HomeMy WebLinkAboutAGENDA REPORT 2022 0921 CCSA REG ITEM 09CCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of September 21, 2022
ACTION ADOPTED RESOLUTION NO.
2022-4131. (ROLL CALL VOTE: 3-0,
COUNCILMEMBERS ENEGREN AND
GROFF RECUSED)
BY A. Hurtado.
C. Consider Resolution Approving the Second Amendment to the Disposition and
Development Agreement No. 2018-01 between the City of Moorpark and Daly
Group, Inc. and Making a Determination of Exemption Pursuant to the California
Environmental Quality Act in Connection Therewith. Staff Recommendation: 1)
Adopt Resolution No. 2022-4131, approving the Second Amendment to
Disposition and Development Agreement No. 2018-01, subject to final language
approval by the City Manager. (Staff: Carlene Saxton, Community
Development Director) (ROLL CALL VOTE REQUIRED)
Item: 9.C.
Item: 9.C.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Carlene Saxton, Community Development Director
DATE: 09/21/2022 Regular Meeting
SUBJECT: Consider Resolution Approving the Second Amendment to the
Disposition and Development Agreement No. 2018-01 between the
City of Moorpark and Daly Group, Inc. and Making a Determination of
Exemption Pursuant to the California Environmental Quality Act in
Connection Therewith
BACKGROUND
High Street Depot / Daly Group Proposal
On November 16, 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 on 2.5 acres of property located on High Street
owned by the City of Moorpark. The ENA was extended several times as work
progressed on the project design and the terms of the Development Agreement (DA)
and Disposition and Development Agreement (DDA) were being negotiated. A City
Council ad hoc committee consisting of Mayor Parvin and then 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.
On October 21, 2020, the City Council adopted Ordinance No. 484 approving a
Development Agreement (No. 2018-01, Attachment 1) and on October 7, 2020,
Resolution Nos. 2020-3949 and 2020-3950 were adopted approving a Mitigated
Negative Declaration and Mitigation Monitoring and Reporting Program, conditionally
approving a Residential Planned Development Permit (No. 2018-01) for the Project, and
a DDA (No. 2018-01, Attachment 2), for a mixed-use development consisting of 79
residential units, 13,628 square feet of commercial and associated land improvements
located at 226 High Street in the Downtown Specific Plan on an application of Daly
Group, Inc (the “Project”).
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Honorable City Council
09/21/2022 Regular Meeting
Page 2
On-Site Remediation and First Amendment to DDA
Following the Council action, the applicant began performing further due diligence work
to acquire the property from the Successor Agency. Following the Phase I
environmental work, a soil and gas assessment (SGA) was conducted on the property.
The findings of the SGA found the presence of lead prominent throughout the site.
Remediation costs were estimated to be approximately $800,000.
At the request of the Daly Group, Inc., on October 6, 2021, the City Council appointed
Mayor Parvin and Councilmember Castro to serve on the Daly Group, Inc. ad hoc
Committee to consider amending the terms of the existing DDA. The items discussed
included construction funding and potential remediation costs. The items do not affect
the current density or any substantive elements of the approved development.
On December 15, 2021, the City Council adopted Resolution No. 2021-4057 approving
the First Amendment to the DDA (Attachment 3). The First Amendment extended the
timeframe for the close of escrow and related conditions from December 31, 2021, to
September 30, 2022, to allow the Developer additional time to complete required soil
remediation on the property in order to show proof of financing as required in the DDA.
Since that time, the ad hoc Committee and the developer have had ongoing meetings to
move the project forward. The building and site improvements plans were submitted to
the City for review and initial comments were provided to the Developer in August,
2022.
DISCUSSION
The Daly Group, Inc. performed additional work on the site and coordinated with the
Department of Toxic Substance Control (DTSC) to further define the limits of
remediation. During this time, the Developer was able to scope the limits of remediation
to a small portion of the property on the southwest corner of the site. The ad hoc
Committee and Developer have worked diligently to identify strategies to address the
remediation requirements with sensitivity to the cost impacts on the project. As a result
of these discussions, a lot line adjustment was approved by the Community
Development Director to “carve out” approximately 240 square feet at the southwest
corner of the site where the most extensive remediation was required. Instead, this
area was transferred to the City-owned site occupied by the Moorpark Chamber of
Commerce and is not proposed to be developed. As a result, remediation of this portion
of property will not be required as part of this project. Additionally, this path allows the
Developer to move forward without the lengthy DTSC permitting process and obtain
proof of financing as required by the DDA.
A Second Amendment to the DDA is requested to reflect the property description of
land being excluded from the Project following the lot line adjustment and to extend the
validity of the property appraisal from six months to nine months. A summary of these
amendments is provided below.
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Honorable City Council
09/21/2022 Regular Meeting
Page 3
Second Amendment to Disposition and Development Agreement
The DDA sets forth the negotiated terms for the land transaction and establishes a
performance schedule for the Project. The DDA contains triggers for the reversion of
land ownership to the City should the Applicant not perform per the agreed-upon terms.
The proposed Second Amendment to the DDA (Attachment 4) corrects the legal
description of the project site to reflect the removal of approximately 240 square feet at
the southwest corner resulting from the approved lot line adjustment. The Second
Amendment also extends the validity of the property appraisal from six months to nine
months to reflect the schedule impacts resulting from the unanticipated site remediation.
The Second Amendment also proposes to extend the timeframe for the close of escrow
and related conditions from September 30, 2022, to April 8, 2023.
ENVIRONMENTAL DETERMINATION
Pursuant to the California Environmental Quality Act, the City Council adopted a
Mitigated Negative Declaration (MND) on October 21, 2020, that analyzed the
environmental impacts associated with development of the Project. The MND
determined that there are no significant impacts with the inclusion of specific mitigation
measures identified in the MND Mitigation Monitoring and Reporting Program. The
proposed amendment to the DDA does not present any additional environmental
impacts. Therefore, the Project remains consistent with the previously-adopted MND
and no further environmental documentation is required.
FISCAL IMPACT
There are no direct fiscal impacts associated with this request.
COUNCIL GOAL COMPLIANCE
These actions are consistent with the City Council Goal 1 – “Identify Options and
Solutions to Barriers for Housing for All Economic and Age Ranges” and Goal 2 –
“Place an Emphasis on Economic Development with a Focus on Historic High Street to
Enhance a Destination and Sense of Community.”
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1.Adopt Resolution No. 2022-____, approving the Second Amendment to
Disposition and Development Agreement No. 2018-01, subject to final language
approval by the City Manager.
Attachment 1: Development Agreement No. 2018-01
Attachment 2: Disposition and Development Agreement No. 2018-01
Attachment 3: First Amendment to Disposition and Development Agreement
No. 2018-01
Attachment 4: Draft Resolution No. 2022-_____ (Second Amendment to Disposition
and Development Agreement No. 2018-01) 47
ATTACHMENT 1
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark A venue
Moorpark, California 93021
\1111\\11\11\ 11\\\\\\\1111 \ 11\11111\11 \ \II\ II\
20201102-00183311-01/52
Ventura County Clerk and Recorder
MARK A. LUNN
111 02/2020 04:16:03 PM
1706387 $.00 RE
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code § 6103
12853-0062\2315 l 75v22.doc
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
DALY GROUP, INC
48
DEVELOPMENT AGREEMENT
This Deve lopm e nt Ag ree me nt th e ("A g re e me nt") is mad e and e nt e re d into on
O~L:7er "Z-:, , 202 0 by and betwe e n th e C ITY OF MOORPARK, a municipal corporation
(referred to he re inafte r as "C it y ") and DALY GROUP , rNC., a California corporation , (referred
to he re inafter as "D eve lop e r"). C ity a nd Deve lop er are referred to he re inafte r indi v idua ll y as a
"Party" and collectively as th e "Parties." [n co ns id eration of th e mutu a l cove nants and
ag ree ments co ntain ed in thi s Ag reem en t , C it y and Deve lop er agree as follows:
1. Rec it a l s . This Agree ment is mad e with res pect to the following facts and for th e
following purpo ses , eac h of which is ac kno w led ge d as tru e and correct by the Parti es :
1.1 Purs ua nt to Government Code Section 65864 et seq. and M oo rpark Municipal
Co d e C hapter 15 .40 , C it y is authorized to enter into a binding contractual
agreement with any perso n hav in g a legal or equitabl e inte res t in real property
within it s boundari es for th e development of such prope rt y in order to es ta bli sh
certainty in th e deve lopm ent process .
1.2 Deve lop er has e ntered into a Di s po s ition and Deve lopm ent Agree m e nt ("ODA ")
with the Ci ty to acquire ownership in fee simpl e of certain real prope rty within the
C ity of Moorpark generall y refe rre d to as 19 2 High S t and identifi ed in that
certain legal desc ription set forth in Exhibit "A-1", to gether with a sublicense
agreement over that certain real prope rt y owned by the Ventura Co unty
Transportation Co mmi ss ion , which s ublicen se agreement and it s legal desc ription
are set forth in Exhibit "A-2 ," which exhibits are attached hereto and
incorporated by reference, referTed to here in after co ll ective ly as the "Property".
1.3 The DO A establi shes certain Deve lop er covenants (Section 3 of the DOA),
limitation s on trans fe r s of the sec urit y interes ts (Section 4), a Sc he dul e of
Pe rform anc e (Exhibit B to th e DO A), and other obligations and responsibilities of
the Parti es. Nothing co ntained here in is intended to s up e rse de , amend or
otherwise exe mpt either Party from co mplianc e with th e provi s ion s of th e ODA.
1.4 Prior to , and in connection w ith , th e a pproval of thi s Agree m ent, th e C it y Co un c il
rev iewed th e proj ect to be developed pursuant to this Agreem e nt as required by
the Cali fornia Env ironm ental Q ua lity Act ("CEQA"). On Octo be r 7 , 2020 , at a
dul y noticed public hearing a nd after inde pende nt rev iew and co n s ideration, the
C ity Co uncil mad e th e req uired e nv ironm e ntal findings pursuant to CEQA a nd
ad opted Resolution No. 2020-3949 , adoptin g that certai n Mitigated Negative
Declaration ("MND ") and re lated Mitigation Monitoring and Reporting Program
the ("MMRP") prepared for this Agreement and th e Project Approval s as defined
in S ub section 1.5 of this Agree m e nt.
1.5 T he Downtown Specific Plan , as Amended , a nd the Residential Planned
Development (RPD) Permit No. 20 18 -0 1 ("RPO 2018-01") inc luding a ll
sub seq uen tl y approved modifications , permit adj ustments and amend m ents
thereto (co ll ective ly, "the Proj e ct 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 DOA 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 ODA.
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 DOA, 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 l 0, 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 October 7, 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. 484 ("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
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12853-006212315 l 75v22.doc 50
Agreement. On October 21, 2020, the City Council gave second reading to and
adopted the Enabling Ordinance.
1.12 On Novt.ml:,u 2,>2020 upon execution of the City and Developer, this Agreement,
in conjunction with a fully executed version of the DOA between the City of
Moorpark and Daly Group, Inc. was recorded against the Prope,ty 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 arc
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. Prope,ty 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 DOA ("Permitted Successor"), or such other party
approved by the City.
3.1
3.2
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.
Release Upon Subsequent Transfer. Provided the applicable conveyance is
permitted under the ODA 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.
12853-0062\231 SI 7Sv22.doc
51
4.
5.
3.3 Priority of the DOA. Notwithstanding anything herein to the contrary, in the
event of a direct conflict between a term or provision of the DOA and a term or
provision of this Agreement, the parties agree that the term or provision of the
DOA 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.
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 ODA, 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 ODA, 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.
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 DOA, 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 DOA 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
DOA.
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
DOA 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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6.
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.
Developer Agreements.
6.1 Development as a Mixed Use Project. Developer shall comply with (i) this
Agreement, (ii) the DOA, (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 DOA, this Agreement, the Project
Approvals and the Subsequent Approvals, priority shall be given first to the
provisions of the DOA, 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, B 1, 82, 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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6.5
6.6
6.7
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.
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.
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.
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
6.9
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.
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, HV AC, 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 31 st 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 DOA, 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.
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
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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 DOA, 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 DOA, 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, U)
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.
1 1.1 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
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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 DOA, and fails to cure such breach within the
cure period, if any, provided under the DOA.
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 (3 0) 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
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.
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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 DOA. 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
DOA, 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
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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.
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
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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 DOA, 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 DOA shall require an amendment of
the ODA.
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 DOA, or any provision of this Agreement or of the ODA, 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 1 7 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.
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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
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 umelated
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)
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l 2853-006212315175v22.doc 68
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.
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.
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I 2853-0062\2315 l 75v22.doc 69
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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12853-0062\23 l 5175v22.doc 70
IN WITNESS WHEREOF, the Parties have executed this Development Agreement
effective as of the Operative Date.
The Daly
a Califo
a ly resident
1,hrie,W1t _J, v~,'j
1
'Pn!>idMt
12853-0062\23 15 175v22 .doc
CITY OF MOORPARK
S. Parvin , Mayor
ATTEST :
KyS~g~~
-23-71
ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of Ventura
)
)
On __ Oe,to __ b_e,r_'J-_?_1,()_i,o __ before me, Ky Spangler, Notary Public
(insert name and title of officer)
personally appeared ViAC-e,,vif J . 7)<.f ~
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/soo/~ executed the same in his/R<¥/~ authorized capacity(+0S), and that by
his/R<¥/~ 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 PENAL TY 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 _115-+-----t--Sw--~-tv~-
········1 KY SPANGLER
Notary Public • Ca liforni a z
Ventura County i:c
Commission W 2191472 -
My Comm. Expires Apr 13, 2021
(Seal)
72
CITY OF MOORPARK
799 Moorpark Avenue, Moorpark Ca lifornia 9302 1 I Phone (805 ) 517 -6200 I Fax (805 ) 532 -2205
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.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF VENTURA
CITY OF MOORPARK
ss.
On this 23rd day of October in the year 2020, before me, Ky Spangler, City
Clerk of the City of Moorpark, personally appeared Janice S. Parvin, who proved to
me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument, and who is personally known to me to be the
person whose name is subscribed to the within instrument, and acknowledged to
me that she executed the same in her authorized capacity as the Mayor of the City
of Moorpark, and that by her signature on the instrument, acknowledged to me that
the City of Moorpark executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct. .
Witness my hand and Official Seal
City Clerk
J AN ICE S PARV IN
Mayo r
CHR LS ENEG REN
Co un cilmember
ROSEANN MI KOS , Ph .D.
Coun cilrn ernb er
DAVID POLLO CK
Coun cilm e mber
KEN SIMONS
Council member
73
EXHIBIT "A-1"
(PROPERTY CONVEYED BY CITY THROUGH DDA)
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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A-1 -2
12853-0062 \23 I 5 175v22.do c 75
EXHIBIT "A-2"
(SUBLICENSE AGREEMENT WITH PROPERTY LICENSED FROM VCTC)
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 "B"
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
1. 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 "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."
1.2 Term of Agreement. The term of this Agreement ("Term") shall
commence on the "Commencement Date" specified in Item 3 of the Basic License
Provisions. This Agreement shall continue in full force and effect 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.
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l 2853-0062\2315175v22.doc 77
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:
(a) 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;
(b) 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;
(c) If VCTC's Executive Director, or designee, at any time, or from time
to time, determines in his or her sole and absolute discretion, that there is a need for the
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
(d) 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:
(e) 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
(f) compensation under any eminent domain or inverse condemnation
law.
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12853-0062\23 I 5175v22.doc 78
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 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.
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 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.
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 $500 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 24.5.
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 ("Work") shall be performed (i) in
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l2853-0062\23 l 5175v22.doc 79
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 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 requir~s 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.
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
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12853-0062\2315 l 75v22.doc 80
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 "C" 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 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.
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 4
and 5 above and will be subject to the maintenance and repair provisions of Section 8
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
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12853-0062\23 I 5175v22.doc 81
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:
(a) perform any necessary or appropriate corrective work at
SUBLICENSEE's expense, which SUBLICENSEE agrees to pay to SUBLICENSOR
upon demand, or
(b) 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 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, "lndemnitees"), to the maximum
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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 lndemnitees
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 lndemnitees) 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 lndemnitees,
unless caused solely by the negligence or willful misconduct of lndemnitees; shall
survive termination of this Agreement; and is in addition to any other rights or remedies
which lndemnitees 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.
Claims against the lndemnitees by SUBLICENSEE or its Personnel shall not limit
the SUBLICENSEE's indemnification obligations hereunder in any way, whether or not
such claims against lndemnitees 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
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:
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12853-0062\23 l 5175v22.doc 83
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:
1. 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.
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12853-0062\23 I 5175v22.doc 84
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.
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
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.
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
A-2 -10
l2853-0062\2315 l 75v22.doc 85
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, 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 lndemnitees (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 lndemnitees
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 lndemnitees,
unless caused solely by the gross negligence or willful misconduct of lndemnitees; shall
survive termination of this Agreement; and is in addition to any other rights or remedies
which lndemnitees 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.
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12853-0062\23 15 I 75v22.doc 86
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 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
A-2 -12
l 2853-0062\23 l 5175v22.doc 87
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.
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 license 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
A-2 -13
12853-0062\2315 I 75v22.doc 88
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.
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 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.
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 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
A-2 -14
12853-0062123 l 5175v22.doc 89
VCTC or other public agencies, such as, but not limited to: rail and bus transitways,
bikeways, walkways, beautification projects and 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.
26.14 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.
26.15 Time of Essence. Time is of the essence in the performance of this
Agreement.
26.16 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.
26.17 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.
26.18 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.
26.19 Additional Provisions. Those additional provisions set forth in Exhibit "B",
if any, are hereby incorporated by this reference as if fully set forth herein.
A-2 -15
l 2853-0062\2315175v22.doc 90
IN WITNESS WH E REOF , the parties have caused this Agreement to be
executed by their duly authori zed representatives as of the dat 1rst written above.
SUBLICENSOR:
CITY OF MOORPARK
Attest:
KySp~:%~
Approved as to Form :
~-,$~
Kevin G . 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 Couns e l, V CTC
A-2 -16
l 2853 -0062 \23 15 175v22 .doc
91
EXHI BIT "A"
TO SUBLICE NSE AGREEMENT
Description of Sublicensed Property
EXI-II BIT~N
Ll::(!iA L DESC RIPTION
BeinQ a st rip of l,m c, 20 .DD feet wide, i r th e oty of Mcorpark , C.Ou nty of Ventu ra, State of Ctl lfornla,
and being a ,p ottlon of the land , 40.00 11.;~L wid e:, de5c ribed in th e Gr,1 nt Pe ed rcrord ed ~-.eptembe r 27,
1931, as Instrume ntr~o. 91 -143 17 of Offir:ial Rl"m rds o" Vemu ra Cou nty, t he northe rl y lin e of sai d ~-.t ri J
of !and describ ed as fr:> lows:
Beg in nin g at a po int in th e no rt1 e ~• line of sa id Gran t Oee:1 1 said po int be;:irs ~o Jth W 30 '35" East
169.65 feet fro11 t he ln te--sect lon of sa id nt:.;Lh:?l ly line v,lt h tile e.asterly li ne of Moo rpa rk Av enue, 50 .00
foo t wi de, as shown o n t he ma p entitled "Map l\o. 1 :>f Tmc t O of ~borpark Subd ivision" an d reco rd ed
in Book 8, Fage L3 of Ml smlla nl!O us ~e:o;ds (Maps) Ir, ttte office of the Cou nt y Recorde r of V-~nt ura
Cou rty, Sll ld po im bei ng th e southwc~tcrty ccmer of Parce l ;i of Pro posed Parm l Map No. 2.017-□1 and
t !B Tr ue Po int of Bc~i n ning or th &s descrl pt lon; thence cont i nt1ing a long t he 110,ti,erty li ne o" sai d G:-a nt
Deed, soum ~9°~-0 '35" cast 937.1 6 feet Lu the! ::ouU·1easts:r l~• come r of Pa rce l 3 of ~-a id Ptop:>sed Parce l
Ma p No. 2.0l7-D1.
Conh!inlng 18,?43 s~uare fi,..et, mo r ~ or lex.
r ¾h 7 bate
A-2 -17
12853 -0062\23 15 I 75 v22.doc 92
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EXHIBIT "C"
TO SUBLICENSE AGREEMENT
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.
3050103.1
A-2 -19
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EXHIBIT "E"
(ADDRESSES OF PARTIES)
To City:
City of Moorpark
799 Moorpark A venue
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.
12853-0062\2315 l 75v22.doc
E - 1 98
EXHIBIT F
PROJECT FEE S
De ve lo pe r will be re quire d to pay a ll a ppli cabl e fees pe rt a inin g , but no t limite d to co nditi o n
co mpli a nce, e nv ironme nta l MMRP co mpli an ce, pl an c he cks , in s pec ti o ns , publi c wo rk s pe rmits ,
a nd building pe rmits.
C ommunity Development Department Fees/Depos it s (Resolution No. 2017-3608):
C ondition Co mpli a nce d e pos it
Deve lopm e nt Agreeme nt A nnua l Rev iew de po s it
Zo nin g C learance fees
A dv anc e Pl a nnin g fees
C on struc tion and De molition Ma te ri a l Ma nage m e nt Pl a n fees
(No te: A 15% a dmini strati ve fee is add e d to a n y w o rk th a t is co mpl e te d by co n s ulta nts to th e
C it y.)
Lo t Lin e A dj ustme nt/M e rge r, S ig n Pe rmit/Pro gram , Tempo rar y Banne rs , a nd Use Pe rmits fo r
future co mme rc ia l te nants wo uld be und e r sep arate a ppli cati o n .
Public Works Fees/Deposits (Resolution No. 2008-2670 ):
E ncro a chme nt Pe rmit/In s pe ction fees
Excavation Permit/In s pection fees
T ran s portation Pe rmit fees
Geology and Geote chnical Re port Rev iew d e pos it
Pl an C he c k fees
In sp ection fees
Geo lo gy and So il En g ineerin g Rev iew fees
(Note: A 3 0% a dmini st rati ve fee is adde d to a n y wo rk that is co mpl e ted by co n sulta nts to th e
C it y .)
Building and S afe ty Fees/D e po s its (Resolution No. 2010-297 1):
Building pe rmit fees
Pl an Rev iew fees
E ne rgy Co nservati o n fees
Ha ndi capp ed Access fees
G ree n Building Mandato ry Meas ures fees
G ree n Building T ier l and 2 fees
S tro ng Mo t io n fees
De mo lition Permit fees
E lectri cal Pe rmit fees
Mec ha ni cal Permit fees
Plumbin g Pe rmit fees
I 2853-0062123 15 175v22.doc
F -I 99
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (the "Agreement") is
dated as of Oltober 2-'? , 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.
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ATTACHMENT 2
100
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 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
2-
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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 landscaping 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.
1.1.31 "Site" means the Property.
1.1.32 "Site Designs" is defined in Section 6.7.
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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 "Trans fer" is defined in Section 4. I. I.
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 ifthe 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 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
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BY REASON OF A DEFAULT BY DEVELOPER PRlOR TO THE CLOSE OF ESCROW.
ACCORDINGLY, DEVELOPER AND CITY AGREE THAT IN THE EVENT OF A
DEFAULT BY DEVELOPER PRlOR TO THE CLOSE OF ESCROW, CITY SHALL BE
ENTITLED TO RETAIN THE DEPOSIT, PLUS ANY ACCRUED INTEREST THEREON, AS
LIQUID A TED 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 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
5-
l 2853- 0062\23I7734v16.doc
104
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 "CLT A") 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 ALT A Policy. In the event the
Title Company requires an ALT A survey as a condition to issuance of the ALT A Policy or as a
condition to elimination of any survey exception shown therein, Developer shall provide such
ALT A 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 ALT A
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 ALT A 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.
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.
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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.
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.
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12853-0062\23 l 7734vl6.doc
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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 DOA 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. l 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.
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.
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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.
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
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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 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
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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
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,
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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 fl her indicate their awareness
and acceptance of each and every provision hereof.
cr~INITIALS DEV
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.
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") ifrequired 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
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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 Sublic~nse 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.l 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.
2.11.2 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.
2.11.3 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:
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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 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, ifapplicable, 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
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Completion the following constmction-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 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:
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4.1.1. l 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.
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.
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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 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;
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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);
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. l 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
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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:
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.
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
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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 governrnental 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
governrnental 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 Developer is a limited liability company validly existing and in good
standing under the laws of the State of California.
8.1.2 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.
8.1.3 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
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trust, lease, contract, agreement, instrument, order, judgment or decree by which Developer is
bound.
8.1.4 The Developer has not engaged a broker with respect to the purchase of
the Property contemplated herein.
8.1.5 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 City is a municipal corporation in good standing under the laws of the
State of California.
8.2.2 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.
8.2.3 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.
8.2.4 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.
8.2.5 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.
8.2.6 the City is not a "foreign person" within the parameters of FIRPT A or any
similar state statute, or is exempt from the provisions of FIRPTA or any similar state statute.
8.2.7 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.
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
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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:
Developer:
City of Moorpark
799 Moorpark A venue
Moorpark, California 93021
Attn: City Manager
The Daly Group Inc.
3125 5 Cedar Valley Dr., Ste. 3 23
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 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.
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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, 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.
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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 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 oflnterest. 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.
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IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of the
day and year first above written.
DEVELOPER: CITY:
THE DALY GR CITY OF MOO RP ARK
By:~£~
IliCePafViI;,
its President Mayor
ATTEST:
Ky Spanlfiietctr
APPROVED AS TO FORM:
By:_~_f'_,-~----~--· --
Kevin G. Ennis, City Attorney
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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of Ventura
On Ovh>b.tr ifh 1 ~ W before me, Ky Spangler. Notary Public
insert name and title of officer)
personally appeared Vittunf J. 'Dctl!J
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/affi subscribed to the within instrument and acknowledged to me that
he/sl96/tAGy executed the same in his/~/~ authorized capacity(ies), and that by
his/~/~ 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 PENAL TY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal. 1············1 '+ KY SPANGLER ~
Notary Public -California ~
Ventura County ~
Commission 112191472
My Comm. Expires Apr 13, 2021
Signature % ~ (Seal)
126
CITY OF MOORPARK
799 Moorpark Avenue, Moorpark, California 93021 I Phone (805) 517-6200 I Fax (805) 532-2205
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.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF VENTURA
CITY OF MOORPARK
SS.
On this 23rd day of October in the year 2020, before me, Ky Spangler, City
Clerk of the City of Moorpark, personally appeared Janice S. Parvin, who proved to
me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument, and who is personally known to me to be the
person whose name is subscribed to the within instrument, and acknowledged to
me that she executed the same in her authorized capacity as the Mayor of the City
of Moorpark, and that by her signature on the instrument, acknowledged to me that
the City of Moorpark executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
Witness my hand and Official Seal
JANICE S. PARVIN
Mayor
CHRIS ENEGREN
Councilmember
ROSEANN MIKOS, Ph.D.
Councilmember
DAVID POLLOCK
Councilmember
KEN SIMONS
Councilmember
127
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.
A-1 -1
12853-0062\23 l 7734vl6.doc
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EXHIBIT"
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EXHIBIT "A-2"
DEPICTION OF CITY PROPERTY TO BE CONVEYED TO DEVELOPER
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12853-0062\2317734v16.doc
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EXHIBIT "A-3"
VENTURA COUNTY TRANSIT COMMISSION LICENSE AREA SUBLICENSED TO
DEVELOPER
EXHIBIT vw•
LliiAL DESCfSIPTION
Bang a strip of lznc;, 20.0U feet wide, ir the aty of Mcorpark, 0.lunty of Ventura, Stite of calffornla,
and belng a pcrt;Jon of the land, 40.00 (t;~;l widt:, described in the Gront Deed re(t)rded September 27,
1991, as Instrument No. 91·143117 of Offlri~I Ri>mrds o"Vi:mtura County, the northerly lin12 of said ~triJ
of land described as fo lows:
Beginning at a point ln the nort:iertv line of said Grant l:lee:l, said point wxiars SOJth 89"30'35" East
169.65 Feet fro"fl rhe lnte'Seaion of ::1c1id rK~Lh:t1ly line v.tth the easterfl• line of Moorpark Avenue, 50.0[}
feet wide, as sho.w1 on the rnap entitled "Map f\o. 1 :-if Trad 0 of M::o:pai:'< Subdivision" and recorded
in Book 8, Fage i3 of Ml:so:lllaneous <e-..!Ji"ds (MapsJ lr1 the office of the Countv Recorder of v:mtura
Court.y, !>lild paint being the soutlnwc::~rly Ci:fl'1Cr of Parcel 4 of Proposed Parail Map No. :mtl-01 and
tha True Point of B(.!Jinning of this description; tl161c:e continuing along the northerly line o' said G·ant
Deed, South 89".)0'35" East 937.16 feet lo U1u :;uutheasterly comer of P<n:i;I 3 of ::.11id f>top:xsed Paroel
Map No. 2017-:>t
Ctml:ai!ilng 18,?43 square re.et, mor::: 01' l~s.
A-3 -1
l 2853- 0062\23l7734v16.doc
131
REF: 16123LD4.DWO
0A1£: 10/ 10/2018
MAGNOLIA ST gs -----· ,.__-
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c==> LINE TABLE: -~~~~-
A S89:30'.35"'£ 169.65'
1 SB9'"30'35"E g.37. 16'
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8 ~
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40.00'
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POINT OF
8
BEGINNING
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MOORPARK A VENUE:
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SCALE: 1"=200'
PREPARED BY: EXHIBIT "E3"
BENNER AND CARPENTER. INC.
SKETCH TO ACCOMPANY506EASTMAINSTREET
SANTA PAULA, CA 93060 LEGAL DESCRIPTION
A-3 -2
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132
EXHIBIT "A-4"
SUBLICENSE AGREEMENT
This SUBLICENSE AGREEMENT ("Agreement") is made and entered into as of_
October 1,,-4-;, 20W, 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
A._p_ril_5 __ , 2019 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 427.1 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 "B"
attached. No other use is authorized by this Agreement.
4. Commencement Date: Effective as of the date of this Agreement.
5. Term: Five Years provided that in any event, this Sublicense shall expire upon
the expiration or earlier termination of the License Agreement.
6. Sublicense Fees:
A. Base Sublicense Fee: $1, payable January 1 of each calendar year.
7. Insurance Requirements: Insurance requirements are detailed in Section 16,
Insurance.
A4 - 1
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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
1. 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 "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."
1.2 Term of Agreement. The term of this Agreement ("Term") shall
commence on the "Commencement Date" specified in Item 3 of the Basic License
Provisions. This Agreement shall continue in full force and effect 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.
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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:
a) 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;
b) 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;
c) If VCTC's Executive Director, or designee, at any time, or from time
to time, determines in his or her sole and absolute discretion, that there is a need for the
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
d) 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:
e) 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
f) compensation under any eminent domain or inverse condemnation
law.
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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 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.
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 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.
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 $500 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 24.5.
3. Taxes. $UBLICENSEE 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 ("Work") shall be performed (i) in
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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 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 Sublicensed Property; provided VCTC
provides to SUBLICENSEE prior written notice of such change.
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
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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 "C" 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 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.
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 4
and 5 above and will be subject to the maintenance and repair provisions of Section 8
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
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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:
a) perform any necessary or appropriate corrective work at
SUBLICENSEE's expense, which SUBLICENSEE agrees to pay to SUBLICENSOR
upon demand, or
b) 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 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, "lndemnitees"), to the maximum
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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 lndemnitees
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 lndemnitees) 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 lndemnitees,
unless caused solely by the negligence or willful misconduct of lndemnitees; shall
survive termination of this Agreement; and is in addition to any other rights or remedies
which lndemnitees 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.
Claims against the lndemnitees by SUBLICENSEE or its Personnel shall not limit
the SUBLICENSEE's indemnification obligations hereunder in any way, whether or not
such claims against lndemnitees 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
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:
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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:
1. 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.
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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.
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
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.
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
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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, 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 lndemnitees (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 lndemnitees
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 lndemnitees,
unless caused solely by the gross negligence or willful misconduct of lndemnitees; shall
survive termination of this Agreement; and is in addition to any other rights or remedies
which lndemnitees 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.
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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 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
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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.
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 license 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
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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.
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 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.
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 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
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VCTC or other public agencies, such as, but not limited to: rail and bus transitways,
bikeways, walkways, beautification projects and 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.
26.14 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.
26.15 Time of Essence. Time is of the essence in the performance of this
Agreement.
26.16 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.
26.17 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.
26.18 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.
26.19 Additional Provisions. Those additional provisions set forth in Exhibit "B'',
if any, are hereby incorporated by this reference as if fully set forth herein.
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IN WITNESS WHEREOF, the parties have caused this greement to be
executed by their duly authorized representatives as of the date fi written above.
SUBLICENSOR:
CITY OF MOORPARK
Attest:
KySpJ~~
Approved as to Form:
Kevin G. 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 "A"
TO SUBLICENSE AGREEMENT
Description of Sublicensed Property
EXHIBIT"'/\"
U:l:iAL DESCRJeIIQli
Bi:ln-0 a strip of limo, 20.00 feet wide, ir the aty of Mcorpatk, County of Ventura, State of callfornia,
and being a portion of the land, 40.00 (!;L~l wide, described in the Gmnt Deed rco:itded ~eptember 27,
1991, as Instrument No. 91-143117 of Offlri11I Ri'mrdso= Ventura County, the northerly line of said stri:J
of land described as fo lows:
Beginning at a point in the nort1erly line of said Grant Oeed, said point bears SoJth 89"30'35" East
169.65 feet fro1l the lnte'Sectlon of said rK;(lh:ily line V•lth the easterly line of Moorpark Avenue, 50.00
feat wide, as shown nn the map entitled "Nap l\o, 1 :)f Tract 0 of M:::orpark Subdivision" and recorded
in Book 8, Fage 13 of Mlsoallaneous '.le:ords (Maps) lri the office of the Count)' Recorder of V2ntura
Court/, Silld point being the soutfiwu:;tcr!y ccmor of Parci;:I 2 of Proposed Para:il Map No. 2.017-01 and
the True Point of Bo;ii11nir;g of this descriptiar;; thence continuing along the norther~/ line o' said G:-ant
Deed, south 8'J":}0'35" cast 937 .16 feet to Ultl !!illutheasterly comer of Pa~c€1 3 of said f>top::-sed Parcel
Map No. 2017-Ji
Ccmhlir1lng 18,743 square re.et, mor:::. :.ir IC5S.
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EXHIBIT "C"
TO SUBLICENSE AGREEMENT
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 I Deadline
Items 1 - 4 Relate to Developer Actions and Requirements Prior to the Close of Escrow
1.
2.
3.
4.
5.
Opening of Escrow. The Parties shall
open escrow with the Escrow Holder.
Developer Deposit. The Developer shall
deposit the Developer Deposit with
Escrow Holder.
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.
Insurance. The Developer shall submit
evidence of insurance to the City.
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.
Within five (5) business days following the
Parties' execution of the DDA.
Within ten (10) business days after the City's
execution and delivery of this Agreement.
Prior to the Close of Escrow.
Prior to the Close of Escrow.
Items 6 -8 Relate to the Conveyance of the Property or to Developer Actions and
Requirements After the Close of Escrow, and except for the deadline for Close of Escrow, are
subject to extension by Force Majeure Delays (as defined in Section 6.7 above)
6. Close of Escrow. The Developer shall No later than December 31, 2021
purchase the Property from the City (and
shall concurrently close the Construction
Loan, if any).
7. Completion of Grading. Developer shall Six (6) months after Close of Escrow.
complete the grading for the Project.
8. Substantial Commencement of Twelve (12) months after Close of Escrow.
Construction.
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Action Date I Deadline
9. Qualification for Certificate of Thirty (30) months after Close of Escrow.
Occupancy. The Project shall qualify for
an Occupancy Certificate.
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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 CONS ID ERA TION, receipt of which is hereby acknowledged, the
CITY OF MOO RP ARK ("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 MOO RP ARK
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 A venue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code § 6103
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 MOO RP ARK, 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 October 7, 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. 2020-3949, 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 DOA 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 DOA.
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 October 7, 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. 484 ("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
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Agreement. On October 21, 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 RPO 2018-01 as of the
Effective Date of this Agreement, the DOA 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. l 00. 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 DOA 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
DOA.
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
DOA 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 DOA, 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, Bl, 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 ofSeptember 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, HV AC, 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].
6.1 7 Insurance.
6.17. l 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-0-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 RPO 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
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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
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
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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
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.
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12. Mortgage Protection.
12. l 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.
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
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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.
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
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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
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.
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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
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 umelated
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)
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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.
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.
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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 MOO RP ARK
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
The Daly Group, Inc.,
a California corporation
Vince Daly, President
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EXHIBIT "E"
ADDRESSES OF PARTIES)
To City:
City of Moorpark
799 Moorpark A venue
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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EXHIBITG
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
MOORP ARK, a municipal corporation (the "City"), in favor of ________ _
RECITALS
A. City and Developer have entered into that certain unrecorded Disposition and
Development Agreement (the "DDA") dated as of , 2020 concerning the
development of certain real property situated in the City of Moorpark, California, described in
Exhibit "A" attached hereto (the "Site").
B. As referenced in Section 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.
G-1
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190
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.
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 MOO RP ARK
By: _________ _
Troy Brown, City Manager
ATTEST:
Ky Spangler, City Clerk
G-2
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191
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of ___ _
On ____________ , before me, --,,------:--=--,,-.-__,~,,----
insert name and title of the officer)
Notary Public, personally appeared , who proved to me on the
basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person( s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature ____________ _ (Seal)
G-3
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EXHIBIT "A"
LEGAL DESCRIPTION
To be provided by owner prior to close of escrow
G-4
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ATTACHMENT 3
194
195
RESOLUTION NO. 2022-_____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, APPROVING THE SECOND
AMENDMENT TO DISPOSITION AND DEVELOPMENT
AGREEMENT NO. 2018-01 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, the Daly Group, Inc. (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
WHEREAS, it is contemplated that the Developer will build a mixed-use
commercial and residential project including 79 residential dwelling units and 13,628
square feet of commercial floor area within four mixed-use buildings and three standalone
commercial buildings on the Property (the “Project”); and
WHEREAS, on September 10, 2020, the Planning Commission recommended
approval of Resolution No. PC-2020-653, recommending the City Council determine the
Project consistent with the General Plan per Government Code 65402; and
WHEREAS, on October 7, 2020, the City Council adopted Resolution
Nos. 2020-3949 and 2020-3950, approving a Mitigated Negative Declaration and
Mitigation Monitoring and Reporting Program, conditionally approving Residential
Planned Development Permit No. 2018-01 for the Project, and a Disposition and
Development Agreement (DDA), for a mixed-use development consisting of 79 residential
units, 13,628 square feet of commercial and associated land improvements located at
226 High Street in the Downtown Specific Plan on an application of Daly Group, Inc., and
finding the Project consistent with the General Plan per Government Code 65402; and
WHEREAS, on October 21, 2020, the City Council adopted Ordinance No. 484,
approving Development Agreement No. 2018-01; and
WHEREAS, on December 15, 2021, the City Council adopted Resolution No.
2021-4057 approving the First Amendment to the DDA; and
WHEREAS the Developer has demonstrated diligent pursuit of the project
including submittal of building plans, further design work, and continued engagement with
City Staff; and
ATTACHMENT 4
196
Resolution No. 2022-____
Page 2
WHEREAS, the Developer has agreed to the terms of the transaction as outlined
in the Second Amendment to DDA; and
WHEREAS, the City desires to proceed with the sale of the Property pursuant to
the terms of the Second Amendment to 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, on September 21, 2022, the City Council considered adoption of
Resolution No. 2022-____ approving the Second Amendment to DDA No. 2018-01.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council hereby specifically finds that all the facts set forth in
the Recitals are true and correct.
SECTION 2. ENVIRONMENTAL FINDINGS: The City Council concurs with the
Community Development Director that the Second Amendment to the Disposition and
Development Agreement is consistent with the Mitigated Negative Declaration adopted
for the Residential Planned Development Permit No. 2018-01.
SECTION 3. DISPOSITION AND DEVELOPMENT AGREEMENT FINDINGS: The
City Council finds and declares as follows:
A. The provisions of the Second Amendment to the Disposition and
Development Agreement are consistent with the General Plan and
Downtown Specific Plan in that the Project is consistent with the Specific
Plan – Downtown land use designation, 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,
pursuant to the terms of the Second Amendment to the Disposition and
Development Agreement, the final purchase price received as
consideration for the sale of the property to the developer is not affected by
the amendment and it will continue to reflect fair market value at its highest
and best use.
197
Resolution No. 2022-____
Page 3
SECTION 4. Based on the findings and conclusions set forth in the above sections,
and based on all the other evidence in the record, the City Council hereby adopts
Resolution No. 2022-_____ approving Second Amendment to DDA 2018-01.
SECTION 5. 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 21st day of September, 2022.
_____________________________
Janice S. Parvin, Mayor
ATTEST:
___________________________________
Ky Spangler, City Clerk
Exhibit A – Second Amendment to Disposition and Development Agreement 2018-01
198
Resolution No. 2022-____
Page 4
EXHIBIT A
SECOND AMENDMENT
TO DISPOSITION AND DEVELOPMENT AGREEMENT
This SECOND AMENDMENT TO DISPOSITION AND DEVELOPMENT
AGREEMENT (“Second Amendment”) is dated as of ___________, 2022, and is entered
into by and between the CITY OF MOORPARK, a municipal corporation (“City”), and
DALY GROUP, INC., a California corporation (“Developer”).
RECITALS
A. The City and the Developer entered into that certain Disposition and
Development Agreement dated October 23, 2020, and amended it by a First Amendment
to Disposition and Development Agreement dated December 15, 2021 (the “DDA”); and
B. The City and the Developer desire to further amend the DDA by further
extending the Close of Escrow deadline therein, altering the timing for the
appraisal/appraisal update to be used to determine the purchase price, and omitting some
land from the Property covered by the DDA (“Excluded Portion”); such Excluded Portion
being described on Exhibit “A” attached hereto.
NOW, THEREFORE, the parties agree as follows:
I. EXTENSION OF DEADLINE FOR CLOSE OF ESCROW.
The September 30, 2022, deadline for the Close of Escrow in Section 2.3 and in
Action Item 6 of Exhibit B of the DDA are hereby extended to and replaced with April 8,
2023.
II. MODIFICATION OF TIMING OF APPRAISAL/APPRAISAL UPDATE.
The phrase “six (6) months”, which appears in three places in Section 2.1 of the
DDA, is hereby replaced with “nine (9) months” in said Section 2.1 of the DDA.
III. REMOVAL OF EXCLUDED PORTION FROM DDA PROPERTY.
The Excluded Portion is hereby excluded from the Property described in the DDA,
and the term “Property” as used in the DA shall not include such Excluded Portion.
IV. COUNTERPARTS.
This Second Amendment may be executed in counterparts, each of which shall be
deemed an original, and all of which, taken together, shall constitute one and the same
instrument.
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Resolution No. 2022-____
Page 5
IV. EFFECT OF AMENDMENT.
Except as expressly set forth in this Second Amendment, the DDA shall remain
unmodified (and shall remain in full force and effect).
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment
to be executed the day and year first above written.
DEVELOPER:
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
200
Resolution No. 2022-____
Page 6
EXHIBIT “A”
DESCRIPTION OF EXCLUDED PORTION
201