark. The Study identified a total of 914 public parking
spaces (on-street and surface lots) within a ½-mile radius of the Project site. During peak weekday
times, only 40% of available downtown parking was utilized. As noted in the Study, downtown
parking utilization is well below the industry target of 85% and the City has significant capacity to
absorb the remaining guest and commercial visitor parking generated by the Project Vehicle loading
and unloading and trash collection areas would be provided behind the proposed commercial
buildings and along High Street.
Interpretive Display
As part of the project design, the proposed project would incorporate an interpretive display into a
portion of the proposed commercial storefront space. The display would include information about
the history of downtown Moorpark.
Stormwater Control Measures
Storm drain inlets will be integrated into parking areas and new Low Impact Development (LID) Best
Management Practices (BMPs) would be integrated into the building, landscaping, streetscape, and
parking lot areas. Storm drain inlets would be collected by a new on-site storm drain system, which
would discharge into the existing storm drain within High Street and ultimately drain to Moorpark
Storm Drain No. 1. As described in the Preliminary Hydrologic and Hydraulic/Stormwater Quality
Report (Hydrology Report), site-specific LID BMPs would be integrated into the project in
compliance with the 2011 Ventura County Technical Guidance Manual (2011 TGM) (Appendix B).
The design of grading and drainage plans for the proposed project were based on the following
hydrologic and water quality impact reduction strategies:
▪Site Planning: The project has been designed in a manner that would effectively disconnect
impervious surfaces such that five percent Effective Impervious Area is achieved;
▪Protect and Restore Natural Areas: Natural areas were proposed to the maximum extent
feasible by the inclusion of a pervious village green and pervious paving/landscaping within the
streetscape;
▪Source Control Measures: Storm drain signage would be added to all drain inlets along with the
design of outdoor trash storage areas in compliance with MMC standards;
▪Treatment Control BMPs: Stormwater treatment would be divided into three areas, including
the treatment of roof areas, treatment of parking/drive-aisle areas, and treatment of street
frontage areas. The treatment of building roof runoff would be accomplished through the
inclusion of flow-through planter boxes adjacent to proposed buildings. The planter boxes will
be sized to treat the full stormwater quality design volume specified in the 2011 TGM. The
treatment of parking/drive-aisle runoff would be accomplished through the inclusion of bio-
retention areas with underdrains and pervious paving within the southern portion of the site.
The treatment of street frontage areas would be accomplished by integrating a biofiltration
basin into the proposed pedestrian “bulb-out” near the intersection of High Street and Bard
Street and by integrating “StormTreat” linear stormwater filtration devices into the proposed
High Street streetscape landscaping plans.
▪Flood Control Detention: The project would reduce the post-development flow rate by 0.92
cubic feet per second (cfs) by including 175 feet of oversized 48-inch drain pipe in the western
drainage area and 65 feet of 36-inch pipe within the eastern drainage area.
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Demolition and Construction Activities
Project demolition and construction would occur over the course of approximately 13 months. A
breakdown of the construction schedule is provided in Table 2.
Table 2 Project Construction Schedule
Phase Number of Working Days
Site Demolition 20
Site Preparation 3
Building Construction and Grading 226
Architectural Coating1 129
Paving 10
1 The architectural coating phase would overlap with the building construction phase and extend one month past the end of the
building construction phase. Architectural coating would occur as individual units and buildings are completed; therefore, architectural
coating activities would not be continuous over the 129-day period. Rather, architectural coating activities would likely be completed
in two- to three-week increments.
As part of project construction, the existing vacant granary, restaurant, and industrial buildings on-
site would be demolished. To the extent feasible, building materials from select existing buildings
would be salvaged, stored on-site, and re-used as part of new construction.
The project site is relatively flat; however, on-site grading in the form of removal and recompaction
would occur across the entire site along with geologic hazard remediation (see Section 7, Geology
and Soils). Wet and dry utilities would also be installed as part of site improvements. Other off-site
improvements would include connections to existing wet and dry utilities on or adjacent to the
project site, and streetscape improvements along the existing High Street right-of-way, including
landscaping, addition of sidewalk bulb-outs, and enhancements to sidewalk and crosswalk paving,
street furniture, and the existing Gazebo, Camino Real Bell, and Memorial Bricks.
Project construction would involve removal of several existing mature trees on-site; however, the
existing pepper trees along High Street would be preserved in place. The project’s grading plan
would not disrupt or remove structural feeder roots and would not fill, cut, or compact soils within
the dripline. If necessary, the project contractor would work with a consulting arborist during
grading and construction to avoid impacts to existing pepper trees. It is likely that portions of the
existing sidewalk would need to be temporarily closed during construction activities. However,
access to the existing Metrolink train platform would remain open during construction by allowing
pedestrian access along properties immediately to the east because these properties currently
provide direct access and vehicle parking for the Metrolink train platform. In addition, during
construction of the proposed project, activities would be restricted to the project site and would not
interfere with roadway traffic or use of the railroad. The project would also be subject to standard
conditions of approval, which require the use of flagmen, temporary signage, and traffic calming
measures, if necessary, during temporary construction activities.
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Initial Study
Final Initial Study – Mitigated Negative Declaration 9
10.Surrounding Land Uses and Setting
The Moorpark Metrolink Station Platform is located adjacent to the southeastern portion of the
project site. Office, restaurants, theatre, retail uses and Ventura County Fire Station No. 42 are
located immediately north of the project along High Street. Single-family and multi-family
residences and the Tafoya Terrace Senior Housing Complex are located further north and northwest
of High Street. Additional residential uses are also located south of the railroad tracks.
11.Required Approvals
The City of Moorpark is the lead agency for this project. The proposed project requires
consideration of the following entitlements by the City of Moorpark:
▪Zoning Map Amendment to apply Mixed-Use Overlay Zone designation to the project site
(Project No. ZC2018-01)
▪Residential Planned Development Permit for conditions of approval for architecture and site
development activities (Project No. RPD2018-01)
▪Disposition and Development Agreement for the transaction of the land from the City to the
Developer (Project No. DDA2018-01)
▪Development Agreement for the terms of development (Project No. DA2018-01)
A Lot Line Adjustment may be required to ensure that proposed buildings do not cross property
lines. Conditional Use Permits may be required for individual businesses proposed within the on-site
commercial spaces. Furthermore, the project proposes to encroach into approximately 20 feet of
the railroad right-of-way. This encroachment would require approval and recordation of a joint use
agreement between the Ventura County Transportation Commission (VCTC), Southern California
Regional Rail Authority (SCRRA) and the City of Moorpark.
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Environmental Factors Potentially Affected
Final Initial Study – Mitigated Negative Declaration 11
Environmental Factors Potentially Affected
This project would potentially affect the environmental factors checked below, involving at least
one impact that is “Potentially Significant” or “Less than Significant with Mitigation Incorporated” as
indicated by the checklist on the following pages.
□Aesthetics □Agriculture and
Forestry Resources
□Air Quality
■Biological Resources ■Cultural Resources □Energy
■Geology/Soils □Greenhouse Gas
Emissions
■Hazards & Hazardous
Materials
□Hydrology/Water Quality □ Land Use/Planning □Mineral Resources
■Noise □Population/Housing □Public Services
□Recreation ■Transportation ■Tribal Cultural Resources
□Utilities/Service Systems □ Wildfire ■Mandatory Findings
of Significance
Determination
Based on this initial evaluation:
□I find that the proposed project COULD NOT have a significant effect on the environment,
and a NEGATIVE DECLARATION will be prepared.
■I find that although the proposed project could have a significant effect on the
environment, there will not be a significant effect in this case because revisions to the
project have been made by or agreed to by the project proponent. A MITIGATED
NEGATIVE DECLARATION will be prepared.
□I find that the proposed project MAY have a significant effect on the environment, and an
ENVIRONMENTAL IMPACT REPORT is required.
□I find that the proposed project MAY have a “potentially significant impact” or “less than
significant with mitigation incorporated” impact on the environment, but at least one
effect (1) has been adequately analyzed in an earlier document pursuant to applicable
legal standards, and (2) has been addressed by mitigation measures based on the earlier
analysis as described on attached sheets. An ENVIRONMENTAL IMPACT REPORT is
required, but it must analyze only the effects that remain to be addressed.
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-"'
City o f M oorpark
High Street Station Mixed Use Development
D I find that although the proposed project could have a significant effect on the
environment, because all potential significant effects (a) have been analyzed adequately
in an earlier EIR or NEGATIVE DECLARATION pursuant to applicable standards, and (b)
have been avoided or mitigated pursuant to that earlier EIR or NEGATIVE DECLARATION,
including revision s or mitigation measures that are imposed upon the proposed project,
nothing further is required .
Date
4rUl
Printed Name Title
12
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Environmental Checklist
Aesthetics
Final Initial Study – Mitigated Negative Declaration 13
Environmental Checklist
1 Aesthetics
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Except as provided in Public Resources Code Section 21099, would the project:
a.Have a substantial adverse effect on a
scenic vista?□□■□
b.Substantially damage scenic resources,
including but not limited to, trees, rock
outcroppings, and historic buildings
within a state scenic highway?□□□■
c.In non-urbanized areas, substantially
degrade the existing visual character or
quality of public views of the site and its
surroundings? (Public views are those
that are experienced from publicly
accessible vantage point). If the project is
in an urbanized area, would the project
conflict with applicable zoning and other
regulations governing scenic quality?□□■□
d.Create a new source of substantial light or
glare that would adversely affect daytime
or nighttime views in the area?□□■□
a.Would the project have a substantial adverse effect on a scenic vista?
A significant impact would occur if the project would introduce incompatible visual elements within
a field of view containing a scenic vista or substantially block views of a scenic vista. Scenic vistas are
generally described in two ways: panoramic views (visual access to a large geographic area, for
which the field of view can be wide and extend into the distance) and focal views (visual access to a
particular object, scene, or feature of interest). According to Figure 1 of the Open Space,
Conservation, and Recreation Element of the City of Moorpark General Plan (1986), the project site
is located in an urbanized area of the City and is not within a designated scenic viewshed.
The proposed project would involve demolition of existing one, two, and three-story commercial
and industrial buildings and construction of two- and three-story buildings on-site. The proposed
project would block a larger percentage of the sky as seen from adjacent commercial properties and
residences south of the project site compared to the existing uses; however, the increased
percentage of obstruction would be incremental compared to the existing uses within the overall
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viewshed. In addition, the proposed project would be consistent with the 35-foot height limit
contained in the DTSP and the Old Town Commercial zoning (City of Moorpark 2006a). The
proposed project also involves the development of a landscaped village green and streetscape,
landscaped gathering spaces, and pedestrian walkways, which would not adversely affect scenic
vistas. Therefore, impacts associated with scenic vistas would be less than significant.
LESS THAN SIGNIFICANT IMPACT
b.Would the project substantially damage scenic resources, including but not limited to, trees,
rock outcroppings, and historic buildings within a state scenic highway?
The project site currently contains a vacant granary, vacant industrial buildings, vacant commercial
buildings, associated paved and unpaved surfaces, and vacant land. The existing structures on the
project site show signs of deterioration. Debris, trash, cracked pavement, and unpaved parking lots
surfaced with dirt and gravel were also observed. The site also contains 17 mature trees that include
palm, cypress, ash, and pepper trees. Some of the mature trees on-site would be removed over the
course of construction activities, but the project would preserve the existing pepper trees along
High Street, which are designated Ventura County Landmark #72 (County of Ventura 2016), and the
existing large ash trees along the southern portion of the property. The City of Moorpark Tree
Preservation Guidelines (Moorpark Municipal Code 12.12.060) would be enforced as a condition of
project approval to ensure the pepper trees are not impacted by nearby construction. During
construction, a physical barrier (flagging or see-through safety fencing) would be installed around
any adjacent pepper trees that are situated near mechanized equipment. Additionally, the project’s
grading plan would not disrupt or remove structural feeder roots and would not fill, cut, or compact
soils within the dripline. If necessary, the project contractor would work with a consulting arborist
during grading and construction. This would avoid impacts to Ventura County Landmark # 72.
Continued pepper tree maintenance would be completed in accordance with the City’s California
Pepper Trees Maintenance Plan (2006b). As discussed in Section 5, Cultural Resources, Rincon
Consultants, Inc. concluded that the site is not considered a historical resource. Although the project
would remove buildings and trees, none are designated as historic or scenic resources, and the
project site is not located within the vicinity of a state scenic highway (California Department of
Transportation 2011). Therefore, no impact related to scenic resources within a state scenic
highway would occur.
NO IMPACT
c.Would the project, in non-urbanized areas, substantially degrade the existing visual character
or quality of public views of the site and its surroundings? (Public views are those that are
experienced from publicly accessible vantage point). If the project is in an urbanized area,
would the project conflict with applicable zoning and other regulations governing scenic
quality?
The project site is within an urbanized area of the City of Moorpark, and a significant impact would
occur if the project would conflict with zoning or other regulations applicable to the project site, or
otherwise substantially degrade the existing visual character or quality of the project site and/or its
surroundings. Significant impacts to the visual character of a site and its surroundings are generally
based on the removal of features with aesthetic value, the introduction of contrasting urban
features into a local area, and the degree to which the elements of the project detract from the
visual character of an area.
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Environmental Checklist
Aesthetics
Final Initial Study – Mitigated Negative Declaration 15
The project site currently contains a former granary, industrial and commercial buildings, associated
paved surfaces, and vacant land. The existing structures show signs of deterioration and the site
contains debris, trash, cracked pavement, and unpaved parking lots surfaced with dirt and gravel.
Commercial development is located to the north across High Street. A surface parking lot for the
Moorpark Metrolink Station is located to the east. The Moorpark Chamber of Commerce and its
associated surface parking lot are located to the west. The Southern California Regional Rail
Authority and Union Pacific Railroad right-of-way and a railroad are located immediately to the
south.
The project would not remove any of the existing ash trees or pepper trees along High Street.
Pepper Tree maintenance would be completed in accordance with the City’s California Pepper Trees
Maintenance Plan (2006b). In addition, the mature trees located in the VCTC’s right-of-way would
be left in place.
The proposed buildings would be similar in height when compared to the existing buildings. The
project would also be consistent with the 35-foot height limit contained in the DTSP (City of
Moorpark 2006a). The DTSP identifies existing planning issues causing visual impacts along High
Street. The DTSP also includes policies for enhanced visual elements on commercial development,
including landscaping, height and lighting restrictions, and other design features. The project design
and architectural features would be consistent with the design guidelines contained in the DTSP for
the Old Town Commercial (C-OT) zone. The project would substantially improve the visual quality
and character of the project site by adding high-quality architecture, a plaza, and landscaping
improvements to the site. See Appendix A for conceptual renderings of the project design.
Accordingly, the project would not degrade the existing visual character or quality of the site and its
surroundings or conflict with applicable zoning or other regulations.
Shadow effects can also affect visual character and are dependent upon several factors, including
the local topography, the height and bulk of a project’s structural elements, sensitivity of adjacent
land uses, the time of day, season, and duration of shadow projection. The project would
incrementally increase shading and shadows in the project vicinity due to increased height and
massing on-site. However, no shade-sensitive land uses, such as residential areas, are located in the
immediate vicinity of the project site. Therefore, impacts to visual character and quality would be
less than significant.
LESS THAN SIGNIFICANT IMPACT
d.Would the project create a new source of substantial light or glare that would adversely affect
daytime or nighttime views in the area?
The project site is in an urbanized area with moderate levels of existing lighting. Primary sources of
light adjacent to the project site include interior and exterior lighting associated with the existing
commercial buildings, parking lots, street lights along High Street, and headlights from vehicles on
the streets. The primary source of glare adjacent to the project site is the sun’s reflection from
metallic and glass surfaces on existing buildings and vehicles parked on High Street.
Exterior windows on the proposed building could incrementally increase the reflected sunlight
during certain times of the day. Project lighting could incrementally increase evening light levels on
adjacent properties due to a greater number of windows in the residential and commercial buildings
when compared to the existing setting (i.e., industrial buildings and vacant land).
The project would incorporate exterior lighting in the form of pedestrian walkway lighting, plaza
lighting, building mounted lighting, and other safety-related lighting. The project would be required
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to comply with MMC Chapter 17.30, which includes the following provisions for light and glare
reduction:
▪Shield or recess all lamps within the luminaire to prevent the visibility or the emission of light at
or above the horizontal plane located at the bottom of the fixture
▪Direct all luminaires away from all adjacent properties and streets/rights-of-way to avoid glare
and spillover
▪Utilize light poles that do not exceed 25 feet in height in all commercial zones
▪Submit a plan for the outdoor lighting systems to the City’s community development director
for approval prior to the issuance of a building permit
Compliance with MMC Chapter 17.30 would ensure that the additional light sources would not
substantially change existing nighttime lighting conditions and consequently, would not have a
significant impact on the night sky. Furthermore, the project would be required to adhere to lighting
design guidelines for the Old Town Commercial Zone contained in Section 2.2.5.B.11 of the DTSP
(City of Moorpark 2006a). Compliance with applicable standards in the MMC and the DTSP would
ensure that impacts related to light and glare would be less than significant.
LESS THAN SIGNIFICANT IMPACT
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Environmental Checklist
Agriculture and Forestry Resources
Final Initial Study – Mitigated Negative Declaration 17
2 Agriculture and Forestry Resources
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Convert Prime Farmland, Unique Farmland,
Farmland of Statewide Importance
(Farmland), as shown on maps prepared
pursuant to the Farmland Mapping and
Monitoring Program of the California
Resources Agency, to non-agricultural use?□□ □ ■
b.Conflict with existing zoning for agricultural
use or a Williamson Act contract?□ □ □■
c.Conflict with existing zoning for, or cause
rezoning of, forest land (as defined in
Public Resources Code Section 12220(g));
timberland (as defined by Public Resources
Code Section 4526); or timberland zoned
Timberland Production (as defined by
Government Code Section 51104(g))?□ □ □■
d.Result in the loss of forest land or
conversion of forest land to non-forest
use?□ □ □■
e.Involve other changes in the existing
environment which, due to their location
or nature, could result in conversion of
Farmland to non-agricultural use or
conversion of forest land to non-forest
use?□ □ □■
a.Would the project convert Prime Farmland, Unique Farmland, Farmland of Statewide
Importance (Farmland), as shown on maps prepared pursuant to the Farmland Mapping and
Monitoring Program of the California Resources Agency, to non-agricultural use?
b.Would the project conflict with existing zoning for agricultural use or a Williamson Act
contract?
e.Would the project involve other changes in the existing environment which, due to their
location or nature, could result in conversion of Farmland to non-agricultural use or conversion
of forest land to non-forest use?
The project site is currently developed with a former granary, industrial buildings, and paved and
unpaved surface parking lots. The project site is zoned Commercial – Old Town (City of Moorpark
2008).
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The California Department of Conservation’s Important Farmland Finder shows that the project site
is within an area of urban and built-up land and not within an area of prime or unique farmland
(California Department of Conservation [CDOC] 2016). In addition, the project site and surrounding
area are not zoned for agricultural use, and the project site and surrounding areas are not under any
Williamson Act contract (CDOC 2015). Accordingly, the project would not conflict with agricultural
zoning or a Williamson Act contract and would not result in the loss or conversion of on- or off-site
agricultural land to non-agricultural use. Therefore, no impact to farmland would occur.
NO IMPACT
c.Would the project conflict with existing zoning for, or cause rezoning of, forest land (as defined
in Public Resources Code Section 12220(g)); timberland (as defined by Public Resources Code
Section 4526); or timberland zoned Timberland Production (as defined by Government Code
Section 51104(g))?
d.Result in the loss of forest land or conversion of forest land to non-forest use?
The project site and the surrounding area are not zoned for forest land or timberland. Accordingly,
the project would not conflict with forest land or timberland zoning, and the project would not
result in the loss of forest land or conversion of forest land to non-forest use. Therefore, no impact
would occur.
NO IMPACT
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Environmental Checklist
Air Quality
Final Initial Study – Mitigated Negative Declaration 19
3 Air Quality
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Conflict with or obstruct implementation
of the applicable air quality plan?□□■□
b.Result in a cumulatively considerable net
increase of any criteria pollutant for
which the project region is non-
attainment under an applicable federal or
state ambient air quality standard?□□■□
c.Expose sensitive receptors to substantial
pollutant concentrations?□□■□
d.Result in other emissions (such as those
leading to odors) adversely affecting a
substantial number of people?□□□■
Air Quality Standards and Attainment
The project site lies within the South Central Coast Air Basin (the Basin), which is under the
jurisdiction of the Ventura County Air Pollution Control District (VCAPCD), the Santa Barbara County
Air Pollution Control District (SBCAPCD), and the San Luis Obispo Air Pollution Control District
(SLOAPCD). The project site falls within the portion of the Basin overseen by VCAPCD. As the local
air quality management agency, the VCAPCD is required to monitor air pollutant levels to ensure
that State and federal air quality standards are met and, if they are not met, to develop strategies to
meet the standards. Depending on whether or not the standards are met or exceeded, the Basin is
classified as being in “attainment” or “nonattainment.”
The Basin is designated a nonattainment area for the federal and State eight-hour ozone standards
and the State one-hour ozone and PM10 standards (VCAPCD 2017, California Air Resources Board
[CARB] 2015). The Basin is in attainment of all other federal and State standards. Because the Basin
currently exceeds these State and federal ambient air quality standards, it is required to implement
strategies to reduce pollutant levels to recognized acceptable standards. This nonattainment status
is a result of several factors, the primary ones being naturally adverse meteorological conditions
that limit the dispersion and diffusion of pollutants, the limited capacity of the local airshed to
eliminate air pollutants, and the number, type, and density of emission sources within the Basin.
The VCAPCD Ventura County Air Quality Assessment Guidelines (2003) also note San Joaquin Valley
Fever (formally known as Coccidioidomycosis), as an air pollutant and disease of countywide
concern. San Joaquin Valley Fever (Valley Fever) is an infectious disease caused by the fungus
Coccidioides immitis. Infection is caused by inhalation of Coccidioides immitis spores that have
become airborne when dry, dusty soil or dirt is disturbed by natural processes such as wind or
earthquakes, or by human induced ground-disturbing activities such as construction, farming, or
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other activities (VCAPCD 2003). From 2011 to 2015, the number of cases of Valley Fever reported in
California averaged 3,611 with an average of 50 cases reported in Ventura County (California
Department of Public Health 2016).
Air Quality Management
Under State law, the VCAPCD is required to prepare a plan for air quality improvement for
pollutants for which the VCAPCD is in non-compliance. The VCAPCD’s 2016 Air Quality Management
Plan (AQMP) is an update of the previous 2007 AQMP. The 2016 AQMP, adopted on February 14,
2017, incorporates new scientific data and notable regulatory actions that have occurred since
adoption of the 2007 AQMP, including the approval of the new federal 8-hour ozone standard of
0.070 ppm that was finalized in 2015. This Plan builds upon the approaches taken in the 2007 AQMP
for the attainment of federal ozone standards and includes attainment and reasonable further
progress demonstrations of the new federal eight-hour ozone standard (VCAPCD 2017).
Air Pollutant Emission Thresholds
The 2016 AQMP provides a strategy for the attainment of State and federal air quality standards.
The VCAPCD has adopted guidelines for quantifying and determining the significance of air quality
emissions (VCAPCD 2003). The VCAPCD considers operational air quality impacts to be significant if
a project would generate more than 25 pounds per day of ozone precursors reactive organic
compounds (ROC) or nitrogen oxides (NOX). For all other criteria pollutants, the VCAPCD considers a
significant adverse air quality impact to occur when a project measurably worsens an existing
exceedance of a State or federal ambient air quality standard. Furthermore, construction-related air
quality impacts are considered significant if fugitive dust emissions are generated in such quantities
as to cause injury, detriment, nuisance, or annoyance to any considerable number of persons or to
the public, or which may endanger the comfort, repose, health, or safety of any such person or the
public. The VCAPCD considers a project to have a significant cumulative adverse air quality impact if
project emissions exceed two pounds per day of ROC or NOX and if the project is inconsistent with
the population forecasts contained in the AQMP.
a.Would the project conflict with or obstruct implementation of the applicable air quality plan?
Based on the VCAPCD Ventura County Air Quality Assessment Guidelines (2003), a significant air
quality impact may occur if the project would cause the existing population to exceed the growth
forecasts contained in the AQMP or if the project would be inconsistent with the emission reduction
strategies contained in the AQMP.
The 2016 AQMP was developed using the Southern California Association of Governments’ (SCAG)
population forecasts contained in the 2016 Regional Transportation Plan/Sustainable Communities
Strategy (2016 RTP/SCS). Moorpark has a current population of 37,020 residents with an average
household size of 3.32 persons (California Department of Finance [CDOF] 2019). SCAG forecasts that
the population of Moorpark will grow to 43,000 residents by 2040, which is an increase of 5,980
persons (16 percent) relative to the 2019 population (SCAG 2016).
Based on the current average household size in the City, the 91-unit project would add an estimated
302 residents. The proposed project would also generate approximately 88 jobs in the City, as
shown in Table 3. Assuming conservatively that all employees would become new residents of
Moorpark, project employees would create an additional population growth of 88 residents for a
total estimated population growth of 390 residents. Therefore, implementation of the proposed
project would increase the City’s existing population to 37,410 residents (an increase of
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Environmental Checklist
Air Quality
Final Initial Study – Mitigated Negative Declaration 21
approximately one percent), which would be within SCAG’s 2040 population forecast for Moorpark
(SCAG 2016).
Table 3 Proposed Project Employment Forecasts
Use Area (sf)
Square Feet
per Employee1
Total
Employees
High Turnover (Sit Down) Restaurant 5,210 100 53
Coffee or Ice Cream Shop (Fast Food without Drive-Thru) 1,408 70 21
Ground Floor Commercial (Neighborhood Retail) 8,400 588 14
Total − − 88
1 Source: United States Green Building Council 2008.
SCAG estimates employment in the City to be 11,300 jobs in 2012 and forecasts employment to
reach 16,600 jobs by 2040. Therefore, jobs are expected to increase in the City by approximately
5,300 between 2012 and 2040. Consequently, the employment increase generated by the proposed
project would account for approximately 1.7 percent of projected job growth (88 out of 5,300 jobs)
between 2012 and 2040 and would not exceed SCAG’s employment forecasts.
The City currently contains approximately 11,410 housing units, and SCAG forecasts that the
housing stock of Moorpark will reach 13,100 housing units by 2040 (CDOF 2019a, SCAG 2016). The
91-unit project would increase the City’s existing housing stock to 11,501 units, which is well within
SCAG’s forecasts for the City.
Based on the above, the project would not conflict with the growth forecasts contained in the 2016
AQMP, and the impact would be less than significant.
LESS THAN SIGNIFICANT IMPACT
b.Would the project result in a cumulatively considerable net increase of any criteria pollutant for
which the project region is non-attainment under an applicable federal or state ambient air
quality standard?
Based on the VCAPCD Ventura County Air Quality Assessment Guidelines (2003), a project may have
a significant impact if:
▪A project would generate more than 25 pounds per day of ozone precursors reactive organic
compounds (ROC) or nitrogen oxides (NOX).
▪A project measurably worsens an existing exceedance of a state or federal ambient air quality
standard.
▪Fugitive dust emissions are generated in such quantities as to cause injury, detriment, nuisance,
or annoyance to any considerable number of persons or to the public, or which may endanger
the comfort, repose, health, or safety of any such person or the public.
The VCAPCD also considers a project to have a significant cumulative adverse air quality impact if
project emissions exceed two pounds per day of ROC or NOX and if the project is inconsistent with
the population forecasts contained in the AQMP.
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The monitoring stations located closest to the project are the Thousand Oaks-Moorpark Road
Station, which is located approximately 5.1 miles south of the project site, and the Simi Valley-
Cochran Street Station, which is located approximately 11.0 miles east of the project site. The data
collected at the stations indicates that the federal and State 8-hour ozone standards were exceeded
in 2016 and 2017. The federal PM10 standard was exceeded in 2016, and the State PM10 standard
was exceeded each year from 2015 to 2017. No other federal or State standards were exceeded at
these monitoring stations between 2015 and 2017 (CARB n.d.).
Construction Emissions
Construction activities associated with development would generate diesel emissions and dust.
Construction emissions modeled include emissions generated by construction equipment used on-
site and emissions generated by vehicle trips associated with construction, such as worker and
vendor trips. It is assumed that all of the construction equipment used would be diesel-powered.
The construction emissions associated with development of the project were calculated using the
California Emissions Estimator Model (CalEEMod) version 2016.3.2. CalEEMod was developed for
use throughout the State in estimating construction and operational emissions from land use
development. Emissions were based on parameters such as the duration of construction activity,
area of disturbance, and anticipated equipment use during construction.
Emissions were modeled assuming construction of a 91-unit mid-rise apartment building with a
0.92-acre building footprint and an associated surface parking lot. In addition, the project would
construct approximately 15,018 sf of indoor commercial space with restaurants, a coffee or ice
cream shop, and neighborhood-serving retail as the anticipated uses. The project would include a
landscaped village green as well as other open space areas throughout the project site.
The construction schedule and equipment were based on CalEEMod defaults, excluding the
architectural coating phase, which was extended to reflect a more accurate construction schedule.
The architectural coating phase was adjusted to last approximately half of the building construction
phase because individual components of the building would be painted as they are completed.
Based on applicant provided information and Google Earth approximations, 23,522 sf of existing
buildings would be demolished. Based on the default CalEEMod assumption that haul trucks have an
estimated 16-cubic-yard capacity, demolition would require 107 one-way haul trips. In addition, it
was assumed the project would comply with all applicable regulatory standards, including VCAPCD
Rule 55 (Fugitive Dust), Rule 74.2 62.7 (Asbestos – Demolition and Renovation), and Rule 74.2
(Architectural Coatings).
Estimated maximum daily ROC, NOX, CO, PM10, and PM2.5 construction emissions are shown in
Table 4. The VCAPCD considers construction-related air quality impacts to be significant if project
construction would jeopardize attainment of the federal one-hour standard by generating more
than 25 pounds per day of ROC or NOX (VCAPCD 2003). In addition, the City of Moorpark requires
construction equipment operations to cease when an air pollution health advisory has been issued
(Moorpark Municipal Code Section 17.76.050(11)). As shown in Table 4, project construction
activities would not generate air pollutant emissions in exceedance of VCAPCD thresholds for ROC
and NOX. Therefore, project construction would not violate any air quality standard or contribute
substantially to an existing or projected air quality violation, and construction-related emissions
would be less than significant.
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Table 4 Project Construction Emissions
Emission Source
Maximum Daily Emissions (pounds per day)
ROC NOx CO SO2 PM10 PM2.5
Construction Year 2020 2.7 22.4 18.0 < 0.1 7.6 4.3
Construction Year 2021 9.4 19.7 19.7 < 0.1 2.0 1.2
Maximum Daily Emissions 9.4 22.4 19.7 < 0.1 7.6 4.3
VCAPCD Thresholds 25 25 N/A N/A N/A N/A
Threshold Exceeded? No No N/A N/A N/A N/A
N/A = Not available. The VCAPCD has not established recommended quantitative thresholds for CO, SO2, PM10, and PM2.5.
Notes: All emission modeling was done using CalEEMod. See Appendix C for modeling worksheets. Some numbers may not add up due
to rounding. Emission data is pulled from “mitigated” results, which account for compliance with regulations and project design
features. Emissions presented are the highest of the winter and summer modeled emissions.
Construction activities, including site preparation and grading, would have the potential to release
Coccidioides immitis spores. Nonetheless, the population of Moorpark has been and will continue to
be exposed to Valley Fever from agricultural and construction activities occurring throughout the
region. In addition, substantial increases in the number of reported cases of Valley Fever tend to
occur only after major ground-disturbing events such as the 1994 Northridge earthquake.
Construction of the proposed project would not result in a comparable ground disturbance and
would not release a large number of spores. Therefore, construction of the proposed project would
not significantly increase the risk to public health above existing background levels.
Although construction-related impacts would be less than significant because of their temporary
nature, the VCAPCD recommends the following measures to minimize construction-related
emissions. Implementation of the recommended measures below would also ensure that
Coccidioides immitis spores are controlled to the maximum extent feasible.
In order to reduce impacts associated with NOX emissions (a precursor to ozone), the following
measures shall be implemented:
▪All commercial on-road and off-road diesel vehicles are subject to the idling limits of
California Code of Regulations Title 13, Sections 2485 and 2449(d)(3), respectively.
Construction equipment shall not idle for more than five consecutive minutes. The idling
limit does not apply to: 1) idling when queuing; 2) idling to verify that the vehicle is in safe
operating condition; (3), idling for testing, servicing, repairing, or diagnostic purposes; 4)
idling necessary to accomplish work for which the vehicle was designed (such as operating a
crane); 5) idling required to bring the machine system to operating temperature, and 6)
idling necessary to ensure safe operation of the vehicle.
▪Equipment engines should be maintained in good condition and in proper tune, as per
manufacturer’s specifications.
▪During the smog season (May through October), the construction period should be
lengthened so as to minimize the number of vehicles and equipment operating at the same
time.
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▪Alternatively fueled construction equipment, such as compressed natural gas, liquefied
natural gas, or electric, should be used if feasible.
During clearing, grading, earth moving, or excavation operations, excessive fugitive dust
emissions shall be controlled by regular watering, paving construction roads, or other dust-
preventive measures using the following procedures:
▪All material excavated or graded shall be sufficiently watered to prevent excessive amounts
of dust. Watering shall occur at least twice daily with complete coverage, preferably in the
late morning and after work is done for the day, so that water penetrates sufficiently to
minimize fugitive dust during grading activities. Reclaimed water should be used if available.
▪All graded and excavated material, exposed soil areas, and active portions of the
construction site, including unpaved roadways on-site, should be treated to prevent fugitive
dust. Measures may include watering, application of environmentally-safe soil stabilization
materials, and/or roll-compaction as appropriate.
▪Graded and/or excavated inactive areas of the construction site should be monitored at
least weekly for dust stabilization. If a portion of the site is inactive for over four days, soil
on-site should be stabilized.
▪Signs should be posted limiting on-site traffic to 15 miles per hour.
▪All clearing, grading, earth moving, or excavation activities shall cease during periods of high
winds (i.e., greater than 20 miles per hour averaged over one hour) so as to prevent
excessive amounts of dust.
▪All material transported off-site shall be either sufficiently watered or securely covered to
prevent excessive amounts of dust pursuant to California Vehicle Code §23114.
▪Respiratory protection shall be used by all employees in accordance with California Division
of Occupational Safety and Health regulations.
▪Measures to reduce the fungus that causes Valley Fever should include the following:
Facemasks should be worn on employees involved in grading or excavation operations
during dry periods to reduce inhalation of dust.
Employment should be restricted to persons with positive coccidioidin skin tests.
Crews should be hired from local populations where possible, since it is more likely that
they have previously been exposed to the fungus and are therefore immune.
Cabs of grading and construction equipment should be air-conditioned.
Crews should work upwind from excavation sites.
Construction roads should be paved.
Weed growth should be controlled by mowing instead of discing.
The access way into the project site should be paved or treated with environmentally-
safe dust control agents during rough grading and construction.
▪The area disturbed by clearing, grading, earth moving, or excavation operations shall be
minimized so as to prevent excessive amounts of dust.
After clearing, grading, earth moving, or excavation operations, and during construction
activities, fugitive dust emissions shall be controlled using the following procedures:
▪All inactive portions of the construction site shall be seeded and watered until grass cover is
grown.
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▪All active portions of the construction site shall be sufficiently watered to prevent excessive
amounts of dust.
At all times, fugitive dust emissions shall be controlled by assuring that streets adjacent to the
project site shall be swept as needed to remove silt, which may be accumulated from
construction activities so as to prevent excessive amounts of dust.
Construction activities should utilize new technologies to control ozone precursor emissions as
they become available and feasible. Streets must be swept at least once per day, preferably at
the end of the day, if visible soil material is carried over to adjacent streets and roads.
Operational Emissions
Operational emissions associated with on-site development were also estimated using CalEEMod.
Operational emissions would be comprised of area source emissions, energy emissions, and mobile
source emissions. Area source emissions are generated by landscape maintenance equipment,
consumer products, and architectural coating. Emissions attributed to energy use include electricity
and natural gas consumption for space and water heating. Mobile source emissions are generated
by the increase in motor vehicle trips to and from the project site associated with operation of on-
site development. Trip generation rates from the Traffic and Parking Study prepared by Associated
Transportation Engineers (Appendix D) were used to estimate mobile source emissions.
Table 5 summarizes estimated emissions associated with operation of the project. Because the
existing buildings on-site are not operational, the modeling assumed that no air pollutant emissions
are currently generated on-site.
Table 5 Project Operational Emissions
Emission Source
Maximum Daily Emissions (pounds per day)
ROC NOx CO SO2 PM10 PM2.5
Area 2.3 0.1 7.5 < 0.1 < 0.1 < 0.1
Energy 0.1 0.7 0.5 < 0.1 0.1 0.1
Mobile 2.4 8.0 21.2 0.1 5.4 1.5
Total Project Emissions 4.7 8.8 28.7 0.1 5.5 1.6
VCAPCD Thresholds 25 25 N/A N/A N/A N/A
Threshold Exceeded? No No N/A N/A N/A N/A
N/A = not applicable
Notes: All emission modeling was done using CalEEMod. See Appendix C for modeling worksheets. Some numbers may not add up due
to rounding. Emission data is pulled from “mitigated” results that include compliance with regulations and project design features that
would be included in the project. Emissions presented are the highest of the winter and summer modeled emissions.
Project operational emissions would not exceed VCAPCD thresholds for ROC or NOX; therefore, the
project would not contribute substantially to an existing or projected air quality violation.
Although project emissions would exceed the cumulative significance threshold of two pounds per
day of ROC or NOX, the project is consistent with the population forecasts contained in the AQMP,
as discussed in the response to question 3.a. Therefore, the project would not result in a
cumulatively considerable net increase of any criteria pollutant.
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In addition, the project would be required to comply with the design measures of Chapter 3.0,
Circulation, Overall Site Development and Beautification, of the Moorpark DTSP, which would
maximize the reduction of the project’s long-term operational emissions (City of Moorpark 1998a).
Chapter 3.0 sets forth goals and policies to enhance bicycle circulation, improve pedestrian
walkways, and augment bicycle and pedestrian facilities in the DTSP area, which would decrease the
use of automobiles and thereby reduce mobile emissions from the project.
LESS THAN SIGNIFICANT IMPACT
c.Would the project expose sensitive receptors to substantial pollutant concentrations?
Sensitive receptors are members of the population that are particularly sensitive to the effects of air
pollutants, such as children, the elderly, and people with illnesses. The sensitive receptors closest to
the project site are residences located approximately 180 feet north of the project site along Charles
Street and approximately 180 feet south across the rail line.
According to the VCAPCD Ventura County Air Quality Assessment Guidelines (2003), a CO hotspot
screening analysis should be performed for any project with indirect emissions greater than the
ozone project significance threshold of 25 pounds per day that may significantly impact roadway
intersections that are currently operating at Levels of Service (LOS) E or F. A CO hotspot is a localized
concentration of CO that exceeds the federal one-hour standard of 35.0 parts per million (ppm) or
the federal and State eight-hour standard of 9.0 ppm (CARB 2016). The proposed project would
generate maximum daily indirect mobile CO emissions of 24.2 pounds per day, which would not
exceed the ozone significance threshold. Therefore, a CO hotspot screening analysis is not required.
Furthermore, the Basin is in conformance with federal and State CO standards, and most air quality
monitoring stations no longer report CO levels. No stations in the vicinity of the project site have
monitored CO since 2004. In 2004, the Simi Valley-Cochran Street Station detected an 8-hour
maximum CO concentration of 2.62 ppm, which is below the federal and State standard of 9.0 ppm
(CARB n.d.). As shown in Table 5, the project would generate maximum daily CO emissions of
approximately 35.4 pounds per day. Based on the low background level of CO in the project area,
ever-improving vehicle emissions standards for new cars in accordance with federal and State
regulations, and the project’s low level of operational CO emissions, the project would not result in
the creation of new CO hotspots or contribute substantially to existing CO hotspots. Therefore,
localized air quality effects related to CO hotspots would not occur, and impacts to sensitive
receptors would be less than significant.
The project would also introduce sensitive receptors to the project site because it would involve the
development of residential units. However, no operational characteristics of the project or of
surrounding development would expose future sensitive receptors to substantial pollutant
concentrations during operation of the project. Residential units would be located approximately 70
feet north of the rail line and 625 feet west of the Moorpark Metrolink Station. Although the CARB
Air Quality and Land Use Handbook (2005) considers rail yards2 to be a major source of diesel
particulate emissions, this guidance does not identify individual rail stations and rail lines as sources
of concern. Therefore, the proximity of the project site to the rail line would not expose residents to
unhealthy levels of toxic air contaminants.
LESS THAN SIGNIFICANT IMPACT
2 Rail yards are usually located near inter-modal facilities, which attract heavy truck traffic, and are often sited in mixed industrial and
residential areas.
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d.Would the project result in other emissions (such as those leading to odors) adversely affecting
a substantial number of people?
Based on the VCAPCD Ventura County Air Quality Assessment Guidelines (2003), a project may have
a significant impact if a project would generate an objectionable odor to a degree that would cause
injury, detriment, nuisance, or annoyance to a considerable number of persons or to the public, or
which would endanger the comfort, repose, health, or safety of any such persons or the public, or
which cause, or have a natural tendency to cause, injury or damage to business or property. Land
uses and industrial operations known to emit objectionable odors include wastewater treatment
facilities, food processing facilities, coffee roasters, fiberglass operations, refineries, feed
lots/dairies, and composting facilities. Residential and commercial uses are not included on this list.
Therefore, no impact related to objectionable odors or other emissions would occur.
NO IMPACT
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4 Biological Resources
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Have a substantial adverse effect, either
directly or through habitat modifications,
on any species identified as a candidate,
sensitive, or special status species in local
or regional plans, policies, or regulations, or
by the California Department of Fish and
Wildlife or U.S. Fish and Wildlife Service?□■□□
b.Have a substantial adverse effect on any
riparian habitat or other sensitive natural
community identified in local or regional
plans, policies, or regulations, or by the
California Department of Fish and Wildlife
or U.S. Fish and Wildlife Service?□□□■
c.Have a substantial adverse effect on state
or federally protected wetlands (including,
but not limited to, marsh, vernal pool,
coastal, etc.) through direct removal, filling,
hydrological interruption, or other means?□□□■
d.Interfere substantially with the movement
of any native resident or migratory fish or
wildlife species or with established native
resident or migratory wildlife corridors, or
impede the use of native wildlife nursery
sites?□□■□
e.Conflict with any local policies or
ordinances protecting biological resources,
such as a tree preservation policy or
ordinance?□□□■
f.Conflict with the provisions of an adopted
Habitat Conservation Plan, Natural
Community Conservation Plan, or other
approved local, regional, or state habitat
conservation plan?□□□■
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a.Would the project have a substantial adverse effect, either directly or through habitat
modifications, on any species identified as a candidate, sensitive, or special status species in
local or regional plans, policies, or regulations, or by the California Department of Fish and
Wildlife or U.S. Fish and Wildlife Service?
The project site is located in an urbanized area of the City and has been previously disturbed in
conjunction with on-site development. The project site contains a former granary, commercial and
industrial buildings, associated paved surfaces, and vacant land. The surrounding properties have
been developed with commercial and residential urban land uses as well as a railroad. Therefore, no
wetland, riparian, or other sensitive natural communities or federal- or state-listed endangered,
threatened, rare, or otherwise sensitive flora or fauna are located on or adjacent to the project site.
There are mature trees on-site that could potentially serve as nesting habitat for raptors and other
bird species, several of which would be removed over the course of construction activities. Nesting
birds are protected under the federal Migratory Bird Treaty Act (Title 33 U.S. Code Section 703 et
seq.; see also Title 50 Code of Federal Regulations Part 10) and Section 3503 of the California Fish
and Game Code. Accordingly, the project applicant would be required to comply with mitigation
measure BIO-1 to ensure that no significant impacts to nesting birds would occur. With mitigation,
impacts would be less than significant.
Mitigation Measure
BIO-1 Habitat Modification (Nesting Birds, Non-Hillside or Urban Areas)
Migratory nongame native bird species are protected by international treaty under the Federal
Migratory Bird Treaty Act (MBTA) of 1918 (50 C.F.R. Section 10.13). Sections 3503, 3503.5, and 3513
of the California Fish and Game Code prohibit take of all birds and their active nests including
raptors and other migratory nongame birds (as listed under the Federal MBTA).
Because construction may occur during the bird breeding season (February 1 to August 31), the
project is subject to bird survey requirements. Pre-construction nesting bird surveys shall be
conducted to determine the locations of nesting birds. Bird surveys shall include a minimum of
three nesting bird surveys to be conducted by a qualified biologist, over a two-week period with the
third survey occurring no more than three days prior to the start of vegetation clearing. The nesting
bird survey area shall include a buffer around the grading limits and land clearing limits of 500 feet
to accommodate potential raptors that could be affected. If an active bird nest is found prior to land
clearing activities, a maximum 300-foot buffer (depending on the species and noise and site
conditions) shall be established surrounding the nest(s) and shall be flagged for avoidance. If any
active raptor nests are found, a buffer area of 250 to 500 feet from the nest shall be established
until after the young have fledged (i.e., the birds are no longer reliant on the nest). The avoidance
buffer area for nesting birds may be reduced upon the approval of the monitoring biologist as
determined by the species nesting and the activity being conducted. If an active nest of a special-
status bird species is found, a suitable buffer area of 200 to 500 feet from the nest (depending on
the status of the species) shall be established until the nest becomes inactive.
If no active nests are identified during pre-construction nesting bird surveys, land clearing activities
may commence with no limitation. If active bird nests are found and avoidance buffers are
established prior to or during construction, a biologist shall monitor the active nest(s) during land
clearing activities and/or construction activities to determine whether the recommended avoidance
buffers are adequate to ensure that nesting activities are not being stressed or jeopardized. Land
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disturbance may occur within the avoidance buffer area(s) only after the young have fledged (i.e.,
the birds are no longer reliant on the nest) as determined by the monitoring biologist.
The methods and results of the nesting bird survey(s), any nesting bird avoidance efforts as a result
of those surveys, and the success of the avoidance buffers shall be documented in a letter report
(Nesting Bird Survey and Active Nest Monitoring Report) and shall be submitted to the City no later
than three weeks following the completion of active nest monitoring activities.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
b.Would the project have a substantial adverse effect on any riparian habitat or other sensitive
natural community identified in local or regional plans, policies, or regulations, or by the
California Department of Fish and Wildlife or U.S. Fish and Wildlife Service?
The site is currently developed in an urban area lacking native biological habitat. No riparian
habitats or other sensitive natural communities are on or adjacent to the project site. Consequently,
no impact to sensitive natural communities would occur.
NO IMPACT
c.Would the project have a substantial adverse effect on state or federally protected wetlands
(including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling,
hydrological interruption, or other means?
The project site is located in an urbanized area that is developed with commercial and residential
uses. The project site does not contain any federally protected wetlands, wetland resources, or
other waters of the United States as defined by Section 404 of the Clean Water Act. The nearest
jurisdictional feature is a freshwater emergent wetland along Arroyo Simi located approximately 0.6
mile east of the project site (U.S. Fish and Wildlife Service 2018). Project construction, including
demolition, site preparation, and grading activities, would be confined to the project site and would
not impact off-site features. Therefore, the project would not affect state or federally protected
wetlands through direct removal, filling, hydrological interruption, or other means, and no impact
would occur.
NO IMPACT
d.Would the project interfere substantially with the movement of any native resident or
migratory fish or wildlife species or with established native resident or migratory wildlife
corridors, or impede the use of native wildlife nursery sites?
The project site and surrounding area are urbanized and lack water features. However, the 17
mature trees on-site may serve as habitat for native migratory birds. The proposed project would
leave in place the existing California pepper trees as well as several mature trees located in the
VCTC’s right-of-way. In addition, the project would be required to comply with mitigation measure
BIO-1 listed above under question 4.a. Therefore, the project would not interfere with wildlife
movement or migratory corridors or impede the use of native wildlife nursery sites, and no impact
would occur.
LESS THAN SIGNIFICANT IMPACT
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e.Would the project conflict with any local policies or ordinances protecting biological resources,
such as a tree preservation policy or ordinance?
Approximately 14 California pepper trees are present along the northern boundary of the project
site. These trees, four of which are historic, are protected by the City of Moorpark’s California
Pepper Trees Maintenance Plan (2006b). The project would leave these trees in place and would
comply with the requirements of the California Pepper Trees Maintenance Plan, as discussed further
under Section 1, Aesthetics; therefore, no impact would occur.
NO IMPACT
f.Would the project conflict with the provisions of an adopted Habitat Conservation Plan, Natural
Community Conservation Plan, or other approved local, regional, or state habitat conservation
plan?
The project site is not located an area subject to an adopted Habitat Conservation Plan, Natural
Community Conservation Plan, or other approved conservation plans (California Department of Fish
and Wildlife 2017). Therefore, no impact would occur.
NO IMPACT
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5 Cultural Resources
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Cause a substantial adverse change in the
significance of a historical resource
pursuant to §15064.5?□□■□
b.Cause a substantial adverse change in the
significance of an archaeological resource
as defined in §15064.5?□■□□
c.Disturb any human remains, including
those interred outside of formal
cemeteries?□■□□
a.Would the project cause a substantial adverse change in the significance of a historical resource
pursuant to §15064.5?
CEQA Guidelines Section 15064.5 defines a historical resource as: (1) a resource listed in, or
determined to be eligible for listing in the California Register of Historical Resources, (2) a resource
included in a local register of historical resources, (3) any object, building, structure, site, area,
place, record, or manuscript which a lead agency determines to be historically significant or
significant in the architectural, engineering, scientific, economic, agricultural, educational, social,
political, military, or cultural annals of California. Rincon Consultants, Inc. prepared a Cultural
Resources Assessment Report for the High Street Station Mixed Use Development (see Appendix E).
Included as part of the report, Rincon Consultants, Inc. completed a cultural resources records
search, Native American consultation, and an intensive-level pedestrian survey and historic
evaluation of the subject parcel. The results of the report are summarized below.
The proposed project boundary encompasses a 2.15 acre parcel (Assessor Parcel Number: 512-0-
090-115). Five built environment resources were identified within the boundary of the proposed
project and would be demolished. These include two large grain storage buildings constructed in
1956, an additional grain storage building (the facades of which were designed to mimic those of a
historic railroad depot) constructed in 1979, and two industrial buildings constructed in 1954 and
1964.
Based on the results of the cultural resources records search, Native American scoping, review of
historical maps and aerials, and field survey, no known cultural resources were identified on the
project site. See Appendix E for the full Cultural Resources Assessment Report. The site, inclusive of
three granary structures and two commercial buildings, was evaluated for listing in the National
Register of Historic Places (NHRP) and the California Register of Historical Resources (CRHR), and as
a City of Moorpark Landmark. The project site is not eligible for listing in the NRHP or the CRHR and
does not satisfy the criteria for designation as a City of Moorpark Landmark due to a lack of historic
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significance and numerous alterations, which have reduced the integrity of the structures.
Therefore, the subject property is not considered a historical resource for the purposes of CEQA.
Although the project site is not considered a historical resource in accordance with CEQA, the
proposed project site is bound to the north by a segment of Ventura County Landmark # 72, which
consists of a row of pepper trees planted by early Moorpark settlers John Nubee and John Barrett in
1904. Although the proposed project would not impact these trees, due to their proximity to the
project area, City of Moorpark’s Tree Preservation Guidelines (MMC 12.12.060) would be enforced
to ensure they are not impacted by nearby construction. During construction, a physical barrier
(flagging or see-through safety fencing) and other measures described above in Section 1, Aesthetics
would be installed around any adjacent pepper trees that are situated near mechanized equipment.
Additionally, the project’s grading plan would not disrupt or remove of structural feeder roots and
would not fill, cut, or compact soils within the dripline. If necessary, the project contractor would
work with a consulting arborist during grading and construction. Therefore, impacts to Ventura
County Landmark # 72 would be avoided and impacts to historical resources would be less than
significant.
As discussed under Project Description, although the project would have less than significant
impacts on historic resources and no mitigation is required, the project applicant has agreed to the
inclusion of a project design feature as a condition of approval that incorporates an interpretive
display discussing the history of the project site, its significance, and its important details and
features into a portion of the proposed commercial storefront space.
LESS THAN SIGNIFICANT IMPACT
b.Would the project cause a substantial adverse change in the significance of an archaeological
resource as defined in §15064.5?
Section 15064.5 of the CEQA Guidelines defines significant archaeological resources as resources
that meet the criteria for historical resources or resources that constitute unique archaeological
resources. A project-related significant impact could occur if a project would significantly affect
archaeological resources that fall under either of these categories.
The project site is in an urbanized area and has been previously disturbed in conjunction with
construction of the granary, industrial and commercial buildings, and paved surfaces. No known
archeological resources or sites are located on the project site (City of Moorpark 1998a). However,
archaeological resources, including rock shelters, pictographs, and basketry fragments, have been
identified within a two-mile radius of the project site (Archaeological Research, Inc. 1977). The
applicant proposes to implement ground improvement measures via the construction of sub-grade
stone columns and overexcavation and recompaction, which will result in ground disturbance.
Therefore, there is potential for archaeological resources to be discovered during project
construction. Should resources be discovered, compliance with the following mitigation measures
would reduce impacts to a less than significant level.
Mitigation Measures
CUL-1 Cultural Resources
During ground-disturbing activities, an archaeologist meeting the Secretary of the Interior’s
Professional Qualifications Standards for archaeology (National Park Service 1983) shall monitor
excavation and ground-disturbing activities within native soils that have not been previously
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Cultural Resources
Final Initial Study – Mitigated Negative Declaration 35
disturbed. If cultural resources are encountered during excavation and/or ground-disturbing
activities, work in the immediate area must halt, and a Native American representative who is
ancestrally related to the project area must be contacted immediately to evaluate the find and
consult with the City of Moorpark and the archaeologist. If the discovery proves to be significant
under the National Historic Preservation Act, additional work such as data recovery excavation may
be warranted.
CUL-2 Archaeological Resources
The discovery of human remains is always a possibility during ground-disturbing activities. If human
remains are found, the state of California Health and Safety Code Section 7050.5 states that no
further disturbance shall occur until the Ventura County coroner has made a determination of origin
and disposition pursuant to Public Resources Code (PRC) Section 5097.98. In the event of an
unanticipated discovery of human remains, the County coroner must be notified immediately. If the
human remains are determined to be prehistoric, the coroner will notify the NAHC, which will
determine and notify an MLD. The MLD shall complete the inspection of the site within 48 hours of
notification and may recommend scientific removal and nondestructive analysis of human remains
and items associated with Native American burials.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
c.Would the project disturb any human remains, including those interred outside of formal
cemeteries?
A significant impact would occur if previously interred human remains would be disturbed during
grading of the project site. While no formal cemeteries, other places of human interment, or burial
grounds or sites are known to occur within the project area, there is always a possibility that human
remains could be encountered during project construction. Should human remains be discovered
during project construction, compliance with the mitigation measure prescribed below would
reduce impacts to a less than significant level.
Mitigation Measure
CUL-3 Human Remains
If human remains are encountered unexpectedly during construction demolition and/or grading
activities, State Health and Safety Code Section 7050.5 requires that no further disturbance shall
occur until the County Coroner has made the necessary findings as to origin and disposition
pursuant to California Public Resources Code (PRC) Section 5097.98. In the event that human
remains are discovered during excavation activities, the following procedure shall be observed:
▪Stop immediately and contact the Ventura County Coroner/Medical Examiner.
▪If the remains are determined to be of Native American descent, the Coroner has 24 hours to
notify the Native American Heritage Commission (NAHC).
▪The NAHC will immediately notify the person it believes to be the Most Likely Descendent (MLD)
of the deceased Native American.
▪The MLD has 48 hours to make recommendations to the project applicant, or representative, for
the treatment or disposition, with proper dignity, of the human remains and grave goods.
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If the project applicant does not accept the descendant’s recommendations, the project applicant or
the descendent may request mediation by the NAHC.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
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Energy
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6 Energy
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Result in potentially significant
environmental impact due to wasteful,
inefficient, or unnecessary consumption
of energy resources, during project
construction or operation?□□■□
b.Conflict with or obstruct a state or local
plan for renewable energy or energy
efficiency?□□■□
Energy consumption accounts for energy consumed during construction and operation of the
proposed project, such as fuel consumed by vehicles, natural gas consumed for heating and/or
power, and electricity consumed for power. The analysis of energy consumption herein involves the
quantification of anticipated vehicle and equipment fuel, natural gas, and electricity consumption
during construction and operation of the proposed project, to the extent feasible, as well as a
qualitative discussion of the efficiency, necessity, and wastefulness of that energy consumption.
a.Would the project result in potentially significant environmental impact due to wasteful,
inefficient, or unnecessary consumption of energy resources, during project construction or
operation?
Construction
Project construction and demolition activities would require energy resources primarily in the form
of fuel consumption to operate heavy equipment, light-duty vehicles, machinery, and generators.
Temporary power may also be provided for construction trailers and electric construction
equipment.
Table 6 summarizes the anticipated energy consumption from construction equipment and vehicles,
including construction worker trips to and from the project site. As shown in Table 6, construction of
the project would require approximately 10,177 gallons of gasoline and 35,723 gallons of diesel fuel.
Energy use during construction would be temporary in nature, and construction equipment used
would be typical of similar-sized construction projects in the region. In addition, the project would
utilize construction contractors who demonstrate compliance with applicable CARB regulations that
restrict the idling of heavy-duty diesel motor vehicles and govern the accelerated retrofitting,
repowering, or replacement of heavy-duty diesel on- and off-road equipment. Electrical power
would be consumed to construct the project, and the demand, to the extent required, would be
supplied from existing electrical infrastructure in the area. Overall, demolition and construction
activities would require minimal electricity consumption and would not be expected to have any
adverse impact on available electricity supplies or infrastructure. Construction activities would
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utilize fuel-efficient equipment consistent with state and federal regulations and would comply with
state measures to reduce the inefficient, wasteful, or unnecessary consumption of energy. In
addition, per applicable regulatory requirements, the project would comply with construction waste
management practices to divert construction and demolition debris. These practices would result in
efficient use of energy necessary to construct the project. Furthermore, in the interest of cost
efficiency, construction contractors would not utilize fuel in a manner that is wasteful or
unnecessary. Therefore, project construction would not result in potentially significant
environmental effects due to the wasteful, inefficient, or unnecessary consumption of energy, and
impacts would be less than significant.
Table 6 Proposed Project Construction Energy Usage
Source
Fuel Consumption (Gallons)
Gasoline Diesel
Construction Equipment & Hauling Trips − 35,723
Construction Worker Vehicle Trips 10,177 −
See Appendix C for CalEEMod default values for fleet mix and average distance of travel, and Appendix F for energy
calculation sheets.
Operation
Energy demand from project operation would include fuel consumed by passenger vehicles; natural
gas consumed for heating residences and commercial buildings; and electricity consumed by
residences and commercial buildings including, but not limited to lighting, water conveyance, and
air conditioning. In accordance with Section 150.1(c)14 of the 2019 California Building Energy
Efficiency Standards, the project would install solar panels on all residential buildings.
Transportation
Vehicle trips associated with the residential portion of the project would require approximately
97,456 gallons of gasoline and 19,995 gallons of diesel fuel annually (Appendix F). The proposed
mixed-use development would integrate residential, commercial/retail, and recreational uses on-
site in such a manner that would reduce the need for residents to travel off-site. The proposed
live/work units would also reduce the need for residents to commute to employment opportunities
elsewhere in the region. In addition, the proposed project would be located in close proximity to
existing commercial/retail, recreational, and institutional land uses, which would reduce trip
distances and encourage the use of alternative modes of transportation such as biking and walking.
The project site is also located within 200 feet of the Moorpark Metrolink rail station and the
Moorpark bus stop for the Moorpark City Transit Routes 1 and 2 and VCTC’s East County and East-
West Connector bus lines and would therefore provide opportunities for residents to use public
transit rather than personal automobiles. These factors would minimize the potential of the project
to result in the wasteful or unnecessary consumption of vehicle fuels.
The proposed project would introduce new restaurant and retail uses to an existing commercial
corridor, and new retail development in an existing commercial corridor typically redistributes
existing shopping trips rather than creates new trips. Therefore, local-serving retail development
generally shortens trip distances and reduces overall vehicle miles travelled, thereby resulting in
lower regional fuel consumption due to more efficient transportation and land use planning
(Governor’s Office of Planning and Research 2018). Furthermore, fuel consumed by future residents,
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Final Initial Study – Mitigated Negative Declaration 39
employees, and patrons of the proposed project would be reduced over time as a result of
California’s increasingly stringent vehicle efficiency standards. Given the mixed-use and local-serving
nature of the proposed project and its location within an existing commercial corridor in close
proximity to transit, vehicle fuel consumption resulting from the proposed project would not be
wasteful, inefficient, or unnecessary, and impacts would be less than significant.
Built Environment
In addition to transportation energy use, the proposed project would require permanent grid
connections for electricity and natural gas. Approximately 685,421 kWh of electricity would be used
for lighting and large appliances within the commercial and residential components of the project.
Approximately 2,773 MMBtu per year of natural gas would be used primarily for heating the
proposed buildings (Appendix C). Construction of the proposed residences and commercial buildings
would comply with the 2019 California Building Energy Efficiency Standards for Residential and Non-
residential Buildings and CalGreen (California Code of Regulations Title 24, Parts 6 and 11). These
standards require the provision of electric vehicle supply equipment, water-efficient plumbing
fixtures and fittings, recycling services, and other energy-efficient measures. This code was
developed to (1) reduce greenhouse gas emissions from buildings; (2) promote environmentally
responsible, cost-effective, healthier places to live and work; (3) reduce energy and water
consumption; and (4) respond to the environmental directives of the State administration.
Moreover, California’s 2019 Building Energy Efficiency Standards, with which the project must
document compliance, were specifically adopted to reduce wasteful, uneconomic, inefficient or
unnecessary consumption of energy and to enhance outdoor and indoor environmental quality. It is
estimated that commercial buildings built to the 2019 standards will use about 30 percent less
energy due to compliance (California Energy Commission 2018). In addition, as discussed in Section
8, Greenhouse Gas Emissions, the 2019 Building Energy Efficiency Standards require installation of
solar photovoltaic systems for multi-family residential buildings of three stories and less, which
would supply much of the on-site electricity demand. Therefore, energy consumed by the built
environment would not be inefficient, wasteful, or unnecessary, and impacts would be less than
significant.
LESS THAN SIGNIFICANT IMPACT
b.Would the project conflict with or obstruct a state or local plan for renewable energy or energy
efficiency?
Table 7 provides energy efficiency goals and policies provided in the Ventura County General Plan
and summarizes the project’s compliance with these policies.
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Table 7 Project Compliance with Energy Efficiency Goals and Policies
Energy Efficiency Goal or Policy Does the Project Comply?
Goal 1.9.1(2): Encourage the use of renewable sources of
energy and energy conservation techniques in new
development.
Yes. The project will utilize electricity from Southern
California Edison (SCE). SCE provided 32 percent
renewable energy in 2017, which is higher than the
California average of 29 percent (SCE 2018a).
Policy 1.9.2(2): Land use policies in area plans should be
developed to promote energy conservation and should
include the following:
1)The pattern of residential, commercial and industrial
land use should be compact, relate to transit routes
and centers and minimize vehicular travel.
2)The infill of vacant lots should be encouraged over
step-out developments.
Yes. The project would construct a compact mixed-use
development with commercial and residential uses. The
project site is less than 0.5 miles from transit stations
(train and bus). Additionally, the project site is currently a
partially vacant lot with unused industrial buildings
surrounded by commercial and residential developments.
By design, this project complies with this policy.
Policy 1.9.2(4): The Building and Safety Division shall
continue to implement Title 24 energy efficiency
standards for buildings.
Yes. The project will be constructed in compliance with
applicable building codes, including energy efficiency
standards for new residential and commercial buildings.
Policy 1.9.2(5): Tentative subdivision maps shall provide,
to the extent feasible, for passive or natural heating or
cooling opportunities in the subdivision.
Yes. The project site will maintain a number of trees
surrounding proposed on-site buildings, which would
reduce some of the electricity and natural gas
requirements, as they provide shading in the summer
(reducing air conditioning needs) and insulation in the
winter (reducing heating needs).
As shown in Table 7, the project would be compliant with applicable energy efficiency goals and
policies. Therefore, potential impacts associated with renewable energy and energy efficiency
would be less than significant.
LESS THAN SIGNIFICANT IMPACT
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7 Geology and Soils
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Directly or indirectly cause potential
adverse effects, including the risk of loss,
injury, or death involving:
1.Rupture of a known earthquake
fault, as delineated on the most
recent Alquist-Priolo Earthquake
Fault Zoning Map issued by the
State Geologist for the area or
based on other substantial evidence
of a known fault?□□□■
2.Strong seismic ground shaking?□□■□
3.Seismic-related ground failure,
including liquefaction?□■□□
4.Landslides?□□□■
b.Result in substantial soil erosion or the
loss of topsoil?□■□□
c.Be located on a geologic unit or soil that
is made unstable as a result of the
project, and potentially result in on or
offsite landslide, lateral spreading,
subsidence, liquefaction, or collapse?□■□□
d.Be located on expansive soil, as defined
in Table 1-B of the Uniform Building Code
(1994), creating substantial direct or
indirect risks to life or property?□□■□
e.Have soils incapable of adequately
supporting the use of septic tanks or
alternative wastewater disposal systems
where sewers are not available for the
disposal of wastewater?□□□■
f.Directly or indirectly destroy a unique
paleontological resource or site or unique
geologic feature?□□■□
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A Preliminary Geohazard Report for various City-owned properties in Moorpark was prepared by
Oakridge Geoscience, Inc. in January 2018 (Appendix G). This report contains an evaluation of the
project site as two separate parcels identified as “Apricot Farms” and “Remainder High Street.” The
report evaluates seismic-related geohazards and discusses potential methods to mitigate potential
geohazards. The following analysis is based in part on this geohazard report.
The applicant proposes to implement ground improvement via construction of sub-grade stone
columns under the building footprints and overexcavation and recompaction of soils to a depth
deemed sufficient by the project applicant’s geotechnical engineer. These measures would
remediate on-site geological hazards related to liquefaction, collapse potential, and expansive soil
conditions.
a.1. Directly or indirectly cause potential adverse effects, including the risk of loss, injury, or death
involving rupture of a known earthquake fault, as delineated on the most recent Alquist-Priolo
Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other
substantial evidence of a known fault?
Similar to all of southern California, the project site is subject to strong ground shaking associated
with active and/or potentially active faults in the region. The project site is not within an Alquist-
Priolo Special Study Zone. No active or potentially active faults cross or trend toward the downtown
Moorpark Area (Appendix G). Furthermore, the project would include new development built to
current seismic safety standards. Therefore, no impact would occur.
NO IMPACT
a.2. Expose people or structures to potential substantial adverse effects, including the risk of loss,
injury, or death involving strong seismic ground shaking?
The entire southern California region is susceptible to strong ground shaking from severe
earthquakes. Consequently, development of the project could expose people and structures to
strong seismic ground shaking. However, the project would be designed and constructed in
accordance with state and local building codes to reduce the potential for exposure of people or
structures to seismic risks to the maximum extent possible. The project would be required to
comply with the seismic safety requirements in the International Building Code (IBC), the California
Building Code (CBC), and the Moorpark Municipal Code (MMC). Compliance with such requirements
would reduce seismic ground shaking impacts to the maximum extent practicable with current
engineering practices. Further, the project would not increase ground shaking hazards at adjacent
properties. Therefore, impacts related to strong seismic ground shaking would be less than
significant.
LESS THAN SIGNIFICANT IMPACT
a.3. Expose people or structures to potential substantial adverse effects, including the risk of loss,
injury, or death involving seismic-related ground failure, including liquefaction?
For the purpose of this specific issue, a significant impact may occur if the project site is located in
an area identified as having a high risk of liquefaction. The geohazard report determined that on-site
soils are composed of very loose to medium dense granular soils. Groundwater was encountered at
depths of 20 to 38 feet, and historic high groundwater levels were determined to be about 15 to 20
feet. The report concludes that the site is susceptible to liquefaction below the groundwater level to
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depths of 60 to 70 feet with a combined estimated liquefaction and dry seismic settlement of
between 7.5 and 14.5 inches.
The CBC requires projects to have a seismic settlement of no more than two inches total and one
inch of differential settlement. Therefore, impacts related to liquefaction and seismic-induced
settlement would be potentially significant. However, as the geohazard report recommended, the
project would implement ground improvement via construction of sub-grade stone columns under
the building footprints and overexcavation and recompaction of soils to a depth deemed sufficient
by the project applicant’s geotechnical engineer. The project would be required to implement
mitigation measure GEO-1 to reduce the potential for on-site liquefaction. In addition, the project
would be required to implement mitigation measure GEO-2 to reduce the potential for foundation
damage due to on-site storm water infiltration. These measures, which were recommended by the
geohazard report, would mitigate impacts related to liquefaction to a less than significant level. The
project would be required to comply with current engineering practices as reflected in the MMC,
the UBC, and the CBC. The CBC and UBC regulate the design and construction of excavations,
foundations, building frames, retaining walls, and other building elements to mitigate the effects of
adverse soil conditions. The MMC requires that a liquefaction remediation plan containing effective
measures to avoid and control damage be submitted to the city engineer and public works director
prior to the issuance of a grading permit in accordance with MMC Section 17.76.050.41. In addition,
a final approved soils and geology report must be submitted to the city engineer, public works
director, and the California Department of Conservation, Division of Mines and Geology within 30
days of report approval. Compliance with City and state building codes and mitigation measure
GEO-1 would reduce impacts to the maximum extent practicable through current engineering
practices. Impacts related to liquefaction would be less than significant with mitigation
incorporated.
Mitigation Measure
GEO-1 Ground Improvement
In accordance with recommendations made by the geohazard report, the applicant shall complete
ground improvement activities to reduce the potential for liquefaction and dry seismic settlement
on-site to near two inches of total settlement and one inch of differential settlement. The ground
improvement options are as follows:
▪Vibro Replacement (VR, also referred to as “stone columns”) consists of advancing a vibroflot to
the selected depth (approximately 50 feet for the project site) using a combination of the
weight of the vibroflot assembly and vibration; or
▪Deep Soil Mixing (DSM) utilizes a large diameter auger mounted to a large drill rig or crane to
advance the auger to the target depth. Cement is mixed into the soil at a regulated rate of
around 10 percent and mixed by the auger using several up and down passes of the auger. The
amount of cement added to the soil is determined by laboratory testing and/or previous
experience to optimize the soil strength versus amount of cement utilized.
A specialty ground improvement contractor shall prepare a site-specific ground improvement plan
(GIP) that indicates the method and depth of treatment, size and spacing of the ground
improvement columns, quality control procedures, and post-treatment CPT testing program
(assuming VR method) to document ground improvement has densified the soils to reduce
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settlement during a seismic event to acceptable levels. The GIP shall be reviewed and approved by
the City of Moorpark’s geotechnical reviewer prior to issuance of grading permits.
GEO-2 Stormwater Infiltration
In accordance with recommendations made by the geohazard report, the applicant shall locate any
on-site concentrated stormwater infiltration basins at least 100 feet away from project structural
elements and off-site improvements (i.e., buried utilities) that could be impacted by settlement.
Alternatively, the applicant may instead use a diffuse infiltration system that does not concentrate
infiltration in a specific location.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
a.4. Expose people or structures to potential substantial adverse effects, including the risk of loss,
injury, or death involving landslides?
A significant impact would occur if the project would be implemented on a site located in a hillside
area with unstable geological conditions or soil types that would be susceptible to failure when
saturated. According to the geohazard report, the project site is relatively flat with a slope of about
one percent to the southwest (Appendix G). The project site is located near the base of a gently-
sloping hillside area that has not been identified as a landslide area (City of Moorpark 2001, Figure
4-3). Therefore, the project would not expose people or structures to potential effects resulting
from landslides and no impact would occur.
NO IMPACT
b.Would the project result in substantial soil erosion or the loss of topsoil?
A significant impact would occur if construction activities or proposed uses would result in
substantial soil erosion or loss of topsoil. Construction of the project would result in ground surface
disturbance during site clearance and grading, which could create the potential for soil erosion.
Accordingly, short-term erosion impacts may result from construction of the project. As discussed in
the response to question 7.a.4 above, the project site is located in a relatively flat area, which would
limit potential erosion impacts. Implementation of mitigation measure GEO-3 would reduce project
construction-related impacts to a less than significant level.
Mitigation Measure
GEO-3 Erosion/Grading/Short-Term Construction Impacts
▪The applicant shall provide staked signage at the site with a minimum of three-inch lettering
containing contact information for the City Engineer (Department of Public Works) and the
hauling or general contractor.
▪Excavation and grading activities shall be scheduled during dry weather periods, if possible. If
grading occurs during the rainy season (October 15 through April 1), diversion dikes shall be
constructed to channel runoff around the site. Channels shall be lined with grass or roughened
pavement to reduce runoff velocity.
▪Stockpiles, excavated, and exposed soil shall be covered with secured tarps, plastic sheeting,
erosion control fabrics, or treated with a bio-degradable soil stabilizer.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
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c.Would the project be located on a geologic unit or soil that is made unstable as a result of the
project, and potentially result in on or offsite landslide, lateral spreading, subsidence,
liquefaction, or collapse?
See the responses to questions 7.a.3 and 7.a.4 for discussions related to liquefaction and landslide
potential, respectively.
Subsurface borings were advanced to a depth of 51.5-feet on-site. Site soils, as depicted in the
boring logs contained in the geohazard report (Appendix G), consist of very loose to medium dense
granular soils. Groundwater was encountered at depths of 20 to 38 feet, and historic high
groundwater levels were determined to be about 15 to 20 feet.
The geohazard report determined that soils on the western portion of the project site have a
moderate collapse potential of 3.5 to 6.7 percent to a depth of 15 feet, while the eastern portion of
the site has a low collapse potential of 0.1 to 0.3 percent. Therefore, impacts related to collapse
would be potentially significant. However, as the geohazard report recommended, the project
would implement ground improvement via construction of sub-grade stone columns under the
building footprints and overexcavation and recompaction of soils to a depth deemed sufficient by
the project applicant’s geotechnical engineer. In addition, the project would be required to
implement mitigation measure GEO-1 (see the response to question 7.a.3) to reduce the potential
for foundation damage due to on-site stormwater infiltration. Project design features in
combination with mitigation measure GEO-1 would reduce impacts related to collapse to a less than
significant level.
Subsidence and ground collapse generally occur in areas with active groundwater withdrawal or
petroleum production. The extraction of groundwater or petroleum from sedimentary source rocks
can cause the permanent collapse of the pore space previously occupied by the removed fluid. The
project site is not located within or near a petroleum field; therefore, subsidence related to
petroleum extraction would not occur (County of Ventura 2011, Figure 1.4.7).
Although the project proposes to excavation and recompact on-site soils, the applicant does not
anticipate excavating to a depth greater than 15 feet below grade, which is at or above historic high
groundwater levels. Therefore, it is unlikely that groundwater would be encountered over the
course of construction. In the event that groundwater is encountered, minor dewatering of
groundwater seepage may be necessary. However, temporary dewatering activities would not be
substantial enough to induce subsidence due to groundwater withdrawal.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
d.Would the project be located on expansive soil, as defined in Table 1-B of the Uniform Building
Code (1994), creating substantial direct or indirect risks to life or property?
A significant impact would occur if the project would include development on expansive soils
without proper site preparation or design features to provide adequate foundations for project
buildings, thus posing a hazard to life and property. Expansive soils have relatively high clay mineral
and expand with the addition of water and shrink when dried, which can cause damage to overlying
structures. The geohazard report determined that the soils on-site consist of very loose to medium
dense granular soils with potentially expansive soil on the eastern portion of the project site at a
depth of 19 feet (Appendix G). However, as the geohazard report recommends, the project would
implement ground improvement via construction of sub-grade stone columns under the building
footprints and overexcavation and recompaction of soils to a depth deemed sufficient by the project
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applicant’s geotechnical engineer. These project design features would reduce impacts related to
expansive soils to a less than significant level.
LESS THAN SIGNIFICANT IMPACT
e.Would the project have soils incapable of adequately supporting the use of septic tanks or
alternative wastewater disposal systems where sewers are not available for the disposal of
wastewater?
The project would connect to existing sewer lines that serve the project site and would not use
septic tanks or alternative wastewater disposal systems. Therefore, no impact related to the use of
septic tanks or alternative wastewater disposal systems would occur.
NO IMPACT
f.Would the project directly or indirectly destroy a unique paleontological resource or site or
unique geologic feature?
The paleontological sensitivity of the geologic units that underlie the project area was evaluated
using the results of the paleontological locality search and review of existing information in the
scientific literature concerning known fossils within those geologic units. Rincon reviewed fossil
collections records from the University of California Museum of Paleontology (UCMP) online
database, which contains known fossil localities in Ventura County.
Following the literature review and museum record search, a paleontological sensitivity
classification was assigned to the geologic units within the project area. The potential for impacts to
significant paleontological resources is based on the potential for ground disturbance to directly
impact paleontologically sensitive geologic units. The Society of Vertebrate Paleontology (SVP)
(2010) has developed a system for assessing paleontological sensitivity and describes sedimentary
rock units as having high, low, undetermined, or no potential for containing scientifically significant
nonrenewable paleontological resources. This criterion is based on rock units within which
vertebrate or significant invertebrate fossils have been determined by previous studies to be
present or likely to be present.
The project site is located in the Little Simi Valley, between Oak Ridge to the north and the Las Posas
Hills to the south, in the Transverse Ranges geomorphic province of California (California Geological
Survey 2012). The Transverse Ranges extend approximately 275 miles west-east from Point Arguello
in Santa Barbara County, east to the San Bernardino Mountains, and south to the Anacapa-Santa
Monica Hollywood-Raymond-Cucamonga fault zone (Yerkes and Campbell 2005). The Transverse
Ranges are composed of Proterozoic to Mesozoic intrusive crystalline igneous and metamorphic
rocks overlain by Cenozoic marine and terrestrial deposits and volcanic rock. Active uplift and
erosion in the Transverse Ranges has produced steep canyons and rugged topography (Morton and
Miller 2006). The Moorpark area is in a seismically-active region of the Transverse Ranges where the
underlying strata has been strongly faulted and folded. Nearby faults include the west- to north-
west-trending Simi-Santa Rosa, Oak Ridge, and San Cayetano faults.
The project site vicinity is mapped at a scale of 1:24,000 by Dibblee and Ehrenspeck (1992) and
includes one (1) geologic unit mapped at ground surface: Quaternary alluvium of Holocene age
composed of silt, sand, and gravel deposited along the floodplain of the east-draining Arroyo
Simi/Arroyo Las Posas. A search of the paleontological locality records on the UCMP online database
resulted in no previously recorded vertebrate fossil localities within Holocene sedimentary deposits
within the project vicinity. Furthermore, according to the Final Mitigated Negative Declaration for
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the City of Moorpark Downtown Specific Plan (1998), there are no known paleontological resources
in the project area or vicinity. The geohazard report (Appendix G) prepared for the project indicates
the Quaternary alluvium is at least 66 feet thick above the underlying Plio-Pleistocene Saugus
Formation. The Saugus Formation has previously yielded paleontological resources in Ventura
County, but project ground disturbance will be restricted to the shallow subsurface and the
potentially fossiliferous Saugus Formation will not be impacted.
Holocene sedimentary deposits, particularly those younger than 5,000 years old, are generally too
young to contain fossilized material. As such, the Quaternary alluvium mapped at the surface of the
project area has been assigned a low paleontological sensitivity, in accordance with SVP (2010)
guidelines. Therefore, impacts to paleontological resources would be less than significant.
LESS THAN SIGNIFICANT IMPACT
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8 Greenhouse Gas Emissions
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Generate greenhouse gas emissions,
either directly or indirectly, that may
have a significant impact on the
environment?□□■□
b.Conflict with any applicable plan, policy,
or regulation adopted for the purposes of
reducing the emissions of greenhouse
gases?□□■□
Climate Change and Greenhouse Gases
Climate change is the observed increase in the average temperature of Earth’s atmosphere and
oceans along with other substantial changes in climate (such as wind patterns, precipitation, and
storms) over an extended period of time. The baseline against which these changes are measured
originates in historical records identifying temperature changes that have occurred in the past, such
as during past ice ages. The global climate is continuously changing, as evidenced by repeated
episodes of substantial warming and cooling documented in the geologic record. The rate of change
has typically been incremental, with warming or cooling trends occurring over the course of
thousands of years. The past 10,000 years have been marked by a period of incremental warming,
as glaciers have steadily retreated across the globe. However, scientists have observed acceleration
in the rate of warming during the past 150 years. Per the United Nations Intergovernmental Panel
on Climate Change (IPCC), the understanding of anthropogenic (human-induced) warming and
cooling influences on climate has led to a high confidence (95 percent or greater chance) that the
global average net effect of human activities has been the dominant cause of warming since the
mid-20th century (IPCC 2014).
Gases that absorb and re-emit infrared radiation in the atmosphere are called greenhouse gases
(GHGs). The gases that are widely seen as the principal contributors to human-induced climate
change include carbon dioxide (CO2), methane (CH4), nitrous oxides (N2O), fluorinated gases such as
hydrofluorocarbons (HFCs) and perfluorocarbons (PFCs), and sulfur hexafluoride (SF6). Water vapor
is excluded from the list of GHGs because it is short-lived in the atmosphere and its atmospheric
concentrations are largely determined by natural processes, such as oceanic evaporation.
GHGs are emitted by both natural processes and human activities. Of these gases, CO2 and CH4 are
emitted in the greatest quantities from human activities. Emissions of CO2 are largely by-products of
fossil fuel combustion, and CH4 results from off-gassing associated with agricultural practices and
landfills.
Human-made GHGs, many of which have greater heat-absorption potential than CO2, include
fluorinated gases and SF6 (California Environmental Protection Agency [CalEPA] 2006). Different
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types of GHGs have varying global warming potentials (GWPs), which are the potential of a gas or
aerosol to trap heat in the atmosphere over a specified timescale (generally 100 years). Because
GHGs absorb different amounts of heat, a common reference gas (CO2) is used to relate the amount
of heat absorbed to the amount of the GHG emissions, referred to as carbon dioxide equivalent
(CO2e), and is the amount of a GHG emitted multiplied by its GWP. CO2 has a 100-year GWP of one.
By contrast, CH4 has a GWP of 25, meaning its global warming effect is 25 times greater than CO2 on
a molecule per molecule basis (IPCC 2007).
The accumulation of GHGs in the atmosphere regulates Earth’s temperature. Without the natural
heat-trapping effect of GHGs, Earth’s surface would be about 34 degrees Celsius (°C) cooler (CalEPA
2006). However, emissions from human activities, particularly the consumption of fossil fuels for
electricity production and transportation, have elevated the concentration of GHGs in the
atmosphere beyond the level of naturally occurring concentrations.
Scientific modeling predicts that continued GHG emissions at or above current rates would induce
more extreme climate changes during the 21st century than were observed during the 20th century.
Some of the potential impacts in California of global warming may include loss of snow pack, sea
level rise, more extreme heat days per year, more high ozone days, more large forest fires, and
more drought years (CalEPA 2010). While these potential impacts identify the possible effects of
climate change at a global and potentially statewide level, in general, scientific modeling tools are
currently unable to predict what impacts would occur locally.
Greenhouse Gas Emissions Inventory
Worldwide anthropogenic emissions of GHGs were approximately 46,000 million metric tons (MMT)
of CO2e in 2010. CO2 emissions from fossil fuel combustion and industrial processes contributed
about 65 percent of total emissions in 2010 (IPCC 2014).
Total U.S. GHG emissions were 6,511 MMT of CO2e in 2016 (U.S. EPA 2018). In 2016, the industrial
and transportation end-use sectors accounted for 22 percent and 28.5 percent of GHG emissions,
respectively. Electric power accounted for 28.4 percent of GHG emissions. Meanwhile, the
residential and commercial end-use sectors accounted for 11 percent of GHG emissions (U.S. EPA
2018).
Based on CARB’s California Greenhouse Gas Inventory for 2000-2016, California produced 429.4
MMT of CO2e in 2016 (CARB 2018a). The largest single source of GHG in California is transportation,
contributing 41 percent of the state’s total GHG emissions. Industrial sources are the second largest
source of the state’s GHG emissions, contributing 23 percent of the state’s GHG emissions (CARB
2018a). California emissions are due in part to its large size and large population compared to other
states. However, the mild climate reduces California’s per capita fuel use and GHG emissions as
compared to other states. CARB has projected statewide unregulated GHG emissions for the year
2020 will be 509 MMT of CO2e (CARB 2018b). These projections represent the emissions that would
be expected to occur in the absence of any GHG reduction actions.
Regulatory Setting
California Regulations
The State of California considers GHG emissions and the impacts of climate change to be a serious
threat to the public health, environment, economic well-being, and natural resources of California,
and has taken an aggressive stance to mitigate its impact on climate change through the adoption of
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policies and legislation. CARB is responsible for the coordination and oversight of state and local air
pollution control programs in the state. California has numerous regulations aimed at reducing the
state’s GHG emissions; some of the major initiatives are summarized below.
ASSEMBLY BILL 32
California’s major initiative for reducing GHG emissions is outlined in Assembly Bill (AB) 32, the
“California Global Warming Solutions Act of 2006,” signed into law in 2006. AB 32 codifies the
statewide goal of reducing GHG emissions to 1990 levels by 2020 (essentially a 15 percent reduction
below 2005 emission levels; the same requirement as under S-3-05), and requires CARB to prepare a
Scoping Plan that outlines the main strategies for reducing GHGs to meet the 2020 deadline. In
addition, AB 32 requires CARB to adopt regulations to require reporting and verification of
California’s largest industrial emitters (CARB 2017).
CARB approved the initial AB 32 Scoping Plan on December 11, 2008 and a 2020 statewide GHG
emission limit of 427 MMT of CO2e was established. The Scoping Plan also included measures to
address GHG emission reduction strategies related to energy efficiency, water use, and recycling
and solid waste, among others. Many of the GHG reduction measures included in the Scoping Plan
(e.g., Low Carbon Fuel Standard, Advanced Clean Car standards, and Cap-and-Trade) have been
adopted since approval of the Scoping Plan.
SENATE BILL 375
Senate Bill (SB) 375, signed in August 2008, enhances California’s ability to reach AB 32 goals by
directing CARB to develop regional GHG emission reduction targets to be achieved from passenger
vehicles for 2020 and 2035. In addition, SB 375 directs each of California’s 18 major metropolitan
planning organizations to prepare a “sustainable communities strategy” (SCS) that contains a
growth strategy to meet these emission targets for inclusion in the Regional Transportation Plan
(RTP). On September 23, 2010, CARB adopted final regional targets for reducing GHG emissions
from 2005 levels by 2020 and 2035.
SENATE BILL 32
On September 8, 2016, the governor signed SB 32 into law, extending AB 32 by requiring California
to further reduce GHGs to 40 percent below 1990 levels by 2030 (the other provisions of AB 32
remain unchanged). On December 14, 2017, CARB adopted the 2017 Scoping Plan, which provides a
framework for achieving the 2030 target. The 2017 Scoping Plan relies on the continuation and
expansion of existing policies and regulations, such as the Cap-and-Trade Program, as well as
implementation of recently adopted policies and policies, such as SB 350 and SB 1383 (see below).
The 2017 Scoping Plan also puts an increased emphasis on innovation, adoption of existing
technology, and strategic investment to support its strategies. As with the 2013 Scoping Plan
Update, the 2017 Scoping Plan does not provide project-level thresholds for land use development.
Instead, it recommends that local governments adopt policies and locally-appropriate quantitative
thresholds consistent with a statewide per capita goal of 6 metric tons (MT) of CO2e by 2030 and 2
MT of CO2e by 2050 (CARB 2017). As stated in the 2017 Scoping Plan, these goals may be
appropriate for plan-level analyses (city, county, subregional, or regional level), but not for specific
individual projects because they include all emissions sectors in California.
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Regional Regulations
SCAG RTP/SCS
As discussed above, SB 375 requires metropolitan planning organizations to prepare an RTP/SCS
that will achieve regional emission reductions through sustainable transportation and growth
strategies. On March 22, 2018, CARB adopted updated regional targets for reducing GHG emissions
from 2005 levels by 2020 and 2035. SCAG was assigned targets of an eight percent reduction in GHGs
from transportation sources by 2020 and a 19 percent reduction in GHGs from transportation
sources by 2035. Most recently, SCAG adopted the 2016-2040 RTP/SCS on April 7, 2016, which
includes strategies and objectives to encourage transit-oriented and infill development and use of
alternative transportation to minimize vehicle use.
Significance Thresholds
The adopted CEQA Guidelines provide regulatory guidance on the analysis and mitigation of GHG
emissions in CEQA documents, while giving lead agencies the discretion to set quantitative or
qualitative thresholds for the assessment and mitigation of GHGs and climate change impacts.
CEQA Guidelines Section 15064.4(b) states that a lead agency should consider the following factors,
among others, when assessing the significance of impacts from GHG emissions on the environment:
▪The extent to which the project may increase or reduce GHG emissions as compared to the
existing environmental setting;
▪Whether the project emissions exceed a threshold of significance that the lead agency
determines applies to the project; and
▪The extent to which the project complies with regulations or requirements adopted to
implement a statewide, regional, or local plan for the reduction or mitigation of GHG emissions.
Such requirements must be adopted by the relevant public agency through a public review
process and must reduce or mitigate the project’s incremental contribution of GHG emissions.
Locally-Appropriate, Project-Specific Efficiency Threshold
The VCAPCD has not adopted GHG emissions thresholds. Therefore, this analysis uses a locally-
appropriate, project-specific threshold consistent with the SB 32 target to evaluate the significance
of the project’s GHG emissions. Efficiency thresholds are quantitative thresholds based on a
measurement of GHG efficiency for a given project, regardless of the amount of mass emissions.
These thresholds identify the emission level below which new development would not interfere
with attainment of statewide GHG reduction targets. A project that attains such an efficiency target,
with or without mitigation, would result in less than significant GHG emissions. A locally-appropriate
2030 project-specific threshold is derived from CARB’s recommendations in the 2017 Climate
Change Scoping Plan Update, as discussed below.
With the release of the 2017 Climate Change Scoping Plan Update, CARB recognized the need to
balance population growth with emissions reductions and in doing so, provided a new local plan-
level methodology for target setting that provides consistency with state GHG reduction goals using
per capita efficiency thresholds. A project-specific efficiency threshold can be calculated by dividing
statewide GHG emissions by the sum of statewide jobs and residents. However, not all statewide
emission sources would be impacted by the proposed project (e.g., agriculture and industrial).
Accordingly, consistent with the concerns raised in the Golden Door (2018) and Newhall Ranch
(2015) decisions regarding the correlation between state and local conditions, the 2030 statewide
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inventory target was modified with substantial evidence provided to establish a locally-appropriate,
evidence-based, mixed-use project-specific threshold consistent with the SB 32 target.
To develop this threshold, the local planning area was first evaluated to determine emissions
sectors that are present and would be directly affected by potential land-use changes. A description
of major sources of emissions that are included in the 2017 Scoping Plan emissions sectors and
representative sources in Moorpark can be found in Table 8. Agricultural and Industrial Sector
source emissions would not be directly impacted by the proposed project; therefore the Agricultural
and Industrial Emissions Sectors were removed from the State 2030 emissions forecast to retain a
more conservative project-specific target. Additionally, Cap and Trade emissions reductions occur
independent of any local jurisdictional land use decisions and were also excluded from the locally-
appropriate target.
After removing Agricultural, Industrial, and Cap and Trade emissions, the remaining emissions
sectors with sources within the Moorpark planning area were then summed to create a locally-
appropriate emissions total for a mixed-use project in Moorpark. This locally-appropriate emissions
total is divided by the statewide 2030 service person population to determine a locally-appropriate,
project-level threshold of 3.2 MT of CO2e per service person that is consistent with SB 32 targets, as
shown in Table 8 and Table 9.
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Table 8 SB 32 Scoping Plan Emissions Sector Targets
GHG Emissions Sector1
2030 State
Emissions
Target
(MMT)1
Locally
Appropriate2
Project
Specific Major Sources3
Residential and Commercial 38 Yes Yes Natural gas end uses, including space and
water heating of buildings
Electric Power 53 Yes Yes Electricity uses, including lighting,
appliances, machinery and heating
High GWP 11 Yes Yes SF6 from power stations, HFCs from
refrigerants and air conditioning4
Recycling and Waste 8 Yes Yes Waste generated by residential,
commercial, and other facilities
Transportation 103 Yes Yes Passenger, heavy duty, and other vehicle
emissions
Industrial 83 No No Oil, gas, and hydrogen production,
refineries, general fuel use, and mining
operations and would not be impacted by
the proposed project
Agriculture 24 Yes No Enteric fermentation, crop residue
burning, and manure management would
not be impacted by the proposed project
Cap and Trade Reductions -60 No No Reductions from facilities emitting more
than 10,000 MT CO2e per year5
Scoping Plan Target (All Sectors) 260 No No All emissions sectors
Project-Specific Inapplicable
Sector (Industrial)
-83 No No Oil, gas, and hydrogen production,
refineries, general fuel use, and mining
operations
Project-Specific Inapplicable
Sector (Agriculture)
-24 Yes No Enteric fermentation, crop residue
burning, and manure management
Locally Inapplicable Sector
(Cap and Trade)
60 No No Reductions from facilities emitting more
than 10,000 MT CO2e per year5
2030 Locally Applicable
Emissions Sectors
213 Yes Yes Emissions applicable to the local
planning area
MMT = million metric tons
1 All State targets in MMT of CO2e. See the 2017 Climate Change Scoping Plan, page 31 for sector details (CARB 2017).
2 Locally-appropriate is defined as having significant emissions in Scoping Plan Categorization categories within the planning area.
3 See CARB GHG Emissions Inventory Scoping Plan Categorization for details, available at:
https://www.arb.ca.gov/cc/inventory/data/data.htm
4 SF6 is used primarily as an insulator in electrical substations while HFCs can be found in many residential and commercial refrigeration
and air conditioning units. HFCs are in the process of being phased out through 2036 in most developed countries.
5 Cap and Trade is excluded as reductions will occur independent of local project land use decisions and are therefore not locally
appropriate.
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Table 9 SB 32 Locally-Appropriate Project-Specific Threshold
California 2017 Climate
Change Scoping Plan
California 2030 Population (persons)1 43,631,295
California 2030 Employment Projection (persons)2 23,459,500
Service Population (persons) 67,090,795
Locally-Appropriate
2030 Project Threshold
2030 Locally-Appropriate Emissions Sectors (MT of CO2e) 213,000,000
2030 Service Population (persons) 67,090,795
2030 Service Person Target (MT of CO2e per Service Person) 3.22
1 CDOF 2019b
2 Average of employment range projections under implementation scenario. See CARB 2017 Climate Change Scoping Plan Update, page
55 (CARB 2017).
3Total of 3.17 has been rounded up per Scoping Plan general methodology. Lead agencies may determine this threshold as they deem
appropriate.
At this time, the State has codified a target of reducing emissions to 40 percent below 1990
emissions levels by 2030 (SB 32) and has developed the 2017 Scoping Plan to demonstrate how the
State will achieve the 2030 target and make substantial progress toward the 2050 goal of an 80
percent reduction in 1990 GHG emission levels set by EO S-3-05. In the recently signed EO B-55-18,
which identifies a new goal of carbon neutrality by 2045 and supersedes the goal established by EO
S-3-05, CARB has been tasked with including a pathway toward the EO B-55-18 carbon neutrality
goal in the next Scoping Plan update.
While State and regional regulators of energy and transportation systems, along with the State’s
Cap and Trade program, are designed to be set at limits to achieve most of the reductions needed to
hit the State’s long-term targets, local governments can do their fair share toward meeting the
State’s targets by siting and approving projects that accommodate planned population growth and
projects that are GHG-efficient. The AEP Climate Change Committee recommends that CEQA GHG
analyses evaluate project emissions in light of the trajectory of state climate change legislation and
assess their “substantial progress” toward achieving long‐term reduction targets identified in
available plans, legislation, or EOs. Consistent with AEP Climate Change Committee
recommendations, GHG impacts are analyzed in terms of whether the proposed project would
impede “substantial progress” toward meeting the reduction goal identified in SB 32 and EO B-55-
18. As SB 32 is considered an interim target toward meeting the 2045 State goal, consistency with
SB 32 would be considered contributing substantial progress toward meeting the State’s long-term
2045 goals. Avoiding interference with, and making substantial progress toward, these long-term
State targets is important because these targets have been set at levels that achieve California’s fair
share of international emissions reduction targets that will stabilize global climate change effects
and avoid the adverse environmental consequences described under Climate Change and
Greenhouse Gases (EO B-55-18).
Methodology
The project’s construction and operational GHG emissions were estimated using CalEEMod, version
2016.3.2. CalEEMod calculates emissions of CO2, CH4, and N2O associated with construction
activities, energy use, area sources, waste generation, and water use and conveyance as well as
emissions of CO2 and CH4 associated with project-generated vehicle trips (i.e. mobile sources).
Because CalEEMod does not calculate N2O emissions from mobile sources, N2O emissions were
quantified using guidance from CARB and the EMFAC2017 Emissions Inventory for the Ventura
County region for year 2030 (the next GHG emission reduction target milestone year) using the
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EMFAC2011 categories (Appendix C). Operational emissions were modeled for the year 2030 to be
consistent with the State’s next GHG emission reduction milestone target of achieving 40 percent
reduction in 1990 GHG emission levels by 2030. Emissions of all GHGs are converted into their
equivalent global warming potential in terms of CO2 (i.e., CO2e).
The construction schedule and list of construction equipment were based on CalEEMod defaults,
with the exception of the architectural coating phase, which was extended to overlap with the
building construction phase to reflect real-world construction practices. Over the course of
construction, approximately 23,522 square feet of existing buildings would be demolished. Soil
material would be balanced on-site; therefore, there would be no import or export of soil. To assess
the construction emissions, the total emissions generated during construction were amortized
based on the life of the project (30 years in accordance with SCAQMD guidance, which is preferred
by the VCAPCD) and added to the operational emissions estimate (VCAPCD 2011; SCAQMD 2008).
The project would be served by SCE. Therefore, SCE’s specific energy intensity factors (i.e., the
amount of CO2e per megawatt-hour [MWh]) were used in the calculations of GHG emissions. The
default energy intensity factors included in CalEEMod are based on 2012 data at which time SCE had
only achieved a 20.6 percent procurement of renewable energy. Per SB 100, the statewide
Renewable Portfolio Standard (RPS) Program requires electricity providers to increase procurement
from eligible renewable energy sources to 60 percent by 2030. To account for the continuing effects
of the RPS, the energy intensity factors included in CalEEMod were reduced based on the
percentage of renewables mandated by SB 100. SCE energy intensity factors that include this
reduction are shown in Table 1.
Table 10 SCE Energy Intensity Factors
2012
(lbs/MWh)
2030
(lbs/MWh)2
Percent procurement 20.6%1 60%
Carbon dioxide (CO2) 702 353.65
Methane (CH4) 0.029 0.015
Nitrous oxide (N2O) 0.00617 0.003
1 Source: SCE 2012
2 RPS goal established by SB 100
Because project construction would begin in 2020, the project would be constructed in accordance
with the 2019 Building Energy Efficiency Standards. Nonresidential buildings built in accordance
with the 2019 Building Energy Efficiency Standards will use approximately 30 percent less energy
than those constructed under the 2016 standards (California Energy Commission 2018). In
accordance with Section 150.1(b)14 of the 2019 Building Energy Efficiency Standards, all new
residential uses under three stories must install photovoltaic (PV) solar panels that generate an
amount of electricity equal to expected electricity usage. Therefore, based on the calculation
method contained in Section 150.1(b)14, the project would be required to include 126 kW of PV
solar panels, which would generate approximately 239,980 kWh per year (see Appendix C).
Accordingly, the energy reductions achieved by compliance with the 2019 Building Energy Efficiency
Standards and by installation of the rooftop solar PV system and energy-efficient appliances were
included in CalEEMod.
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Modeling of GHG emissions from water consumption and wastewater generation includes a 20
percent reduction in indoor water use to account for compliance with CALGreen. Modeling of
transportation-related GHG emissions utilized the “Increase Density” feature in CalEEMod to
account for the project’s density of 42 dwelling units per acre.
a.Would the project generate GHG emissions, either directly or indirectly, that may have a
significant impact on the environment?
Project construction activities are assumed to occur over a period of approximately 12 months
based on CalEEMod default assumptions. Based on CalEEMod modeling results, construction
activities for the project would generate an estimated 419 MT of CO2e between 2019 and 2020
(Table 11). Amortized over a 30-year period (the assumed life of the project per SCAQMD guidance),
construction of the project would generate about 14 MT of CO2e per year.
Table 11 Estimated Construction Emissions of Greenhouse Gases
Construction Year Annual Emissions (MT of CO2e)
2020 129.8
2021 289.1
Total 418.9
Amortized over 30 years 14.0
Notes: See Appendix C for CalEEMod results. Numbers may not add up due to rounding.
Table 12 summarizes the project’s operational GHG emissions. Because the existing buildings on-site
are vacant, the modeling assumed that GHG emissions are not currently generated on-site. As
shown below, annual emissions would total approximately 1,036 MT of CO2e, or approximately 2.7
MT of CO2e per service person, which would not exceed the locally-appropriate, project-specific
threshold of 3.2 MT of CO2e per year.3 Therefore, project impacts would be less than significant.
3 1,036 MT of CO2e / (302 residents + 88 employees) = 2.6 MT of CO2e per service population
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Table 12 Combined Annual Emissions of Greenhouse Gases
Emission Source Proposed Project Emissions (MT of CO2e)
Construction 14.0
Operational
Area
Energy
Solid Waste
Water
1.1
220.6
65.1
31.6
Mobile
CO2 and CH4
N2O
686.6
16.5
Total Project Emissions 1,035.5
Service Population (Residents + Employees) 390
Emissions per SP 2.7
Locally-Applicable, Project-Specific
Threshold 3.2
Threshold Exceeded? No
N/A = not applicable
Notes: See Appendix C for CalEEMod results. Some numbers may not add up due to rounding.
SP = service population (302 residents + 88 employees)
*Shown for informational purposes only since the 2017 Scoping Plan threshold is not intended to be a project-level threshold.
LESS THAN SIGNIFICANT IMPACT
b.Would the project conflict with any applicable plan, policy, or regulation adopted for the
purpose of reducing the emissions of greenhouse gases?
As discussed under “Regulatory Setting,” a number of plans and policies have been adopted to
reduce GHG emissions in the Southern California region, including Ventura County. SCAG’s 2016
RTP/SCS provides land use and transportation strategies to reduce regional GHG emissions. The
VCAPCD, Ventura County, and the City of Moorpark have not adopted plans or policies related to
GHG emission reductions.
Specific land use objectives identified in SCAG’s 2016 RTP/SCS include:
▪Reflect the Changing Population and Demands. The SCAG region, home to about 18.8 million
people in 2015, currently contains 5.9 million households and 8 million jobs. By 2040, the Plan
projects that these figures will increase by 3.4 million people, with nearly 1.5 million more
households and 1.8 million more jobs (SCAG 2016). High Quality Transit Areas (HQTAs) will
account for three percent of regional total land, but will accommodate 46 percent and 55
percent of future household and employment growth, respectively, between 2012 and 2040.
The 2016 RTP/SCS land use pattern contains sufficient residential capacity to accommodate the
region’s future growth, including the eight-year regional housing need. The land use pattern
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accommodates about 530,000 additional households in the SCAG region by 2020 and 1.5 million
more households by 2040. The land use pattern also encourages improvement in the jobs-
housing balance by accommodating 1.1 million more jobs by 2020 and about 2.4 million more
jobs by 2040.
▪Focus New Growth Around Transit. The 2016 RTP/SCS land use pattern reinforces the trend of
focusing growth in the region’s HQTAs. Concentrating housing and transit in conjunction
concentrates roadway repair investments, leverages transit and active transportation
investments, reduces regional life cycle infrastructure costs, improves accessibility, avoids
greenfield development, and has the potential to improve public health and housing
affordability. HQTAs provide households with alternative modes of transport that can reduce
VMT and GHG emissions.
▪Plan for Growth Around Livable Corridors. The Livable Corridors strategy seeks to revitalize
commercial strips through integrated transportation and land use planning that results in
increased economic activity and improved mobility options. From a land use perspective, Livable
Corridors strategies include a special emphasis on fostering collaboration between neighboring
jurisdictions to encourage better planning for various land uses, corridor branding, roadway
improvements and focusing retail into attractive nodes along a corridor.
▪Provide More Options for Short Trips. Thirty-eight percent of all trips in the SCAG region are
less than three miles. The 2016 RTP/SCS provides two strategies to promote the use of active
transport for short trips. Neighborhood Mobility Areas are meant to reduce short trips in a
suburban setting, while “complete communities” support the creation of mixed use districts in
strategic growth areas and are applicable to an urban setting.
▪Preserve our Existing System. Southern California’s transportation system is becoming
increasingly compromised by decades of underinvestment in maintaining and preserving our
infrastructure. These investments have not kept pace with the demands placed on the system
and the quality of many roads, highways, bridges, transit, and bicycle and pedestrian facilities
are continuing to deteriorate. Unfortunately, the longer they deteriorate, the more expensive
they will be to fix in the future. Even worse, deficient conditions compromise the safety of users
throughout the network. For all of these reasons, system preservation and achieving a state of
good repair are top priorities of the 2016 RTP/SCS.
▪Transit. Looking toward 2040, the 2016 RTP/SCS maintains a significant investment in public
transportation across all transit modes and also calls for new household and employment
growth to be targeted in areas that are well-served by public transportation to maximize the
improvements called for in the Plan.
▪Active Transportation. The 2016 RTP/SCS includes $12.9 billion for active transportation
improvements, including $8.1 billion in capital projects and $4.8 billion as part of the operations
and maintenance expenditures on regionally significant local streets and roads. The Active
Transportation portion of the 2016 Plan updates the Active Transportation portion of the 2012
Plan, which has goals for improving safety, increasing active transportation usage and
friendliness, and encouraging local active transportation plans. It proposes strategies to further
develop the regional bikeway network, assuming that all local active transportation plans will be
implemented, and dedicates resources to maintain and repair thousands of miles of dilapidated
sidewalks. To accommodate the growth in walking, biking and other forms of active
transportation regionally, the 2016 Active Transportation Plan also considers new strategies and
approaches beyond those proposed in 2012.
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The proposed project would provide mixed use, transit-oriented infill development in downtown
Moorpark along High Street, which is a local collector road with designated bike lanes and
sidewalks. The project site is located in close proximity to a variety of commercial, civic, and
institutional development and is within one mile of the Moorpark Town Center. The project site is
located within 200 feet of the Moorpark Metrolink rail station and the Moorpark bus stop for the
Moorpark City Transit Routes 1 and 2 and VCTC’s East County and East-West Connector bus lines. In
addition, the project would include 15,018 sf of commercial space that would provide restaurants, a
coffee or ice-cream shop, and neighborhood retail services for residents. In these ways, the project
fulfills several land use objectives of SCAG’s RTP/SCS, including focusing new growth around transit,
providing more options for short trips, revitalizing commercial strips into livable corridors, and
encouraging active transportation.
Furthermore, State policies to reduce GHG emissions associated with energy use, including the
Renewable Portfolio Standard and Title 24 of the California Building Code, would reduce anticipated
emissions associated with the proposed project. Overall, the project would be consistent with
applicable land use and zoning designations and would not conflict with any State regulations
intended to reduce GHG emissions statewide. As discussed in the response to question 8.a, annual
GHG emissions for the proposed project would be less than the threshold of 3,000 MT of CO2e per
year established by the SCAQMD. Additionally, as discussed in detail in Section 11, Land Use and
Planning, the proposed project would also be consistent with other policies of the Moorpark
General Plan, including a range of policies aimed indirectly at reducing GHG emissions through
reductions in vehicle miles traveled, energy use, and water consumption. Consequently, the project
would not conflict with plans and policies aimed at reducing GHG emissions and such impacts would
be less than significant.
LESS THAN SIGNIFICANT IMPACT
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9 Hazards and Hazardous Materials
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Create a significant hazard to the public
or the environment through the routine
transport, use, or disposal of hazardous
materials?□□■□
b.Create a significant hazard to the public
or the environment through reasonably
foreseeable upset and accident
conditions involving the release of
hazardous materials into the
environment?□□■□
c.Emit hazardous emissions or handle
hazardous or acutely hazardous
materials, substances, or waste within
0.25 mile of an existing or proposed
school?□□□■
d.Be located on a site that is included on a
list of hazardous material sites compiled
pursuant to Government Code Section
65962.5 and, as a result, would it create a
significant hazard to the public or the
environment?□■□□
e.For a project located in an airport land
use plan or, where such a plan has not
been adopted, within two miles of a
public airport or public use airport, would
the project result in a safety hazard or
excessive noise for people residing or
working in the project area?□□□■
f.Impair implementation of or physically
interfere with an adopted emergency
response plan or emergency evacuation
plan?□□□■
g.Expose people or structures, either
directly or indirectly, to a significant risk
of loss, injury, or death involving wildland
fires?□□□■
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a.Would the project create a significant hazard to the public or the environment through the
routine transport, use, or disposal of hazardous materials?
b.Would the project create a significant hazard to the public or the environment through
reasonably foreseeable upset and accident conditions involving the release of hazardous
materials into the environment?
The proposed project would involve the construction of residential dwellings and commercial space
that typically do not use or store large quantities of hazardous materials. Potentially hazardous
materials such as fuels, lubricants, and solvents would be used during construction of the project.
However, the transport, use, and storage of hazardous materials during the construction of the
project would be conducted in accordance with all applicable state and federal laws, such as the
Hazardous Materials Transportation Act, Resource Conservation and Recovery Act, the California
Hazardous Material Management Act, and the California Code of Regulations, Title 22.
LESS THAN SIGNIFICANT IMPACT
c.Would the project emit hazardous emissions or handle hazardous or acutely hazardous
materials, substances, or waste within 0.25 mile of an existing or proposed school?
The project site is not located within 0.25 mile of an existing or proposed school. The nearest school
is Chaparral Middle School, located approximately 0.50 mile southwest of the project site. The
proposed project would involve construction of a mixed use project including residential units and
commercial uses. Operational activities associated with these uses would not involve use or storage
of hazardous materials. Though potentially hazardous materials such as fuels, lubricants, solvents,
and oils could be used during demolition, construction and operation of the proposed project, the
transport, use, and storage of any and all hazardous materials would be conducted in accordance
with all applicable State and federal lows, such as the Hazardous Materials Transportation Act,
Resource Conservation and Recovery Act, the California Hazardous Material Management Act, and
the California Code of Regulations, Title 22. Regardless, due to the distance to the nearest school,
impacts to schools associated with hazardous emissions would not occur.
NO IMPACT
d.Would the project be located on a site included on a list of hazardous material sites compiled
pursuant to Government Code Section 65962.5 and, as a result, would it create a significant
hazard to the public or the environment?
The following databases and listings compiled pursuant to Government Code Section 65962.5 were
checked for known hazardous materials contamination at the project site:
▪United States Environmental Protection Agency (USEPA)
Comprehensive Environmental Response, Compensation, and Liability Information System
(CERCLIS)/Superfund Enterprise Management System (SEMS)/Envirofacts database search
▪State Water Resources Control Board (SWRCB)
GeoTracker search for leaking underground storage tanks (LUST) and other cleanup sites
▪Department of Toxic Substances Control (DTSC)
Envirostor database for hazardous waste facilities or known contamination sites
Cortese List of Hazardous Waste and Substances Sites
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The project site is not listed in any of the above environmental databases. The UNOCAL #1696
property (A&P ARCO site) located just west and adjacent to the project site and the J.E. Clark
property located approximately 900 feet east of the project site are the closest properties listed in
the GeoTracker database. Both sites are LUST cleanup sites. The UNOCAL #1696 site is listed as
having potential soil contamination with waste oil, motor, hydraulic, and lubricating fluids and the
J.E. Clark property is listed as having potential soil contamination with diesel. Both sites however,
are listed as cleanup completed. The UNOCAL #1696 case was closed in May 1994 and the J.E. Clark
case was closed in April 1995. There is no evidence to suggest that any contamination from these
sites have caused contamination at the project site.
A Phase I Environmental Site Assessment (ESA) was completed for the project site by Rincon
Consultants, Inc. in June 2018 (Appendix H). This study included a review of databases, city and
county records, and a site reconnaissance on June 5, 2018. During the site reconnaissance, the
following hazardous materials were observed in small quantities:
▪The storage area at the former Maria’s Restaurant contains small quantities of oil based
protective enamel, contact cement, polyurethane, and paint & primer.
▪One unmarked 55-gallon drum with unknown contents located adjacent to the former “One
More Time” thrift shop (220 E High St.) on the site.
However, there were no indications of releases from these containers.
The Phase I ESA concludes that there are no Recognized Environmental Conditions (RECs) in
connection with the project site. A Phase I Environmental Site Assessment was also completed for
the project site and the adjacent “Chamber of Commercial Site” in January 2017 by EFI Global. This
study is on file with the City of Moorpark. This Phase I ESA also concluded that (1) the project site is
not listed on any of the researched regulatory databases; (2) there are no known properties within
100 feet of the project site where a release is considered likely or a known release has occurred; and
(3) none of the other sites listed on the regulatory database report pose a significant threat to the
subject property.
However, the Rincon Phase I ESA identified two potential RECs in connection with the adjacent
properties, including (1) existing railroad tracks adjacent to south of the site, and (2) the presence of
a former gasoline service station located adjacent to the western property boundary. Concerns
associated with the railroad tracks include the potential of hydrocarbons, metals, herbicides, and
semi volatile organic compounds (creosote, naphthalene) from railroad activities present in the soils
surrounding the railroad tracks. Concerns associated with the former gas station include the
potential for contaminated soil gas migration and vapor intrusion of contaminants originating from
the former gas station onto the project site. Based on the findings from the Phase I ESA, the project
site has potential for containing contaminated soil from the two potential RECs adjacent to the
project site. Therefore, mitigation is required to reduce impacts to a less than significant level.
Mitigation Measure
HAZ-1 Soil Sampling and Soil Vapor Assessment
Within 30 days of the project applicant acquiring the project site from the City of Moorpark and
prior to issuance of a grading permit, a shallow soil sampling assessment shall be conducted on the
southern portion of the site as close to the railroad tracks as possible, but not within the railroad
right-of-way (i.e., within 30 feet of the railroad tracks), to evaluate the adjacent railroad tracks and
determine if hydrocarbons, metals, herbicides, and semi volatile organic compounds from the
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railroad activities are present in the shallow soil near the railroad tracks. Contaminated soil
identified during sampling activities shall be removed and stored in appropriate waste containers,
which shall be stored in a secure location such that no person will come into contact with
contaminated materials. Any contaminated soil shall be stored in a roll-off bin or similarly-covered
container. The handling and transport of waste shall be conducted in accordance with applicable
local, state and federal regulations, including the USEPA Resource Conversation and Recovery Act
(40 CFR Part 262), Federal and State Occupational Safety and Health Administrations, Federal and
State Departments of Transportation, and DTSC (CFR Title 22). Any contaminated soils determined
to be hazardous or non-hazardous waste must adequately profiled (sampled) prior to acceptable re-
use or disposal at an appropriate off-site facility. Complete sampling and handling and transport
procedures for reuse or disposal shall be completed in accordance with applicable local, state, and
federal laws and policies.
In addition, a shallow vapor sampling assessment shall be conducted on the western portion of the
site adjacent to the former gasoline station (now the Chamber of Commerce building) to determine
if there is VOC-impacted soil vapor migrating beneath the site from the adjacent property. The soil
vapor survey shall be performed according to the applicable standards of the DTSC and CalEPA. If
the investigations indicate that any soil exceeds federal, state, or local regulatory action levels, then
the soil shall be remediated to applicable agency standards through soil removal and disposal
efforts.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
e.For a project located within an airport land use plan or, where such a plan has not been
adopted, within two miles of a public airport or public use airport, would the project result in a
safety hazard for people residing or working in the project area?
The project site is not located within an airport land use plan area, or within two miles of a public or
private airport. The closest airports are the Camarillo Airport, which is approximately 15 miles
southwest of the project site, and the Santa Paula Airport, which is approximately 18 miles
northwest of the project site.
NO IMPACT
f.Would the project impair implementation of or physically interfere with an adopted emergency
response plan or emergency evacuation plan?
The project would be required to comply with applicable City codes and regulations pertaining to
emergency response and evacuation plans maintained by the County police department and fire
departments. No roads would be permanently closed as a result of the construction or operation of
the proposed project, and no structures would be developed that could potentially impair
implementation of or physically interfere with an adopted emergency response plan or emergency
evacuation plan. The City also has a grid pattern of streets within the downtown area so at no point
would any parcel or building be rendered inaccessible. The proposed project would be accessed via
existing driveways along High Street. These driveways would provide sufficient ingress/egress for
the standard vehicles, trucks, and heavy duty trucks that would frequent the project site. As such,
implementation of the proposed project would not interfere with existing emergency evacuation
plans or emergency response plans in the area. Therefore, no impact would occur.
NO IMPACT
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g.Would the project expose people or structures, either directly or indirectly, to a significant risk
of loss, injury, or death involving wildland fires?
The project site is located in an urbanized, downtown area in the City of Moorpark, and is therefore,
located in an area that is more resistant to wildfire. In addition, the Downtown Specific Plan states
that all buildout of the area will apply normal fire protection measures. The project would not
expose people or structures to a significant risk of loss, injury, or death involving wildland fires. No
impacts would occur.
NO IMPACT
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Hydrology and Water Quality
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10 Hydrology and Water Quality
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Violate any water quality standards or
waste discharge requirements or
otherwise substantially degrade surface
or ground water quality?□□■□
b.Substantially decrease groundwater
supplies or interfere substantially with
groundwater recharge such that the
project may impede sustainable
groundwater management of the basin?□□■□
c.Substantially alter the existing drainage
pattern of the site or area, including
through the alteration of the course of a
stream or river or through the addition of
impervious surfaces, in a manner which
would:
(i)Result in substantial erosion or
siltation on- or off-site;□□■□
(ii)Substantially increase the rate or
amount of surface runoff in a
manner which would result in
flooding on- or off-site;□□■□
(iii)Create or contribute runoff water
which would exceed the capacity of
existing or planned stormwater
drainage systems or provide
substantial additional sources of
polluted runoff; or □□■□
(iv)Impede or redirect flood flows?□□□■
d.In flood hazard, tsunami, or seiche zones,
risk release of pollutants due to project
inundation?□□□■
e.Conflict with or obstruct implementation
of a water quality control plan or
sustainable groundwater management
plan?□□■□
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a.Would the project violate any water quality standards or waste discharge requirements or
otherwise substantially degrade surface or ground water quality?
Project-related grading and construction, including on-site operation of heavy equipment during
grading and construction, would require temporary disturbance of surface soils and removal of
vegetative cover which could potentially result in erosion and sedimentation on-site. This would
alter the existing drainage pattern on-site. The project site is flat, so the potential for soil erosion is
low, but peak stormwater runoff could result in short-term sheet erosion in areas of exposed soils.
The project would be required to obtain coverage under a Construction General Permit (CGP) to
comply with Clean Water Act National Pollutant Discharge Elimination System (NPDES)
requirements. Compliance with the permit would require the development and implementation of a
Stormwater Pollution Prevent Plan (SWPPP) and associated Best Management Practices (BMPs). The
BMPs would include measures that would be implemented to prevent discharge of eroded soils
from the construction site and sedimentation of surface waters off-site. The BMPs would also
include measures to quickly contain and clean up any minor spills or leaks of fluids from
construction equipment. Given the relatively flat topography of the site, distance from surface
waters, and implementation of the required SWPPP, construction of the project would not violate
any water quality standards or waste discharge requirements.
A Hydrology Report was completed for the project site by CCE Design Associates, Inc. in June 2019
and is included in full as Appendix B. The purpose of the report was to validate the grading and
drainage design for the proposed project. Overall, drainage patterns on the project site will remain
largely unchanged. However, as described under Project Description, storm drain inlets will be
integrated into parking areas, and new LID BMPs would be integrated into the building, landscaping,
streetscape, and parking lot areas. Storm drain inlets would be collected by a new on-site storm
drain system, which would discharge into the existing storm drain within High Street and ultimately
drain to Moorpark Storm Drain No. 1.
The project would be subject to the requirements of a Ventura County Municipal Separate Storm
Sewer Systems (MS4) permit, which requires the use of site specific BMPs. As described under
Project Description, site-specific LID BMPs would be integrated into the project in compliance with
the 2011 TGM. These measures include site planning to achieve five percent Effective Impervious
Area, use of pervious paving/landscaping, and installation of storm drain signage. Furthermore,
treatment control BMPs such as planter boxes, bio-retention areas, biofiltration basins, and
“StormTreat” linear stormwater filtration devices would be installed to treat runoff from roof areas,
parking/drive-aisle areas, and street frontage areas would be installed.
Per the findings within the Gabbert & Walnut Canyon Channels Flood Control Deficiency Study
(County of Ventura 2005), the Ventura County Watershed Protection District has established an
allowable peak discharge flow rate of 90 percent or less of the pre-development flow rate. The “pre-
development” flow rate for the project site is 4.62 cfs using the 100-year peak event runoff flow
rate. Therefore, an acceptable peak discharge flow rate for the project is 4.16 cfs (0.90 * 4.62 cfs).
The maximum “post-development” flow rate for the developed project site would be 5.08 cfs.
However, the project would reduce the post-development flow rate by 0.92 cfs by including 175
feet of oversized 48-inch drain pipe in the western drainage area and 65 feet of 36-inch pipe within
the eastern drainage area (Appendix B). These drain pipes would detain and accumulate stormwater
runoff, then release runoff at various metered rates that meet City and County criteria for detained
flow release depending on the size of the storm event.
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Therefore, operation of the project would not be expected to violate any water quality standards or
waste discharge requirements. The project would have less than significant impacts with respect to
water quality standards and discharge requirements.
LESS THAN SIGNIFICANT IMPACT
b.Would the project substantially decrease groundwater supplies or interfere substantially with
groundwater recharge such that the project may impede sustainable groundwater
management of the basin?
e.Would the project conflict with or obstruct implementation of a water quality control plan or
sustainable groundwater management plan?
The project site is within the boundaries of the draft Groundwater Sustainability Plan (GSP) for the
Las Posas Valley Basin (Fox Canyon Groundwater Management Agency 2017). The draft GSP projects
future water demands based on historic water availability and demand, and buildout of the General
Plan. While the project would require rezoning of the project site, the proposed project would be
consistent to the DTSP vision of revitalizing the downtown area. Therefore, projected groundwater
demands in the draft GSP generally take into account water demand from the project.
According to the Preliminary Geohazard Report (Appendix G), groundwater was encountered at
sites along High Street at depths of 33 to 38 feet in the drill holes. Historic high groundwater levels
in downtown Moorpark have been within 15 to 20 feet of the ground surface. As discussed in
Section 7, Geology and Soils, although the project proposes to excavate and recompact on-site soils,
the applicant does not anticipate excavating to a depth greater than 15 feet below grade, which is at
or above historic high groundwater levels. Therefore, it is unlikely that groundwater would be
encountered over the course of construction. In the event that groundwater is encountered, minor
dewatering of groundwater seepage may be necessary. However, temporary dewatering activities
would not be substantial enough to induce subsidence due to groundwater withdrawal. Therefore,
the proposed project would have a less than significant impact related to the depletion of
groundwater supplies and groundwater recharge.
LESS THAN SIGNIFICANT IMPACT
c.(i) Would the project substantially alter the existing drainage pattern of the site or area,
including through the alteration of the course of a stream or river or through the addition of
impervious surfaces, in a manner which would result in substantial erosion or siltation on- or
off-site?
c.(ii) Would the project substantially increase the rate or amount of surface runoff in a manner
which would result in flooding on- or off-site?
c.(iii) Would the project substantially alter the existing drainage pattern of the site or area,
including through the alteration of the course of a stream or river or through the addition of
impervious surfaces, in a manner that would create or contribute runoff water which would
exceed the capacity of existing or planned stormwater drainage systems or provide
substantial additional sources of polluted runoff?
Project construction would be required to obtain coverage under a CGP to comply with Clean Water
Act NPDES requirements. Compliance with the permit would require the development and
implementation of a SWPPP and associated BMPs. The BMPs would include measures that would be
implemented to prevent discharge of eroded soils from the construction site, sedimentation of
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surface waters off-site, and any increase of surface runoff that could result in flooding off-site. Given
the relatively flat topography of the site, distance from surface waters, the minimal grading and
excavation required for construction, and implementation of the required SWPPP, construction of
the project would not result in substantial erosion or siltation on- or off-site.
The proposed project would not alter the course of any stream or river but would change existing
drainage patterns on the project site. Development of the proposed project would introduce more
impervious surfaces; however, as discussed above in question 7.a above, the proposed on-site BMPs
would filter stormwater, reduce off-site flows to acceptable levels via detention, and thus minimize
potential erosion. In addition, per the Downtown Specific Plan’s IS-MND Mitigation Monitoring
Program, the project’s grading drainage plan has been reviewed by the City’s Public Works
Department, with comments provided to the applicant, and is required to be approved by the City
Council.
Construction of the proposed project would be required to comply with the CGP, the SWPPP,
Ventura County’s MS4 Permit, the DTSP, and the MMC. The MMC outlines stormwater and drainage
requirements for new development including the required approvals prior to construction.
Compliance with these requirements would reduce potential adverse impacts associated with
drainage pattern alterations. Alterations to the existing drainage pattern would be less than
significant and would not result in substantial erosion, siltation, or flooding on- or off-site.
The project would be designed and engineered with drainage features appropriate to accommodate
needs of the proposed project. The project would not exceed the capacity of existing or planned
stormwater drainage systems. As discussed under the responses to questions 7.a, 7.c, .7.d, and 7.f,
the project would comply with all NPDES requirements, Ventura County’s MS4 Permit, and the City’s
runoff requirements. Development of the project would not create or contribute runoff water in
exceedance of the City’s existing stormwater drainage systems and would not provide a substantial
additional source of polluted runoff. According to the DTSP, the downtown area has undergone a
number of storm drainage infrastructure upgrades, and the storm drainage system servicing the
majority of the residential and commercial areas within the DTSP area is fully in place. In accordance
with DTSP stormwater requirements, the proposed project would discharge to an existing approved
storm drain system, and the project has been designed to comply with NPDES Standards for
discharge and pollutant runoff. The proposed project’s on-site stormwater and drainage
improvements would also require inspection and approval by the City prior to receiving building
occupancy permits. Through compliance with the Downtown Specific Plan and the MMC, impacts
would be less than significant.
LESS THAN SIGNIFICANT IMPACT
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c.(iv) Would the project substantially alter the existing drainage pattern of the site or area,
including through the alteration of the course of a stream or river or through the addition of
impervious surfaces, in a manner that would impede or redirect flood flows?
According to the Federal Emergency Management Agency (FEMA) Flood Insurance Rate Map (FIRM),
the project site is located in Zone X, which is characterized as an area of minimal flood hazard and
having a less than 0.2 percent annual chance to be inundated by flood waters as a result of a storm
event (Map # 06111C0817E) (FEMA 2018). In addition, according to the California Governor’s Office
of Emergency Services (Cal OES) MyHazards online database, the project site is not located in a 100-
year floodplain (Cal OES 2015). The project would not expose people or structures to a significant
loss, injury, or death involving flooding. No impact would occur.
NO IMPACT
d.Would the project in flood hazard, tsunami, or seiche zones, risk release of pollutants due to
project inundation?
Seiches are seismically induced waves that occur in large bodies of water, such as lakes and
reservoirs. The project site is not in proximity to a large body of water, and therefore, seiches are a
not a risk to the project site. No impacts would occur.
A tsunami is a tidal wave produced by off-shore seismic activity. The project site is not located in a
tsunami inundation area as shown on the Ventura County Multi-Jurisdictional Hazard Mitigation
Plan and would not be subject to inundation by tsunami (County of Ventura 2010). No impacts
would occur.
The project site is not located in an earthquake-induced landslide zone (County of Ventura 2010).
Landslides and mud flows are most likely to occur on or near a slope or hillside area, rather than in
generally level areas, such as the project site. Mud flows would not be a risk to the project. The
project would have no impact.
NO IMPACT
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11 Land Use and Planning
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Physically divide an established
community?□□□■
b.Cause a significant environmental impact
due to a conflict with any land use plan,
policy, or regulation adopted for the
purpose of avoiding or mitigating an
environmental effect?□□□■
a.Would the project physically divide an established community?
The project site is located within the Downtown Specific Plan (DTSP) area. The vision of the DTSP is
to revitalize downtown and implement design standards, guidelines, and a strategy for business
attraction and development of the City owned parcels in downtown. Specifically, the High Street
area is important because it retains the country charm that includes a pedestrian-oriented area
where people walk and shop.
The site is currently occupied by an abandoned granary and non-operational industrial buildings. No
residential dwellings are located on-site. The project would demolish the existing abandoned
buildings and construct 91 residential units, 15,018 sf of commercial space, and a village green
within the DTSP area. The project would create an interconnected and pedestrian-friendly
environment on the project site and immediately adjacent to areas parallel to High Street Therefore,
the project would not physically divide an established community.
NO IMPACT
b.Would the project cause a significant environmental impact due to a conflict with any land use
plan, policy, or regulation adopted for the purpose of avoiding or mitigating an environmental
effect?
The proposed mix of residential and commercial uses is consistent with the applicable Moorpark
General Plan Land Use Element’s Commercial Development, Economic Development and
Employment, Community Appearance, and Residential Development Goals and Policies referenced
in the DTSP. The project is also consistent with the City’s General Plan Circulation Element and
Housing Element. The proposed project would further the DTSP vision of revitalizing the downtown
area by bringing business attraction and pedestrian-oriented areas to downtown. The construction
of a mixed use development would help further along the goals of both the Moorpark General Plan
and the DTSP, which both call for residential development in close proximity to employment
opportunities, shopping areas, public parks, and transit lines. Construction of a mixed use
development downtown would allow people to walk or bike to activities and work within the DTSP
area.
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On May 15, 2019, the Moorpark City Council directed staff to prepare a Mixed-Use Overlay Zone
ordinance that would allow for the development of mixed commercial and residential uses within
downtown and provide for flexible parking standards within the downtown area proximate to the
train station. Adoption of a Mixed-Use Overlay Zone ordinance would be required prior to
consideration of project entitlements. The project would require a Zoning Map Amendment to apply
the Mixed-Use Overlay Zone to the project parcels. Application of the Mixed-Use Overlay Zone
would achieve the following:
▪Zoning Ordinance, Zoning Map Amendment, and Mixed-Use Overlay Zone. The current C-OT
zoning designation does not allow residential uses as part of mixed-use developments.
Therefore, the Mixed-Use Overlay Zone would allow residential uses as part of the proposed
mixed-use development within the underlying C-OT zoning district. This overlay zone would be
added on top of the existing commercial zone and would preserve the underlying intent and set
of allowable uses of the C-OT zone while adding allowable residential uses as part of a mixed-
use project. The Mixed-Use Overlay Zone would also establish flexible parking standards for
mixed-use development projects located near transit. The Mixed-Use Overlay Zone would be
added to the City’s Zoning Ordinance and would contain applicable mixed-use development
standards that would supersede the development standards of the underlying commercial zone
but would only be applicable to mixed-use projects. The proposed zoning district overlay would
only be applied to the project parcel (APN 512-0-090-115) via a Zoning Map Amendment;
therefore, no additional impacts from development beyond those already analyzed in the IS-
MND would occur. For the Mixed-Use Overlay Zone to be extended or applied to other parcels
in the future, an additional environmental analysis subject to the California Environmental
Quality Act (CEQA) would need to occur.
The proposed project has been reviewed by City Staff and is designed in conformance with the
development standards outlined in the amended DTSP, the Mixed-Use Overlay Zone, and the Zoning
Code. A Residential Planned Development Permit is also required and, pursuant to Zoning Code
Section 17.44.040, may be utilized to set project-specific development standards. Because the
project is consistent with the General Plan and the adoption of a Mixed-Use Overlay Zone would
allow for ground-floor residential uses and flexible parking requirements as envisioned in DTSP
Section 3.8, the project would not cause a significant environmental impact due to a conflict with
any land use plan, policy, or regulation adopted for the purpose of avoiding or mitigating an
environmental effect. No impact would occur.
NO IMPACT
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12 Mineral Resources
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Result in the loss of availability of a
known mineral resource that would be of
value to the region and the residents of
the state?□□□■
b.Result in the loss of availability of a
locally important mineral resource
recovery site delineated on a local
general plan, specific plan, or other land
use plan?□□□■
a.Would the project result in the loss of availability of a known mineral resource that would be of
value to the region and the residents of the state?
b.Would the project result in the loss of availability of a locally important mineral resource
recovery site delineated on a local general plan, specific plan, or other land use plan?
The project site is developed with a former granary and industrial buildings and is not currently
being used for extraction of mineral resources. According to Figure 2 of the Open Space,
Conservation, and Recreation Element of the City’s General Plan (1986), the entire city is located
within a mineral resource area of interest. However, the project site is within MRZ-1, an area where
adequate information indicates that no significant mineral deposits are present, according to Figure
1.4.1 of the County of Ventura’s General Plan Resources Appendix (2011). Moreover, the project
would not involve the use or mining of mineral resources. Therefore, no impact related to the loss
of availability of a known, important statewide, regional, or local mineral resource would occur.
NO IMPACT
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13 Noise
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project result in:
a.Generation of a substantial temporary or
permanent increase in ambient noise
levels in the vicinity of the project in
excess of standards established in the
local general plan or noise ordinance, or
applicable standards of other agencies?□■□□
b.Generation of excessive groundborne
vibration or groundborne noise levels?□□■□
c.For a project located within the vicinity of
a private airstrip or an airport land use
plan or, where such a plan has not been
adopted, within two miles of a public
airport or public use airport, would the
project expose people residing or
working in the project area to excessive
noise levels?□□□■
Noise Background
Noise level (or volume) is generally measured in decibels (dB) using the A-weighted sound pressure
level (dBA). The A-weighting scale is an adjustment to the actual sound power levels to be
consistent with that of human hearing response, which is most sensitive to frequencies around
4,000 Hertz (about the highest note on a piano) and less sensitive to low frequencies (below 100
Hertz). Because of the logarithmic scale of the decibel unit, sound levels cannot be added or
subtracted arithmetically. If a sound’s noise energy is doubled, the sound level increases by 3 dBA,
regardless of the initial sound level. Noise level increases of less than 3 dBA typically are not
noticeable.
Noise levels from point sources, such as those from individual pieces of machinery or railroad
crossing signals, typically attenuate (or drop off) at a rate of 6 dBA per doubling of distance from the
noise source. Noise levels from lightly traveled roads typically attenuate at a rate of about 4.5 dBA
per doubling of distance. Noise levels from heavily traveled roads and railroads typically attenuate
at about 3 dBA per doubling of distance (Federal Transit Administration [FTA] 2018). Noise levels
may also be reduced by intervening structures; generally, a single row of buildings between the
receiver and the noise source reduces noise levels by about 5 dBA, while a solid wall or berm
reduces noise levels by 5 to 10 dBA (FTA 2018). The manner in which homes in California are
constructed generally provides a reduction of exterior-to-interior noise levels of approximately 20 to
25 dBA with closed windows (FTA 2018).
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In addition to the instantaneous measurement of sound levels, the duration of sound is important
because sounds that occur over a long period of time are more likely to be an annoyance or cause
direct physical damage or environmental stress. One of the most frequently used noise metrics that
considers both duration and sound power level is the equivalent noise level (Leq). The Leq is defined
as the single steady A-weighted level that is equivalent to the same amount of energy as that
contained in the actual fluctuating levels over a period of time (essentially, the average noise level).
Typically, Leq is summed over a one-hour period. Lmax is the highest RMS (root mean squared) sound
pressure level within the measurement period, and Lmin is the lowest RMS sound pressure level
within the measurement period.
The time period in which noise occurs is also important since nighttime noise tends to disturb
people more than daytime noise. Community noise is usually measured using Day-Night Average
Level (Ldn), which is the 24-hour average noise level with a 10-dBA penalty for noise occurring during
nighttime hours (10:00 p.m. to 7:00 a.m.), or Community Noise Equivalent Level (CNEL), which is the
24-hour average noise level with a 5 dBA penalty for noise occurring from 7:00 p.m. to 10:00 p.m.
and a 10 dBA penalty for noise occurring from 10:00 p.m. to 7:00 a.m. Noise levels described by Ldn
and CNEL typically do not differ by more than 1 dBA. In practice, CNEL and Ldn are often used
interchangeably.
The relationship between peak hourly Leq values and associated Ldn/CNEL values depends on the
distribution of traffic over the entire day. There is no precise way to convert a peak hour Leq to Ldn or
CNEL. However, in urban areas near heavy traffic, the peak hour Leq is typically 2 to 4 dBA lower than
the daily Ldn/CNEL. In less heavily developed areas, such as suburban areas, the peak hour Leq is
often roughly equal to the daily Ldn/CNEL. For rural areas with little nighttime traffic, the peak hour
Leq will often be 3 to 4 dBA greater than the daily Ldn/CNEL value (California State Water Resources
Control Board [SWRCB] 1999). The project site is located in a suburban area; therefore, the Ldn/CNEL
in the area would be roughly equal to the peak hour Leq.
Regulatory Setting
City of Moorpark General Plan Noise Element
The Noise Element of the Moorpark General Plan Identifies existing sources of noise in Moorpark, as
well as noise-related goals, policies, and implementation. The goals and policies in the Noise
Element aim to maintain acceptable environmental noise levels to protect Moorpark residents from
excessive noise.
The Noise Element establishes noise standards for single-family and multiple-family residential land
uses as 65 CNEL for the exterior environment, 55 CNEL for the interior environment with windows
open, and 45 CNEL for the interior environment with windows closed (City of Moorpark 1998).
Municipal Code
CONSTRUCTION NOISE
Section 17.53.070.F prohibits the operation of any tools or equipment used in construction, drilling,
repair, alteration, or demolition work so as to violate the noise standards set forth in Table 13
between weekday (Saturdays and legal holidays observed by the city included) hours of 7:00 p.m.
and 7:00 a.m., or at any time on Sundays.
Table 13 shows noise standards at residential and business properties for the nonscheduled,
intermittent, short-term operation (less than ten days) of mobile construction equipment and for
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the repetitively scheduled and relatively long-term operation (periods of ten days or more) of
stationary construction equipment.
Table 13 Construction Equipment Noise Standards
dBA Leq
Single-Family Residential Multi-Family Residential Business Properties
Mobile1 Stationary Mobile1 Stationary Mobile Stationary
Daily, except Sundays and
legal holidays, 7:00 a.m. to
7:00 p.m.
75 75 80 80 75 65
Daily, 7:00 p.m. to 7:00
a.m.
60 n/a 65 n/a 75 65
n/a = not applicable
1 Mobile construction equipment noise is also permitted on Sundays and legal holidays up to 60 dBA in single-family residential areas
and up to 65 dBA in multifamily residential areas.
Source: Moorpark Municipal Code Section 17.53.070, Tables 1, 2, and 2A
Section 17.53.100.E of the Moorpark Municipal Code (MMC) exempts repair, remodeling or grading
of real property from the operational exterior noise limits detailed in MMC Section 17.53.080 and
the interior noise limits detailed in MMC Section 17.53.090 provided that construction occurs during
the hours of 7:00 a.m. to 7:00 p.m. on Monday through Saturday. No construction is permitted on
Sundays and national holidays.
OPERATIONAL NOISE
MMC Section 17.53.070.E of the MMC prohibits the loading, unloading, opening, closing or other
handling of boxes, crates, containers, building materials, garbage cans, or similar objects between
the hours of 10:00 p.m. and 7:00 a.m. any day of the week in such a manner as to cause a noise
disturbance across a residential property line or at any time to violate the provisions of Section
17.53.050.
Section 17.53.070.N of the MMC also includes noise standards for residential HVAC equipment.
HVAC equipment operating within a residential area may not exceed the noise levels shown in
Table 14.
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Table 14 Residential HVAC Equipment Noise Standards
Measurement Location
Units Installed Before
1-1-80 (dBA)
Units Installed on or After
1-1-80 (dBA)
Any point on neighboring property line, 5 feet above grade
level, no closer than 3 feet from any wall
60 55
Center of neighboring patio, 5 feet above grade level, no
closer than 3 feet from any wall
55 50
Outside the neighboring living area window nearest the
equipment location, not more than 3 feet from the window
opening, but at least 3 feet from any other surface
55 50
Source: Moorpark Municipal Code Section 17.50.070
MMC Section 17.53.080 sets exterior noise limits for existing receiving land uses, which are
summarized in Table 15. As shown therein, the allowable exterior noise levels for single-family and
multifamily residential uses are 55 dBA from 10:00 p.m. to 7:00 a.m. and 60 dBA from 7:00 a.m. to
10:00 p.m. The allowable exterior noise levels for general commercial and planned development
land uses are 60 dBA from 10:00 p.m. to 7:00 a.m. and 65 dBA from 7:00 a.m. to 10:00 p.m. No
person may cause the noise level on another property to exceed these noise limits by:
▪Any level for a cumulative period of more than 30 minutes in any hour
▪5 dBA for a cumulative period of more than 15 minutes in any hour
▪10 dBA for a cumulative period of more than 5 minutes in any hour
▪15 dBA for a cumulative period of more than 1 minute in any hour
▪20 dBA for any period of time
Table 15 Exterior Noise Limits
Type of Land Use Time Interval
Allowable Exterior Noise
Level (dBA)
Single-family and multi-family residential/rural and
agricultural zones
10:00 p.m. – 7:00 a.m. 55
7:00 a.m. – 10:00 p.m. 60
Commercial office/neighborhood 10:00 p.m. – 7:00 a.m. 55
7:00 a.m. – 10:00 p.m. 60
General commercial/planned development 10:00 p.m. – 7:00 a.m. 60
7:00 a.m. – 10:00 p.m. 65
Industrial park Anytime 65
Limited industrial Anytime 70
Public space All day 70
Source: Moorpark Municipal Code Section 17.50.080
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MMC Section 17.53.090 sets interior noise limits for receiving single-family and multifamily
residential land uses, which are shown in Table 16. No person may cause the noise level on another
property to exceed:
▪The noise standard for a cumulative period of more than 5 minutes in any hour
▪The noise standard plus 5 dbA for a cumulative period of more than 1 minute in any hour
▪The noise standard plus 10 dbA or the maximum measured ambient noise level for any period of
time
Table 16 Interior Noise Limits
Type of Land Use Time Interval
Allowable Interior
Noise Level (dBA)
Single-family and multi-family residential 7:00 a.m. – 10:00 p.m. 45/55 (windows open)
Source: Moorpark Municipal Code Section 17.50.090
ROADWAY NOISE
Because the City of Moorpark does not have noise standards for operational mobile sources, this
analysis relies on the recommendations of the FTA for the allowable increase in roadway noise
exposure due to a project as set forth in the FTA’s Transit Noise and Vibration Impact Assessment,
which are summarized in Table 17 (2018).
Table 17 Significance of Changes in Roadway Noise Exposure
Existing Noise Exposure
(dBA Ldn or Leq)
Noise Exposure Increase Significance Threshold
(dBA Ldn or Leq)
45-50 7
50-55 5
55-60 3
60-65 2
65-74 1
75+ 0
Source: FTA 2018
AMBIENT NOISE LEVELS
The primary off-site noise sources in the project site vicinity are motor vehicles (e.g., automobiles,
buses, and trucks) along High Street and Moorpark Avenue. Motor vehicle noise is of concern
because it is characterized by a high number of individual events, which often create sustained noise
levels. Ambient noise levels are generally highest during the daytime and rush hour unless
congestion slows traffic speeds substantially. Other intermittent sources of noise in the project
vicinity include railway noise, and general conversations from passersby activities associated with
nearby residential and commercial development.
To determine ambient noise levels at the project site, three 15-minute noise measurements (Leq[15]
dBA) were taken between 7:00 a.m. and 9:00 a.m. (morning peak hour) on Monday, June 12, 2018.
Table 18 summarizes the results of the short-term noise measurements. As shown in Table 18,
short-term measured noise levels ranged from 55.0 to 69.0 dBA Leq. Noise Measurement ST-1 was
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taken approximately 30 feet from the centerline of High Street, and 150 feet from the railroad
tracks to the south and gives an estimate of the combined noise of roadway traffic and a passing-by
train. Noise Measurement ST-2 was taken in the center of the project site and gives an estimate of
roadway noise only. Noise Measurement ST-3 was taken adjacent to nearby residences and
provides an estimate of existing ambient sound levels at the nearest sensitive receivers.
Table 18 Short-Term Sound Level Monitoring Results
Measurement
Number Measurement Location Sample Time
Approximate
Distance to Centerline
of Roadway (feet)
Leq[15]
(dBA)1
ST-1 High Street 7:57 a.m. – 8:12 a.m. 30 2 69.0
ST-2 Center of Project Site 7:41 a.m. – 7:56 a.m. 60 3 65.4
ST-3 Walnut Street adjacent to
nearby residence (sensitive
receiver)
8:16 a.m. – 8:31 a.m. 30 4 55.0
See Appendix I for noise monitoring data.
1 The equivalent noise level (Leq) is defined as the single steady A-weighted level that is equivalent to the same amount of energy as
that contained in the actual fluctuating levels over a period of time (essentially, the average noise level). For this measurement, the Leq
was over a 15-minute period (Leq[15]).
2Distance from centerline of High Street.
3Distance from centerline of High Street.
4Distance from centerline of Walnut Street.
Note: During Noise Measurement 1, a train passed by approximately 150 feet south of Noise Measurement Location 1. Additionally,
train crossing bells were sounding.
Source: Rincon Consultants, field measurements on June 12, 2018 using ANSI Type II Integrating sound level meter.
In addition, a 24-hour noise measurement was taken from 8:43 a.m. on Wednesday, October 2,
2019 to 8:43 a.m. on Thursday, October 3, 2019. The 24-hour noise level was measured as 69 CNEL.
Table 19 summarizes the hourly results of the 24-hour noise measurement. See Figure 4 for the
noise measurement location.
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Figure 4 Sound Level Measurement Locations
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Table 19 24-Hour Sound Level Monitoring Results
Time Hourly Leq (dBA)
8:00 – 9:00 a.m. 55.3
9:00 – 10:00 a.m. 51.7
10:00 – 11:00 a.m. 50.1
11:00 a.m. – 12:00 p.m. 52.7
12:00 – 1:00 p.m. 52.3
1:00 – 2:00 p.m. 54.0
2:00 – 3:00 p.m. 63.1
3:00 – 4:00 p.m. 52.4
4:00 – 5:00 p.m. 68.0
5:00 – 6:00 p.m. 51.9
6:00 – 7:00 p.m. 61.4
7:00 – 8:00 p.m. 77.5
8:00 – 9:00 p.m. 59.5
9:00 – 10:00 p.m. 48.2
10:00 – 11:00 p.m. 46.8
11:00 p.m. – 12:00 a.m. 43.8
12:00 – 1:00 a.m. 44.3
1:00 – 2:00 a.m. 43.0
2:00 – 3:00 a.m. 40.8
3:00 – 4:00 a.m. 44.7
4:00 – 5:00 a.m. 48.8
5:00 – 6:00 a.m. 49.7
6:00 – 7:00 a.m. 55.2
7:00 – 8:00 a.m. 59.0
Leq = average noise level equivalent; dBA = A-weighted decibel
See Appendix I for noise monitoring data.
Source: Rincon Consultants, field measurement from October 2, 2019 to October 3, 2019 using ANSI Type II Integrating sound level
meter.
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RAILWAY NOISE
The existing industrial and commercial buildings on-site partially block the line of sight between the
railway and adjacent commercial development across High Street. As discussed under Noise
Background, a single row of intervening structures between a noise source and a receiver provides a
5 dBA reduction in noise levels (FTA 2018). Therefore, existing buildings on-site provide a 5 dBA
reduction in intermittent noise from railway operations at nearby commercial properties.
Sensitive Receivers
Noise exposure goals for various types of land uses reflect the varying noise sensitivities associated
with those uses. Noise sensitive land uses typically include residences, hospitals, schools guest
lodging, libraries, and parks. The closest residences are located approximately 105 feet north of the
project site across High Street, which are shielded by various commercial uses along High Street,
and approximately 175 feet south of the project site across the existing railway. Additionally, the
proposed project would include 91 residential units, which would be new sensitive receivers.
a.Would the project result generation of a substantial temporary or permanent increase in
ambient noise levels in the vicinity of the project in excess of standards established in the local
general plan or noise ordinance, or applicable standards of other agencies?
Construction Noise Impacts
Construction of the proposed project, including the demolition of existing commercial and industrial
buildings, would generate temporary noise that would exceed existing ambient noise levels in the
project site vicinity, but would cease upon project completion. Noise impacts associated with
construction activity are a function of the noise generated by construction equipment, the location
and sensitivity of nearby land uses, and the timing and duration of the noise-generating activities.
Noise levels from individual pieces of construction equipment and the combined operation of
multiple pieces of equipment are based on the FHWA Highway Construction Noise Handbook
(2006). Peak noise levels associated with the use of individual pieces of heavy equipment can range
from about 70 to 89 dBA at 50 feet from the source, depending upon the types of equipment in
operation at any given time and phase of construction (FHWA 2006).
Table 20 shows estimated project construction noise by phase for multiple pieces of construction
equipment operating simultaneously and the typical overall noise level that would be expected
during each phase. Table 20 also shows the maximum hourly construction noise levels (Leq) for the
nearest commercial and residential properties located approximately 75 feet and 105 feet from the
project site, respectively.
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Table 20 Construction Noise Levels by Phase
Construction Phase Equipment
Estimated Noise at
75 feet at Commercial
Properties
(dBA Leq)
Estimated Noise at
105 feet at Residences
(dBA Leq)
Demolition Concrete Saw, Dozer,
Backhoe/Tractors (3)
81.4 78.5
Site Preparation Grader, Scraper, Backhoe/Tractor 80.3 77.4
Grading Grader, Dozer, Backhoe/Tractors (2) 80.1 77.2
Building Construction Crane, Forklift (2), Generator,
Backhoe/Tractor, Welders (3)
78.0 75.0
Paving Cement and Mortar Mixer, Paver,
Paving Equipment, Rollers (2),
Backhoe/Tractor
81.2 78.3
Architectural Coating Air Compressor 70.2 67.2
Note: See Appendix C for CalEEMod construction list and Appendix I for RCNM data sheets.
As shown in Table 20, operation of equipment during various phases of construction could generate
maximum noise levels of approximately 70 to 81 dBA Leq at the nearest commercial properties and
average hourly noise levels of approximately 67 to 79 dBA Leq at the nearest residences. These
construction noise levels would exceed the existing ambient noise level of 69 dBA (which includes
railway noise) and therefore would be the dominant source of ambient noise during construction.
Average hourly construction noise levels would exceed the MMC daytime residential standard for
mobile and stationary construction equipment of 75 dBA Leq. Furthermore, maximum construction
noise levels would exceed the MMC daytime commercial standard for mobile equipment of 75 dBA
Leq and the daytime commercial standard for stationary equipment of 65 dBA Leq. It should be noted,
however, that construction-related noise disturbances would be temporary in nature, and peak
noise levels would likely occur during the initial demolition and grading phases.
The following mitigation measure would be required to reduce the effects of temporary
construction noise on nearby receivers to a less than significant level.
Mitigation Measure
N-1 Construction Noise
▪Operate all diesel equipment with closed engine doors and equip all diesel equipment with
mufflers that reduce construction equipment noise by at least 5 dBA.
▪For stationary equipment, designate equipment areas with appropriate acoustic shielding on
building and grading plans and locate these areas to maximize the distance between the activity
and the existing commercial uses. Equipment and shielding will be installed prior to construction
and remain in designated location throughout construction activities. Appropriate acoustic
shielding shall completely obscure the noise source from sensitive receptors along the north
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side of High Street. The shielding shall be non-reflective and shall composed of sound absorbing
materials like vinyl, polyester, wool, woven fiberglass, or wood.
▪Electrical power shall be used to run to run air compressors and similar power tools and to
power any temporary structures, such as construction trailers.
▪Require all contractors, as a condition of contract, to maintain and tune-up all construction
equipment to minimize noise emissions and provide monthly reports documenting equipment
maintenance activities.
▪Erect temporary sound barriers along the northern boundary of the project site between active
on-site construction work using heavy equipment and adjacent receivers (commercial
properties). Such barriers will be of sufficient height to break the line-of-sight between noise-
generating equipment and the noise-sensitive receiver, and will be continuous with no gaps or
holes between panels or the ground. Temporary sound barriers may include noise curtains,
sound blankets, or solid temporary barriers.
▪The applicant shall retain a City-approved noise consultant to conduct a noise survey at the
beginning of each phase of construction (i.e., demolition, site preparation, grading, building
construction, paving, and architectural coating) and when the equipment mix changes
significantly (e.g., heavy-duty pieces of equipment begin to be utilized during a certain phase
that differ from those utilized during the start of that phase). Noise monitoring shall occur over
the course of the first full day of construction activities and shall commence at the start of daily
construction activities (including equipment warm-up) and end when all heavy-duty equipment
has been shut down for the day. If the noise survey measures construction noise levels that are
within 3 dBA of the limits specified in Moorpark Municipal Code Section 17.53.070, Tables 1, 2,
and 2A, the noise consultant shall conduct continuous monitoring during construction activities
over the course of three consecutive days to verify noise levels. If the noise limits specified in
Moorpark Municipal Code Section 17.53.070, Tables 1, 2, and 2A are exceeded, significant
noise-generating construction activities shall halt, and the applicant shall develop a noise
control plan that includes additional noise reduction measures, including but not limited to
installing sound barriers of greater height and scheduling construction activities such that fewer
pieces of construction equipment are in operation at any given time. Upon completion of the
noise control plan, construction activities shall recommence with implementation of the
additional noise control measures, at which time the noise consultant shall perform an
additional noise survey to evaluate the effectiveness of the additional measures. The noise
consultant shall prepare a brief memorandum summarizing the results of the noise survey
conducted for each phase of construction, for any times when the equipment mix changes
significantly, and for times at which implementation of a noise control plan is required. The
memorandum shall be submitted to the City within five working days of the noise survey.
Installation of temporary sound attenuating barriers between construction activities and adjacent
sensitive receivers typically provides 10 to 20 dBA attenuation (Federal Highway Administration
2017). Table 21 summarizes mitigated construction noise levels by phase, conservatively assuming a
10 dBA reduction from the barriers. As shown therein, maximum construction noise levels would be
reduced to approximately 60 to 72 dBA Leq at the nearest commercial properties, which would be
below the City’s standard of 75 dBA Leq daytime commercial standard for mobile equipment and the
65 dBA Leq daytime commercial standard for stationary equipment. Furthermore, maximum
construction noise levels would be reduced to approximately 57 to 71 dBA Leq, which would not
exceed the MMC 75 dBA Leq daytime residential standard for mobile and stationary equipment.
Residences and commercial properties would not be exposed to excessive noise during nighttime
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hours because the MMC restricts construction to the hours of 7:00 a.m. to 7:00 p.m. on Mondays
through Saturdays. Furthermore, residences located to the north of the project site would be
shielded by existing commercial properties located along High Street and would be separated by
High Street itself, which would further attenuate construction noise. Therefore, with the
incorporation of mitigation, the project would be consistent with MMC construction noise
standards.
Table 21 Mitigated Construction Noise Levels by Phase
Construction Phase Equipment
Estimated Noise at
75 feet at Commercial
Properties
(dBA Leq)
Estimated Noise at
105 feet at Residences
(dBA Leq)
Demolition Concrete Saw, Dozer,
Backhoe/Tractors (3)
69.9 67.0
Site Preparation Grader, Scraper, Backhoe/Tractor 65.3 62.4
Grading Grader, Dozer, Backhoe/Tractors (2) 65.1 62.2
Building Construction Crane, Forklift (2), Generator,
Backhoe/Tractor, Welders (3)
67.0 64.1
Paving Cement and Mortar Mixer, Paver,
Paving Equipment, Rollers (2),
Backhoe/Tractor
72.4 70.6
Architectural Coating Air Compressor 60.2 57.2
Note: See Appendix C for CalEEMod construction list and Appendix I for RCNM data sheets.
Railway Noise Impacts
Existing business owners along High Street have expressed concerns about the potential for an
increase in train-related noise during project construction, specifically between the period of
removal of the existing commercial and industrial buildings and construction of the proposed
project. The removal of existing buildings would result in up to a 5 dBA increase in the noise from
railway operations at adjacent commercial properties located north of the project site across High
Street. However, on-site construction noise would still be the dominant source of noise during
construction and therefore no perceptible increase in train noise is anticipated upon completion of
building demolition. Furthermore, the increase in railway noise would be temporary because
construction of the proposed development would result in a row of structures, most of which would
be approximately 35 feet height, that would exceed the height of the majority of existing structures
(with the exception of the existing granary building tower) and would cover more of the project site,
thereby breaking the line of sight between the railway and the adjacent commercial properties and
providing more effective sound attenuation at the commercial properties located north of the
project site than experienced under existing conditions (FTA 2018). Furthermore, the proposed
project buildings would be constructed of materials such as metal, wood, and brick, and the interior
walls would be lined with sound-attenuating insulation. The resulting increase in wall density would
provide greater sound attenuation when compared to existing conditions (Federal Highway
Administration 1974). Therefore, railway noise impacts during project construction would be less
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than significant. Nevertheless, the project schedule included in the Development Agreement would
require the construction of new buildings to occur immediately after completion of all on-site
demolition activities.
Operational Noise Impacts
The proposed project would introduce new residences and commercial uses to the project site and
would result in new on-site sources of noise including HVAC equipment, outdoor recreation uses,
delivery and trash-hauling trucks, and parking lot activities as well as off-site roadway noise impacts.
Existing sensitive receivers near the project site and proposed new uses on-site may be subject to
noise associated with operation of the proposed project.
HVAC Equipment
Mechanical equipment on the project site would include HVAC equipment. This equipment typically
is placed on the roof or within mechanical equipment rooms and is not usually a significant source
of noise. Noise from HVAC equipment ranges from 60 to 70 dBA Leq at 15 feet from the source
(Illingworth & Rodkin 2009). For a conservative estimate, this analysis assumes that HVAC
equipment generates a noise level of 70 dBA Leq at 15 feet from the source. Based on the project
plans, HVAC equipment could be located 90 feet from commercial properties and 190 feet from the
nearest residence. Given that the project would include six separate buildings, this analysis
conservatively assumes that each building would house its own HVAC equipment. Based on the
typical attenuation rate of 6 dBA per doubling of distance, noise from HVAC equipment at the
nearest commercial property would be 63.8 dBA Leq, and noise at the nearest residence would be
60.9 dBA Leq. HVAC equipment noise levels would not exceed the City’s exterior daytime standard of
65 dBA Leq for general commercial uses but would exceed the exterior daytime standard of 60 dBA
Leq for residential uses. Furthermore, noise levels could exceed the City’s exterior nighttime
standards of 60 dBA for general commercial uses and 55 dBA Leq for residential uses. Therefore,
mitigation measure N-2 would be required to reduce the HVAC equipment noise levels below the
City’s exterior nighttime standards and reduce impacts to a less than significant level.
Outdoor Recreational Uses
Outdoor recreational uses associated with the project would include the plaza and patio located in
the commercial component of the project as well as open space located on the western portion of
the project site. These outdoor recreational uses would be utilized by on-site residents and by
employees and/or customers of the proposed commercial uses. Residential units would also include
decks on the second and third floor. Noise levels associated with residential decks would also be
negligible because the proposed building would be two to three stories tall and commercial uses
adjacent to the project site are only one or two stories in height.
In social situations, people often talk at distances of approximately 3 to 13 feet. A typical voice level
at this distance is approximately 60 dBA (The Engineering Toolbox n.d.). As shown in Table 18,
ambient noise levels at the project site range from 65 to 69 dBA Leq. On-site human voices would not
typically generate an audible noise level increase in excess of the existing noise environment. In
addition, such noise would be temporary and intermittent and would be similar to what is
generated at existing nearby commercial development.
Residents would also be subject to the provisions of Section 17.53.050 of the MMC, which prohibits
any person from willfully or negligently making or continuing any loud, unnecessary, or unusual
noise which disturbs the peace and quiet of any neighborhood or which causes any discomfort or
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annoyance to any reasonable person of normal sensitivity residing in the area. In addition, Section
17.53.070 of the MMC prohibits the use of any radio, television set, stereo or digital equipment,
drum, musical instrument, or similar device that would disturb nearby residences or businesses.
Noise levels would be consistent with existing ambient noise levels, and proposed outdoor
recreational uses would not generate an audible increase in the ambient noise environment.
Therefore, impacts would be less than significant.
Delivery and Trash Hauling Trucks
The proposed mixed use project would require periodic delivery and trash hauling services, which
generate noise from idling, loading and unloading activities, and back-up alarms. The project site is
located in an urbanized area and is surrounded by existing commercial uses and a railroad.
Therefore, delivery and trash trucks are already a common occurrence in the project vicinity.
According to the project site plans, loading areas would be developed adjacent to the commercial
components on its southeast corner (see Figure 3). Delivery and trash-hauling trucks would use
these areas for loading and unloading activities throughout which temporary noise would be
generated. The loading area would be located 140 feet from commercial properties and 200 feet
from the nearest residence. Delivery trucks are assumed to generate a noise level of 68 dBA Lmax at
30 feet from the source (Charles M. Salter 2017). Based on an attenuation rate of 6 dBA per
doubling of distance, the maximum anticipated noise levels from delivery and haul trucks within the
loading dock area would be 54.6 dBA Lmax at commercial properties and 51.5 dBA Lmax at the nearest
residences. Noise levels from delivery and trash trucks would not exceed the City’s exterior daytime
standards of 65 dBA Leq for general commercial uses and 60 dBA Leq for residential uses. Noise levels
would also not exceed the City’s exterior nighttime standards of 60 dBA for general commercial uses
and 55 dBA Leq for residential uses. In addition, the existing nearby commercial properties would be
shielded by the proposed buildings on-site, which would further attenuate delivery and haul truck
equipment noise. Impacts would be less than significant.
Parking Noise
Nearby residences would be exposed to noise from parking lot activities on the project site. The
major noise sources associated with parking lot activities include moving cars, engine start-ups, door
slams, radios, car alarms, and tire squeals (human conversations are generally dominated by other
sources of vehicle noise in a parking lot). Parking lot activity is assumed to generate instantaneous
noise levels up to 66 dBA Lmax at 100 feet from the source (Gordon Bricken & Associates 1996). The
closest on-site parking stall is located approximately 130 feet from the nearest commercial property
and approximately 220 feet from the nearest residential property line. Based on an attenuation rate
of 6 dBA per doubling of distance, parking lot noise would be 63.7 dBA Lmax at commercial properties
and 59.2 dBA Lmax at the nearest residences. Noise levels from parking activities would not exceed
the City’s exterior daytime standards of 65 dBA for general commercial uses and 60 dBA for
residential uses. Maximum parking lot noise levels would exceed the City’s exterior nighttime
standards of 60 dBA for general commercial uses and 55 dBA for residential uses. However, peak
noise levels from parking lot noise would be intermittent, and when averaged over a one-hour
period, peak noise levels would not exceed ambient noise levels on the site, which are dominated
by traffic and railway noise (see Table 18). Therefore, parking lot noise would not exceed 5 dBA over
the exterior nighttime standards for more than a cumulative 15 minutes in one hour. In addition,
nearby commercial properties would be shielded by the proposed buildings on-site, which would
further attenuate parking lot noise. Therefore, impacts would be less than significant.
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Off-site Transportation Noise
The project would generate vehicle trips, thereby increasing traffic on area roadways as a result of
the project. According to the Traffic and Parking Study prepared for the project (Appendix D), the
project would generate approximately 1,703 average daily trips (ADT).
Roadway noise was modeled using the U.S. Department of Housing and Urban Development (HUD)
Exchange DNL Calculator. HUD Day Night average level (DNL) utilizes the DNL method that adds 10
dBA to actual nighttime (10:00 p.m. to 7:00 a.m.) noise levels to account for greater sensitivity to
noise during that time period. DNL was used to analyze project impacts from roadway noise on
sensitive receivers near East High Street, Moorpark Avenue, and Spring Road. Roadway noise
impacts on sensitive receivers near East Los Angeles Avenue were not evaluated because project-
related traffic would not add a significant number of trips to the segment of East Los Angeles
Avenue between Moorpark Avenue and Spring Road (ATE 2019). The Traffic and Parking Study
(Appendix D) provided peak hour trip rates for area roadways, and ADT were estimated by
multiplying total PM peak hour traffic volumes by an industry-standard factor of 10. It was assumed
that cars make up 97 percent of ADT, medium trucks make up 2 percent, and heavy trucks account
for 1 percent. Additional model assumptions include a standard estimate of 15 percent of daily trips
occurring at night, a standard estimate of a 2 percent road gradient, and vehicle speeds consistent
with posted speed limits on Moorpark Avenue, Spring Road, and East High Street.
Sensitive receivers are also exposed to railway noise from the existing railroad line that serves
Metrolink, Amtrak, and Union Pacific routes. Therefore, railway noise was added to the
transportation noise models for an accurate representation of existing noise conditions. The HUD
DNL Calculator incorporates railway noise through distance to the train tracks, average train speed,
engines per train, railway cars per train, number of trains per day, the percentage of trains at night,
the presence of whistles and horns, and if the tracks have bolted or welded tracks. This analysis
includes the following conservative assumptions:
▪All trains would be diesel-powered with a default average train speed of 30 miles per hour
▪Whistles and horns are used, and tracks are bolted.
▪Passenger trains
Each passenger train has one engine and five railway cars, which was assumed to be typical
of Metrolink and Amtrak trains.
At the Moorpark station, Metrolink trains make 16 daily stops on Mondays through Fridays
with no service offered on Saturdays and Sundays, and Amtrak trains make 11 daily stops on
Mondays through Sundays (Metrolink 2019, Amtrak 2018). Therefore, this analysis
conservatively assumes average passenger train operations of 27 trains per day4.
Of these 27 daily trains, four pass through the Moorpark station during nighttime hours
(10:00 p.m. to 7:00 a.m.); therefore, this analysis uses a night fraction of 15 percent (4
divided by 27).
▪Freight trains
Each freight train has two engines and 50 railway cars.
4 Based on a comment letter from the Southern Regional Rail Authority (SCRRA), approximately 14 Metrolink and 12 Amtrak train
operations occur per day. The analysis in the IS-MND remains unchanged as the analysis conservatively analyzes a total of 27 train trips
per day compared to the 26 identified by SCRRA.
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In 2013, Union Pacific estimated an average daily volume of 1,100 cars at the West Colton
railyard, which is located approximately 88 miles southeast of the project site. Based on the
traffic density map, approximately 20 percent of these cars travel through the Moorpark
Station (Union Pacific Corporation 2013). Therefore, average freight train operations for this
segment of railway are approximately 4 trains per day (220 cars divided by 50 cars per
train).
This analysis assumes a model default night fraction of 15 percent for freight rail.
Table 22 summarizes the average noise levels at the closest residences under existing and existing
plus project conditions, including traffic along High Street, Moorpark Avenue, Spring Road, and East
Long Angeles Avenue. For roadways where the existing noise level is between 65 and 74 CNEL, the
FTA recommends a significance threshold of 1 CNEL (FTA 2018). The increase of ADT under existing
conditions would result in increases in roadway noise of less than 0.1 dBA at all roadway segments
analyzed, which would not exceed the significance threshold of 1 dBA. Therefore, the project’s
contribution to existing traffic noise levels in the project site vicinity would be less than significant.
Table 22 Existing Plus Project Roadway and Railway Noise Levels
Roadway Segment
Noise Level (CNEL)1
Significance
Threshold
(CNEL)
Significant
Impact? Existing
Existing
Plus
Project
Change in
Noise
Level
High Street (Moorpark Avenue to
Spring Road)
71.22 71.2 < 0.1 1 No
Moorpark Avenue (Poindexter Avenue
to East Los Angeles Avenue)
75.5 75.5 < 0.1 1 No
Spring Road (High Street to East
Los Angeles Avenue)
75.8 75.8 < 0.1 1 No
See Appendix I for HUD DNL Calculator outputs.
1 The HUD DNL Calculator calculates noise in Ldn; however, Ldn and CNEL are interchangeable.
2 The modeled existing noise level along High Street is within 3 dBA of the measured existing noise level of 69 CNEL; therefore,
modeled noise levels adequately represent real-life conditions (see Ambient Noise Levels).
Table 23 summarizes the average noise levels at the closest residences under cumulative and
cumulative project conditions. In contrast to the results above that consider existing conditions,
these results are based on changes in traffic volume anticipated in the near future, taking into
account cumulative growth. The increase of ADT under cumulative plus project conditions would
result in cumulative increases in roadway noise of 0.4 dBA or less at all roadway segments analyzed.
Of this, the project’s contribution would be approximately 0.1 dBA, which would not exceed the
significance threshold of 1 dBA. Therefore, the project’s contribution to cumulative traffic noise
levels in the project site vicinity would be less than significant.
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Table 23 Cumulative Plus Project Roadway and Railway Noise Levels
Roadway Segment
Noise Level (CNEL)1
Significance
Threshold
(CNEL)
Significant
Impact? Existing Cumulative
Cumulative
Plus
Project
Cumulative
Change in
Noise Level
Project
Contribution
High Street (Moorpark
Avenue to Spring Road)
71.2 71.3 71.4 0.2 0.1 1 No
Moorpark Avenue
(Poindexter Avenue to
East Los Angeles Avenue)
75.5 75.8 75.9 0.4 0.1 1 No
Spring Road (High Street to
East Los Angeles Avenue)
75.8 76.1 76.2 0.4 0.1 1 No
See Appendix I for HUD DNL Calculator outputs.
1 The HUD DNL Calculator calculates noise in Ldn; however, Ldn and CNEL are interchangeable.
Impacts to Proposed Residential Units (Noise/Land Use Compatibility)
The ruling for California Building Industry Association v. Bay Area Air Quality Management District
(CBIA v. BAAQMD) determined that under CEQA, except for a few specified and limited instances,
noise impacts on residents of a proposed project are not required to be analyzed. Therefore, the
following discussion is provided for informational purposes only.
The City of Moorpark General Plan Noise Element establishes “clearly compatible” noise standards
for single-family and multiple-family residential land uses of 65 CNEL for the exterior environment,
55 CNEL for the interior environment with windows open, and 45 CNEL for the interior environment
with windows closed (City of Moorpark 1998). As discussed under Ambient Noise Levels, the existing
ambient noise level at the project site are approximately 69 CNEL, which exceeds the City’s “clearly
compatible” exterior noise standard of 65 CNEL for multiple-family residential land uses. However,
the existing ambient noise level of 69 CNEL falls within the “normally compatible” range of 65 to 70
CNEL for multiple family residential land uses. Per guidance in Table 1 of the Noise Element, new
construction or development proposed in areas with ambient noise levels in the “normally
compatible” range should be undertaken only after detailed analysis of the noise reduction
requirements is made and needed noise insulation features are included in the design. Conventional
construction, with closed windows and fresh air supply systems or air conditioning, will normally
suffice. Therefore, in order to comply with the City’s noise standards, the project would be required
to incorporate design features such as noise barriers, Sound Transmission Class (STC)-rated windows
and doors, orientation of windows away from the railroad, upgraded exterior wall and/or roof
construction, insulation batts, and/or forced air ventilation that reduce exterior and interior noise
levels to below the City’s standards. To verify that the building has been properly designed, the City
may require an acoustical study as a condition of approval.
Mitigation Measure
N-2 HVAC Equipment Noise
A noise barrier (such as a screen or parapet) shall be installed around HVAC equipment. To be an
effective noise barrier, the screen or parapet should extend at least one foot above the tallest
rooftop piece of HVAC equipment and be of sufficient length to block line of sight between the
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HVAC units and the nearest commercial and residential properties. The screen or parapet shall
achieve at least a 6 dBA reduction in HVAC equipment noise.
After mitigation, noise from HVAC equipment would be reduced to 57.8 dBA Leq at the nearest
commercial properties and 54.9 dBA Leq at the nearest residential properties. Impacts would be less
than significant with mitigation incorporated.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
b.Would the project result in generation of excessive groundborne vibration or groundborne noise
levels?
As a residential and commercial use, the proposed project would not generate significant stationary
sources of vibration, such as heavy equipment operations. Operational vibration in the project
vicinity would be generated by additional vehicular travel on local roadways; however, any increase
in traffic related vibration levels would not be perceptible as the project would only incrementally
increase existing traffic volumes on local roadways. Therefore, operation of the proposed residential
development would not generate significant ground-borne vibration and this analysis considers
vibration impacts only from project construction.
Table 24 lists ground-borne vibration levels for project construction equipment including a loaded
truck, dozer, and roller at 105 feet from the source, the distance to the nearest noise sensitive
receiver. As shown in Table 24, the highest impact piece of equipment that would be used during
project construction (see Appendix C) is the vibratory roller, which is anticipated to be using during
the paving phase of project construction.
Table 24 Vibration Level for Construction Equipment
Equipment Approximate VdB at Single-Family Residences (105 ft.)
Loaded Truck 67
Dozer 68
Roller 76
Source: See Appendix I for vibration analysis.
As shown in Table 24, project construction would generate peak vibration levels ranging from 67
VdB to 76 VdB at the residences to the north. Although vibration levels may be intermittently
perceptible during daytime construction activities, construction would be limited to between the
hours of 7:00 a.m. and 7:00 p.m., Monday through Friday per Section 17.53.070 of the MMC and
would not disrupt residences during recognized hours of sleep. Ground-borne vibration would not
reach levels that could cause building damage (100 VdB) at structures in the project site vicinity.
Therefore, the project would not generate significant vibration impacts.
LESS THAN SIGNIFICANT IMPACT
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c.For a project located within the vicinity of a private airstrip or an airport land use plan or,
where such a plan has not been adopted, within two miles of a public airport or public use
airport, would the project expose people residing or working in the project area to excessive
noise levels?
The closest public and public use airports to the project site are the Santa Paula Airport, which is
approximately 11.5 miles northwest of the project site, and the Camarillo Airport, which is
approximately 13 miles southwest of the project site. The project site is not located within an
airport influence area or an airport runway protection zone. There are no nearby private airstrips
within the vicinity of the project site. Therefore, no impact related to airport and airstrip noise
would occur.
NO IMPACT
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Final Initial Study – Mitigated Negative Declaration 97
14 Population and Housing
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Induce substantial unplanned population
growth in an area, either directly (e.g., by
proposing new homes and businesses) or
indirectly (e.g., through extension of
roads or other infrastructure)?□□■□
b.Displace substantial amounts of existing
people or housing, necessitating the
construction of replacement housing
elsewhere?□□□■
a.Would the project induce substantial unplanned population growth in an area, either directly
(for example, by proposing new homes and businesses) or indirectly (for example, through
extension of roads or other infrastructure)?
According to the CDOF, the current population of Moorpark is estimated at 37,020 (CDOF 2019a)
with a forecasted population of 43,000 for the year 2040 (SCAG 2016). This is an increase of 5,980
(16 percent) residents. The proposed project involves construction of 91 residential apartment units
and approximately 15,018 sf of commercial space. The commercial spaces are envisioned to include
a 3,824-sf brewery or winery, a 1,386-sf restaurant, a 1,408-sf coffee or ice cream shop, and 8,400 sf
of neighborhood-serving retail space. Based on the CDOF estimate of an average of 3.32 persons per
household in the City of Moorpark, the addition of 91 units would generate approximately 302
residents. As discussed in Section 3, Air Quality, the proposed project is estimated to generate 88
new jobs. While it should not be assumed that all employees would become new residents of
Moorpark (they may, for example, already live in the City or live outside of the City after they are
hired), if they did, generated employees would create an additional population growth of 88
residents for a total estimated population growth of 390 (302 plus 88). Therefore, implementation
of the proposed project would increase the City’s estimated existing population of 37,020 to 37,410,
which would still be within SCAG’s 2040 population forecast of 43,000 (SCAG 2016). Impacts relating
to substantial population growth would be less than significant.
LESS THAN SIGNIFICANT IMPACT
b.Would the project displace substantial numbers of existing people or housing, necessitating the
construction of replacement housing elsewhere?
The project does not propose any demolition of residential structures. The project involves
development of 91 residential units and approximately 15,018 sf of commercial space on a parcel
that is currently developed with an abandoned granary and non-operational industrial buildings. The
project would have no impacts relating to the displacement of housing or people.
NO IMPACT
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Public Services
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15 Public Services
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
a.Would the project result in substantial
adverse physical impacts associated with
the provision of new or physically altered
governmental facilities, or the need for
new or physically altered governmental
facilities, the construction of which could
cause significant environmental impacts,
in order to maintain acceptable service
ratios, response times or other
performance objectives for any of the
public services:
1 Fire protection? □□■□
2 Police protection? □□■□
3 Schools? □□■□
4 Parks? □□■□
5 Other public facilities? □□■□
a.1. Would the project result in substantial adverse physical impacts associated with the provision
of new or physically altered fire protection facilities, or the need for new or physically altered
governmental facilities, the construction of which could cause significant environmental
impacts, in order to maintain acceptable service ratios, response times or other performance
objectives?
The project site is serviced by the Ventura County Fire Department (VCFD). The VCFD provides a full
range of emergency and non-emergency services to the community. In 2016, the VCFD had 637
personnel and served more than 480,000 people in the unincorporated areas of Ventura County and
six of its cities including: Ojai, Port Hueneme, Moorpark, Camarillo, Simi Valley, and Thousand Oaks.
This is a staffing ratio of approximately 0.75 per 1,000 residents (VCFD 2016). Response time to
incidents for a fire service call to the downtown area of Moorpark average six minutes or less
(Moorpark 2006). The closest fire station to the project site is Fire Station 42, which is just northeast
of the project site across High Street (located at 295 High Street).
Construction activity would increase traffic adjacent to the project site during working hours
because commuting construction workers, trucks, and other large construction vehicles would
temporarily be added to normal traffic. Slow moving construction traffic along local roadways may
reduce optimal traffic flows on these roadways and could delay emergency vehicles or contribute to
a vehicle accident. This potential fire hazard impact would be minimal due to the temporary nature
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of construction traffic and implementation of standard construction practices (i.e., flagmen,
detours, etc.).
During the project’s operational phase, the frequency of emergency calls may incrementally
increase because residential uses would be introduced to the site. For a residential project, the
majority of calls are likely to be emergency medical and rescue. The project would be required to
conform to the California Fire Code and follow requirements in the Moorpark Municipal Code,
which requires integration of fire safety features such as fire sprinklers, fire hydrants, and water
service infrastructure capable of delivering the required fire flows rates. According to Section 14,
Population and Housing, the project could increase the population of the City of Moorpark by 390
people, if all employees were to relocate to the City. However, this addition would not significantly
affect the staffing ratio. In addition, the project site is within the VCFD’s current service area and the
industrial buildings onsite are currently served by the VCFD, therefore this increase would not
create the need for new or expanded fire protection facilities. Therefore, the project’s impacts to
fire protection would be less than significant.
LESS THAN SIGNIFICANT IMPACT
a.2. Would the project result in substantial adverse physical impacts associated with the provision
of new or physically altered police protection facilities, or the need for new or physically altered
police protection facilities, the construction of which could cause significant environmental
impacts, in order to maintain acceptable service ratios, response times or other performance
objectives?
The City of Moorpark contracts out police services to the Ventura County Sheriff’s Department. The
nearest police department is approximately 0.7 mile southeast of the project site. In fiscal year
2017-2018, the city was allocated approximately 28 sworn officers from the County Sheriff’s
Department. This is a staffing ratio of approximately 1.3 officers per 1,000 residents. The Ventura
County Sheriff’s Department has an average response time of 6.44 minutes to emergency calls and
16.43 minutes to non-emergency calls (Ventura Local Agency Formation Commission [LAFCo] 2018).
The project could increase the population of Moorpark by 390 people, if all employees were to
relocate to the City. The increase in population would not alter the current officer staffing ratio and
would not create the need for new or expanded police protection facilities. Therefore, the project’s
impacts to police protection would be less than significant.
LESS THAN SIGNIFICANT IMPACT
a.3. Would the project result in substantial adverse physical impacts associated with the provision
of new or physically altered schools, or the need for new or physically altered schools, the
construction of which could cause significant environmental impacts, in order to maintain
acceptable service ratios, response times or other performance objectives?
The City of Moorpark is served by the Moorpark Unified School District (MUSD), which has four
preschools, five elementary schools, one kindergarten through eighth grade school, two middle
schools, and two high schools. The project would increase the population of the City of Moorpark by
390 people if all future employees were to relocate to the City. According to the 2017-2018 Second
Interim Report for the MUSD Fiscal Services, enrollment within the district has been declining over
the last six years and is projected to continue to decline. To offset a project’s potential impact on
schools, Government Code 65995 (b) establishes the base amount of allowable developer fees a
school district can collect from development projects located within its boundaries. The fees
obtained by MUSD are used to maintain the desired school capacity and the maintenance and/or
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development of new school facilities. The project applicant would be required to pay the state-
mandated school impact fees. Pursuant to Section 65995 (3)(h) of the California Government Code
(Senate Bill 50, chaptered August 27, 1998), the payment of statutory fees “…is deemed to be full
and complete mitigation of the impacts of any legislative or adjudicative act, or both, involving, but
not limited to, the planning, use, or development of real property, or any change in governmental
organization or reorganization.” The project proponent would be required to pay the school impact
development mitigation fees (Moorpark Municipal Code, 17.76.060, Fees). Therefore, with the
required payment of mitigation fees, the project’s impacts to schools would be less than significant.
LESS THAN SIGNIFICANT IMPACT
a.4. Would the project result in substantial adverse physical impacts associated with the provision
of new or physically altered parks, or the need for new or physically altered parks, the
construction of which could cause significant environmental impacts, in order to maintain
acceptable service ratios or other performance objectives?
The City of Moorpark maintains 20 parks, which include 18 playgrounds, 10 outdoor courts, 39 ball
fields, one skate park, five trails, and other park and recreational facilities within approximately 153
acres of parkland. The City of Moorpark has a goal to provide five acres of parkland per 1,000
residents according to its Parks and Recreation Master Plan (2009). The City is not currently meeting
this goal and instead provides approximately 4 acres of parkland per 1,000 residents. However, the
City is financing several capital improvement projects that will support its park and recreation
program and will include improvements, upgrades, and expansions to existing parkland. The Parks
and Recreation Master Plan states that with the 2040 population projection of 47,739 residents, 238
acres of parkland would be required to meet its goals. However, the City also states that 238 acres
of parkland is not realistic and that instead, the City will need to share resources and convert
unused or underused spaces in order to serve the population.
Construction of the proposed project would increase the City’s population by 390 people if all future
employees were to relocate to the City. Although the City is not currently meeting its goal of
providing five acres of parkland per 1,000 residents, the City has a plan to increase park space for its
residents. The addition of 390 residents from the proposed project would not alter the current ratio
of parkland to residents. In addition, the proposed project would include open space for its
residents and a public plaza. Therefore, the project would not substantially increase the need for
new or physically altered parks in the City and impacts would be less than significant.
LESS THAN SIGNIFICANT IMPACT
a.5. Would the project result in substantial adverse physical impacts associated with the provision
of new or physically altered governmental facilities, or the need for new or physically altered
governmental facilities, the construction of which could cause significant environmental
impacts, in order to maintain acceptable service ratios, response times or other performance
objectives for other public facilities?
Development of the proposed project would result in incremental impacts to the City’s public
services and facilities such as storm drain usage, solid-waste disposal, water usage, and wastewater
disposal. Refer to the impact analysis in Section 10 Hydrology and Water Quality, and Section 19,
Utilities and Service Systems, for discussion of the proposed project’s impacts to public services and
facilities. Other commonly used public facilities include libraries and medical facilities. As discussed
in Section 14, Population and Housing, the proposed project would increase the City’s population by
approximately 390 residents, if all employees relocated to Moorpark. However, the project site is
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located in the downtown portion of the City, which is currently serviced by existing public libraries
and medical facilities. These facilities would continue to accommodate the needs of the City.
Because the proposed project would not substantially increase the City’s population, increased
demand on existing libraries and medical facilities would be negligible. Impacts would be less than
significant.
LESS THAN SIGNIFICANT IMPACT
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16 Recreation
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
a.Would the project increase the use of
existing neighborhood and regional parks
or other recreational facilities such that
substantial physical deterioration of the
facility would occur or be accelerated?□□■□
b.Does the project include recreational
facilities or require the construction or
expansion of recreational facilities which
might have an adverse physical effect on
the environment?□□■□
a.Would the project increase the use of existing neighborhood and regional parks or other
recreational facilities such that substantial physical deterioration of the facility would occur or
be accelerated?
As discussed in Section 15, Public Services, the City currently owns and operates a total of 20 public
parks, open space areas, and recreation sites, occupying approximately 153 acres of land (Ventura
LAFCo 2018). These areas are all part of the City’s recreation and parks system. The closest public
park to the project site is the Veteran’s Memorial, located approximately 0.4 mile southeast of the
project site.
The City recognizes that parkland space is limited and that it is not realistic to increase the amount
of parkland space to five acres per 1,000 residents in order to meet 2040 population projections.
However, the City has a goal to increase park space by expanding where it can and also repurposing
underused areas in order to serve the needs of the current residents. As discussed in Section 14
Population and Housing, construction of the proposed project could increase the City’s population
by 390 people if all future employees were to relocate to the City. The project would include
outdoor space for residents, such as open space in the western portion of the site and a public plaza
and patio located in the commercial component of the site. These outdoor areas would help the City
further its plan of repurposing underused areas as recreational and open space since the project site
is currently occupied by an abandoned granary and non-operational industrial buildings. As such, an
increased demand for parks or recreational services would not occur from the proposed project.
Accordingly, the project would have a less than significant impact on recreation resources.
LESS THAN SIGNIFICANT IMPACT
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17 Transportation
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Conflict with a program plan, ordinance
or policy addressing the circulation
system, including transit, roadway,
bicycle and pedestrian facilities?□■□□
b.Conflict or be inconsistent with CEQA
Guidelines section 15064.3, subdivision
(b)?□□■□
c.Substantially increase hazards due to a
geometric design feature (e.g., sharp
curves or dangerous intersections) or
incompatible use (e.g., farm equipment)?□□■□
d.Result in inadequate emergency access?□□■□
a.Would the project conflict with a program plan, ordinance or policy addressing the circulation
system, including transit, roadway, bicycle and pedestrian facilities?
A traffic report was completed for the project by Associated Transportation Engineers (ATE) on
December 10, 2019 (Appendix D). The report describes existing conditions, project trip generation
rates, and the impact of the project on existing conditions. It also includes an analysis of the
proposed and developing projects in the vicinity of the project’s related impacts to traffic and
circulation in a future setting.
The project site is served by a system of highways, arterial roads and collector streets. Traffic flow
on urban arterials is most constrained at intersections. Therefore, a detailed analysis of traffic flows
must examine the operating conditions of critical intersections during peak travel periods. Levels of
Service (LOS) A through F are used to rate intersection operations with LOS A indicating free flow
operations and LOS F indicating congested operations. In the City of Moorpark, LOS C is the
minimum acceptable operating standard for intersections.
The City of Moorpark Circulation Element contains Policy 2.1, which states that Level of Service
(LOS) C shall be the system performance objective. For facilities already operating at LOS C, the
system performance objective shall be to maintain or improve the current level of service. The City
of Moorpark “Guidelines for Preparing Traffic and Circulation Studies” states that if a level of service
degradation of one level of service or greater is attributable to a project, it will be considered
significant enough to require mitigation measures. The City’s criteria also state that a level of service
degradation of less than one level of service may also be considered significant, depending on
circumstances.
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Existing Conditions
The existing AM and PM peak hour traffic volumes at the study area intersections were calculated
based on vehicle trips counts collected by ATE in June 2018. Existing LOS for the study area
intersections were calculated using the “Intersection Capacity Utilization” (ICU) methodology
adopted by the City of Moorpark. Worksheets illustrating the LOS calculations are contained in the
Technical Appendix of the traffic study (Appendix D). Table 25 below lists the existing LOS for the
study area intersections during the AM and PM peak hour periods.
Table 25 Existing Peak Hour Levels of Service
Intersection
AM Peak Hour PM Peak Hour
ICU LOS ICU LOS
Moorpark Avenue/High Street 0.68 B 0.68 B
Spring Road/High Street 0.63 B 0.72 C
Moorpark Avenue/Poindexter Avenue 0.68 B 0.67 B
Los Angeles Avenue/Moorpark Avenue 0.65 B 0.68 B
Los Angeles Avenue/Spring Road 0.70 B 0.70 B
ICU = Intersection Capacity Utilization, LOS = Level of Service
Source: ATE 2019
As shown in Table 25, intersections in the study area currently operate at LOS C or better during the
AM and PM peak hour periods, which meets the City’s LOS C standard.
Project Trip Generation
Trip generation estimates were calculated for the proposed project based on the rates presented in
the Institute of Transportation Engineers (ITE), Trip Generation, 10th Edition for Multi-Family Housing
(Land Use Code #220), Shopping Center (Land Use Code #820), and High Turnover Restaurant (Land
Use Code #932). The proposed project would generate approximately 1,725 average daily trips
(ADT), 78 AM peak hour trips, and 147 PM peak hour trips. Table 26 below summarizes the average
daily AM and PM peak hour trip generation estimates for the project. The traffic report utilizes a
mixed-use model and a transit-oriented development (TOD) factor to account for the mixed-use
nature of the project site and its proximity to public transit. Therefore, the traffic report assumes
that 10 percent of AM peak hour trips and 36 percent of PM peak hour trips would be internal to
the project and that approximately 10 percent of external project trips would be transit-oriented.
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Table 26 Project Weekday Peak Hour Trip Generation
Land Use Size
ADT AM Peak Hour PM Peak Hour
Rate Trips Rate Trips (In/Out) Rate Trips (In/Out)
Apartments 91 units 7.32 666 0.46 42 (10/32) 0.56 51 (32/19)
Brewery 3,824 sf 112.18 429 0.00 0 (0/0) 9.77 37 (23/14)
Restaurant 2,794 sf 112.18 313 9.94 28 (15/13) 9.77 27 (17/10)
Retail
Commercial
8,400 sf 37.75 317 0.94 8 (5/3) 3.81 32 (15/17)
Total Trip Generation 1,725 78 (30/48) 147 (87/60)
ADT = Average Daily Trips
Source: ATE 2019
Project Trip Distribution and Assignment
The project-generated AM and PM peak hour traffic volumes were distributed and assigned to the
adjacent street network based on percentages from recent traffic studies, existing traffic patterns
observed in the study-area and consideration of the most logical travel routes for drivers accessing
the proposed development (Appendix D).
Project-Specific Impacts
LOS was calculated for the study area intersections assuming the Existing plus Project volumes.
Table 27 shows the results of the calculation and identifies the project’s impacts based on the City
of Moorpark thresholds.
Table 27 Existing Plus Project Peak Hour Levels of Service
Intersection
Existing Existing plus Project
Change Impact? ICU LOS ICU LOS
AM Peak Hour
Moorpark Avenue/High Street 0.68 B 0.69 B No No
Spring Road/High Street 0.63 B 0.64 B No No
Moorpark Avenue/Poindexter Avenue 0.68 B 0.69 B No No
Los Angeles Avenue/Moorpark Avenue 0.65 B 0.65 B No No
Los Angeles Avenue/Spring Road 0.70 B 0.71 C Yes No
PM Peak Hour
Moorpark Avenue/High Street 0.68 B 0.69 B No No
Spring Road/High Street 0.72 C 0.72 C No No
Moorpark Avenue/Poindexter Avenue 0.67 B 0.67 B No No
Los Angeles Avenue/Moorpark Avenue 0.68 B 0.69 B No No
Los Angeles Avenue/Spring Road 0.70 B 0.70 B No No
Notes: ICU = Intersection Capacity Utilization, LOS = Level of Service
Source: ATE 2019
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As shown in Table 27, the study-area intersections would continue to operate at LOS C or better,
meeting City of Moorpark thresholds. While the addition of project-generated traffic to the Spring
Road/High Street study-area intersection would degrade the existing LOS by one level of service, the
project would not generate project-specific impacts at the study-area intersection based on City of
Moorpark thresholds because the intersection would operate acceptably in the LOS C range.
Cumulative (Existing plus Approved/Pending Projects) Conditions
Cumulative traffic volumes were forecast for the study-area intersections assuming the
development of the approved and pending projects located in the City of Moorpark and the
immediate surrounding area that would add traffic to the study-area intersections. The list of
developments was provided by City staff as part of their Quarterly Development Status Report for
October 2018 (City of Moorpark 2018b). Trip generation estimates were developed for the
cumulative projects using the rates published in the ITE, Trip Generation, 10th Edition. Table 28
summarizes the average daily, AM and PM peak hour trip generation for the cumulative projects.
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Table 28 Cumulative Development Projects Trip Generation
Number Project Land Use Size ADT
Peak Hour
AM PM
1 Triliad Development Movie Studio 37 Acres 100 10 10
2 Pacific Communities SFR 283 Units 2,694 212 283
3 Essex Moorpark Apartments 200 Units 1,318 92 112
4 Spring Road, LLC Condos 95 Units 552 42 49
5 City Ventures SFR 110 Units 1,047 82 110
6 Oakmont Senior Housing Assisted Living 84 Beds 219 16 22
7 Birdsall Group, LLC SFR 21 Units 200 16 12
8 Aldersgate Senior Housing SFR 258 Units
1,468 90 125
Assisted Living 212 Beds
9 Moorpark Hospitality Hotel 108 Rooms 903 51 65
10 Grand Moorpark Condos 66 Units 383 29 34
11 John C. Chiu, FLP-N Condos 60 Units 349 26 31
12 AHA Scattered Sites Apartments 56 Units 418 26 31
13 Hitch Ranch SFR 235 Units
6,394 495 611
Townhomes 295 Units
MFR 225 Units
Church 30,000 SF
14 Moorpark 67/Rasmussen SFR 138 Units 1,303 102 137
15 A-B Properties Industrial 36 Acres 1,865 224 261
16 National Ready Mix Batch Plant 10 Acres 600 20 20
17 CEMEX Quarry N/A 980 276 148
19 Wayne J. Sand & Gravel Quarry N/A 504 92 34
20 Grimes Rock Quarry N/A 480 35 14
Total Trips 21,777 1,982 2,054
Note: The current cumulative trip generation estimate resulted in fewer trips than what was assumed in the traffic and circulation
study for the Aldersgate Senior Living Project prepared by ATE in 2016.
ADT = Average Daily Trip, SFR = Single-Family Residential, MFR = Multi-Family Residential, SF = Square-Feet
Source: ATE 2019
The data presented in Table 28 indicate that the approved and pending projects would generate a
total of 21,777 average daily trips, 1,982 AM peak hour trips and 2,054 PM peak hour trips. The
traffic generated by the approved and pending projects was distributed and assigned to the study
area intersections based on the location of each project, recent traffic studies, existing traffic
patterns observed in the study area as well as a general knowledge of the population, employment
and commercial centers in Moorpark, Ventura, Oxnard, Thousand Oaks, and Simi Valley. The
Cumulative and Cumulative plus Project LOS for the study area intersections are shown below in
Table 29.
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Table 29 Cumulative and Cumulative plus Project AM and PM Peak Hour Levels of
Service
Intersection
Cumulative Cumulative + Project LOS Change?
ICU LOS ICU LOS Change Impact
AM Peak Hour
Moorpark Avenue/High Street 0.80 C 0.81 D Yes Yes
Spring Road/High Street 0.71 C 0.72 C No No
Moorpark Avenue/Poindexter Avenue 0.73 C 0.74 C No No
Los Angeles Avenue/Moorpark Avenue 0.79 C 0.79 C No No
Los Angeles Avenue/Spring Road 0.86 D 0.86 D No No
PM Peak Hour
Moorpark Avenue/High Street 0.93 E 0.93 E No No
Spring Road/High Street 0.80 C 0.80 C No No
Moorpark Avenue/Poindexter Avenue 0.71 C 0.72 C No No
Los Angeles Avenue/Moorpark Avenue 0.76 C 0.77 C No No
Los Angeles Avenue/Spring Road 0.83 D 0.84 D No No
Notes: ICU = Intersection Capacity Utilization, LOS = Level of Service
Source: ATE 2019
The data presented in Table 29 indicates that the majority of the study area intersections would
operate at LOS C or better during the AM and PM peak hour periods with cumulative and
cumulative plus project traffic volumes, which meets the City's LOS C standard. The Los Angeles
Avenue/Spring Road intersection would operate at LOS D during the AM and PM peak hour periods
under cumulative and cumulative plus project conditions. As a result, the project would not have a
significant impact to this intersection.
The Moorpark Avenue/High Street intersection would operate in the LOS E range with or without
the addition of project trips during the PM peak hour. However, during the AM peak hour, the
addition of project-generated traffic to the Moorpark Avenue/High Street study area intersection
would degrade the LOS from LOS C to LOS D, and thus the project would have a cumulatively
considerable contribution to the cumulative impact at the intersection based on City of Moorpark
thresholds. Therefore, impacts would be potentially significant, and mitigation is required to reduce
impacts to less than significant.
The project would be required to pay an Area of Contribution (AOC) Fee and a Citywide Traffic
Mitigation Fee. The AOC and Citywide Traffic Mitigation fees would be applied towards
programmed improvements that the City has identified for the Los Angeles Avenue/Spring Road, Los
Angeles Avenue/Moorpark Avenue, and Moorpark Avenue/High Street intersections. These
improvements are identified within the City of Moorpark Department of Public Works Seven Year
Capital Improvement Plan (FY 2015/2016 through FY 2021/2022) and would be funded by these fee
contributions. With the improvements discussed below under TRA-1, the Los Angeles
Avenue/Spring Road intersection would improve from LOS D to LOS C during AM and PM peak
hours, and the Moorpark Avenue/High Street intersection would improve from LOS D to LOS B in
the AM peak hour and from LOS E to LOS C in the PM peak hour. Therefore, with mitigation,
cumulative traffic impacts would be reduced to a less than significant level.
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Final Initial Study – Mitigated Negative Declaration 111
Mitigation Measure
TRA-1 Area of Contribution (AOC) Fees
The project would be required to pay the applicable AOC and Citywide Traffic Impact Mitigation fees
based upon the level of traffic added within the Los Angeles Avenue and Moorpark Avenue corridor.
The project’s monetary contribution shall be based on its percent contribution to traffic at the
impacted intersections, which is 1.79 percent for the Moorpark Avenue/High Street intersection,
0.35 percent for the Spring Road/High Street intersection, and 0.61 percent for the Los Angeles
Avenue/Spring Road intersection. As part of the City’s plan to mitigate cumulative traffic impacts,
the City has identified and programmed the following additional improvements for the Los Angeles
Avenue/Spring Road and Moorpark Avenue/High Street intersections that would mitigate
cumulative impacts:
▪Los Angeles Avenue/Spring Road Intersection: Add an additional through lane on the eastbound
and westbound approaches.
▪Moorpark Avenue/High Street Intersection: Add an additional through lane on the southbound
approach and provide a left-turn lane, through lane, and right-turn lane on the northbound
approach.
The project applicant shall pay the AOC and Citywide Traffic Impact Mitigation fees prior to issuance
of a certificate of occupancy for the first residential building.
Transit, Bicycle, and Pedestrian Facilities
The proposed project would involve construction of 91 residential units and 15,018 sf of commercial
space. The Moorpark Metrolink Station is adjacent to the southern boundary. Development of the
proposed project would not disrupt access to the Metrolink Station and would encourage new
residents of the proposed project to utilize the public transit.
As discussed under Project Description, although new sidewalks and streetscape landscaping are
proposed along High Street adjacent to the northern boundary of the project site, it is likely that
portions of the existing sidewalk would need to be temporarily closed during construction activities.
However, access to the existing Metrolink train platform would remain open during construction by
allowing pedestrian access along properties immediately to the east because these properties
currently provide direct access and vehicle parking for the Metrolink train platform.
In addition, during construction of the proposed project, activities would be restricted to the project
site and would not interfere with roadway traffic or use of the railroad. The project would also be
subject to standard conditions of approval, which require the use of flagmen, temporary signage,
and traffic calming measures, if necessary, during temporary construction activities. All construction
equipment would be stored on-site and would also not block the roadway. Therefore, the project
would not conflict with adopted policies, plans, or programs regarding public transit, bikeways, or
pedestrian facilities, and would not otherwise substantially reduce the performance or safety
features of such facilities. No impact would occur.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
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b.Would the project conflict or be inconsistent with CEQA Guidelines section 15064.3, subdivision
(b)?
Section 15064.3(b) of the CEQA Guidelines describes criteria for analyzing transportation impacts.
Depending on the type of project, different thresholds of significance are applicable. Section
15064.3(b)(1) applies to land use projects, including the proposed project:
“Vehicle miles traveled exceeding an applicable threshold of significance may indicate a
significant impact. Generally, projects within one-half mile of either an existing major transit
stop or a stop along an existing high quality transit corridor should be presumed to cause a less
than significant transportation impact. Projects that decrease vehicle miles traveled in the
project area compared to existing conditions should be presumed to have a less than significant
transportation impact.”
The project would generate a total vehicle miles travelled (VMT) of 2,206,014 annual miles, or 6,044
daily miles (Appendix C). The project is located south of High Street, adjacent to Amtrak’s Moorpark
Station and within 300 feet of Moorpark Metrolink Bust Station. Amtrak provides service to major
cities in California (including Santa Barbara, Ventura, Oxnard, Los Angeles, Anaheim, and Riverside)
and other states (including Arizona, New Mexico, and Nevada) (Amtrak 2019). Amtrak’s Pacific
Surfliner and California Coastal Routes provide service to the Moorpark Amtrak Station 11 times
each day (Amtrak 2018). The Metrolink Bus Station is along the Ventura County Line, which
operates between Ventura and Los Angeles Union Station. The Ventura County Line provides service
to the Moorpark Station 16 times per day, Monday through Friday (Metrolink 2018). Therefore, per
CEQA Guidelines Section 15064.3(b)(1), because the project site is located within 0.5 miles of a high
quality transit corridor the project would have a less than significant impact.
LESS THAN SIGNIFICANT IMPACT
c.Would the project substantially increase hazards due to a geometric design feature (e.g., sharp
curves or dangerous intersections) or incompatible use (e.g., farm equipment)?
d.Would the project result in inadequate emergency access?
The project does not have any hazardous design features such as sharp curves or dangerous
intersections. The project is compatible with surrounding uses. The project’s circulation system will
be reviewed by the City’s emergency response personnel and the City’s Public Works Department to
ensure that ingress and egress widths are sufficient and that the proposed circulation system would
not interfere with an emergency response access route. Impacts would be less than significant.
LESS THAN SIGNIFICANT IMPACT
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Tribal Cultural Resources
Final Initial Study – Mitigated Negative Declaration 113
18 Tribal Cultural Resources
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project cause a substantial adverse change in the significance of a tribal cultural
resource, defined in a Public Resources Code section 21074 as either a site, feature, place,
cultural landscape that is geographically defined in terms of the size and scope of the landscape,
sacred place, or object with cultural value to a California Native American tribe, and that is:
a.Listed or eligible for listing in the
California Register of Historical
Resources, or in a local register of
historical resources as defined in Public
Resources Code section 5020.1(k), or □■□□
b.A resource determined by the lead
agency, in its discretion and supported by
substantial evidence, to be significant
pursuant to criteria set forth in
subdivision (c) of Public Resources Cod
Section 2024.1. In applying the criteria
set forth in subdivision (c) of Public
Resources Code Section 5024.1, the lead
agency shall consider the significant of
the resource to a California Native
American tribe.□■□□
As of July 1, 2015, California Assembly Bill 52 of 2014 (AB 52) was enacted and expands CEQA by
defining a new resource category, “tribal cultural resources.” AB 52 establishes that “A project with
an effect that may cause a substantial adverse change in the significance of a tribal cultural resource
is a project that may have a significant effect on the environment” (PRC Section 21084.2). It further
states that the lead agency shall establish measures to avoid impacts that would alter the significant
characteristics of a tribal cultural resource, when feasible (PRC Section 21084.3).
PRC Section 21074 (a)(1)(A) and (B) defines tribal cultural resources as “sites, features, places,
cultural landscapes, sacred places, and objects with cultural value to a California Native American
tribe” and is:
1.Listed or eligible for listing in the California Register of Historical Resources, or in a local register
of historical resources as defined in Public Resources Code section 5020.1(k), or
2.A resource determined by the lead agency, in its discretion and supported by substantial
evidence, to be significant pursuant to criteria set forth in subdivision (c) of Public Resources
Code Section 5024.1. In applying these criteria, the lead agency shall consider the significance of
the resource to a California Native American tribe.
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AB 52 also establishes a formal consultation process for California tribes regarding those resources.
The consultation process must be completed before a CEQA document can be certified. Under AB
52, lead agencies are required to “begin consultation with a California Native American tribe that is
traditionally and culturally affiliated with the geographic area of the proposed project.” Native
American tribes included in the process are those that have requested notice of projects proposed
within the jurisdiction of the lead agency. These tribes include the Santa Ynez Band of Chumash
Indians, Barbareño/Ventureño Band of Mission Indians, and the Coastal Band of the Chumash
Nation.
On April 15, 2019, the City of Moorpark distributed AB 52 consultation letters for the proposed
project, including project information, location map, and contact information, to six Native
American contacts. The Native American contacts provided with an AB 52 consultation letter via
certified mail include the following list of recipients:
▪Barbareño/Ventureño Band of Mission Indians
▪Torres Martinez Desert Cahuilla Indians
▪Santa Ynez Band of Chumash Indians
▪Coastal Band of Chumash Indians
▪San Gabriel Band of Mission Indians
Under AB 52, Native American tribes have 30 days to respond and request further project
information and formal consultation. All letters were received by April 22, 2019. Therefore, the
consultation request period closed on May 22, 2019. The City of Moorpark did not receive any
requests for consultation for the project and was not notified of any tribal cultural resources that
are present on the project site. However, the City did receive recommendations from the
Barbareño/Ventureño Band of Mission Indians to retain a full-time Native American monitor and
archaeologist on-site during all ground-disturbing activities and to perform an extensive Phase I in
the Area of Potential Effect.
a.Would the project cause a substantial adverse change in the significance of a tribal cultural
resource as defined in Public Resources Code 21074 that is listed or eligible for listing in the
California Register of Historical Resources, or in a local register of historical resources as defined
in Public Resources Code section 5020.1(k)?
b.Would the project cause a substantial adverse change in the significance of a tribal cultural
resource as defined in Public Resources Code 21074 that is a resource determined by the lead
agency, in its discretion and supported by substantial evidence, to be significant pursuant to
criteria set forth in subdivision (c) of Public Resources Code Section 2024.1?
As discussed in Section 5, Cultural Resources, the project site is in an urbanized area and has been
previously disturbed in conjunction with construction of the granary, industrial buildings, and paved
surfaces. As stated above, the City of Moorpark did not receive any requests for consultation nor
notification of any tribal cultural resources on the project site. Although it is not anticipated that
intact tribal cultural resources are present in the project site, there is the potential for the recovery
of buried cultural materials during project construction activities. Upon compliance with Mitigation
Measures CUL-1 through CUL-3 in Section 5, Cultural Resources, and Mitigation Measure TCR-1
below, potential impacts would be reduced to a less than significant level by providing a process for
evaluating and, as necessary, avoiding impacts to any identified resources. Impacts would be less
than significant with mitigation incorporated.
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Tribal Cultural Resources
Final Initial Study – Mitigated Negative Declaration 115
Mitigation Measure
TCR-1 Unanticipated Discovery of Tribal Cultural Resources
During ground-disturbing activities, an archaeologist meeting the Secretary of the Interior’s
Professional Qualifications Standards for archaeology (National Park Service 1983) shall monitor
excavation and ground-disturbing activities within native soils that have not been previously
disturbed. If cultural resources are encountered during excavation and/or ground-disturbing
activities, work in the immediate area must halt and a Native American representative who is
ancestrally related to the project area must be contacted immediately to evaluate the find and
consult with the City of Moorpark and the archaeologist as to the treatment of the find which may
determine additional measures to avoid or reduce impacts to the resource are required. These
additional measures to avoid or reduce impacts shall be determined on a case by case basis and
approved by the City’s Community Development Director.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
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Utilities and Service Systems
Final Initial Study – Mitigated Negative Declaration 117
19 Utilities and Service Systems
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Would the project:
a.Require or result in the relocation or
construction of new or expanded water,
wastewater treatment or storm water
drainage, electric power, natural gas, or
telecommunications facilities, the
construction or relocation of which could
cause significant environmental effects?□□■□
b.Have sufficient water supplies available
to serve the project and reasonably
foreseeable future development during
normal, dry and multiple dry years?□□■□
c.Result in a determination by the
wastewater treatment provider which
serves or may serve the project that it
has adequate capacity to serve the
project’s projected demand in addition to
the provider’s existing commitments?□□■□
d.Generate solid waste in excess of State or
local standards, or in excess of the
capacity of local infrastructure, or
otherwise impair the attainment of solid
waste reduction goals?□□■□
e.Comply with federal, state, and local
management and reduction statutes and
regulations related to solid waste?□□■□
a.Would the project require or result in the relocation or construction of new or expanded water,
wastewater treatment or storm water drainage, electric power, natural gas, or
telecommunications facilities, the construction or relocation of which could cause significant
environmental effects?
b.Would the project have sufficient water supplies available to serve the project and reasonably
foreseeable future development during normal, dry and multiple dry years?
c.Would the project result in a determination by the wastewater treatment provider which serves
or may serve the project that it has adequate capacity to serve the project’s projected demand
in addition to the provider’s existing commitments?
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Wastewater Generation
A significant impact to wastewater facilities may occur if a project would:
▪Discharge wastewater, whose content exceeds the regulatory limits established by the
governing agency;
▪Increase water consumption or wastewater generation to such a degree that the capacity of
facilities currently serving the project site would be exceeded; or
▪Increase wastewater flows such that a sewer or treatment plant is constrained or would
become constrained.
The Ventura County Water and Sanitation Department (VCWSD) operates and maintains water and
wastewater infrastructure for the City, which is located in Ventura County Waterworks District
(VCWWD) No. 1. The Moorpark Water Reclamation Facility (MWRF), located along California State
Route 118 just west of the City of Moorpark, serves the project site. The MWRF currently receives
an average of 2.0 million gallons per day and is designed to treat up to 5 million gallons per day
(mgd) per day (VCWWD 2016). Therefore, the MWRF has an available surplus capacity of
approximately 3 million gallons per day.
Table 30 shows that the project would produce an estimated 23,002 gallons of wastewater per day,
which would be within the available surplus capacity at the MWRF. All wastewater from the
proposed project would be treated according to requirements of the NPDES permit authorized by
the Los Angeles Regional Water Quality Control Board (LARWQCB). On April 15, 2019, VCWSD
provided written correspondence confirming sanitary sewer service would be available for the
proposed project (Appendix J). In addition, prior to any future construction activities, building
permits would be issued by VCWWD to allow the required connections to the wastewater system
pursuant to the approved construction drawings. Therefore, impacts related to wastewater would
be less than significant.
Table 30 Average Daily Wastewater Generation
Unit Type Quantity
Wastewater Generation Rate1
(gallons per unit)
Total Wastewater Generation
(gallons per day)
Studio 18 units 80/dwelling unit 1,440
1-Bedroom 26 units 120/dwelling unit 3,120
2-Bedroom 39 units 160/dwelling unit 6,240
3-Bedroom 8 units 200/dwelling unit 1,600
Retail 8,400 sf 80/1000 gsf 672
Restaurants2 331 seats 30/seat 9,930
Total Proposed Project 23,002
gsf = gross square feet
1 Source: City of Los Angeles 2006, Exhibit M.2-12
2 Estimated based on the proposed square footage for the restaurants (6,618 sf). Specifically, it was assumed that the restaurant
square footage would be 60 percent dining area and 40 percent food preparation area. An industry standard of one seat per 12 sf of
dining area was also assumed (Total Food Service 2013).
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Water Supply
A significant impact would occur if the project would increase water consumption or wastewater
generation to such a degree that the capacity of facilities currently serving the project site would be
exceeded or that new water sources would need to be identified. The VCWWD No. 1 provides water
within the City limits. VCWWD No. 1 water sources in 2015 included Metropolitan imported water
(approximately 76 percent), local groundwater (approximately 18 percent), and recycled water
(approximately 6 percent, VCWWD 2016). As of 2015, the VCWWD No. 1 supplied water to 10,944
connections. The VCWWD No. 1 has planned improvement projects, including the Moorpark
Desalter Project, a groundwater production and treatment system with a potential capacity of 5,000
acre-feet per year (AFY), which is in the design phase, and the expansion of the MWRP’s tertiary
treatment capacity for recycled water production to 2,200 AFY by 2040, which is in the construction
phase (VCWWD 2016, County of Ventura n.d.).
Based on information provided by the project applicant, the project would use approximately 2,000
gallons of water per day during the demolition, site preparation, and grading phases. Over this 30-
day period, water would be provided via water truck and the total volume of water would be
approximately 60,000 gallons, or 0.2 acre-foot. Water would be drawn from a temporary
construction meter attached to the nearest fire hydrant. In addition, Aaccording to the CalEEMod
modeling prepared for the project, the project would increase water demand by approximately
11,295,898 gallons per year or 34.7 acre-feet per year (AFY) during project operation (Appendix C).
Table 31 Multiple Dry Years Water Supply and Demand
2020 2025 2030 2035 2040
Total Demand (AFY) 12,636 13,104 13,472 13,798 14,138
Total Supply 13,149 14,143 14,442 14,606 14,918
Difference 513 1,039 970 808 780
Source: VCWD 2016, Table 7-4
The VCWWD projects that if new local water supply projects are constructed as planned in the
Calleguas jurisdiction, a surplus of water supplies will be available even in the multiple dry year
scenario. Total demand in Table 31 was calculated based on VCWWD’s service area population,
which is expected to increase from 35,782 in 2015 to 45,000 in 2040 (VCWWD 2016). As discussed
above under Section 14, Population and Housing, the project would not generate population growth
exceeding SCAG population forecasts. Therefore, the project’s population and associated water
demand increase has been accounted for in the UWMP. On April 15, 2019, VCWWD No.1 provided
written correspondence confirming water would be available for the project (Appendix J). In
addition, the project would be required to comply with the permanent water conservation
measures contained in Part 1 – Section L of the Ventura County Waterworks Districts’ Rules and
Regulations for District Nos. 1, 16, 17, 19, and 38. These measures include installing water-saving
devices and limiting landscape irrigation (VCWWD n.d.). In addition, the project would be required
to comply with all provisions of the City of Moorpark’s water efficient landscape ordinance (MMC
15.23.010).
Therefore, demand for water would not require new water supply entitlements and/or require the
expansion or construction of water treatment facilities beyond those already considered in the
VCWWD No. 1’s 2015 UWMP. Despite the recent drought conditions, adequate water supplies are
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available to serve the project. Water supply and infrastructure impacts would be less than
significant.
Stormwater
A significant impact to stormwater facilities may occur if the volume of stormwater runoff would
increase to a level exceeding the capacity of the storm drain system serving a project site, resulting
in the construction of new stormwater drainage facilities. As described under Project Description,
the project includes installation of on-site stormwater facilities, including pervious
paving/landscaping; storm drain signage; treatment control BMPs such as planter boxes, bio-
retention areas, biofiltration basins, and “StormTreat” linear stormwater filtration devices; and 175
feet of oversized 48-inch drain pipe in the western drainage area and 65 feet of 36-inch pipe within
the eastern drainage area. These drain pipes would detain and accumulate stormwater runoff, then
release runoff at various metered rates that meet City and County criteria for detained flow release
depending on the size of the storm event. As discussed in Section 10, Hydrology and Water Quality,
these features would eliminate the potential to adversely affect the local storm drain system.
Accordingly, potential impacts to stormwater drainage facilities would be less than significant.
Electricity, Natural Gas, and Telecommunications
A significant impact to electricity, natural gas, and telecommunications facilities may occur if the
demand for services exceeds the capacity of local providers. As described in Section 6, Energy, the
project would require approximately 2,452 MMBtu/yr of electricity and approximately 2,816
MMtu/yr of natural gas. Electricity would be provided to the project site by SCE, and natural gas
would be provided by SoCalGas. Telecommunications services would be provided by AT&T,
Spectrum, Viasat, or other providers, at the discretion of future tenants. Telecommunications are
generally available in the project area, and facility upgrades would not likely be necessary.
SCE’s Big Creek/Ventura local capacity area includes the project site, and has an excess annual
capacity of 2,459 MW (8,290 MMBtu), which is more than enough to accommodate the electricity
requirements of the project (SCE 2018b). For 2019, the estimated surplus of natural gas capacity is
794 MMcf/day (823,378 MMBtu/day), which is more than enough to accommodate the natural gas
requirements of the project (SoCalGas 2018). According to SoCalGas, several medium pressure
distribution service lines that intersect the project site; however, at this time the project applicant
does not anticipate the need to relocate any on-site medium pressure gas lines as part of site
development. If SoCalGas determines that relocation is necessary during their review of the
project’s natural gas service request, the project applicant would coordinate with SoCalGas
Northwest Distribution Utility Division to relocate the lines in accordance with the SoCalGas Natural
Gas Service Guidelines (2020). As discussed under Description of Project, the project includes
installation of dry utilities as part of site improvements as well as off-site connections to existing dry
utilities on or adjacent to the project. Improvements to existing facilities or the provision of new
electricity and natural gas facilities is not anticipated. The project would have a less than significant
impact on local electricity, natural gas, and telecommunications providers.
LESS THAN SIGNIFICANT IMPACT
d.Generate solid waste in excess of State or local standards, or in excess of the capacity of local
infrastructure, or otherwise impair the attainment of solid waste reduction goals?
e.Would the project comply with federal, state, and local management and reduction statutes
and regulations related to solid waste?
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A significant impact may occur if a project were to increase solid waste generation to a degree such
that the existing and projected landfill capacity would be insufficient to accommodate the additional
solid waste or if a project would generate solid waste that was not disposed of in accordance with
applicable regulations.
To comply with AB 939, the City must divert at least 50 percent of its annual waste. In addition, AB
341 sets a 75 percent recycling goal for California by 2020. The City has achieved a landfill diversion
rate of at least 50 percent (City of Moorpark n.d.). AB 341 also requires businesses generating more
than four cubic yards of solid waste to recycle and requires owners of multi-family housing with five
or more units to provide recycling for their tenants.
For projects valued at over $500,000 or that require a demolition permit, the Moorpark Municipal
Code Section 8.36 requires the preparation of a construction and demolition materials management
plan that details how the project will divert or recycle at least 65 percent of construction and
demolition material. Construction and demolition waste generated by the project must be taken to
a facility approved by the City of Moorpark for the diversion of construction and demolition
materials within the County of Ventura (City of Moorpark n.d.).
In addition, the project will likely be required to comply with AB 341 and AB 1826 if future
commercial tenants of the project generate a quantity of solid waste that meets applicable
thresholds. AB 341 mandates commercial recycling for any business that generates four cubic yards
or more of commercial solid waste per week, and AB 1826 mandates commercial organics recycling
for any business that generates four or more cubic yards of commercial organic waste per week
beginning January 1, 2019 (City of Moorpark 2016).
The project’s solid waste would be handled by private waste collection services. Solid waste from
the City of Moorpark is taken to the Simi Valley Landfill & Recycling Center (SVLRC), which currently
receives approximately 5,000 tons of solid waste per day and has a permitted daily throughput of
9,250 tons per day (California Department of Resources Recycling and Recovery [CalRecycle] 2018a,
2018b). As of February 1, 2017, the SVLRC had a remaining capacity of 88,300,000 cubic yards and
an estimated closure date of January 31, 2052 (CalRecycle 2018a).
The project would produce an estimated 2,040 pounds, or approximately one ton, of solid waste per
day, as shown in Table 32. This estimate is conservative since it does not factor in any recycling or
waste diversion programs. This quantity would constitute a 0.02 percent increase in daily
throughput at the SVLRC and would not exceed the SVLRC’s permitted daily capacity. The project
would comply with federal, state, and local statutes and regulations related to solid waste, such as
AB 939, AB 341, the County Integrated Waste Management Summary Plan, and the City’s recycling
program. Additionally, there is adequate landfill capacity in the region to accommodate project-
generated waste. Therefore, impacts related to solid waste would be less than significant impact.
Table 32 Average Daily Solid Waste Generation
Land Use Quantity
Solid Waste Generation Rate1
(pounds per day)
Total Solid Waste Generation
(pounds per day)
Residential 91 households (units) 12.23/household 1,113
Commercial 88 employees 10.53/employee 927
Total Proposed Project 2,040
1 Source: City of Los Angeles 2006, Section M.3
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LESS THAN SIGNIFICANT IMPACT
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Wildfire
Final Initial Study – Mitigated Negative Declaration 123
20 Wildfire
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
If located in or near state responsibility areas or lands classified as very high fire hazard severity
zones, would the project:
a.Substantially impair an adopted
emergency response plan or emergency
evacuation plan?□□□■
b.Due to slope, prevailing winds, and other
factors, exacerbate wildfire risks, and
thereby expose project occupants to,
pollutant concentrations from a wildfire
or the uncontrolled spread of a wildfire?□□■□
c.Require the installation or maintenance
of associated infrastructure (such as
roads, fuel breaks, emergency water
sources, power lines or other utilities)
that may exacerbate fire risk or that may
result in temporary or ongoing impacts to
the environment?□□■□
d.Expose people or structures to significant
risks, including downslopes or
downstream flooding or landslides, as a
result of runoff, post-fire slope instability,
or drainage changes?□□■□
a.If located in or near state responsibility areas or lands classified as very high fire hazard severity
zones, would the project substantially impair an adopted emergency response plan or
emergency evacuation plan?
While the project site is not within a state responsibility area or very high fire hazard severity zone,
it is located within 50 feet of a very high fire hazard severity zone (CAL FIRE 2010). The County’s
Emergency Preparedness Guide provides basic emergency information for residents of the County.
The project would be required to comply with applicable City codes and regulations pertaining to
emergency response and evacuation plans maintained by the County police department and fire
departments. No roads would be permanently closed as a result of the construction or operation of
the proposed project, and no structures would be developed that could potentially impair
implementation of or physically interfere with an adopted emergency response plan or emergency
evacuation plan. The City also has a grid pattern of streets within the downtown area so at no point
would any parcel or building be rendered inaccessible. The proposed project would be accessed via
existing driveways along High Street. These driveways would provide sufficient ingress/egress for
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vehicles, trucks, and heavy duty trucks that would frequent the project site. As such,
implementation of the proposed project would not interfere with existing emergency evacuation
plans or emergency response plans in the area.
NO IMPACT
b.If located in or near state responsibility areas or lands classified as very high fire hazard severity
zones, would the project due to slope, prevailing winds, and other factors, exacerbate wildfire
risks, and thereby expose project occupants to, pollutant concentrations from a wildfire or the
uncontrolled spread of a wildfire?
The project site is relatively flat, with hills located near the site to the north of Everett Street. In the
vicinity of the project site, wind blows southeast (NOAA 2018). Due to the presence of nearby gentle
slopes and wind direction, which could carry fires toward the site from very high fire hazard severity
zones to the north of the site, construction on the project site would expose new residents to
wildfire impacts. However, building code fire safety requirements and DTSP and General Plan
policies would require the provision of fire suppression and alarm systems, and payment of fire
protection facility fees, which would aid in preventing the spread of wildfires. Therefore, compliance
with these policies would ensure this impact is less than significant.
LESS THAN SIGNIFICANT IMPACT
c.If located in or near state responsibility areas or lands classified as very high fire hazard severity
zones, would the project require the installation or maintenance of associated infrastructure
(such as roads, fuel breaks, emergency water sources, power lines or other utilities) that may
exacerbate fire risk or that may result in temporary or ongoing impacts to the environment?
The project is located within an urbanized area and would involve the development of the majority
of the project site with structures. No new roads would be constructed and fuel breaks would not
be required. The project will comply with building code and fire safety requirements, as well as DTSP
and General Plan policies. Construction BMPs, such as ensuring equipment has spark arresters
installed, would ensure temporary construction does not exacerbate fire risks in the area. This
impact would be less than significant.
LESS THAN SIGNIFICANT IMPACT
d.If located in or near state responsibility areas or lands classified as very high fire hazard severity
zones, would the project expose people or structures to significant risks, including downslopes
or downstream flooding or landslides, as a result of runoff, post-fire slope instability, or
drainage changes?
The project would introduce new residents to the project site, which is adjacent to a very high fire
hazard severity zone. As discussed in Section 10, Hydrology and Water Quality, development of the
proposed project would introduce more impervious surfaces, which would increase the volume of
stormwater runoff from the site. This increase in runoff volume could also increase the rate of
surface runoff and flooding on- or off-site. However, landscaping of the project area would help
reduce off-site flows and reduce runoff volumes and rates. Furthermore, the project would comply
with all NPDES requirements, Ventura County’s MS4 Permit, and the City’s runoff requirements and
would therefore not significantly increase the rate of surface runoff and flooding on- or off-site. The
project site is separated from the gently-sloped hills north of the site by existing urban
development; therefore, post-fire slope instability resulting in landslides or flooding would not be
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Final Initial Study – Mitigated Negative Declaration 125
likely to result in impacts to development on the project site. Additionally, there are no creeks or
drainage systems within the project site that may be affected by post-fire flooding or landslides.
Further, the gently-sloping hillside north of the site has not been identified as a landslide area (City
of Moorpark 2001, Figure 4-3).
LESS THAN SIGNIFICANT IMPACT
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Final Initial Study – Mitigated Negative Declaration 127
21 Mandatory Findings of Significance
Potentially
Significant
Impact
Less than
Significant
with
Mitigation
Incorporated
Less than
Significant
Impact No Impact
Does the project:
a.Have the potential to substantially
degrade the quality of the environment,
substantially reduce the habitat of a fish
or wildlife species, cause a fish or wildlife
population to drop below self-sustaining
levels, threaten to eliminate a plant or
animal community, substantially reduce
the number or restrict the range of a rare
or endangered plant or animal or
eliminate important examples of the
major periods of California history or
prehistory?□■□□
b.Have impacts that are individually
limited, but cumulatively considerable?
(“Cumulatively considerable” means that
the incremental effects of a project are
considerable when viewed in connection
with the effects of past projects, the
effects of other current projects, and the
effects of probable future projects)?□■□□
c.Have environmental effects which will
cause substantial adverse effects on
human beings, either directly or
indirectly?□□■□
a.Does the project have the potential to substantially degrade the quality of the environment,
substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population
to drop below self-sustaining levels, threaten to eliminate a plant or animal community,
substantially reduce the number or restrict the range of a rare or endangered plant or animal or
eliminate important examples of the major periods of California history or prehistory?
The project site is located in an urbanized area of the City and has been previously disturbed in
conjunction with on-site development. The project site contains a former granary, industrial
buildings, associated paved surfaces, and vacant land. As described in Section 4, Biological
Resources, implementation of Mitigation Measures BIO-1 would address potential impacts to
nesting birds. As noted under Section 5, Cultural Resources, and Section 18, Tribal Cultural
Resources, no historical, archeological, or tribal resources were identified on-site. Nevertheless,
implementation of Mitigation Measures CUL-1 through CUL-3 and TCR-1 would reduce impacts to
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unanticipated cultural resources to a less than significant level by providing a process for evaluating
and, as necessary, avoiding impacts to any identified resources during construction. Impacts would
be less than significant with the mitigation incorporated for biological, cultural, and tribal resources.
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
b.Does the project have impacts that are individually limited, but cumulatively considerable?
(“Cumulatively considerable” means that the incremental effects of a project are considerable
when viewed in connection with the effects of past projects, the effects of other current
projects, and the effects of probable future projects)?
As described in the discussion of environmental checklist Sections 1 through 19, the project would
have no impact, a less than significant impact, or a less than significant impact with mitigation
incorporated, with respect to all environmental issues. No known planned or pending projects are
located in the immediate site vicinity that would substantially contribute to any additive effects in
conjunction with the project with respect to issues such as aesthetics, land use, and construction-
related impacts (i.e. traffic, air quality, and noise). The project’s contribution to cumulative regional
and global impacts with respect to such issues as air quality, climate change, and noise would not be
substantial due to the project size, location, and design. Some of the other resource areas
(agricultural and mineral) were determined to have no impact in comparison to existing conditions.
Therefore, the project would not contribute to cumulative impacts related to these issues. In
addition, as discussed in Section 17, Transportation/Traffic, the TIA analyzes potential cumulative
traffic impacts due to the development of the approved and pending projects located in the City of
Moorpark and the immediate surrounding area (see Table 28 for cumulative projects list). The
resulting cumulative traffic impacts were found to be less than significant with Mitigation Measure
TRA-1 incorporated. As such, with implementation of the mitigation measures included in this Initial
Study and compliance with applicable rules and regulations, cumulative impacts would be less than
significant (not cumulatively considerable).
LESS THAN SIGNIFICANT WITH MITIGATION INCORPORATED
c.Does the project have environmental effects which will cause substantial adverse effects on
human beings, either directly or indirectly?
In general, impacts to human beings are associated with air quality, hazards and hazardous
materials, and noise impacts. As detailed in analyses for air quality, hazards and hazardous
materials, and noise, the proposed project would not result, either directly or indirectly, in adverse
hazards related to air quality, hazardous materials or noise. Compliance with applicable rules and
regulations and recommended mitigation measures would reduce potential impacts on human
beings to a less than significant level.
LESS THAN SIGNIFICANT IMPACT
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References
Final Initial Study – Mitigated Negative Declaration 129
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https://www.moorparkca.gov/DocumentCenter/View/166/Circulation-Element (accessed
December 2019).
____. 1998a. Final Mitigated Negative Declaration – City of Moorpark Downtown Specific Plan.
October 1998.
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____. 1998b. City of Moorpark General Plan Noise Element.
https://www.moorparkca.gov/DocumentCenter/View/171/Noise-Element (accessed
December 2019).
____. 2001. Moorpark 2000-2005 Safety Element. March 2001.
____. 2006a. Downtown Specific Plan. November 1, 2006.
____. 2006b. California Pepper Trees Maintenance Plan.
https://www.moorparkca.gov/DocumentCenter/View/3710/2006-Maintenance-Plan
(accessed December 2019).
____. 2008. Zoning Map. September 17, 2008.
https://www.moorparkca.gov/DocumentCenter/View/175/Zoning-Map---Large (accessed
December 2019).
____. 2016. “Commercial and Multi-Family Trash Service.” January 1, 2016.
http://moorparkca.gov/748/Commercial-and-Multi-Family-Trash-Servic (accessed
December 2019).
____. 2018a. Moorpark Municipal Code (MMC). https://qcode.us/codes/moorpark/ (accessed
December 2019).
____. 2018b. “Quarterly Status Report for October 2018.”
https://www.moorparkca.gov/DocumentCenter/View/81/Quarterly-Status-Report?bidId=
(accessed December 2019).
____. n.d. “City of Moorpark Construction and Demolition Materials Management Plan.”
http://www.moorparkca.gov/DocumentCenter/View/6099/CD-Plan-Packet---2017
(accessed December 2019).
____. n.d. “Solid Waste Division.” https://www.moorparkca.gov/139/Solid-Waste (accessed
December 2019).
Morton, D.M., and Miller, F.K. 2006. Geologic map of the San Bernardino and Santa Ana 30' x 60'
quadrangles, California. U.S. Geological Survey, Open-File Report OF-2006-1217, scale
1:62,500.
National Oceanic and Atmospheric Administration (NOAA). 2019. U.S. Wind Climatology.
Department of Commerce. https://www.climate.gov/maps-data/dataset/average-wind-
speeds-map-viewer (accessed December 2019).
Society of Vertebrate Paleontology (SVP). 2010. Standard Procedures for the Assessment and
Mitigation of Adverse Impacts to Paleontological Resources. Society of Vertebrate
Paleontology Impact Mitigation Guidelines Revision Committee.
Southern California Association of Governments (SCAG). 2016. 2016-2040 Regional Transportation
Plan/Sustainable Communities Strategy (2016 RTP/SCS Plan).
http://scagrtpscs.net/Pages/FINAL2016RTPSCS.aspx (accessed December 2019).
Southern California Association of Governments (SCAG). 2016 Regional Transportation
Plan/Sustainable Communities Strategy (RTP/SCS) Appendix - Demographics & Growth
Forecast. April 7, 2016.
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References
Final Initial Study – Mitigated Negative Declaration 133
Southern California Edison (SCE). 2012. 2012 Corporate Responsibility & Sustainability.
https://www1.sce.com/wps/wcm/connect/68145014-2eba-40c2-8587-
6482ce056977/CRR_08202013.pdf?MOD=AJPERES&ContentCache=NONE (accessed
December 2019).
____. 2018a. 2017 Power Content Label. July 2018. https://www.sce.com/sites/default/files/inline-
files/2017PCL_0.pdf (accessed December 2019).
____. 2018b. 2019 Local Capacity Technical Analysis: Final Report and Study Results. May 15, 2018.
http://www.caiso.com/Documents/Final2019LocalCapacityTechnicalReport.pdf (accessed
December 2019).
Southern California Gas (SoCalGas). 2018. 2018 California Gas Report Redacted Workpapers.
https://www.socalgas.com/regulatory/documents/cgr/2018CGR_SoCalGAs_Redacted_Wor
kpapers_revised_8_13_18.pdf (accessed December 2019).
____. 2020. Natural Gas Service Guidebook. January 2020.
https://www.socalgas.com/documents/construction/GasServiceGuidebook.pdf (accessed
March 2020).
South Coast Air Quality Management District (SCAQMD). 2008. Draft Guidance Document – Interim
CEQA Greenhouse Gas (GHG) Significance Threshold. October 2008.
http://www.aqmd.gov/docs/default-source/ceqa/handbook/greenhouse-gases-(ghg)-ceqa-
significance-thresholds/ghgattachmente.pdf (accessed December 2019).
Total Food Service. 2013. “How to Create a Restaurant Floor Plan.” Last modified: July 25, 2013.
https://totalfood.com/how-to-create-a-restaurant-floor-plan/ (accessed December 2019).
Union Pacific Corporation. 2013. 2013 Investor Fact Book.
https://www.up.com/investors/attachments/factbooks/2013/fact_book.pdf (accessed
December 2019).
United States Fish and Wildlife Service. 2018. National Wetlands Inventory Wetlands Mapper. Last
modified: May 8, 2018. https://www.fws.gov/wetlands/data/mapper.html (accessed
December 2019).
United States Green Building Council. 2008. “Building Area per Employee by Business Type.” Last
modified: May 13, 2008. https://www.usgbc.org/Docs/Archive/General/Docs4111.pdf
(accessed December 2019).
Ventura County Air Pollution Control District (VCAPCD). 2003. Ventura County Air Quality
Assessment Guidelines. October 2003.
http://www.vcapcd.org/pubs/Planning/VCAQGuidelines.pdf (accessed December 2019).
_____. 2011. Greenhouse Gas Thresholds of Significance Options for Land Use Development
Projects in Ventura County. November 8, 2011.
___. 2017. 2016 Ventura County Air Quality Management Plan. February 14, 2017.
http://www.vcapcd.org/pubs/Planning/AQMP/2016/Final/Final-2016-Ventura-County-
AQMP.pdf (accessed December 2019).
Ventura, County of. 2005. Gabbert & Walnut Canyon Channels Flood Control Deficiency Study.
____. 2011. Ventura County General Plan Resources Appendix. June 28, 2011.
https://docs.vcrma.org/images/pdf/planning/plans/General-Plan-Resources-Appendix.pdf
(accessed December 2019).
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____. 2016. Ventura County Historical Landmarks & Points of Interest. May 2016.
https://docs.vcrma.org/images/pdf/planning/programs/chb/Points_of_Interest.pdf
(accessed December 2019).
____. 2018. Ventura County Technical Guidance Manual for Stormwater Quality Control Measures –
Manual Update 2011, Errata Update 2018. June 29, 2018.
http://www.vcstormwater.org/index.php/publications/manuals/tech-guide-manual
(accessed December 2019).
____. n.d. “Water and Sanitation Services – Engineering & Development.”
http://vcpublicworks.org/water-sanitation-department/water-and-sanitation-services
(accessed December 2019).
Ventura County Fire Department (VCFD). 2016. 2016 District Snapshot.
http://vcfd.org/images/annual-reports/District_Snapshot_2016.pdf (accessed December
2019).
Ventura County Waterworks District (VCWWD). 2016. Ventura County Waterworks District No. 1
2015 Urban Water Management Plan. June 14, 2016.
http://pwaportal.ventura.org/WSD/Home/docs/2016-11-
29%20APPVD%20FINAL%20VCWWD%20No%20%201%202015%20Urban%20Water%20Ma
nagement%20Plan.pdf (accessed December 2019).
____. n.d. Rules and Regulations Districts Nos. 1, 16, 17, 19, & 38.
http://pwaportal.ventura.org/WSD/Home/docs/R&Rs/Rules&Regulations_WWD1,16,17,19,
%2038_Combined_BoardApproved_20180213.pdf (accessed December 2019).
Ventura Local Agency Formation Commission (LAFCo). 2018. City of Moorpark Municipal Service
Review. http://www.ventura.lafco.ca.gov/wp-content/uploads/Moorpark-MSR-Resolution-
2018-02-21reduced.pdf (accessed December 2019).
Walker Consultants. 2019. Downtown Moorpark Parking Study. December 30, 2019.
https://www.moorparkca.gov/DocumentCenter/View/10125/Downtown-Parking-
Study?bidId= (accessed January 2020).
Yerkes, R. F., and R. H. Campbell. 2005. Preliminary geologic map of the Los Angeles 30´ x 60´
quadrangle, southern California: United States Geological Survey, Open-File Report OF-97-
254, scale 1:24,000.
List of Preparers
Rincon Consultants, Inc. prepared this IS-MND under contract to Daly Group Inc. Persons involved in
data gathering analysis, project management, and quality control are listed below.
RINCON CONSULTANTS, INC.
Joe Power, AICP, Principal
Lexi Journey, Senior Environmental Planner
Annaliese Miller, Associate Environmental Planner
Katherine Green, Associate Planner
Aileen Mahoney, Associate Planner
Heather Clifford, Associate Paleontologist
Jessica DeBusk, Principal Investigator, Paleontologist
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References
Final Initial Study – Mitigated Negative Declaration 135
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Appendix M
Response to Comments on the Second Public Review Draft
EXHIBIT B
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City of Moorpark
High Street Station Mixed Use Development Project
Response to Comments on Recirculation of the Public Review Draft IS-MND
Responses to Comments on the Recirculation
of the Public Review Draft IS-MND
This section includes comments received during the recirculation of the Draft IS-MND prepared for
the High Street Station Mixed Use Development Project (Project).
The Draft IS-MND was recirculated for a 30-day public review period that began on February 7, 2020
and ended on March 9, 2020. The City of Moorpark received 11 comment letters on the recirculated
Draft IS-MND. The commenters and the page number on which each commenter’s letter appear are
listed below.
Letter No. and Commenter Page No.
1 Ramesh Bassiri, Technical Services Section, Ventura County Environmental Health Division 2
2 James Maxwell, Groundwater Specialist, Ventura County Public Works Watershed Protection
District
4
3 Dillan Murray, Cultural Heritage Program Planner, County of Ventura Cultural Heritage Board 9
4 Dean Wallraff, Attorney at Law, Advocates for the Environment 13
5 Karen Kwan, Principal Environmental Specialist, Southern California Gas Company 35
6 Mark Bandurraga, Engineer IV, Ventura County Public Works Watershed Protection District 39
7 Miya Edmonson, IGR/CEQA Branch Chief, District 7 – Office of Regional Planning, Department
of Transportation
44
8 Nicole Collazo, Air Quality Specialist, Ventura County Air Pollution Control District 48
9 Dale Whitaker 50
10 Susan Arakawa, Administrative Assistant, The Tribal Elders’ Council Governing Board, Santa
Ynez Band of Chumash Indians
53
11 Todd McIntyre, Chief Strategy Officer, Southern Regional Rail Authority (SCRRA) 55
The comment letters and responses follow. The comment letters have been numbered sequentially
and each separate issue raised by the commenter, if more than one comment is included in the
letter, each comment has been assigned a number. The responses to each comment identify first
the number of the comment letter, and then the number assigned to each issue (Response 1.1, for
example, indicates that the response is for the first issue raised in comment Letter 1).
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City of Moorpark
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Response to Comments on Recirculation of the Public Review Draft IS-MND
Letter 1
COMMENTER: Ramesh Bassiri, Technical Services Section, Ventura County Environmental
Health Division
DATE: February 13, 2020
Response 1
The commenter states that the food facilities proposed by the project would be subject to plan
review and permitting by the Ventura County Environmental Health Division prior to beginning
construction of the food facilities. The commenter states that a Permit to Operate would be
required prior to beginning retail food operations.
The commenter is correct in stating that the proposed project would be subject to these
requirements of the Ventura County Environmental Health Division. This permit requirement does
not relate to an environmental impact under CEQA, but all required permits for food facilities would
be obtained prior to issuance of a certificate of occupancy.
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PUBLIC WATERSHED PROTECTION
WORKS MEMORANDUM
DATE: February 24,2020
TO: Anthony Ciuffetelli, RMA/Planning/EDR Coordinator
FROM: James Maxwell, Groundwater Specialist ,.;r--
SUBJECT: RMA 19-013-1 - City of Moorpark, High Street Station Mixed Use
Development, lnitial Study - Draft Mitigated Negative Declaration (MND)
The Ventura County Public Works Agency, Water Resources Division (VCWRD)
reviewed the MND and supporting documents submitted by the City of Moorpark.
PROJECT DESCRIPTION
The proposed project is located on a2.1S-acre site (Assessor Parcel Number [APN]
512-0-090-1 15) on the south side of High Street, between Walnut Street and Magnolia
Street, in the City of Moorpark. The proposed project is a mixed-use development
consisting of 91 multi-family residential units and 15,018-square feet (SF) of commercial
space with 6,618-SF of standalone commercial space and 139 on-site parking spaces.
Existing structures will be demolished and the property graded prior to construction.
ENVIRONMENTAL IMPACT ANALYSIS
The project site overlies the Las Posas Valley Basin (Department of Water Resources
IDWRI Basin No. 4-008), which is hydrologically continuous with the Oxnard Subbasin
(DWR Basin No.4-004.02), designated by DWR as critically-overdrafted.
There are no groundwater wells located within the project boundaries and no active
wells within 0.5 miles of the parcel. The site is in the Ventura County Waterworks
District 1 (VC\ M/D 1) service area and a Water Availability Letter dated April 1 5,2019
has been issued by the Ventura County Water and Sanitation Department. VC\ M/D 1
sources 80% of its supply from imported water from Calleguas Municipal Water District
(CMWD) and 2O% from five groundwater wells it operates in the Las Posas Valley
Basin. The Fox Canyon Groundwater Management Agency (FCGMA) manages
confined and unconfined aquifers in the Las Posas Valley Basin from which VC\ M/D 1
draws water. Groundwater pumping allocations were reduced by FCGMA's Emergency
Ordinance E, which was adopted in 2014. FCGMA adopted a new pumping allocation
ordinance which becomes effective October 1,2020.
It is not known how much water the proposed project is anticipated to consume at full
buildout and for grading and construction purposes. Based on the development use and
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VCWRD Review RMA 19-013-1
February 24,2020
Page 2 of 2
design occupancy, it is estimated that approximately 1.O-acre feet per year (AFY) will be
extracted from the Las Posas Valley Basin by VCVWD 1 to supply the site.
No surface water is present on the site or is intended for use. The Preliminary
Hydrologic and Hydraulic/Stormwater Quality Report prepared by CCE Design
Associates, Inc., dated June 18,2019 reports that 80 percent of the ground surface will
be impervious after build-out. Stormwater runoff from the increased impervious surface
area will be directed through oversized storm drainpipes with orifice plates to restrict
outflow to the allowable rates defined in the report. Bio-retention areas with underdrains
will be installed adjacent to the paved driveways. A linear stormwater biofiltration
system is proposed alongside the street (High Street) frontage. lt is not clear how many
AFY of surface water is anticipated to be recharged to the subsurface through the
planned retention and biofiltration systems or become runoff. According to the
Preliminary Geohazard Report, Various City-owned Propefties, Moorpark, California,
dated January 2018 and prepared by Oakridge Geoscience, Inc., the depth to
groundwater was encountered at between 20 to 38 feet below ground surface (bgs) with
a historical high groundwater level in the downtown Moorpark area at 15 feet bgs.
The project site is within the boundaries of the VC\AMD 1 sewer service area and a
Sewer Availability Letter dated April 1 5,2019 has been issued by the Ventura County
Water and Sanitation Department. No community wastewater treatment system or
onsite wastewater treatment system has been proposed.
The proposed project will include grading and construction activities. Heavy equipment,
hazardous materials, chemicals and fuel stored onsite should be kept within
containment. Equipment fueling, maintenance and liquid transfers should be conducted
in dedicated areas to prevent the potential introduction of impacts to shallow subsurface
groundwater.
The MND determined that the foreseeable impact to the water supply for the proposed
project is less than significant. However, the anticipated annual volume of water
consumption at full site build-out and for construction and grading is not known and
could potentially result in extraction of 1.O-AFY or more of groundwater from a basin
that is in hydrologic continuity with a critically-overdrafted basin. The proposed
development introduces impervious surface area that could potentially prevent the
percolation of surface water to the underlying basin. The annual volume of surface
water anticipated to be recharged to the underlying basin or discharged offsite is not
known.
REFERENCES
County of Ventura. 2016. Water Rate Study. Waterworks Distict No. 1 (Moorpark)
December.
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Letter 2
COMMENTER: James Maxwell, Groundwater Specialist, Ventura County Public Works
Watershed Protection District
DATE: February 24, 2020
Response 2.1
The commenter states that it is unknown how much water the proposed project is anticipated to
consume at full buildout and for grading purposes. The commenter adds that based on the
development use and design occupancy, it is estimated that approximately 1.0-acre feet per year
(AFY) will be extracted from the Las Posas Valley Basin, which is hydrologically continuous with a
critically-overdrafted basin.
Based on information provided by the project applicant, the project would use approximately 2,000
gallons of water per day during the demolition, site preparation and grading phases. Over the 30-
day period, water would be provided via water truck and the total volume of water would be
approximately 0.2 acre-foot. Water would be drawn from a temporary construction meter attached
to the nearest fire hydrant. In addition, as discussed in Section 19, Utilities and Service Systems, of
the Draft IS-MND, the project is anticipated to increase water demand by approximately 34.7 acre-
feet per year at full buildout. In response to this comment, the following text of Section 19, Utilities
and Service Systems, has been revised:
Based on information provided by the project applicant, the project would use
approximately 2,000 gallons of water per day during the demolition, site preparation, and
grading phases. Over this 30-day period, water would be provided via water truck and the
total volume of water would be approximately 60,000 gallons, or 0.2 acre-foot. Water
would be drawn from a temporary construction meter attached to the nearest fire hydrant.
In addition, Aaccording to the CalEEMod modeling prepared for the project, the project
would increase water demand by approximately 11,295,898 gallons per year or 34.7 acre-
feet per year (AFY) during project operation (Appendix C).
The proposed project would not generate population growth in excess of the population forecasts
underlying the Ventura County Waterworks District No. 1’s 2015 Urban Water Management Plan.
Existing and planned water supply sources include imported water supply from Calleguas,
groundwater pumped from the East Las Posas Groundwater Basin, Title 22 recycled water produced
at the Moorpark Water Reclamation Facility (MWRF), and planned local water supply projects
including the VCWWD No. 1 Moorpark Desalter Project and expansions to the MWRF recycled water
system. The Fox Canyon Groundwater Management Agency, which is the local groundwater
sustainability agency, has allocated the VCWWD No. 1 a maximum of 1,756 acre-free per year via
Ordinance E, which was enacted to eliminate overdraft from the aquifer systems for municipal and
industrial uses (VCWWD 2016). Regardless of whether the project is served by groundwater or other
supply sources, the VCWWD No. 1 would not be permitted to withdraw groundwater in excess of
this allocation. Therefore, as concluded in Section 10, Hydrology and Water Quality, of the Draft IS-
MND, the project would have less-than-significant impacts related to groundwater supply.
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Response to Comments on Recirculation of the Public Review Draft IS-MND
Response 2.2
The commenter states that the Preliminary Hydrologic and Hydraulic/Stormwater Quality Report
prepared by CCE Design Associated, Inc., does not make clear how many acre-feet per year (AFY) of
surface water are anticipated to be recharged to the subsurface versus becoming runoff.
Given the constraints posed by on-site soils related to the potential to exacerbate the liquefaction
potential of the project site, infiltration of stormwater is not feasible (see discussion in Section 7,
Geology and Soils, of the Draft IS-MND and the Preliminary Geohazard Report in Appendix G).
Therefore, with implementation of the proposed project, no direct recharge of surface water to the
subsurface would occur, and all surface water would be discharged as runoff and would vary
depending on the amount of annual participation. The Preliminary Hydrologic and
Hydraulic/Stormwater Quality Report prepared by CCE Design Associated, Inc (Appendix B)
evaluated the peak discharge flowrate that would occur during a 100-year storm event. As
described in the project description, the project proposes to mitigate the increase in peak runoff
flowrate caused by increased impervious cover by providing 175 feet of oversized 48-inch drain pipe
in the western drainage area and 65 feet of 36-inch pipe within the eastern drainage area. The
project would reduce the post-development flow rate by 0.92 cubic feet per second (cfs). Therefore,
as stated in Section 10 Hydrology and Water Quality, impacts to the existing drainage pattern of the
area would be less than significant.
Response 2.3
The commenter states that the project does not propose a community wastewater treatment
system or onsite wastewater treatment.
The commenter is correct. The project does not include a community wastewater treatment system
or on-site wastewater treatment. As concluded in Section 19, Utilities and Service Systems, of the
Draft IS-MND, the project’s impacts related to wastewater would be less than significant because
the project would not generate wastewater in excess of the three-million-gallon daily surplus
capacity of the Moorpark Water Reclamation Facility. The Ventura County Water and Sanitation
Department has issued a will-serve letter for the proposed project.
Response 2.4
The commenter states that heavy equipment, hazardous materials, chemicals, and fuel stored
onsite during grading and construction activities should be kept in containment and that equipment
fueling, maintenance, and liquid transfers should be directed to designated areas to prevent
potential effects to shallow groundwater.
As discussed in Section 9, Hazards and Hazardous Materials, of the Draft IS-MND, the routine
transport, use, and disposal of hazardous materials during construction would be conducted in
accordance with applicable state and federal laws, such as the Hazardous Materials Transportation
Act, Resource Conservation and Recovery Act, the California Hazardous Material Management Act,
and the California Code of Regulations, Title 22, which regulate the handling and transport of
hazardous materials. These laws, in addition to United States Occupational Safety and Health
Administration (OSHA) laws and regulations, provide regulations for protection against the risks to
life and property from the use and transportation of hazardous materials. Specifically, Chapter 1926
Subpart H of the OSHA Safety and Health Regulations for Construction relates to handling, storage,
use and disposal of hazardous materials and places restrictions and requires specific procedures
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regarding the placement, staging locations, and proper procedures for waste management/disposal
to hazardous materials exposure. In addition, as discussed in Section 7, Geology and Soils, according
to the Preliminary Geohazard Report (Appendix G), groundwater was encountered at sites along
High Street at depths of 33 to 38 feet in the drill holes. Historic high groundwater levels in
downtown Moorpark have been within 15 to 20 feet of the ground surface and it is unlikely that
groundwater would be encountered over the course of construction. Regardless, because all
transport, use, and disposal of hazardous materials would be governed by applicate state and
federal laws, impacts would be less than significant
Response 2.5
The commenter states that while the foreseeable impact to the water supply for the proposed
project is deemed less than significant in the MND, impacts to water supply are unknown for the
following reasons:
▪Anticipated annual volume of water consumption at full site build-out and for construction and
grading is not known and could potentially result in extraction of 1.0 AFY or more from a basin
that is in hydrologic continuity with a critically-overdrafted basin;
▪Introduction of impervious surface area that could potentially prevent the percolation of surface
water to the underlying basin; and
▪Anticipated annual volume of surface water to be recharged to the underlying basin or
discharged offsite is unknown.
See Responses 2.1 and 2.2 for discussions on the project anticipated water use and groundwater
recharge, respectively. Based on data provided in the Preliminary Hydrologic and
Hydraulic/Stormwater Quality Report (Appendix B), the amount of impervious surface on the project
site would increase from approximately 30 percent (0.6 acre) under existing conditions to
approximately 80 percent (1.7 acre) under proposed project conditions. Therefore, the project
would add approximately 1.1 acre of impervious surfaces to the project. However, this addition of
impervious surfaces to the project site, which does not currently have retention or infiltration basins
on-site, would not substantially interfere with groundwater recharge. Therefore, impacts to
groundwater supplies would be less than significant, as concluded in Section 10, Hydrology and
Water Quality, of the Draft IS-MND.
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Response to Comments on Recirculation of the Public Review Draft IS-MND
Letter 3
COMMENTER: Dillan Murray, Cultural Heritage Program Planner, County of Ventura Cultural
Heritage Board
DATE: February 25, 2020
Response 3.1
The commenter states that the County of Ventura Cultural Heritage Board has no further comments
on the inclusion of an interpretive display, which is now required as a condition of approval for the
proposed project.
As stated in the Project Description on Page 7 of the IS-MND, “As part of the project design, the
proposed project would incorporate an interpretive display into a portion of the proposed
commercial storefront space”.
Response 3.2
The commenter asks to be notified as soon as possible if pepper trees associated with Landmark #72
are adversely affected during project implementation, including disruption or substantial removal of
branches, feeder roots, etc.
As stated in the Project Description on Page 7 of the IS-MND, the City of Moorpark Tree Preservation
Guidelines (Moorpark Municipal Code 12.12.060) would be enforced to ensure the pepper trees are
not impacted by nearby construction. During construction, conditions of approval would require the
establishment of a physical barrier (flagging or see-through safety fencing) to be installed around
any adjacent pepper trees that are situated near any mechanized equipment. Additionally, the
project’s grading plan would not disrupt or remove of structural feeder roots and would not fill, cut,
or compact soils within the dripline. Regardless, the City acknowledges the commenters request
regarding notification if pepper trees were to be adversely affected.
Response 3.3
The commenter states that the historical marker denoting Landmark #72 (pepper trees) educates
passersby on the significance of the historic resource and recommends that it remain in place or, if
removed, be replaced like-for-like in order to continue educating passersby.
As part of the current project plans, this marker, along with the gazebo, El Camino Real bell, and
memorial bricks will all be located at the western end of the project site, in front of the Chamber of
Commerce site on High Street. The historical marker denoting Landmark #72 is not planned for
removal.
Response 3.4
The commenter notes a typographical error on Appendix L, page 2. It is noted “As discussed in
Section 5, Cultural Resources, the project would have no impact to historical resources.” The
commenter explains that impacts of the project related to historical resources were determined to
be “less than significant” in the draft IS-MND.
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In response to this comment, the following text from Appendix L under Response 1.2 has been
revised:
As discussed in Section 5, Cultural Resources, of the Draft IS-MND, the project would have a
less than significant impact no impact to historical resources. However, to address the
commenter’s concerns regarding the historical significance of the project site, the following
condition of approval has been added to Section 5, Cultural Resources…
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10211 Sunland Blvd., Shadow, CA 91040 (818) 353-4268 dw@aenv.org
March 5, 2020
Karen Vaughn
City of Moorpark
Community Development Department
799 Moorpark Ave.
Moorpark, CA 93021
Via U.S. Mail and email to KVaughn@MoorparkCA.gov
re: Moorpark High Street Station Mixed Use Development
Dear Ms. Vaughn:
I write to comment on the Mitigated Negative Declaration (the MND) for the
High Street Station Mixed Use Development, Project Nos. RPD2018-01, ZC2018-
01, DDA2018-01 and DA2018-01 (the Project), proposed to be constructed on the
south side of High Street, between Walnut Street and Magnolia Street in the City of
Moorpark (the Project Site). I comment on behalf of our client, the Committee to
Preserve Historic High Street.
Undefined Project
The MND anticipates that, in connection with its approval of the Project, the
City of Moorpark will amend the Moorpark Municipal Code (MMC) to include a
Mixed-Use Overlay Zone. (MND p. 74.) The ordinance that would add that
designation is not included with the MND, and does not appear to be available to the
public, even though it is a necessary part of the Project. Failing to provide the
proposed zoning ordinance to the public precludes informed review of the Project and
the MND, as the public cannot evaluate the environmental and other impacts of the
proposed Mixed-Use Overlay zoning ordinance without seeing its text.
Similarly, the MND contains a list of Required Approvals for the project,
including a Zoning Map Amendment, Residential Planned Development Permit for
conditions of approval, a Disposition and Planned Development Permit, and a
Development Agreement. (MND p. 9.) None of these documents have been made
available to the public, although, under the California Environmental Quality Act
(CEQA, Public Resources Code §§ 21000-21189.3), the MND must evaluate the
environmental impacts of these proposed enactments because they are part of the
Project. Under CEQA Guidelines § 15378, a “Project” means “the whole of an action”
that results in potential changes to the environment. Circulating the MND for
Advocates for the Environment
A non-profit public-interest law firm
and environmental advocacy organization
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comment when important underlying documents are not available violates CEQA
because the public and the decisionmakers cannot understand the nature and scope of
the Project being evaluated in the MND.
A notice currently posted on the City of Moorpark Web site says that the
Project was changed in several ways, e.g. from 91 to 79 units, with the elimination of
3-bedroom apartments and the increase of commercial space from 13,656 to 14,471
square feet. The MND analyzes the former, 91-unit project, which might have very
different environmental impacts than does the new project. The MND should have
been updated to analyze the current version of the Project. This failure to analyze the
current project violates CEQA, which requires an accurate, stable, and finite project
description.
The Notice of Intent to Adopt a Mitigated Negative Declaration issued by the
City violates CEQA because it does not provide notice concerning the actual Project
to be built. Its project description describes the former, 91-unit version of the Project,
not the actual proposed Project.
Spot Zoning
The MND states that the proposed Mixed-Use Overlay Zone would apply only
to the Project site. (MND p. 74.) This is spot zoning, which occurs when “a small
parcel of land is subject to more or less restrictive zoning than surrounding properties.”
(Foothill Communities Coalition v. County of Orange (2014) 222 Cal.App.4th 1302,
1312.) This spot zoning violates the law because there is no substantial public need for
it. (Id. at p. 1314.)
Inconsistencies with the Specific Plan
The Land Use Element of the Moorpark General Plan designates the area
containing the Project Site with a “Downtown Specific Plan (SP-D)” land-use
designation. The Downtown Specific Plan (SP or Specific Plan) in turn provides an
“Old Town Commercial (C-OT)” land-use designation for the Project Site. (SP p. 2-
24.) The Project does not include an amendment to either the General Plan or the
Specific Plan. Land-use approvals issued by a California City, including zoning, must
be consistent with the applicable general and specific plans, so the Project must
comply with the Specific Plan even if the applicable zoning ordinance is amended.
Specific Plan requirements for Mixed Use Developments in areas designated
Old Town Commercial (SP § 2.2.5 5) call for the entire ground floor to be used
exclusively for retail and other commercial uses. “The intent of allowing for mixed use
projects in the Old Town Commercial District is to provide continuous frontage of
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retail shops and commercial business establishments at the street level…. No dwelling
shall be permitted to be located in whole or in part on the ground floor or street level.”
(SP § 2.2.5 5) The Project violates this SP provision by allowing 18 residential studios
on the ground floor of the Project. (MND p. 4.)
Parking
SP 2.2.5 5.d requires all parking spaces needed for the residential use to be
provided on-site and for the exclusive use of the residents. Thus, parking spaces for the
residential uses cannot be “shared.” Table 11 on page 20 of the Traffic and Circulation
Study attached as Appendix D to the MND, shows that 190 parking spaces are
required by the MMC for the Project’s residential uses, and 50 spaces are required for
the restaurant, commercial, and brewery uses. SP 2.2.5 5.d therefore requires that all
190 residential parking spaces be provided on-site (in additional to some of the spaces
for the commercial uses). But the MND states that that only 139 parking spaces will
be provided on-site, a violation of the Specific Plan.
The parking study by Walker Consultants, dated December 30, 2019, is flawed
and should not have been used as the basis for a conclusion that the Project will not
have a significant adverse impact on parking along High Street. The parking study
improperly included in its count of downtown parking spaces the lots owned by the
Ventura County Transportation Commission (VCTC) located adjacent to the
Metrolink station, which, according to the signs posted in those lots, are to be used
only by Metrolink passengers. The parking study also pointed out that the loss of Lot
5b, near the High Street Arts Center, would have an adverse impact on that facility.
Trees
MMC 12.12.050 requires the City to prepare a tree report for any “urban
development proposal” where there are associated historic trees or nature trees. There
is no evidence in the MND that the City complied with this requirement, which
would have provided more information on the trees, relevant to both the Aesthetics
and Biological Resources sections of the MND. Approval of the Project without
producing such a report violates the MMC.
CEQA: EIR
As discussed below, there are several areas in which the Project may have
significant adverse environmental impacts, even with the proposed mitigation
measures. CEQA therefore requires that an EIR be prepared.
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CEQA: Cultural Resources
There are two resources in close proximity to the Project Site that qualify as
historical resources under CEQA Guidelines § 15064.5: (1) the row of pepper trees
adjacent to High Street on the northern side of the Project, Ventura County
Landmark #72; and (2) Tanner Corner, at the intersection of High Street and
Highway 23, which is listed on the California Register of Historic Resources.
The Project may have significant adverse impacts on these historic resources,
and these potential impacts are not analyzed or mitigated in the MND.
In addition, the Ventura County Cultural Heritage Board stated, in Letter 1 in
MND Appendix L, that the railroad depot, formerly on the site, has historic
significance, and the Project’s impacts should therefore be mitigated with at least an
interpretive display highlighting the history of the site and the railroad. Response 1.2
states that a mitigation measure addressing this issue, CR-1, was added to the MND’s
cultural-resources section, but that measure is not included in that section of the
MND.
CEQA: Greenhouse Gases
The MND’s analysis of the Project’s greenhouse-gas (GHG) emissions relies
heavily on the CARB 2017 Climate Change Scoping Plan, but it is inconsistent with it
in a number of ways.
The 2017 Scoping Plan points out that it is possible for housing projects to
achieve net-zero GHG emissions, as Newhall Ranch did. (pp. 101-102.) This project
should do that. At the very least, it should include the maximum feasible amount of
solar rooftop power.
The MND calculates GHG emissions for the Project at 2.7 MTCO2e. (p. 55.)
For some reason, it focuses on the year 2030 requirements and goals, but a project like
this will last much longer, at least until 2050, so the Project should be consistent with
the state’s 2050 GHG-reduction goals as well. The 2017 Scoping Plan sets an overall
goal of 2 MTCO2e per capita per year in 2050. (p. 99.) Since the Project’s emissions
will exceed this threshold, they will be significant under CEQA, requiring all feasible
mitigation measures be adopted.
One feasible mitigation measure that the City should require is to prohibit the
use of natural gas for the project. It is feasible to use electricity for space heating and
cooking, and to use solar water heaters for heating water. Since California plans to
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obtain all its electricity from renewable sources by 2045, using electricity instead of
natural gas would eliminate an important part of the Project’s GHG emissions. The
applicant would save money by not installing any natural gas infrastructure.
The MND sets out a methodology for a “locally-appropriate, project-specific
efficiency threshold.” (pp. 52-53.) This methodology is flawed in several important
ways. First, it uses 2030 as the date for analyzing emissions, when 2050 would be more
appropriate, as discussed above.
The MND methodology takes statewide GHG targets for various sectors
(residential, agricultural, etc.), adds them up, subtracts out the sectors that are locally
inapplicable, and then prorates them down to the population of the Moorpark
planning area to derive the target of 2.7 MTCO2e/capita/year. The calculation uses,
in some cases, the low end of the ranges in the 2017 Scoping Plan when it should use
the midpoint of those ranges. (Compare Scoping Plan p. 31 with MND p. 54.) More
significantly, the methodology suffers from the same defect the California Supreme
Court pointed out in the Newhall Ranch case: the state will not achieve its GHG
reduction goals if only new projects reduce GHG by the amount required to meet
those goals because most GHG emissions from housing come from existing projects
that will not reduce their GHG emissions until they are rebuilt. (Center for Biological
Diversity v. Department of Fish and Wildlife (2015) 62 Cal.4th 204, 241–242.) A new
project like this one must reduce its GHG emissions below the target state-wide
average for the state to meet its 2030 or 2050 GHG reduction goals.
The estimates of the Project’s likely GHG emissions appear to be based on a
CalEEMod run using specifications of the old, 91-residential unit project instead of
the currently proposed 79-unit project. In some ways the new project is smaller than
the old project, but there are also some increases, for example, in the commercial
square footage, so it is not obvious that the new project’s GHG emissions will be less
than those from the original project. Basing the MND’s conclusion that the Project
will not have significant GHG impacts on a CalEEMod run for the old project violates
CEQA because the CalEEMod data for the wrong project is not substantial evidence.
The MND provides substantial evidence that the Project may have significant
cumulative GHG impacts; therefor an EIR is required.
CEQA: Hazardous Materials
The MND concludes that, but for mitigation, the Project might have a
significant hazardous-material impact because it is located on a site that is potentially
contaminated with hazardous materials. (p. 61.) It proposes a mitigation measure,
HAZ-1, to reduce this potential significant impact to a less-than-significant level. (pp.
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63-64.) HAZ-1 requires Phase II soil testing within 30 days after the applicant
acquires the Project Site from the City.
There is no reason that Phase II sampling for soil and soil-gas contamination
cannot be done now, and the results incorporated in the MND. Mitigation Measure
HAZ-1 violates CEQA because it is improperly deferred; it is feasible to do the
sampling now, instead of waiting until just before the start of grading. Doing the Phase
II sampling now would allow a better MND analysis of soil contamination. Railroad
corridors are often contaminated with a variety of toxic chemicals. (See, e.g.
https://www.railstotrails.org/build-trails/trail-building-
toolbox/acquisition/environmental-contaminants/.) In addition, there is a reasonable
possibility of soil and soil-gas contamination from the sites listed on pages 15–17 of
the Phase I Environmental Site Assessment attached to the MND as Appendix H.
The City’s response to a previous comment on this issue (Appendix L, Letter 6,
Response 6.7) states that soil testing cannot be performed now because the applicant
does not currently own the project site. It is owned by the City. The City could,
however, enter into an agreement with the applicant allowing it to conduct soil testing
on the site prior to the transfer of ownership.
So there is ample reason to be concerned that Hazardous Materials impacts—
stirring up contaminated dust during grading—may occur.
CEQA: Air Quality
The MND relies on thresholds of significance established by the Ventura
County Air Pollution Control District. (MND p. 21) It states “the VCAPCD also
considers a project to have cumulative adverse air quality impact if project emissions
exceed two pounds per day of ROC or NOx.” (Ibid.) But the table on page 23 shows
the Project is expected to emit 9.4 pounds/day of ROC and 22.4 pounds/day of NOx,
resulting in a significant cumulative air-quality impact. The existence of a significant
air-quality impact means that an EIR is required.
CEQA: Noise
There is also reason to be concerned about noise from the Project. The MND
fails to analyze the impact on High Street of replacing the existing buildings, which
provide a barrier between High Street and the Metro rail tracks, with the Project
buildings, which may provide a lower level of noise screening. The MND (p. 82) states
that the ambient noise on High Street is now 69 dBa, 4 db above the City’s exterior
daytime residential noise standard of 65 dBa. The Project will add noise, through
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HVAC, additional traffic, and noise generated by residents and customers of the retail
establishments. Even though noise standards for commercial buildings may be higher
than 65 dBa, the City should apply the residential standards to a project like this that
consists of mostly residential development. For a cumulative impact where the
standards are already exceeded, any increase will be cumulatively considerable, and
thus significant, under CEQA. The MND should have required mitigation of
operational noise other than just the HVAC noise.
CEQA: Water Supply
The MND claims that there will be sufficient water supplies available to serve
the project and reasonably foreseeable future development during normal, dry, and
multiple dry years. (p. 117.) The analysis supporting this conclusion relies heavily on
the 2015 Urban Water Management Plan (UWMP) from Ventura County
Waterworks District No. 1 (VCWWD). (p. 119.)
The UWMP gives short shrift to climate change. Its approach can be
characterized as follows: “Metropolitan Water District has a lot of climate-change
efforts going on, and we’ll trust them to take care of the problem.” (UWMP pp. 4-10.)
It is well established that climate change will increase drought in Southern
California. The 2014 Synthesis Report from the Intergovernmental Panel on Climate
Change (IPCC), available online at
https://www.ipcc.ch/site/assets/uploads/2018/02/SYR_AR5_FINAL_full.pdf
(IPCC 2014 Synthesis Report) shows that we’ve already experienced a global average
temperature increase of 1° C and that we may well see a rise of an additional 4° C if we
continue on the same business-as-usual trajectory. (p. 59.) The 1° C increase we’ve
already seen has caused intensified droughts, hurricanes, and heatwaves, so a further
substantial increase will have catastrophic impacts.
“It is very likely that heat waves will occur more often and last longer.” (IPCC
2015 Synthesis Report, p. 10.) “Impacts from recent climate-related extremes, such as
heat waves, droughts, floods, cyclones and wildfires, reveal significant vulnerability and
exposure of some ecosystems and many human systems to current climate variability
(very high confidence). Impacts of such climate-related extremes include alteration of
ecosystems, disruption of food production and water supply….” (Id. at p. 53 [emphasis
added].) The report lists “multi-decade droughts” as a possible hazard resulting from
climate change. (Id. at p. 36.) “Increases in the frequency or intensity of ecosystem
disturbances such as droughts, wind-storms, fires and pest outbreaks have been
detected in many parts of the world and in some cases are attributed to climate
change.” (Id. at p. 51 [emphasis added].) “In many mid-latitude and subtropical dry
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regions, mean precipitation will likely decrease.” (Id. at p. 11.) “Climate change over
the 21st century is projected to reduce renewable surface water and groundwater
resources in most dry subtropical regions (robust evidence, high agreement),
intensifying competition for water among sectors (limited evidence, medium
agreement). In presently dry regions, the frequency of droughts will likely increase by
the end of the 21st century under RCP8.5 (medium confidence).” (Id. at p. 69.) Table
2.3 lists “key risks” from climate change, including “urban risks associated with water
supply systems (high confidence).” (Id. at p. 71.)
Recent science from the IPCC establishes that climate change poses a
substantial risk to water supply in Southern California over the next few decades, and
the UWMP does not factor in the risks to water supply of a world that is several
degrees hotter than today’s world. Because it is based on the UWMP, the MND’s
water-supply analysis is heavily flawed, and inadequate to support the conclusion that
there will be water available for the project and other foreseeable projects over the next
30 years.
Incorporation of Previous Comments
This letter incorporates by reference all comment letters included in Appendix
L of the MND as they apply to the current version of the Project.
Conclusion
The MND provides evidence that the Project may have significant
environmental impacts in several areas and therefore an EIR is required.
Sincerely,
Dean Wallraff, Attorney at Law
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Response to Comments on Recirculation of the Public Review Draft IS-MND
Letter 4
COMMENTER: Dean Wallraff, Attorney at Law, Advocates for the Environment
DATE: March 5, 2020
Response 4.1
The commenter requests the text of the proposed zoning ordinance amendment in order to allow
public review of the project’s environmental impacts.
Text amendments to the Downtown Specific Plan are described in the Staff Report for the July 15,
2020 Regular City Council Meeting. The Staff Report was listed on the Agenda under item 8.C. and
contains subject “Consider a Resolution for Amendment No. 3 to SP 1995-01 (Downtown Specific
Plan) for Text Amendments pertaining to Mixed-Use Regulations within the Specific Plan –
Downtown Overlay Zone.” Direct text changes are noted on page 152- 154 and Exhibit A (pages 160-
162)of the Staff Report.
Response 4.2
The commenter requests that all documents listed as required approvals for the project be made
available to the public to allow public review of the project’s environmental impact.
The documents listed as Required Approvals for the project are generally described in Initial Study –
Section 11, Required Approvals, and Section 11, Land Use and Planning, in the Draft IS-MND and will
be available before the Planning Commission and City Council hearings where decision makers will
evaluate the project and the requested entitlements. Information for all Planning Commission and
City Council agenda items are available to the public and are included in the applicable Staff
Reports. The environmental impacts associated with the proposed project and its proposed
entitlements have been fully disclosed and evaluated throughout the Draft IS-MND, which has been
provided for public review in accordance with CEQA requirements.
Response 4.3
The commenter states that the Draft IS-MND should have been updated to analyze the current
version of the project as described on the City of Moorpark website to have 79 residential units, no
three-bedroom apartments, and 14,471 square feet of commercial space.
The Draft IS-MND analyzes a conservative total of proposed residential dwellings on the project site,
including up to 91 residential units with studio, one-bedroom, two-bedroom, and three-bedroom
units as well as up to 15,018 square feet of commercial space. The smaller project would result in
incrementally lesser environmental impacts for some issue areas, such as fewer operational air
pollutant emissions, less energy consumption, less HVAC noise, less demand for public services and
utilities, and fewer vehicle trips, and similar environmental impacts for all other issue areas (see
Response 4.20 for a specific discussion of GHG emissions impacts). However, a minor reduction in
the project size would not create any new significant environmental impacts beyond those already
identified in the Draft IS-MND. Therefore, the Draft IS-MND provides a conservative analysis of
project impacts based on the original project description, which would be lesser if a smaller project
is approved and implemented and meets CEQA’s requirements to fully disclose the project’s
significant environmental impacts.
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Response 4.4
The commenter opines that the Notice of Intent to Adopt a Mitigated Negative Declaration issued
by the City violates CEQA because it does not describe the updated changes to the proposed project
(described under Response 4.3).
See Response 4.3. As discussed therein, the Draft IS-MND provides a conservative analysis of the
environmental impacts associated with the original described project. A project that has a reduced
scope of development would logically create less impacts than those associated with the original
project. The purpose of CEQA is to fully disclose the project’s significant environmental impacts,
which has been done through the project IS-MND.
Response 4.5
The commenter states that because the proposed Mixed-Use Overlay Zone would apply only to the
project site, it is spot zoning and violates the law since there is no substantial public need for it.
In 1998, the City Council adopted Ordinance No. 247 establishing the Specific Plan - Downtown (SP-
D) Overlay Zone (Zoning Code Chapter 17.72) and Resolution No. 1998-1515 establishing the
Downtown Specific Plan (DTSP). The DTSP sets forth a vision for the downtown area which identifies
certain commercial corridors, residential areas, and mixed-uses along High Street. Section 2.2.5 Old
Town Commercial (C-OT) of the DTSP includes uses and development standards relating to mixed-
use development within this district. Consequently, the DTSP already allows for Mixed-Use and
amendments to the DTSP contain specific development regulations to allow for design flexibility of
Mixed-Use development. See Staff Report, Agenda item 8.C., subject “Consider a Resolution for
Amendment No. 3 to SP 1995-01 (Downtown Specific Plan) for Text Amendments pertaining to
Mixed-Use Regulations within the Specific Plan – Downtown Overlay Zone” for more details.
Response 4.6
The commenter states that the project is inconsistent with the Moorpark Downtown Specific Plan
(DTSP) because the DTSP provides an “Old Town Commercial (C-OT)” land use designation for the
project site. The commenter adds that without an amendment to the General Plan or DTSP, the
project must comply with the DTSP even if the zoning ordinance is amended.
See Response 4.1 and 4.5. The DTSP Specific Plan Amendments were adopted by the City on July 15,
2020. Amendments to the DTSP contain specific development regulations to allow for design
flexibility of Mixed-Use development. See Staff Report, Agenda item 8.C., subject “Consider a
Resolution for Amendment No. 3 to SP 1995-01 (Downtown Specific Plan) for Text Amendments
pertaining to Mixed-Use Regulations within the Specific Plan – Downtown Overlay Zone” for more
details.
Response 4.7
The commenter states that the DTSP requirements for Mixed Use Developments in areas designated
Old Town Commercial require the ground floor to be used exclusively for commercial purposes (SP
2.2.5 5) and concludes that the project violates this provision by allowing residential units on the
ground floor.
See Responses 4.1, 4.5, and 4.6. Amendments to the DTSP contain specific development regulations
to allow for design flexibility of Mixed-Use development and allow residential units on the ground
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Response to Comments on Recirculation of the Public Review Draft IS-MND
floor behind commercial building spaces. These amendments were adopted on July 15, 2020;
therefore, the project is now consistent with the DTSP.
Response 4.8
The commenter states that the project provides insufficient parking spaces and is in violation of the
DTSP, which requires all parking spaces for residential use to be exclusive to residents and on-site
(DTSP Section 2.2.5 5.d). The commenter also points to inconsistencies in parking spaces required as
analyzed in the Traffic and Circulation Study and the Draft IS-MND.
The proposed number of parking spaces is consistent with Section 2.2.5.5.d of the DTSP, which
states that all parking spaces required by the residential use of a mixed-use development shall be
provided on-site and shall be specifically designated and reserved for the exclusive use of the
residents. Per DTSP Section 3.8, the project will also provide an additional 21 on-site shared parking
spaces . Guest parking will be accommodated with nearby public parking, per the DTSP
amendments that were approved by the City on July 15, 2020.
The City commissioned a shared parking study (Walker Consultants 2019), which identified 226
additional unused parking spaces available for use within a ½ mile radius of the project site.
Approximately 106 spaces are available the Metrolink Station’s south lot; 89 spaces are available
within 1,000-foot walk along High Street, Walnut Street, and Bard Street; and 31 spaces are
available within the auxiliary Metrolink parking lot located east of the project site.
The project will meet the project requirements described in the DTSP and there are additional
parking spaces available in the area surrounding the project site. Therefore, there is ample parking
to support the anticipated parking demands of the project site.
Response 4.9
The commenter opines that the parking study conducted by Walker Consultants is flawed due to the
inclusion of parking spaces associated with the Ventura County Transportation Commission. In
addition, the commenter states that the parking study points out that the loss of Lot 5b, near the
High Street Arts Center, would have an adverse impact on the Center.
The parking study conducted by Walker Consultants (2019) acknowledges that the parking spaces in
the Ventura County Transportation Commission lots are meant to be used primarily for commuter
purposes, but that they are also available for public parking. In addition, as stated in the parking
study, Lot 5B was identified as a temporary parking solution for the High Street Arts Center in the
DTSP. The parking study also determined that peak parking demand, which occurring on a weekday
at 11:00 a.m., resulted in approximately 40 percent occupancy of parking spaces. Additionally, as
described in Response 4.9, the parking study also identified 226 additional unused parking spaces
available for use within a ½ mile radius of the project site. Therefore, because the project will meet
the project requirements described in the DTSP and the additional parking spaces available in the
area surrounding the project site, the project would not cause any parking issues for the High Street
Arts Center.
Response 4.10
The commenter requests that the City provide a tree report as required under MMC 12.12.050.
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See the existing tree survey and report on the next page for details on which trees would be
removed and where they are located. A total of 11 trees on-site would be removed. No trees along
High Street would be removed. The trees that would be removed on-site include: The 11 removals
include: two California Pepper trees, one Western Sycamore tree, one Weeping Fig, and seven
Mexican Fan Palms. The diameter breast height of the pepper, sycamore, and palm trees range from
10 inches to 16 inches.
Per MMC 12.12.050(d), The director of community development, or his or her designated
representative, may waive the requirement for a tree report or may waive the requirement for
survey of one (1) or more trees based upon the director’s judgment that the tree(s) would have little
or no value in that location. (Ord. 101 § 1, 1988). The information in this landscaping plan provides
the community development director with the tree type (by common name and genus and species),
tree location, and diameter breast height of each tree. This existing tree survey and report allows
for the community development director to make the judgement that a more extensive tree report
is not required.
Response 4.11
The commenter states that an EIR is required because of various areas (discussed in Responses 4.12
through 4.27) in which the Project may have significant adverse environmental impacts, even with
proposed mitigation measures.
As discussed in the Draft IS-MND, all potentially significant project impacts would be reduced to a
less-than-significant level with implementation of the identified mitigation measures. An EIR is
required when a project has the potential to result in significant environmental impacts that cannot
be mitigated to a less than significant level. In accordance with Section 15070 of the State CEQA
Guidelines, a lead agency shall prepare a negative declaration (ND) or mitigated negative
declaration (MND) if an initial study shows that there is no substantial evidence, in light of the
whole record before the agency, that the project may have a significant effect on the environment.
As discussed in responses 4.12 through 4.27 there is not substantial evidence suggesting the
potential for a significant environmental effect; therefore, preparation of an MND is appropriate
and preparation of an EIR is not warranted.
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Response 4.12
The commenter states that the project may have significant adverse impacts on two historical
resources near the project site, which are not analyzed or mitigated in the Draft IS-MND - the row of
pepper trees adjacent to High Street on the northern edge of the project site (Ventura County
Landmark #72) and Tanner’s Corner located at the intersection of High Street and Moorpark Avenue
(listed on the California Register of Historical Resources).
As discussed in Section 1, Aesthetics, and Section 5, Cultural Resources, of the Draft IS-MND, the
project would leave the row of pepper trees (Ventura County Landmark #72) in place and the City of
Moorpark’s Tree Preservation Guidelines (MMC 12.12.060) would be enforced as a condition of
approval to ensure they are not impacted by nearby construction. During construction, a physical
barrier (flagging or see-through safety fencing) would be installed around any adjacent pepper trees
that are situated near mechanized equipment. Additionally, the project’s grading plan would not
disrupt or remove structural feeder roots and would not fill, cut, or compact soils within the
dripline. If necessary, the project contractor would work with a consulting arborist during grading
and construction. This would avoid impacts to Ventura County Landmark # 72. Furthermore,
continued pepper tree maintenance would be completed in accordance with the City’s California
Pepper Trees Maintenance Plan (2006b). Therefore, with adherence to existing municipal code
requirements and the City’s adopted Pepper Tree Maintenance Plan, impacts would be avoided and
no mitigation measures are required.
Based on the results of the records search performed for the project at the South Central Coast
Information Center in 2018 as part of the High Street Station Mixed Use Development Cultural
Resources Assessment Report (Appendix E of the Draft IS-MND), Tanner’s Corner is listed in the
California Register of Historical Resources. As concluded in the cultural resources assessment report,
the project would have no direct impact to this historical resource because it is not located on the
project site. Mitigation Measure TRA-1 requires payment of Citywide Traffic Impact Mitigation fees
to contribute toward implementation of improvements for the High Street/Moorpark Avenue
intersection (adjacent to Tanner’s Corner), which would consist of adding an additional through lane
on the southbound approach and providing a left-turn lane, through lane, and right-turn lane on the
northbound approach. Tanner’s Corner is located on the northeast corner of the High
Street/Moorpark Avenue intersection; therefore, improvements south of this intersection would
have no impact to this property. Furthermore, as described in the City’s Operating and Capital
Improvement Projects Budget for Fiscal Year 2019-2020, the widening of Moorpark Avenue north of
this intersection would include adding a southbound lane along the west side of Moorpark Avenue
from Casey Road to Third Street, which would not impact Tanner’s Corner given that it is located on
the east side of Moorpark Avenue.1 The project would have no impact on the ability for Tanner’s
Corner to maintain it’s listing on the California Register of Historic Resources and there would be no
indirect impact.
Response 4.13
The commenter states that Mitigation Measure CR-1 described in the response to Letter 1 from the
Ventura County Cultural Heritage Board, which suggested adding an interpretive display highlighting
1 Moorpark, City of. 2019. Operating and Capital Improvement Projects Budget for Fiscal Year 2019-2020.
https://www.moorparkca.gov/DocumentCenter/View/9589/F-201920-Budget?bidId= (accessed March 2020).
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the history of the site and historically significant railroad depot, was not added to Section 5, Cultural
Resources, of the Draft IS-MND.
The project applicant has incorporated Ventura County Cultural Heritage Board’s recommendation
for an interpretive display as a project design feature, which is described in Section 9, Description of
Project, of the Initial Study of the Draft IS-MND. This project design feature would be required as a
condition of approval.
Response 4.14
The commenter states that the project is inconsistent with the CARB 2017 Climate Change Scoping
Plan. The commenter states that the 2017 Scoping Plan deems net-zero GHG emissions possible for
housing projects (pp. 101-102) and that the project should achieve net-zero GHG emissions or at the
very least should include the maximum feasible amount of solar rooftop power.
As discussed in Section 8, Greenhouse Gas Emissions, in the Draft IS-MND, the project is consistent
with the 2017 Scoping Plan since it would not generate emissions exceeding the per service
population thresholds established for reducing greenhouse gas emissions and thus be consistent
with the state’s goals for GHG reductions. Regarding net-zero emissions, the 2017 Scoping Plan
states, “Achieving no net additional increase in GHG emissions, resulting in no contribution to GHG
impacts, is an appropriate overall objective for new development (ARB p. 101)2. In addition,
Achieving net zero increases in GHG emissions, resulting in no contribution to GHG impacts, may not
be feasible or appropriate for every project, however, and the inability of a project to mitigate its
GHG emissions to net zero does not imply the project results in a substantial contribution to the
cumulatively significant environmental impact of climate change under CEQA” (p. 102).
In accordance with Section 150.1(b)14 of the 2019 Building Energy Efficiency Standards, all new
residential uses under three stories must install photovoltaic (PV) solar panels that generate an
amount of electricity equal to expected electricity usage. The project would be required to comply
with this building code standard.
Since the project does not conflict with the CARB 2017 Scoping Plan, impacts would be less than
significant. Net-zero emission reductions are not required and substantial evidence suggesting that
a significant impact would occur has not been provided.
Response 4.15
The commenter states that since a project like this one would last much longer than 2030, it should
be consistent with the state’s 2050 GHG emissions reduction goals as well as the 2030 goals. The
commenter notes that since the 2017 Scoping Plan sets an overall goal of 2 MT of CO2e per capita
per year in 2050, the project’s calculated emissions (2.7 MT of CO2e) would exceed this threshold
and would therefore be significant under CEQA, requiring adoption of all feasible mitigation
measures.
As discussed in Section 8, Greenhouse Gas Emissions, of the Draft IS-MND, the Association of
Environmental Professionals Climate Change Committee recommends that CEQA GHG analyses
evaluate project emissions in light of the trajectory of state climate change legislation and assess
their “substantial progress” toward achieving long‐term reduction targets identified in available
2 California Air Resources Board. 2017. California’s 2017 Climate Change Scoping Plan. Accessible at:
https://ww2.arb.ca.gov/sites/default/files/classic/cc/scopingplan/scoping_plan_2017.pdf. Accessed July 2020.
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plans, legislation, or EOs. Consistent with AEP Climate Change Committee recommendations, GHG
impacts are analyzed in terms of whether the proposed project would impede “substantial
progress” toward meeting the reduction goal identified in Senate Bill 32 and Executive Order B-55-
18, which sets a long-term goal of carbon neutrality that is more stringent that the State’s 2050 goal
under Executive Order S-3-05. As SB 32 is considered an interim target toward meeting the 2045
State goal, consistency with SB 32 is considered contributing substantial progress toward meeting
the State’s long-term 2045 goals. Therefore, because the project’s GHG emissions of 2.7 MT of CO2e
per service person would be less-than-significant in light of SB 32 targets, the project would not
impede substantial progress toward meeting the State’s 2045 and 2050 goals and impacts would be
less than significant. In addition, the proposed project would participate in applicable future
requirements adopted to meet the State’s long-term 2045 and 2050 goals. For example, electricity
provided to the proposed project would be increasingly sourced by renewable energy per the
requirements of Senate Bill 100, residents living in the project would have the opportunity to utilize
the immediately adjacent Metrolink commuter rail service, and vehicles used by residents,
employees, guests, and patrons would emit fewer GHG emissions over time due to increasingly
stringent federal and state fuel efficiency standards.
Response 4.16
The commenter states that the City should prohibit the use of natural gas for the project as a
feasible GHG mitigation measure.
As discussed in Section 8, Greenhouse Gas Emissions, the proposed project would have less than
significant impacts related to GHG emissions. Because impacts related to emissions of greenhouse
gases are less than significant, additional mitigation such as eliminating natural gas service for the
project is not required.
Response 4.17
The commenter again states that the methodology used for a “locally-appropriate, project-specific
efficiency threshold” is flawed because it analyzes emission for 2030 when 2050 would be more
appropriate.
See Response 4.15. As discussed therein, use of a significance threshold based on 2030 is
appropriate for the proposed project, which has a buildout year prior to 2030.
Response 4.18
The commenter states that the MND GHG emission calculations in some cases use the low end of
ranges in the 2017 Scoping Plan when they should use the midpoint of those ranges.
Regardless of whether the analysis uses the low end or midpoint of the ranges of forecast GHG
emissions from various sectors in the 2017 Scoping Plan, the total GHG emissions forecast for 2030
remains the same at 260 million metric tons of carbon dioxide equivalent (CO2e). Furthermore, the
low end of the ranges for the Residential and Commercial, Recycling and Waste, Transportation,
Industrial, and Agriculture are used because, as stated in footnote 66 on page 31 of the 2017
Scoping Plan, the low end of these ranges represents estimated emissions from the Scoping Plan
Scenario, which is the scenario on which the assumptions and forecasts of the 2017 Scoping Plan are
based, whereas the high end represents sector underperformance. The high end of the range is
used for the High GWP and Electric Power sectors because, as stated in footnotes 67 and 68 on page
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31 of the 2017 Scoping Plan, the high end of the range represents the Scoping Plan Scenario, and
the low end of the range represents sector overperformance (CARB 2017). Therefore, the emissions
estimates used for each of these sectors in Table 8 in Section 8, Greenhouse Gas Emissions,
represents the Scoping Plan Scenario, which is based on best available data.
Response 4.19
The commenter states that a new project must reduce its GHG emissions below the statewide
target for the state to meet its 2030 and 2050 GHG reduction goals to account for the fact that
emissions coming from existing projects will not reduce their GHG emissions until they are rebuilt.
Lead agencies have the discretion to establish significance thresholds for their respective
jurisdictions, and in establishing those thresholds, a lead agency may appropriately look to
thresholds developed by other public agencies, or suggested by other experts, as long as any
threshold chosen is supported by substantial evidence (CEQA Guidelines Section 15064.7[c]). To
supplement this, the 2017 Scoping Plan states, “lead agencies have the discretion to develop
evidence-based numeric thresholds (mass emissions, per capita, or per service population)
consistent with this Scoping Plan, the State’s long-term GHG goals, and climate change science”
(CARB 2017). As stated in Section 8, Greenhouse Gas Emissions, the City has chosen to use a locally-
appropriate, project-specific threshold consistent with the assumptions of the 2017 Scoping Plan
and the SB 32 target to evaluate the significance of the project’s GHG emissions and presents
substantial evidence as to why use of this threshold is appropriate for the proposed project.
Furthermore, the proposed project would incorporate GHG emission reduction features that are
specific to new development, including installation of rooftop solar as required by Section
150.1(c)14 of the 2019 California Building Energy Efficiency Standards, exclusion of wood-burning
and natural gas fireplaces, siting near transit and downtown Moorpark to facilitate use of
alternative transportation, and installation of streetscape improvements to High Street to facilitate
pedestrian access in the project site vicinity.
Response 4.20
The commenter states that because the project’s likely GHG emissions seem to be based on a
CalEEMod run using the old project specifications, the conclusion that the project would not have
significant GHG impacts violates CEQA. The commenter adds that it is not obvious that the GHG
emissions would be less than those of the original project because the commercial square footage is
increased.
The Draft IS-MND analyzes the proposed project as 91 residential units with studio, one-bedroom,
two-bedroom, and three-bedroom units as well as 15,018 square feet of commercial space. The
reduced project consists of 79 residential units and 13,628 square feet of commercial space;
therefore, contrary to the commenter’s assertion, the commercial square footage has decreased in
comparison to the project analyzed in the Draft IS-MND. Table 1 summarizes the estimated
construction-related GHG emissions from the reduced project, which were amortized over 30 years
(the assumed life of the project per South Coast Air Quality Management District guidance), and
Table 2 summarizes the estimated combined construction-related GHG emissions and operational
GHG emissions from the reduced project. As shown therein, combined construction and operational
GHG emissions would decrease by approximately 50 MT of CO2e per year to 985 MT of CO2e per
year, and per service person emissions would increase by approximately 0.3 MT of CO2e per year to
3.0 MT of CO2e per year. The increase in per service person emissions is primarily due to a
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proportionally greater reduction in the service population of the reduced project as compared to
the decrease in total GHG emissions. Despite the increase in per service person emissions, GHG
emissions from the reduced project remain below the threshold of 3.2 MT of CO2e per year.
Therefore, similar to the project analyzed in the Draft IS-MND, the reduced project would also have
less-than-significant impacts related to GHG emissions. The GHG emissions estimates for the
proposed project in the Draft IS-MND and for the reduced project below are conservative because
they assume that all mobile source emissions are new to the proposed project when, in reality, a
substantial portion of vehicle trips are being redirected and/or relocated from other areas in the
region. Furthermore, it is likely that actual mobile source emissions associated with the project
would be lower than those estimated herein due to the project’s proximity to downtown Moorpark
and the Metrolink station.
Table 1 Estimated Construction Emissions of Greenhouse Gases – Reduced Project Size
Construction Year Annual Emissions (MT of CO2e)
Draft IS-MND Reduced Project Size Net Change
2020 129.8 127.4 (2.4)
2021 289.1 281.9 (7.2)
Total 418.9 409.3 (9.6)
Amortized over 30 years 14.0 13.6 (0.4)
Notes: Modeling results for the reduced project are appended to this section. Numbers may not add up due to rounding. Amortized
construction emissions are added to annual operational emissions in Table 2 and compared to the per-service-person threshold; therefore,
a threshold is not included in this table.
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Table 2 Combined Annual Emissions of Greenhouse Gases – Reduced Project Size
Annual Emissions (MT of CO2e)
Emission Source Draft IS-MND Reduced Project Size Net Change
Construction1 14.0 13.6 (0.4)
Operational
Area
Energy
Solid Waste
Water
1.1
220.6
65.1
31.6
1.0
209.8
62.0
28.4
(0.1)
(10.8)
(3.1)
(3.2)
Mobile
CO2 and CH4
N2O
686.6
16.5
654.7
15.9
(31.9)
(0.6)
Total Project Emissions 1,035.5 985.4 (50.1)
Service Population
(Residents + Employees)3901 3292, 3, 4 (61)
Emissions per SP 2.7 3.0 0.3
Locally-Applicable, Project-
Specific Threshold 3.2 3.2 n/a
Threshold Exceeded? No No n/a
N/A = not applicable; SP = service population
Notes: Modeling results for the reduced project are appended to this section. Some numbers may not add up due to rounding.
1 See Table 1.
2 302 residents + 88 employees
3 As stated in Section 3, Air Quality, the average household size for the city of Moorpark of 3.32 persons per household; therefore, the
reduced project would accommodate approximately 242 residents (3.32 persons per household x 79 units) (CDOF 2019).
4 The decrease in ground floor commercial space under the reduced project size from 8,400 square feet to 7,853 square feet would
reduce the number of employees associated with the ground floor commercial space by one employee to 13 employees (7,853 square
feet divided by 1 employee per 588 square feet [see Section 3, Air Quality]) and the total employees accommodated by the project to
87 (88 – 1).
5 242 residents + 87 employees
Response 4.21
The commenter states that an EIR is required because the Draft IS-MND offers substantial evidence
that the project may have significant cumulative GHG impacts.
The vast majority of individual projects do not generate sufficient GHG emissions to create
significant project-specific environmental effects. However, the environmental effects of a project’s
GHG emissions can contribute incrementally to cumulative environmental effects that are
significant, contributing to climate change, even if an individual project’s environmental effects are
limited (CEQA Guidelines Section 15064[h][1]). The issue of a project’s environmental effects and
contribution towards climate change typically involves an analysis of whether or not a project’s
contribution towards climate change is cumulatively considerable. Cumulatively considerable means
that the incremental effects of an individual project are significant when viewed in connection with
the effects of past projects, other current projects, and probable future projects (CEQA Guidelines
Section 15064[h][1]).
The threshold of significance used in Section 8, Greenhouse Gas Emissions, is the level above which
project impacts would be cumulatively considerable. As discussed therein, the project’s GHG
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emissions would not exceed the threshold of significance; therefore, the project would not have a
cumulatively considerable contribution to a cumulative impact related to climate change and GHG
emissions. As a result, there is no evidence suggesting contribution to a significant cumulative
impact, and preparation of an EIR is not warranted.
Response 4.22
The commenter states that Phase II sampling for soil and soil-gas contamination required under
Mitigation Measure HAZ-1 should be conducted now instead of waiting until right before grading
and that the City could enter into an agreement with the applicant allowing it to conduct soil testing
on-site prior to the transfer of ownership from the City.
As stated in Section 9 Hazards and Hazardous Materials, the two Phase I Environmental Site
Assessments conducted by Rincon Consultants and EFI Global determined there are no Recognized
Environmental Conditions (RECs) in connection with the project site. Nevertheless, out of an
abundance of caution, supplemental testing will be completed by the project applicant upon
obtaining title to the property and prior to excavation and grading because two potential RECs were
identified on adjacent properties, including (1) existing railroad tracks adjacent to south of the site,
and (2) the presence of a former gasoline service station located adjacent to the western property
boundary. If the investigations indicate that soil exceeds regulatory action levels, then the soil shall
be remediated to local agency standards through soil removal and disposal efforts. As outlined in
Mitigation Measure HAZ-1, the shallow soil and vapor sampling assessments shall be performed
within 30 days of the project applicant acquiring the project site from the City of Moorpark and shall
meet the specific standards outlined in the measure. Mitigation Measure HAZ-1 also requires
removal and disposal of any contaminated soil in accordance with applicable local, state, and
federal regulations.
Response 4.23
The commenter states that an EIR is necessary because the project would result in significant
cumulative air quality impacts since the project would emit 9.4 pounds per day of reactive organic
compounds (ROC) and 22.4 pounds per day of nitrogen oxides (NOx).
As discussed in Section 3, Air Quality, the VCAPCD considers a project to have a significant
cumulative adverse air quality impact if project emissions exceed two pounds per day of ROC or NOX
and if the project is inconsistent with the population forecasts contained in the Air Quality
Management Plan. As discussed in Section 3, Air Quality, of the Draft IS-MND, the project would be
consistent with the population forecasts contained in the Air Quality Management Plan. Because
the project would not result in a cumulative adverse air quality impact, mitigation is not required
and preparation of an EIR is not warranted. In addition, per the comment letter provided by VCAPCD
(Letter 8), VCAPCD concurs with the significance determinations presented in the Draft IS-MND.
Response 4.24
The commenter states that the MND should analyze the impact on High Street of replacing the
existing buildings with the project buildings, which may provide a lower level of noise screening
between High Street and the Metro rail tracks.
As discussed in Section 13, Noise, of the Draft IS-MND, the proposed project would provide greater
noise screening compared to the existing buildings through increased building height (with the
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exception of the existing granary building tower) and greater density of buildings, thereby breaking
the line of sight between the railway and the adjacent commercial properties and providing more
effective sound attenuation at commercial properties located north of the project site. Moreover,
the existing buildings are non-habitable and were constructed using wood, steel, and metal siding
which have reduced sound attenuating properties when compared to the proposed project building
materials consisting of metal, wood, steel and brick, and the interior walls would be lined with
sound-attenuating insulation. The resulting increase in wall density would provide greater sound
attenuation when compared to existing conditions (Federal Highway Administration 1974).
Response 4.25
The commenter states that since the project would be mostly residential, it should follow residential
noise standards. The commenter states that according to the Draft IS-MND, the ambient noise level
on High Street is currently 4 dBA above the City’s exterior daytime residential noise standard of 65
dBA.
The ruling for California Building Industry Association v. Bay Area Air Quality Management District
(CBIA v. BAAQMD) determined that under CEQA, except for a few specified and limited instances,
noise impacts on residents of a proposed project are not required to be analyzed. Nevertheless, an
analysis of the project site’s noise/land use compatibility is included in Section 13, Noise, for
informational purposes. As discussed therein, the ambient noise level at the project site is
approximately 69 CNEL, which exceeds the City’s “clearly compatible” exterior noise standard of 65
CNEL for multiple-family residential land uses and falls within the “normally compatible” range of 65
to 70 CNEL for multiple family residential land uses. Therefore, in order to comply with the City’s
noise standards, the project would be required to incorporate design features such as noise
barriers, Sound Transmission Class-rated windows and doors, orientation of windows away from the
railroad, upgraded exterior wall and/or roof construction, insulation batts, and/or forced air
ventilation that reduce exterior and interior noise levels to below the City’s standards.
Response 4.26
The commenter states that the MND should require mitigation of operational noise other than the
HVAC noise because any increase in noise would be cumulatively considerable where the standards
are already exceeded.
As discussed in Section 13, Noise, operational noise associated with outdoor recreational uses
would not generate an audible increase in the ambient noise environment because on-site
conversations between residents and patrons would not typically generate an audible noise level
increase in excess of the existing noise environment. In addition, such noise would be intermittent
and would be similar to what is generated at existing nearby downtown commercial development.
Therefore, noise associated with outdoor recreational uses would be less-than-significant and
mitigation is not required.
Operational noise levels associated with delivery and trash hauling services and parking lot activities
were compared to the City’s exterior noise standards set forth in the MMC, which are set at levels
intended to address cumulative impacts related to operational noise in the city. As discussed in
Section 13, Noise, noise levels generated by delivery and trash hauling services and parking lot
activities would not exceed the City’s exterior noise standards and would therefore be less than
significant. As such, mitigation is not required.
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Response 4.27
The commenter states that because the Draft IS-MND’s water supply analysis relies on the Urban
Water Management Plan (UWMP), which does not consider the climate risk to water supply, it is
flawed and cannot support the conclusion that there will be enough water available for the project
over the next 30 years.
The water supply analysis contained in the Draft IS-MND relies on water supply and demand data
from the most recent iteration of VCWWD No. 1’s UWMP, which was published in June 2016
(VCWWD 2016). As the water supplier for the proposed project, the VCWWD No. 1 is considered to
be the source of the best available information on water availability for the project. Therefore, in
relying on data and assumptions from the VCWWD No. 1’s UWMP, the analysis utilizes the best
available information and data on water supply and demand forecasts for the project region.
Furthermore, the UWMP considers the effects of climate on water supply in Section 4.6, Climate
Change, and Section 6.10, Climate Change Impacts to Supply, and includes water supply projections
for various climatic conditions, including single dry year and multiple dry year scenarios through
2040, in accordance with the requirements of California Water Code Section 10635(a). The water
supply analysis in Section 19, Utilities and Service Systems, compares the project’s estimated water
demand to the multiple dry year water supply and demand forecasts, which considers the status of
supply sources in multiple consecutive drought years, as projected by the VCWWD No. 1’s UWMP.
Therefore, because the water supply analysis in the Draft IS-MND is based on the VCWWD No. 1
UWMP, which considers climate risk to water supply, the water supply analysis adequately
considers the climate risk to water supply. Under extreme water shortage/drought conditions (Level
1 through 3), water reduction methods that may be implemented to reduce water consumption
include, but are not limited to: restricting hours of irrigation, disallow non-essential irrigation,
limiting vehicle washing, altered rate structures, etc. As such, the conclusions of the Draft IS-MND
related to water supply remain unchanged.
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Letter 5
COMMENTER: Karen Kwan, Principal Environmental Specialist, Southern California Gas
Company (SoCalGas)
DATE: March 5, 2020
Response 5.1
The commenter states that SoCalGas has several medium pressure distribution service lines that
intersect the project site.
The project applicant would comply with all protocols outlined in the comment letter from
SoCalGas, including calling the Underground Service Alert prior to any excavation or site demolition
to identify all on-site and immediately-adjacent gas lines. The project applicant would also contact
SoCalGas representatives to confirm the accuracy of the Underground Service Alert results prior to
any excavation or site demolition. At this time, the project applicant does not anticipate the need to
relocate any on-site medium pressure gas lines as part of site development. However, if SoCalGas
determines that relocation is necessary, the project applicant would coordinate with SoCalGas
Northwest Distribution Utility Division to relocate the lines in accordance with the SoCal Gas Natural
Gas Service Guidelines (January 2020).3
Response 5.2
The commenter recommends the City call Underground Service Alert at 811 or (800) 422-4133 at
least two business days prior to performing any excavation work for the proposed project to ensure
that the locations of buried utility-owned lines are marked, as required by California law.
The project applicant and City would be required comply with all applicable laws and regulations.
Response 5.3
The commenter requests specific discussion on whether the project would require or result in the
relocating or construction of natural gas lines.
See Response 5.1. As discussed therein, at this time, the project applicant does not anticipate the
need to relocate any on-site medium pressure gas lines as part of site development. Furthermore,
as discussed in Section 9, Description of Project, of the Initial Study of the Draft IS-MND, the project
includes installation of dry utilities as part of site improvements as well as off-site connections to
existing dry utilities on or adjacent to the project. The project applicant would coordinate
construction of new natural gas connections to on-site development by the filing of a standard Non-
Residential Request for New Gas Services application and subsequently constructing plans approved
as part of building and safety plan check.
In response to this comment, the following text has been added to Section 19, Utilities and Service
Systems, of the Draft IS-MND:
SCE’s Big Creek/Ventura local capacity area includes the project site, and has an excess
annual capacity of 2,459 MW (8,290 MMBtu), which is more than enough to accommodate
3 SoCalGas. 2020. Natural Gas Service Guidebook. January 2020.
https://www.socalgas.com/documents/construction/GasServiceGuidebook.pdf (accessed March 2020).
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the electricity requirements of the project (SCE 2018b). For 2019, the estimated surplus of
natural gas capacity is 794 MMcf/day (823,378 MMBtu/day), which is more than enough to
accommodate the natural gas requirements of the project (SoCalGas 2018). According to
SoCalGas, several medium pressure distribution service lines intersect the project site;
however, at this time the project applicant does not anticipate the need to relocate any on-
site medium pressure gas lines as part of site development. If SoCalGas determines that
relocation is necessary during their review of the project’s natural gas service request, the
project applicant would coordinate with SoCalGas Northwest Distribution Utility Division to
relocate the lines in accordance with the SoCalGas Natural Gas Service Guidelines (2020). As
discussed under Description of Project, the project includes installation of dry utilities as
part of site improvements as well as off-site connections to existing dry utilities on or
adjacent to the project. Improvements to existing facilities or the provision of new
electricity and natural gas facilities is not anticipated. The project would have a less than
significant impact on local electricity, natural gas, and telecommunications providers.
Response 5.4
The commenter requests that should the proposed project require SoCalGas to abandon and/or
relocate or otherwise modify any portion of its existing natural gas lines, the City contact SoCalGas
by emailing: NorthwestDistributionUtilityRequest@semprautilities.com.
As discussed under Response 5.1, if SoCalGas determines that relocation of existing natural lines is
necessary during review of the project’s natural gas service request, the project applicant would
coordinate with SoCalGas Northwest Distribution Utility Division to relocate the lines in accordance
with the SoCal Gas Natural Gas Service Guidelines (January 2020).4
Response 5.5
The commenter requests that the City coordinate with SoCalGas by calling (800) 427-2000 or by
submitting a “Non-Residential Request for Gas Services” application should the proposed project
require SoCalGas to extend new natural gas service.
As discussed under Response 5.3, the project applicant would coordinate construction of new
natural gas connections to on-site development by the filing of a standard Non-Residential Request
for New Gas Services application and subsequently constructing plans approved as part of building
and safety plan check.
4 SoCalGas. 2020. Natural Gas Service Guidebook. January 2020.
https://www.socalgas.com/documents/construction/GasServiceGuidebook.pdf (accessed March 2020).
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WATERSHED PROTECTION
WATERSHED PLANNING AND PERMITS DIVISION
800 South Victoria Avenue, Ventura, California 93009
Sergio Vargas, Deputy Director – (805) 650-4077
M E M O R A N D U M
DATE: March 5, 2020
TO: Karen Vaughn, Community Development Director
City of Moorpark
FROM: Mark Bandurraga, Engineer IV, Hydrology Section
SUBJECT: MND High Street Station
APN(s): 5120090115
Zone 3
Watershed Protection District Project Number: WC2019-0017
COMPLETE
Pursuant to your request dated December 16, 2020 this office has reviewed the submitted
materials and provides the following comments.
PROJECT LOCATION:
Along the south side of High Street, roughly in between Walnut Street and
Magnolia Street, Moorpark, CA
PROJECT DESCRIPTION:
The project would be located on a 2.15-acre site along the south side of High Street,
roughly in between Walnut Street and Magnolia Street, in the City of Moorpark in Ventura
County, CA. The project involves a mixed-use development consisting of 91 multi-family
residential units (including 18 studios, 26 one-bedroom units, 39 two-bedroom units and
8 three-bedroom units) and 13,656 sf of commercial development. The residential units
would be constructed within four individual buildings, each with a maximum of three floors.
The proposed project includes approximately 7,038 sf of ground-floor commercial retail
and office space in the four residential buildings. In addition, the project includes 6,618 sf
of standalone commercial space in three separate buildings surrounding an outdoor
village green that would be open to the public and used as a special event venue. Project
design and architectural features would be consistent with the design guidelines
contained in the Moorpark Downtown Specific Plan. The project includes 139 on-site
parking spaces in addition to off-site parking spaces. The proposed project would also
demolish the existing non-operational commercial and industrial buildings on-site. The
site currently contains 17 mature trees that include palm, cypress, ash, and pepper trees.
Some of the mature trees on-site would be removed over the course of construction
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MND High Street Station
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Page 2 of 3
activities, but the project would preserve the existing pepper trees along High Street
(Ventura County Landmark #72), and the existing large ash trees along the southern
portion of the property. On-site grading in the form of removal and recompaction would
occur across the entire site along with geologic hazard remediation. Adjacent to the
property on the South side of High Street is a city storm drain that connects to the District’s
redline channel Moorpark Storm Drain No. 1 at the downstream end of the project.
APPLICATION COMPLETENESS:
COMPLETE - from our area of concern.
WATERSHED PROTECTION DISTRICT COMMENTS:
None.
WATERSHED PROTECTION DISTRICT CONDITIONS:
1.Mitigation: The proposed development shall incorporate mitigation measures to
address cumulative impacts due to the proposed increase in imperviousness.
Project shall reduce the developed condition peaks to 90% of the existing condition
peaks for the 10-, 25-, 50-, and 100-yr storms per the recommendations in the City-
Adopted 2005 PACE Report “Gabbert & Walnut Canyon Channels Flood Control
Deficiency Study – Addendum” Rev. August 2005.
2.Encroachment Permit: If the final design for the Project has a direct connection
to the District’s Moorpark Storm Drain No. 1 channel, the proponent shall obtain
an Encroachment Permit from the Ventura County Watershed Protection District
to perform any work within and or utilize the District’s Right of Way. Project findings
will be required to comply with the Ventura County Watershed Protection District
hydrology data and the 2017 Hydrology Manual and follow the Watershed
Protection District “Guide for Hydrology and Hydraulic Study Report” found at
following website:
http://pwaportal.ventura.org/WPD/onestop/guidelines/Guide%20for%20Hydra.pdf
3.Downstream Facilities: The proposed development would be served by Gabbert
Channel and Walnut Canyon Channel main drainage system, which has aging
concrete flood protection facilities in need of rehabilitation. The MND should
consider potential impacts to existing infrastructure and evaluate funding
mechanisms to determine and collect the pro-rated share of the needed capital
improvements that would benefit the proposed development.
4.Stormwater Responsibility: The City of Moorpark is responsible for administering
the NPDES MS4 Stormwater Program for this development, which includes the
connection(s) to the District’s channel. The development’s responsibility for
NPDES compliance and the City’s administration of the program will be identified
in the District Encroachment Permit for any proposed connection to Moorpark
Storm Drain No. 1.
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If you have any questions, please feel free to contact me by email at
Mark.Bandurraga@ventura.org or by phone at (805) 654-2015.
END OF TEXT
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City of Moorpark
High Street Station Mixed Use Development
Letter 6
COMMENTER: Mark Bandurraga, Engineer IV, Hydrology Section, Ventura County Watershed
Protection District
DATE: March 5, 2020
Response 6.1
The commenter provides recommended measures to address cumulative impacts related to the
increase in impervious surfaces.
As discussed in Section 10, Hydrology and Water Quality, of the Draft IS-MND, the proposed project
would have a less-than-significant impact on hydrology and water quality related to the introduction
of impervious surfaces. The project is designed to include site specific Best Management Practices
and other features to comply with the requirements of a Ventura County Municipal Separate Storm
Sewer Systems (MS4) permit and the allowable peak discharge flow rate established by the Ventura
County Watershed Protection District per the findings of the Gabbert & Walnut Canyon Channels
Flood Control Deficiency Study (County of Ventura 2005). These requirements are intended to
address the impacts of a cumulative increase in impervious surfaces as part of urban development
in the watershed; therefore, the project’s compliance with these requirements would ensure that
project impacts are not cumulatively considerable. The Preliminary Hydrologic and
Hydraulic/Stormwater Quality Report included as Appendix B of the Final IS-MND concludes that
post development flow rates have been reduced from 4.62 cfs to 4.13 cfs (or 89% of the existing
condition peak flow rate) with the inclusion of the proposed on-site detention measures. The
project also includes Low Impact Development stormwater treatment elements, including flow
through bio-filtration planter boxes to capture and treat roof runoff and pervious pavement to
capture and treat parking lot runoff. This is consistent with the recommendations in the adopted
2005 PACE Report “Gabbert and Walnut Canyon Channels Flood Control Deficiency Study –
Addendum Rev. August 2005.
Response 6.2
The commenter states that the City shall obtain an Encroachment Permit from the Ventura County
Watershed Protection District and comply with the appropriate reports if the final design of the
project has a direct connection to the District’s Moorpark Storm Drain No. 1 channel.
The proposed project would comply with all applicable requirements from the Ventura County
Watershed Protection District related to Encroachment Permits and connections to the Moorpark
Storm Drain No. 1.
Response 6.3
The commenter requests that the IS-MND consider potential impacts to existing Gabbert Channel
and Walnut Canyon Channel flood protection infrastructure and assess funding mechanisms needed
to collect the pro-rated share of needed capital improvements.
As discussed in Section 10, Hydrology and Water Quality, and Section 19, Utilities and Service
Systems, of the Draft IS-MND and above in Response 6.1, the proposed project is designed to
comply with the allowable peak discharge flow rate established by the Ventura County Watershed
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City of Moorpark
High Street Station Mixed Use Development Project
Response to Comments on Recirculation of the Public Review Draft IS-MND
Protection District per the findings within the Gabbert & Walnut Canyon Channels Flood Control
Deficiency Study (County of Ventura 2005). As a result, as concluded in Section 19, Utilities and
Service Systems, of the Draft IS-MND, impacts to stormwater drainage facilities would be less than
significant and would not be cumulatively considerable. No mitigation measures are required.
Response 6.4
The commenter states that the City is responsible for administering the NPDES MS4 Stormwater
Program for the project, including any connections to the Ventura County Watershed Protection
District’s channel.
The City will administer the NPDES NS4 Stormwater Program for the project in accordance with
federal, state, and local requirements.
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STATE OF CALIFORNIA-CALIFORNIA STATE TRANSPORTATION AGENCY
DEPARTMENT OF TRANSPORTATION
DISTRICT 7-OFFICE OF REGIONAL PLANNING
100 S. MAIN STREET, SUITE 100
LOS ANGELES, CA 90012
PHONE (213) 897-0067
FAX (213) 897-1337
TTY 711
www.dot.ca.gov
March 5, 2020
Karen Vaughn
Community Development Department
799 Moorpark Avenue
Moorpark, CA 93021
Dear Karen Vaughn,
..
Gavin Newsom Governor
Making Conservation
a California Way of Life.
RE: High Street Station Mixed Use Development
-Mitigated Negative Declaration (MND)
SCH# 2020029021
GTS# 07-VEN-2020-00387
Vic. VEN-23 PM R13.365
Vic. VEN-118 PM R17.896
Thank you for including the California Department of Transportation (Caltrans) in the
environmental review process for the above referenced project. The project involves a mixed-use
development consisting of 91 multi-family residential units and 15,018 square feet (sf) of
commercial development within four individual buildings. In addition, the project includes 6,618 sf
of standalone commercial space in three separate buildings surrounding an outdoor village green
that would be open to the public and used as a special event venue. The project includes 139 on-
site parking spaces and 26 on-street parking spaces as well as additional shared parking spaces
in existing downtown public parking areas.
The nearest State facilities to the proposed project are SR-23 and SR-118. After reviewing the
MND, Caltrans has the following comments:
As shown in Table 29 under Environmental Checklist #17 {Transportation) of the Initial
Study/Mitigated Negative Declaration (MND), potential impacts at the Los Angeles
Avenue/Spring Road intersection and Moorpark Avenue/High Street intersection could occur.
The currently proposed mitigation measure, identified as TRA-1 in the MND, would require the
project applicant to pay an Area of Contribution (AOC) Fee and a Citywide Traffic Mitigation Fee
to mitigate cumulative impacts. The AOC and Citywide Traffic Mitigation fees would be applied
towards the following programmed improvements that the City has identified:
• Los Angeles Avenue/Spring Road Intersection: Add an additional through lane on the ·
eastbound and westbound approaches.
"Provide a safe, sustainable, integrated and efficient transportation system
to enhance California's economy and livability"
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Karen Vaughn
March 5, 2020
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• Moorpark Avenue/High Street Intersection: Add an additional through lane on the
southbound approach and provide a left-turn lane, through lane, and right-turn lane on
the northbound approach.
Caltrans does not concur that these mitigations are the most effective or appropriate for a
sustainable transportation system. Caltrans encourages projects that create high quality
transportation alternatives for local and inter-regional trips. State-level policy goals related to
sustainable transportation seek to reduce the number of trips made by driving, reduce
Greenhouse Gas (GHG), and encourage alternative modes of travel. Caltrans' Strategic
Management Plan has set targets of tripling trips made by bicycle and doubling trips made by
walking and public transit by 2020. The Strategic Plan also seeks to achieve a 15% reduction in
statewide, per capita, vehicle miles traveled (VMT) by 2020. Similar goals are embedded in
California Transportation Plan 2040, and Southern California Association of Governments'
(SCAG) Regional Transportation Plan. Statewide legislation such as AB 32 and SB 375, as well
as Executive Order S-3-05 and N-19-19, echo the need to pursue more sustainable
development. Mitigation measure TRA-1 is incompatible with these State-level goals, as the
widening of Los Angeles and Moorpark Avenues would create greater crossing distances,
increase vehicle speeds, and induce demand for additional vehicle trips, all of which negatively
impact safety and discourage alternative transportation modes. By avoiding unnecessary street
widening, a transit-oriented mixed-use project like the one proposed can more effectively
function as intended. Caltrans recommends the AOC and Citywide Traffic Mitigation fees be
applied to more appropriate infrastructure projects that will reduce VMT and GHG emissions,
such as:
• Enhancing pedestrian/bicycle connections to the Metrolink station with robust signage,
wayfinding, safety improvements, and streetscape amenities.
• Incorporating bicycle infrastructure along Moorpark Ave and Spring Street to improve
safety and provide connections from the project site to destinations along Los Angeles
Ave.
• Including canopy trees, bioswales, bicycle parking facilities, and street furniture to
provide a comfortable and sustainable environment to encourage active transportation
modes and improve community health.
• Providing high quality bus shelters and bus bulb-outs on major streets.
• Using high-visibility continental crosswalks, curb extensions, count-down signal heads,
pedestrian refuge islands, and pedestrian scrambles at all crossings.
• Implementing leading pedestrian intervals that give pedestrians a 5-to ?-second head
start in crosswalks, which provides additional crossing time and makes pedestrians
more visible to drivers.
• Reducing the amount of parking whenever possible, as research on parking suggests
that abundant car parking enables and encourages driving. Research looking at the
relationship between land-use, parking, and transportation indicates that the amount of
"Provide a safe, sustainable, integrated and efficient transportation system
to enhance California's economy and livability"
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Karen Vaughn
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Page 3
car parking supplied can undermine a project's ability to encourage public transit and
active modes of transportation . For any project to better promote public transit and
reduce vehicle miles traveled, we recommend the implementation of Tra nsportation
Demand Management (TOM) strategies as an alternative to building an unnecessary
amount of parking .
• Encouraging residents and visitors of the proposed project to utilize public transit. TOM
strategies such as public transportation incentives , carpool , rideshare , telecommuting ,
walking, biking , bike-share, and educational programs should be considered .
• Evaluating the feasibility for shared micro-mobility vendors such as bike sharing and
considering the need for designated curb space for Mobility-as-a -Service (MaaS) drop -
off and pick-up activity near the Metrolink station.
Additionally, there may be encroachment permits required for any project work proposed on or
near Caltrans Right of Way. The transportation of heavy construction equipment and/or materials
which requires use of oversized-transport vehicles on State highways will also need a Caltrans
transportation permit. We recommend large size truck trips be limited to off-peak commute
periods.
If you have any questions, please contact project coordinator Anthony Higgins , at
anthony.higgins@dot.ca.gov and refer to GTS# 07-VEN-2020-00387.
s ~~
//410 ,J----
MIYA ~ONSON
IGR/cFo
1
;
1
Branch Chief
cc : Scott Morgan, State Clearinghouse
"Provide a safe, sustainable, integrat ed and efficient transportation sys/em
to enhan ce California's economy and livab ili ty"
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City of Moorpark
High Street Station Mixed Use Development Project
Response to Comments on Recirculation of the Public Review Draft IS-MND
Letter 7
COMMENTER: Miya Edmonson, IGR/CEQA Branch Chief, District 7 – Office of Regional Planning,
California Department of Transportation (Caltrans)
DATE: March 5, 2020
Response 7.1
The commenter does not agree that Mitigation Measure TRA-1, outlined in Section 17,
Transportation, of the Draft IS-MND, is the most effective or appropriate for a sustainable
transportation system. The commenter recommends a variety of infrastructure projects that would
reduce VMT and GHG emissions, for which the Area of Contribution (AOC) and Citywide Traffic
Mitigation fees could be applied instead.
The circulation improvements identified in Mitigation Measure TRA-1 are improvements that the
City has already programmed for the Los Angeles Avenue/Spring Road and Moorpark Avenue/High
Street intersections to mitigate traffic cumulative impacts as part of the City’s Operating and Capital
Improvement Projects Budget for Fiscal Year 2019-2020 (City of Moorpark 2019). The environmental
document for the Los Angeles Avenue/Spring Road intersection improvements has already been
approved by Caltrans and the Federal Highway Administration and accepted by the Moorpark City
Council.
The proposed project includes several of the infrastructure projects recommended by Caltrans. For
example, the project would implement streetscape improvements along the existing High Street
right-of-way, including landscaping, addition of sidewalk bulb-outs, and enhancements to sidewalk
and crosswalk paving, street furniture, and the existing Gazebo, Camino Real Bell, and Memorial
Bricks, which would enhance pedestrian and bicycle connections to the Metrolink station and
generally improve pedestrian and bicycle access in downtown Moorpark. There is an existing bus
shelter on High Street, directly adjacent to the project site, which would be retained as part of the
project. On April 29, 2020, the Moorpark City Council voted to allocate $1.5M of remaining bond
funds toward High Street Streetscape work, including wayfinding signage, sidewalk or frontage
improvements, street furniture, crosswalk and pedestrian improvements, etc. The project would
also leave the existing canopy trees along the High Street frontage in place and install bicycle
parking spaces as required by Title 24. In addition, the project site’s close proximity (i.e., 200 feet) to
the Metrolink train station and the Moorpark bus stop for the Moorpark City Transit Routes 1 and 2
and VCTC’s East County and East-West Connector bus lines would facilitate pedestrian and bicycle
access to transit.
Response 7.2
The commenter notes that the City may be required to obtain an encroachment permit and a
Caltrans transportation permit to perform work on or near Caltrans Right of Way.
The project applicant and City would comply with applicable requirements related to Caltrans
facilities.
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VENTURA COUNTY
AIR POLLUTION CONTROL DISTRICT
Memorandum
TO:Karen Vaughn, Community Development Dept., City of Moorpark
DATE:March 6, 2020
FROM:Nicole Collazo, Air Quality Specialist
SUBJECT:Comments on Draft Mitigated Negative Declaration (DMND) for the High Street
Station Mixed Use Project (RMA 19-003-1)
Air Pollution Control District (APCD) staff has reviewed the DMND for the proposed High Street
Station mixed use project. The project would be located on 2.15 acres, consisting of 91 multi-family
residential units and 15,018 sq. ft. of commercial development, including a public outdoor event venue.
Some of the existing buildings would be demolished as part of the proposed project. The project
location is along the south side of High Street, between Walnut Street and Magnolia Street, within the
City of Moorpark. The Lead Agency for the project is the City of Moorpark.
GENERAL COMMENTS
As a recommending agency for the CEQA review of the subject project, APCD concurs with the Air
Quality and Greenhouse Gas Emissions significance impact determinations. APCD has the following
comments regarding the DMND:
Air Quality Section
Item 1- Page 22. The last sentence pertaining to the Asbestos- Demolition and Renovation rule is 62.7,
not 74.2 (Architectural Coatings).
Thank you for the opportunity to review this project’s DMND. If you have any questions, you may call
me at (805) 645-1426 or email nicole@vcapcd.org.
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City of Moorpark
High Street Station Mixed Use Development Project
Response to Comments on Recirculation of the Public Review Draft IS-MND
Letter 8
COMMENTER: Nicole Collazo, Air Quality Specialist, Ventura County Air Pollution Control District
DATE: March 6, 2020
Response 8.1
The commenter notes a typographical error in the last sentence regarding the Asbestos - Demolition
and Renovation rule, which should refer to Rule 62.7 (Asbestos - Demolition and Renovation) rather
than Rule 74.2 (Architectural Coatings.)
In response to this comment, the following text from Section 3, Air Quality, of the Draft IS-MND has
been revised:
In addition, it was assumed the project would comply with all applicable regulatory
standards, including VCAPCD Rule 55 (Fugitive Dust), Rule 74.2 62.7 (Asbestos – Demolition
and Renovation), and Rule 74.2 (Architectural Coatings).
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Karen Vaughn
Community Development Department
799 Moorpark Ave.
Moorpark CA. 93021
Re. Moorpark High Street station Mixed Use Development
Dear Ms. Vaughn
I want to get on the record as to my opposition to the Mitigated Negative Declaration on the High
Street Project. This project if flawed in many ways, A defective and inaccurate Parking study ,
noncompliance with existing zoning , impact on circulation that is not addressed in a dated circulation
element , on street parking impacts to local business , lack of good planning by placing so much high
density housing projects in the old part of town. And finally, this project has many CEQA issues and that
will require a full EIR on the project.
Thank You Dale Whitaker
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City of Moorpark
High Street Station Mixed Use Development Project
Response to Comments on Recirculation of the Public Review Draft IS-MND
Letter 9
COMMENTER: Dale Whitaker
DATE: No date
Response 9.1
The commenter states opposition to the proposed project for the following reasons:
▪A defective and inaccurate parking study;
▪Noncompliance with existing zoning;
▪Impact on circulation that is not addressed in a dated circulation element;
▪On-street parking impacts to local business;
▪Housing density too high in the old part of town; and
▪Many CEQA issues that will require a full EIR.
The commenter’s opposition to the proposed project is noted.
The commenter’s opinions regarding the inadequacy of the City’s parking study and the density of
housing proposed in the City’s downtown area are not environmental issues addressed by CEQA.
The CEQA environmental review process involves evaluation of the project’s physical environmental
impacts based on impact areas and thresholds as described in CEQA Appendix G. A local
government may consider factors outside of environmental concerns, such as the adequacy of
parking studies and housing density, in their overall assessment of a proposed project. However,
discussions of the adequacy of parking and the merits of housing density in a given area are outside
of the environmental review process and thus are not included in this IS-MND. The commenter’s
opinions regarding parking and housing density do not affect the conclusions in the Draft IS-MND.
As discussed in Section 9, Description of Project, of the Initial Study and Section 11, Land Use and
Planning, of the Draft IS-MND, project entitlements include a Residential Planned Development
(RPD), a Disposition Agreement and Development Agreement. With approval of project
entitlements, the project would be consistent with the City’s zoning ordinance.
Please refer to Section 17, Transportation, of the Draft IS-MND, for discussion of project impacts on
the existing circulation system, which would be reduced to a less than significant level with
implementation of Mitigation Measure TRA-1. As discussed, a traffic report was completed for the
project by Associated Transportation Engineers (ATE) on December 10, 2019 (Appendix D). The
report describes existing conditions, project trip generation rates, and the impact of the project on
existing conditions. It also includes an analysis of the proposed and developing projects in the
vicinity of the project’s related impacts to traffic and circulation in a future setting. In addition,
please refer to the Final IS-MND Cover Memo, which discusses project impacts related to vehicle
miles traveled (VMT). The project would be consistent with VMT reduction goals since the project
site is adjacent to the Moorpark Metrolink station and the proposed mixed-use development is
within ½-mile from the station’s platforms. As discussed in the Draft IS-MND and the Final IS-MND
Supplemental Information Memorandum, the project would not degrade existing intersections or
roadways to unacceptable levels of the service and the project would not conflict with measures for
reducing VMT.
The commenter does not provide specifics on which environmental issues require analysis in an EIR
or substantial evidence that any project impacts would be significant and unavoidable. As discussed
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City of Moorpark
High Street Station Mixed Use Development
in the Draft IS-MND, all potentially significant project impacts would be reduced to a less-than-
significant level with implementation of the identified mitigation measures. Therefore, as discussed
in Response 4.11, preparation of an EIR is not warranted.
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March 13, 2020
City of Moorpark
Community Development Department
799 Moorpark Avenue
Moorpark, CA 93021
Att.: Karen Vaughn, Community Development Director
Re: Moorpark – High Street Station Mixed-use Development – NOI to Adopt MND
Dear Ms. Vaughn:
Thank you for contacting the Tribal Elders’ Council for the Santa Ynez Band of
Chumash Indians in regards to the above mentioned project. We apologize for the delay
in our response.
At this time, the Elders Council requests no further consultation on this project;
however, if supplementary literature reveals additional information, or if the scope of the
work changes, we kindly ask to be notified.
If you decide to have the presence of a Native American monitor in place during ground
disturbance to assure that any cultural items unearthed be identified as quickly as
possible, please contact our office or Chumash of the project area.
Thank you for remembering that at one time our ancestors walked this sacred land.
Sincerely Yours,
Susan Arakawa
Administrative Assistant for/
The Tribal Elders’ Council Governing Board
Tribal Hall
100 Via Juana Road
P.O. 517
Santa Ynez, CA 93460
(805) 688-7997 ext. 4119
sarakawa@santaynezchumash.org
Santa Ynez Band of Chumash Indians
Tribal Elders’ Council
P.O. Box 365 Santa Ynez CA 93460
Phone: (805)688-7997 Fax: (805)688-9578 Email: elders@santaynezchuhmash.org
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City of Moorpark
High Street Station Mixed Use Development
Letter 10
COMMENTER: Susan Arakawa, Administrative Assistant, The Tribal Elders’ Council Governing
Board, Santa Ynez Band of Chumash Indians
DATE: March 13, 2020
Response 10.1
The commenter requests notification if there are additions or changes to the supplementary
literature or scope of work for the project.
This request is noted.
Response 10.2
The commenter requests that their offices or Chumash of the project area be contacted should the
City decide to have a Native American monitor present during ground disturbance.
As required by Mitigation Measure CUL-1 of the IS-MND, if cultural resources are encountered
during excavation and/or ground-disturbing activities (which will be observed by an archeological
monitor), work in the immediate area must halt, and a Native American representative who is
ancestrally related to the project area must be contacted immediately to evaluate the find and
consult with the City of Moorpark and the archaeologist. Therefore, if cultural resources are
identified, the Chumash will be notified and a Native American representative who is ancestrally
related to the project area will be identified to monitor further ground disturbance.
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March 27, 2020
Ms. Karen Vaughn
Community Development Director
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
RE: Notice of Intent to Adopt a Mitigated Negative Declaration for the High
Street Station Mixed-Use Development Project
Dear Ms. Vaughn:
The Southern California Regional Rail Authority (SCRRA) has received the Notice of
Intent (NOI) to adopt a Mitigated Negative Declaration (MND) for the High Street Station
Mixed-Use Development Project. We are encouraged to see transit-oriented
development that provides increased opportunity for rail ridership in Moorpark. Thank
you for the opportunity to comment on key issues related to SCRRA and operations of
the railroad adjacent to the project site.
As background information, SCRRA is a five-county Joint Powers Authority (JPA) that
operates the regional commuter rail system known as Metrolink. Additionally, SCRRA
provides rail engineering, construction, operations and maintenance services to its five
JPA member agencies. The JPA consists of the Los Angeles County Metropolitan
Transportation Authority (Metro), San Bernardino County Transportation Authority
(SBCTA), Orange County Transportation Authority (OCTA), Riverside County
Transportation Commission (RCTC) and Ventura County Transportation Commission
(VCTC).
Below is a list of general comments that apply to the Mitigated Negative Declaration in
relation to the railroad. Comments are as follows:
1.The proposed project is primarily on a property adjacent to a railroad right of way
(ROW) that is operated and maintained by SCRRA and owned by VCTC.
However, the proposed project also includes parking that encroaches 20 feet into
the ROW. All construction within the SCRRA operating corridor and ROW, or
work activities that affect the current operation, future operation, or safety of
trains must be reviewed and approved by SCRRA. The project applicant must
obtain prior written authorization from SCRRA for any access to the railroad
ROW.
1
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MND for High Street Station Mixed-Use Development
Page 2
It is important that the licensee understand that VCTC property may be
developed for public projects and programs. Improvements to safety (such as
platform widening to standard widths or installation of a pedestrian underpass)
and operational improvements (such as lengthening of siding tracks or
installation of turnback tracks) may be warranted by future operations. Further
information that may be of use can be found here
https://metrolinktrains.com/about/agency/engineering--construction/.
2.No project drainage is permitted to drain onto railroad ROW, during or after
construction.
3.The project is being built along an active rail line. Not all trains stop at the
adjacent station, and many trains run through the area at high speeds. To
maximize safety, the project should include adequate fencing, walls and
protections to preclude trespassing into the rail corridor.
4.Page 91 of the MND states that, “At the Moorpark station, Metrolink trains make
16 daily stops... and Amtrak trains make 11 daily stops.” There are currently 14
Metrolink and 12 Amtrak trains operate daily through this corridor Monday
through Friday and reduced number of trains on the weekends. Two of the
Amtrak trains operate as “shared service trains.” These trains are shown in the
Metrolink timetable and accept Metrolink tickets. Most other Amtrak trains do not
stop at the Moorpark station. Union Pacific Railroad (UPRR) also operates freight
trains along this corridor. Rail traffic along this corridor may increase to meet
demand.
5.Any landscaping along the railroad ROW should be set back so that it does not
encroach on any part of the railroad ROW with roots or branches and shall not
block the view of railroad signals and sight distances. Landscape placement
should also allow for maintenance without the need to access the railroad ROW.
6.To assess requirements for construction (including demolition or alteration of
structures) adjacent to the railroad, plans for construction should be sent to the
SCRRA Engineering Department at the following address:
SCRRA Engineering Department
Attn: Joseph McNeely, PE, Principal Engineer
2558 Supply Street
Pomona, CA 91767
Plans may be sent to Joseph and questions addressed via email at
mcneelyj@scrra.net
Please consult SCRRA Engineering and Construction guidelines as necessary,
including more information regarding ROW Encroachment, at the following web
address:
1 cont.
2
3
4
5
6
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City of Moorpark
High Street Station Mixed Use Development
Letter 11
COMMENTER: Todd McIntyre, Chief Strategy Officer, Southern Regional Rail Authority (SCRRA)
DATE: March 27, 2020
Response 11.1
The commenter states that all construction within the railroad ROW and work activities that affect
operation must be reviewed and approved by SCCRA.
The project applicant and City will obtain authorization from SCCRA for access to the railroad ROW
and any activities that may affect railway operation.
Response 11.2
The commenter states that no project drainage is permitted to drain onto railroad ROW, during or
after construction.
The project is designed such that no permanent structures are located in the railroad ROW. Within
the 20-foot railroad ROW, the project would include vehicle parking spaces using pervious
pavement to increase stormwater retention. In addition, the project would include on-site
detention facilities and storm drain inlets integrated into parking areas, and low impact
development best management practices would be integrated into the building, landscaping,
streetscape, and parking lot areas. These features would ensure that stormwater runoff is directed
away from the ROW.
Response 11.3
The commenter requests that project include adequate fencing, walls, and protections between the
project and the railway to preclude trespassing and maximize safety.
The project will include adequate barriers between the project site and the railway ROW to
maximize safety at the site and for the railway. Barriers may include but are not limited to building
walls where buildings are present and along the southern edge of the proposed parking spaces, a 6’-
4” metal welded wire fence.
Response 11.4
The commenter clarifies the current number of trains that operate daily (14 Metrolink and 12
Amtrak trains Monday through Friday with a reduced number of trains on the weekends) and states
that rail traffic along this corridor may increase to meet demand.
The IS-MND conservatively assumes average passenger train operations of 27 trains per day (16
Metrolink and 11 Amtrak). While the commenter’s corrections have been added as a footnote in the
Final IS-MND, the change does not affect the analysis of the project’s impacts on the environment
contained in the IS-MND.
In response to this comment, the following text has been added to Section 13, Noise, of the Final IS-
MND:
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424
City of Moorpark
High Street Station Mixed Use Development Project
Response to Comments on Recirculation of the Public Review Draft IS-MND
Based on a comment letter dated March 27, 2020 from the Southern Regional Rail Authority
(SCRRA), approximately 14 Metrolink and 12 Amtrak train operations occur per day. The
discussion in the IS-MND remains unchanged as the analysis conservatively analyzes a total of
27 train trips per day compared to the 26 identified by SCRRA.
Response 11.5
The commenter states that landscaping along the ROW should: 1) be set back so it does not
encroach the railroad ROW with roots or branches or block the view of railway signals and 2) allow
maintenance of landscaping without accessing the railroad ROW.
This project will set back landscaping at an appropriate distance and regular maintenance will not
require access to the ROW. Along the southern edge of the parking spaces, the project proposes a
6’-4” metal welded wire fence with vines (Red trumpet vine and Japanese Honeysuckle) in
compliance with Metrolink landscaping design guidelines.
Response 11.6
The commenter provides the location for the online SCRRA Engineering and Construction guidelines
and states that construction plans should be sent to the SCRRA Engineering Department.
The applicant and the City will refer to the guidelines provide, and project construction plans will be
sent to the SCRRA Engineering Department contact provided.
Response 11.7
The commenter provides recommendations regarding the improvements to the Moorpark
Ave./High St. intersection required by Mitigation Measure TRA-1. Recommendations include: 1)
appropriate safety treatments should be included such that the crossing will meet FRA Quiet Zone
standards after improvements are completed, 2) road widening must not encroach on the rail yard
west of Moorpark Ave (because there is a rail switch immediately adjacent to the road); 3)
consideration should be given to potential grade separation of the crossing; and 4) improvements
should not preclude future grade separation as roadway and rail traffic volumes may increase over
time. The commenter states that the intersection improvements should be coordinated with the
SCRRA.
The recommendations will be implemented in the project and SSCRA will be included to the list of
authorities with which traffic improvements will be coordinated.
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EXHIBIT C
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.
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.
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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.
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.
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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.
26. All 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.
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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.
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.
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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.
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.
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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.
54. In the event that the VCTC license agreement is not renewed and/or the project
parking located on the VCTC right-of-way is required to be removed, the property
owner shall secure the requisite parking on the project site or in the immediate
vicinity. This may be accomplished through the execution of a shared parking
agreement and lease agreement between the property owner and the City to
secure the project parking in a City-owned parking lot at a lease rate to be
determined, or other mechanism to the satisfaction of the City.
Ventura County Fire Department
55. Drive aisle width of 24 feet shall be required for two-way travel within project
parking lot.
56. 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.
57. Minimum 15’ wide driveway access south of Commercial Building D to tie in west
and east driveways.
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58. 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.
59. 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.
60. 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.
61. All access roads / driveways shall have a minimum vertical clearance of 13 feet 6
inches (13' 6"). Clear of building to sky.
62. Parking within the parking lot drive aisles and fire department emergency access
driveway behind Commercial Building D is prohibited.
63. 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.
64. 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.
65. 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.
66. Approved walkways shall be provided from all building openings to the public
way or fire department access road / driveway.
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67. 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.
68. 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.
69. 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.).
70. All exit doors shall swing in the direction of travel (outwards) when leaving the
building.
71. All exit doors shall be provided with panic hardware when serving A, E, I
occupancies with an occupant load of 50 or more persons.
72. All required egress aisles shall be maintained clear of obstructions at anytime.
73. All emergency lights and exit signs shall be maintained in an operable condition
at all times.
74. 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.
75. 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.
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76. 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 ½ 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.
77. 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.
78. 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.
79. The minimum fire flow required shall be determined as specified by the current
adopted 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.
80. 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.
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81. All structures shall be provided with an automatic fire sprinkler system in
accordance with current VCFPD Ordinance at time of building permit application.
82. 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.
83. A fire alarm system shall be installed in all buildings in accordance with California
Building and Fire Code requirements.
84. 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.
85. 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.
86. 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.
87. 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.
88. Building plans of all A, E, I, H, R-1, R-2 or R-4 occupancies shall be submitted,
with payment for plan check, to the Fire District for review and approval prior to
obtaining a building permit.
89. 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.
90. 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.
91. Applicant shall obtain VCFD Form #126 "Requirements for Construction" prior to
obtaining a building permit for any new structures or additions to existing
structures.
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92. 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
93. 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).
94. 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.
95. 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.
436
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT
NO. 2018-01 BY AND BETWEEN THE CITY OF
MOORPARK AND DALY GROUP INC. FOR A MIXED-USE
COMMERCIAL AND RESIDENTIAL DEVELOPMENT
PROJECT ON 2.15 ACRES OF LAND LOCATED AT 226
HIGH STREET IN DOWNTOWN MOORPARK
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having an equitable interest in real
property for development of that property; and
WHEREAS, on, September 5, 2018, applications for Residential Planned
Development Permit No. 2018-01, Disposition and Development Agreement No. 2018-
01, and Development Agreement No. 2018-01 (collectively, the “Project”) were filed by
Jasch Janowicz for Daly Group, Inc., to develop a mixed-use commercial and
residential project on city-owned property located at 226 High Street in downtown
Moorpark; and
WHEREAS, on September 10, 2020, the Planning Commission adopted
Resolution No. PC-2020-653, recommending that the City Council adopt a Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program and approve
Residential Planned Development Permit No. 2018-01, Disposition and Development
Agreement No. 2018-01, and Development Agreement No. 2018-01; and
WHEREAS, a duly noticed public hearing was conducted by the City Council on
October 7, 2020, to consider the Residential Planned Development, Disposition and
Development Agreement, and Development Agreement and to accept public testimony
related thereto; and
WHEREAS, the City Council has considered all written and oral public testimony
relevant to the Development Agreement and has given careful consideration to the
content of the Development Agreement, and has reached a decision on the matter; and
WHEREAS, on October 7, 2020, the City Council adopted Resolution No. 2020-
____, adopting a Mitigated Negative Declaration and Mitigation Monitoring and
Reporting Program, and conditionally approving Residential Planned Development
Permit No. 2018-01 for the Project; and
WHEREAS, in accordance with Moorpark Municipal Code Section 15.40.090, a
duly authorized representative of Daly Group, Inc., has executed the attached
development agreement prior to the City Council’s adoption of this Ordinance.
ATTACHMENT 12
437
Ordinance No. ___
Page 2
WHEREAS, on October 7, 2020, the City Council also adopted Resolution No.
2020-____, approving the execution of Disposition and Development Agreement No.
2018-01.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES ORDAIN AS FOLLOWS:
SECTION 1. ENVIRONMENTAL FINDINGS: The City Council finds and declares
as follows:
A. The Initial Study and Mitigated Negative Declaration prepared for the
Project, including this Development Agreement, are complete and have been prepared
in compliance with the California Environmental Quality Act (CEQA), and the City CEQA
Procedures.
B. All potentially significant environmental impacts of the Project can be
mitigated to a Less-than-Significant level through the application of mitigation measures
outlined in the Mitigation Monitoring and Reporting Program.
C. The Mitigated Negative Declaration adopted via Resolution No. 2020-____
reflects the independent judgment of the City Council.
SECTION 2. The City Council of the City of Moorpark does hereby find as
follows:
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 (DTSP) 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 the 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.
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 was processed through a duly-noticed
public hearing process as required by law.
438
Ordinance No. ___
Page 3
SECTION 3. The City Council hereby adopts the Development Agreement
attached hereto and incorporated herein (Exhibit A) between the City of Moorpark, a
municipal corporation, and Daly Group, Inc., and the City Clerk is hereby directed to
cause one copy of the signed, adopted agreement to be recorded with the County
Recorder no later than ten (10) days after the City enters into the development agreement
pursuant to the requirements of Government Code Section 65868.5.
SECTION 4. If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or unconstitutional by any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council declares that it would have adopted this
Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 5. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 6. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall make
a written record of the passage and adoption thereof in the minutes of the proceedings of
the City Council at which the same is passed and adopted; and shall publish notice of
adoption in the manner required by law.
PASSED AND ADOPTED this 7th day of October, 2020.
______________________________
Janice S. Parvin, Mayor
ATTEST:
__________________________________
Ky Spangler, City Clerk
Exhibit A - Development Agreement
439
EXHIBIT A
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: City Clerk
Exempt recording per Government Code
Sec. 6103
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
DALY GROUP, INC
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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 sublicense 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 (“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, 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”; individually “a Project Approval”)
provide for the development of the Property with a mixed use development
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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 September 10, 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 MMRP, 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 MMRP 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
and recording of this Agreement. On __________, 2020, the City Council gave
second reading to and adopted the Enabling Ordinance.
Ordinance No. _____
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1.12 On __________, 2020 upon execution of the City and Developer, this Agreement,
in conjunction with a fully executed version of the DDA 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.
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
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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 the site design plans.
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
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.
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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;
(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.
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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
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
means of a final inspection or certificate of occupancy, provided that th e
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.
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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.
6.3 Los Angeles Avenue Area of Contribution (LAAOC) Fees.
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
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
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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 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.
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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
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
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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.
(f) 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.
(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.
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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.
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
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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
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 City staff to work with Developer on the
expedited processing of applications for Project Approvals and all Subsequent
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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 of
Division 1, “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
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
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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
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)
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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
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”).
11.3 Content of Notice of Violation. Every notice of breach shall state in writing with
specificity that it is given pursuant to this section of this Agreement, the nature of
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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 21 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 not be 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.
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
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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.
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.
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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 ability to 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.
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.
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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
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.
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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
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.
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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.
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.
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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.
CITY OF MOORPARK
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
The Daly Group, Inc.,
a California corporation
By:
Vince Daly, President
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EXHIBIT “A-1”
(PROPERTY CONVEYED BY CITY THROUGH DDA)
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EXHIBIT “A-2”
(SUBLICENSE AGREEMENT WITH PROPERTY LICENSED FROM VCTC)
Attached as Exhibit “A-4” to the Disposition and Development Agreement and will be inserted
here prior to recordation of the Development Agreement
Ordinance No. _____
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EXHIBIT “A-2”
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.
Ordinance No. _____
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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 Item 3 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.
1.1 Grant of License. SUBLICENSOR hereby grants to SUBLICENSEE a non-
exclusive license to use the real property described on the attached Exhibit
“1” 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.”
1.2 Term of Agreement. The term of this Agreement (“Term”) shall commence
on the “Commencement Date” specified in Item 4 of the Basic License
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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.
1.3 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:
1.3.1.1 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;
1.3.1.2 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;
1.3.1.3 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
1.3.1.4 SUBLICENSEE expressly assumes all risk of any future
Public Use as determined by VCTC and in the event VCTC terminates the 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:
1.3.1.5 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 California
Ordinance No. _____
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Relocation Assistance Law, as amended, California Government Code sections 7260
et seq.; and
1.3.1.6 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.
1.4 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 Sublicense 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.
2. Payments.
2.1 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 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.
2.2 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
SUBLICENSOR under this Agreement, at law or in equity, including, but not
limited to, the interest charge imposed pursuant to Section 34.5.
Ordinance No. _____
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3. 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.
4. Construction. All work performed or caused to be performed by
SUBLICENSEE on the Sublicensed 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 (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.
5. 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 24 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 24 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
Sublicensed Property; provided VCTC provides to SUBLICENSEE prior written
notice of such change.
Ordinance No. _____
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6. 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.
7. 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.
8. 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 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 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
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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.
9. 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 12 and 13 above and will be subject to the
maintenance and repair provisions of Section 16 above.
10. 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.
11. 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.
12. 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:
12.1.1.1 perform any necessary or appropriate corrective work at
SUBLICENSEE’s expense, which SUBLICENSEE agrees to pay to SUBLICENSOR
upon demand, or
12.1.1.2 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
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
Ordinance No. _____
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under this Agreement, at law or in equity by reason of SUBLICENSEE’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 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.
14. 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
VCTC, SUBLICENSEE shall provide insurance coverage for possible claims or losses
covered by the indemnification and defense provisions of this Agreement.
Ordinance No. _____
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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.
15. 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
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.
16. 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
subcontractors during the entire term of this Agreement. SUBLICENSEE shall provide,
at minimum, the following coverage:
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(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
the 60 days, SUBLICENSEE shall provide proof of such coverage in the manner set
forth in this section.
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17. 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 it, 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.
18. Assignment and Sublicensing. 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.
19. 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.
20. 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”).
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,
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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 22) 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.
21. Underground Storage Tanks. NEITHER SUBLICENSEE NOR SUBLICENSEE
PARTIES, SHALL INSTALL OR USE ANY UNDERGROUND STORAGE TANKS
ON THE SUBLICENSED PROPERTY.
22. 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
Ordinance No. _____
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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.
23. 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.
24. 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.
25. 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
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.
Ordinance No. _____
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26. General Provisions.
26.1 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.
26.2 Non-Exclusive License. The Sublicense granted hereunder is not exclusive
and VCTC has specifically reserved the right to grant other licenses within
the Sublicensed Property.
26.3 Governing Law. This Agreement shall be governed by the laws of the State
of California.
26.4 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.
26.5 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.
26.6 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.
26.7 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 a waiver by it of any
other covenant or condition under this Agreement.
Ordinance No. _____
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26.8 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.
26.9 Assignment. This Agreement and the Sublicense 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.
26.10 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.
26.11 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.
26.12 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.
26.13 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.
Ordinance No. _____
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26.14 Time of Essence. Time is of the essence in the performance of this
Agreement.
26.15 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.
26.16 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.
26.17 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.
26.18 Additional Provisions. Those additional provisions set forth in Exhibit “2”, 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:
CITY OF MOORPARK
By:
SUBLICENSEE:
By:
Attest:
Ky Spangler, City Clerk
Approved as to Form:
Kevin Ennis
City Attorney, City of Moorpark
Ordinance No. _____
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CONSENTED TO BY:
VENTURA COUNTY TRANSPORTATION
COMMISSION
By:
Darren Kettle
Executive Director, VCTC
Approved As To Form:
By:
Steve Mattas
General Counsel, VCTC
Ordinance No. _____
Page 45
481
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EXHIBIT “1”
Description of Sublicensed Property
Ordinance No. _____
Page 46
482
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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.
Ordinance No. _____
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483
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EXHIBIT "B"
(STREETSCAPE IMPROVEMENTS)
Ordinance No. _____
Page 48
484
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EXHIBIT "C"
(HARDSCAPE/LANDSCAPE PLANS)
Ordinance No. _____
Page 49
485
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EXHIBIT "D"
(AFFORDABLE (MODERATE INCOME) UNITS)
Ordinance No. _____
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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.
Ordinance No. _____
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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
Ordinance No. _____
Page 52
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RESOLUTION NO. 2020-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, APPROVING THE EXECUTION AND
DELIVERY OF A DISPOSITION AND DEVELOPMENT AGREEMENT
FOR THE SALE OF PROPERTY LOCATED AT 226 HIGH STREET AND
MAKING FINDINGS PURSUANT TO GOVERNMENT CODE SECTION
52201 REGARDING THE CREATION OF ECONOMIC OPPORTUNITY
FOR THE CITY
WHEREAS, The City of Moorpark (the “City”) owns property located at 226 High
Street in the City (the “Property”); and
WHEREAS, Daly Group (the “Developer”) has agreed to purchase and develop
the Property in accordance with the terms of a Disposition and Development Agreement
(the “DDA”), attached hereto and incorporated herein as Exhibit A, and Development
Agreement (the “DA”) to be entered into by and between the City and the Developer;
and
WHEREAS, pursuant to the DDA, it is contemplated that the Developer will build
a mixed-use commercial and residential project consisting of four mixed-use buildings
and three standalone commercial buildings including 79 residential dwelling units and
13,628 square feet of commercial floor area on the Property (the “Project”); and
WHEREAS, the Project will include improvements and be subject to the
conditions of approval of Residential Planned Development Permit No. 2018-01 and
Development Agreement No. 2018-01; and
WHEREAS, as outlined in the DDA, an appraisal of the Property will be
conducted not more than six (6) months prior to the close of escrow to determine the
final purchase price, which appraisal will consider site demolition and improvements
necessary for the construction of the Project and the fair market value of the land; and
WHEREAS, the Developer has agreed to the terms of the transaction as outlined
in the DDA; and
WHEREAS, the City desires to proceed with the sale of the Property pursuant to
the terms of the DDA; and
WHEREAS, the City finds that the sale of the Property is in furtherance of the
creation of economic opportunity for the City; and
WHEREAS, Government Code Section 52201authorizes the City to dispose of a
City-owned property for the creation of economic opportunity, if the City Council holds a
public hearing (the “Hearing”) and makes certain findings pursuant to Government Code
Section 52201; and
ATTACHMENT 13
489
Resolution No. 2020-____
Page 2
WHEREAS, the City held the Hearing on October 7, 2020, regarding the
disposition of the Property pursuant to the DDA; and
WHEREAS, pursuant to Government Code Section 52201(a), the City did the
following before the Hearing: (i) caused a notice of the Hearing to be published in a
newspaper of general circulation in the community at least once per week for at least
two successive weeks, as specified in Section 6066; and (ii) made available the report
required by Government Code Section 52201(a)(2) (the “Report”) for public inspection
no later than the time of publication of the first notice of the Hearing: and
WHEREAS, the Report contained (i) a copy of the DDA, and (ii) a summary
describing all of the following: (A) the cost of the DDA to the City, (B) the estimated
value of the Property to be conveyed, determined at the highest and best uses
permitted under the general plan or zoning, (C) the estimated value of the Property to
be conveyed or leased, determined at the use and with the conditions, covenants, and
development costs required by the sale, (D) an explanation of the purchase price to be
paid by the Developer, and (E) an explanation of why the sale of the Property will assist
in the creation of economic opportunity; and
WHEREAS, the City’s Community Development Director has caused an Initial
Study and Mitigated Negative Declaration to be prepared for the Project, and has
determined that all potentially significant environmental impacts can be reduced to less-
than-significant through the application of mitigation measures as enumerated in the
Project Mitigation Monitoring and Reporting Program; and
WHEREAS, on October 7, 2020, the City Council adopted Resolution No. 2020-
____, adopting a Mitigated Negative Declaration and Mitigation Monitoring and
Reporting Program, and conditionally approving Residential Planned Development
Permit No. 2018-01 for the Project; and
WHEREAS, on October 7, 2020, the City Council introduced, waived first reading
and scheduled the second reading of Ordinance No. ____, approving Development
Agreement No. 2018-01.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. ENVIRONMENTAL FINDINGS: The City Council finds and declares
as follows:
A. The Initial Study and Mitigated Negative Declaration prepared for the
Project are complete and have been prepared in compliance with the California
Environmental Quality Act (CEQA), and the City CEQA Procedures.
B. All potentially significant environmental impacts of the Project, including
this Disposition and Development Agreement, can be mitigated to a Less-than-
Significant level through the application of mitigation measures outlined in the Mitigation
Monitoring and Reporting Program.
490
Resolution No. 2020-____
Page 3
C. The Mitigated Negative Declaration adopted by Resolution No. 2020-____
reflects the independent judgment of the City Council.
SECTION 2. DISPOSITION AND DEVELOPMENT AGREEMENT FINDINGS:
The City Council finds and declares as follows:
A. The Disposition and Development Agreement is 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.
B. Pursuant to Government Code Section 52201(b), the City Council finds
that, under the terms of the Disposition and Development Agreement, the
final purchase price received as consideration for the sale of the property
to the developer will reflect fair market value at its highest and best use.
SECTION 3. EFFECTIVE DATE: The approval of the Disposition and
Development Agreement No. 2018-01 shall be concurrent with the effective date of the
Ordinance for Development Agreement No. 2018-01.
SECTION 4. CERTIFICATION OF ADOPTION: The City Clerk shall certify to the
adoption of this resolution and shall cause a certified resolution to be filed in the book of
original resolutions.
PASSED AND ADOPTED this 7th day of October, 2020.
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler
City Clerk
Exhibit A: Disposition and Development Agreement
491
12853-0062\2317734v13.doc
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 disposition 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.
EXHIBIT A
Resolution No. 2020-____
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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
Resolution No. 2020-____
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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.
1.1.28 “Released Parties” is defined in Section 2.7.3.
1.1.29 “Schedule of Performance” means the schedule on Exhibit “B”
attached hereto and incorporated by reference herein.
1.1.30 “Scope of Development” means the description of the Project set
forth in Exhibit “C” attached hereto and incorporated by reference herein.
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1.1.31 “Site” means the Property.
1.1.32 “Site Designs” is defined in Section 6.7.
1.1.33 “Title Commitment” is defined in Section 2.4.
1.1.34 “Title Company” shall mean the Escrow Holder (i.e., the
Title Company and the Escrow Holder are the same).
1.1.35 “Title Due Diligence Date” is defined in Section 2.4.
1.1.36 “Title Objection Notice” is defined in Section 2.4.
1.1.37 “Title Response Notice” is defined in Section 2.4.
1.1.38 “Transfer” is defined in Section 4.1.1.
1.1.39 “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
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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 occurs 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: vince@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
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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.
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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) in the form of the sublicense
attached hereto as Exhibit “A-4”.
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.
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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.
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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.
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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
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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
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 1.1.18), RCRA (as defined in Section 1.1.18), 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
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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 1.1.18) 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
Hazardous Materials or toxic substances, materials or wastes was directly and solely caused
by the Developer or its agents, employees, consultants or contractors.
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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
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
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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 Sections 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.
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
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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
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
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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.
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.
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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
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
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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
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
suspension for ninety (90) consecutive days as so extended has 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);
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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, 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,
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:
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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:
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
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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.
(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,
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
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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.
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.
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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
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.
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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
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
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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
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,
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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.
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
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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:
THE DALY GROUP, INC.,
a California corporation
By:
Vincent Daly,
its President
CITY:
CITY OF MOORPARK
By:
Janice Parvin,
Mayor
ATTEST:
Ky Spangler , City Clerk
APPROVED AS TO FORM:
By:
Kevin G. Ennis, City Attorney
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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.
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EXHIBIT "A-2"
DEPICTION OF CITY PROPERTY TO BE CONVEYED TO DEVELOPER
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EXHIBIT “A-3”
VENTURA COUNTY TRANSIT COMMISSION LICENSE AREA SUBLICENSED TO
DEVELOPER
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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.
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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 Item 3 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
“1” 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 4 of the Basic License
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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 the 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 California
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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 Sublicense 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 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
SUBLICENSOR under this Agreement, at law or in equity, including, but not
limited to, the interest charge imposed pursuant to Section 34.5.
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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 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 24 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 24 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
Sublicensed Property; provided VCTC provides to SUBLICENSEE prior written
notice of such change.
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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 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 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
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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 12 and 13 above and will be subject to the
maintenance and repair provisions of Section 16 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
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
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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
VCTC, SUBLICENSEE shall provide insurance coverage for possible claims or losses
covered by the indemnification and defense provisions of this Agreement.
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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
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
subcontractors during the entire term of this Agreement. SUBLICENSEE shall provide,
at minimum, the following coverage:
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(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
the 60 days, SUBLICENSEE shall provide proof of such coverage in the manner set
forth in this section.
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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 it, 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 Sublicensing. 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”).
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,
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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 22) 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.
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
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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
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.
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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 Sublicense 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
invalidate this Agreement nor shall it be considered a waiver by it of any
other covenant or condition under this Agreement.
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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 Sublicense 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 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.
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34.14 Time of Essence. Time is of the essence in the performance of this
Agreement.
34.15 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.
34.16 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.
34.17 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.
34.18 Additional Provisions. Those additional provisions set forth in Exhibit “2”, 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:
CITY OF MOORPARK
By:
SUBLICENSEE:
By:
Attest:
Ky Spangler, City Clerk
Approved as to Form:
Kevin Ennis
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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
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EXHIBIT “1”
Description of Sublicensed Property
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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.
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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
open escrow with the Escrow Holder.
Within five (5) business days following the
Parties’ execution of the DDA.
2. Developer Deposit. The Developer shall
deposit the Developer Deposit with
Escrow Holder.
Within ten (10) business days after the City's
execution and delivery of this Agreement.
3. Project Budget and Construction Contract.
The Developer shall submit the Project
Budget and a copy of the construction
contract with the Contractor for the
construction of the Improvements.
Prior to the Close of Escrow.
4. Insurance. The Developer shall submit
evidence of insurance to the City.
Prior to the Close of Escrow.
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
purchase the Property from the City (and
shall concurrently close the Construction
Loan, if any).
No later than December 31, 2021
7. Completion of Grading. Developer shall
complete the grading for the Project.
Six (6) months after Close of Escrow.
8. Substantial Commencement of
Construction.
Thirty (30) months after completion of grading.
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Action Date / Deadline
9. Qualification for Certificate of
Occupancy. The Project shall qualify for
an Occupancy Certificate.
Two calendar years after Close of Escrow.
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EXHIBIT "C"
SCOPE OF DEVELOPMENT
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.
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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 Agreement, or the
Property and the Improvements thereon or any part thereof, or of other ownership interest in the
Grantee in violation of the Agreement, which contains restrictions on the assignment of the
Agreement and the transfer of the Property prior to the issuance of a Certificate of Completion.
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5. All uses conducted on the Site, including, without limitation, all activities
undertaken by the Developer pursuant to this Grant Deed, shall conform to the Agreement 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 on the Property
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
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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.
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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
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DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
DALY GROUP, INC
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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 sublicense 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 (“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, 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”; individually “a Project Approval”)
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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 September 10, 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 MMRP, 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 MMRP 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
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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, this Agreement,
in conjunction with a fully executed version of the DDA 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.
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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 the site design plans.
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
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
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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;
(e) control residential rents; or
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(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
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
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
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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.
6.3 Los Angeles Avenue Area of Contribution (LAAOC) Fees.
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
unfettered discretion. The amount of the Citywide Traffic Fee shall be One
Thousand One Hundred and Thirty-three Dollars ($1,133) per residential unit.
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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 Project is constructed in a manner consistent with Residential Planned
Development 2018-01.
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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
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
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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.
(f) 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.
(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
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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.
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
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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
request by City showing the additional insureds. The certificate shall also
be furnished by Developer prior to commencement of construction of any
Improvements.
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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 City staff to work with Developer on the
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 of
Division 1, “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
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
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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.
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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
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:
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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
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”).
11.3 Content of Notice of Violation. Every notice of breach shall state in writing with
specificity that it is given pursuant to this section of this Agreement, the nature of
the alleged breach, and the manner in which the breach may be satisfactorily
cured. Every notice shall state the applicable period to cure. The notices shall be
given in accordance with Section 21 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
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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 not be 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.
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:
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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.
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 ability to 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
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specified herein.
13. Estoppel Certificate. At any time and from time to time, Developer may deliver written
notice to City and City may deliver written notice to Developer requesting that such Party
certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in
full force and effect and a binding obligation of the Parties, (ii) this Agreement has not
been amended, or if amended, the identity of each amendment, and (iii) the requesting
Party is not in breach of this Agreement, or if in breach, a description of each such
breach. The Party receiving such a request shall execute and return the certificate within
ten (10) days following receipt of the notice. City acknowledges that a certificate may be
relied upon by successors in interest to the Developer who requested the certificate and
by holders of record of deeds of trust on the portion of the Property in which that
Developer has a legal interest.
14. Administration of Agreement. Any consent or approval herein to be given by the City
may be given by the City Manager provided it is 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
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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
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
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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
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.
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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.
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IN WITNESS WHEREOF, the Parties have executed this Development Agreement
effective as of the Operative Date.
CITY OF MOORPARK
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
The Daly Group, Inc.,
a California corporation
By:
Vince Daly, President
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EXHIBIT “A-1”
(PROPERTY CONVEYED BY CITY THROUGH DDA)
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EXHIBIT “A-2”
(SUBLICENSE AGREEMENT WITH PROPERTY LICENSED FROM VCTC)
Attached as Exhibit “A-4” to the Disposition and Development Agreement and will be inserted
here prior to recordation of the Development Agreement
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EXHIBIT "B"
(STREETSCAPE IMPROVEMENTS)
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EXHIBIT "C"
(HARDSCAPE/LANDSCAPE PLANS)
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EXHIBIT "D"
(AFFORDABLE (MODERATE INCOME) UNITS)
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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.
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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
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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
pursuant to Government Code Section 27383. (Space Above for Recorder’s Use Only)
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the “Certificate”) is made by the CITY OF
MOORPARK, a municipal corporation (the “City”), in favor of .
R E C I T A L S
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 3.4 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.
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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
By:
Troy Brown, City Manager
ATTEST:
Ky Spangler, City Clerk
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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)
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.
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EXHIBIT “A”
LEGAL DESCRIPTION
To be provided by owner prior to close of escrow
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