HomeMy WebLinkAboutAGENDA REPORT 2022 1019 CCSA REG ITEM 08ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of October 19, 2022
ACTION APPROVED STAFF
RECOMMENDATION, INCLUDING
INTRODUCTION OF ORDINANCE NO. 507.
(ROLL CALL VOTE: 3-0, COUNCILMEMBERS
ENEGREN AND GROFF RECUSED)
BY A. Hurtado.
A. Consider Ordinance Approving the First Amendment to the 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) Open the public hearing, receive
public testimony and close the public hearing; and 2) Introduce Ordinance No. 507,
approving the First Amendment to Development Agreement No. 2018-01 for first
reading, waive full reading, and place this ordinance on the agenda for November 2,
2022, for purposes of providing second reading and adoption of the ordinance.
(Staff: Carlene Saxton, Community Development Director) (ROLL CALL VOTE
REQUIRED)
Item: 8.A.
Item: 8.A.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Carlene Saxton, Community Development Director
DATE: 10/19/2022 Regular Meeting (continued from 10/05/2022)
SUBJECT: Consider Ordinance Approving the First Amendment to the
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), 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
10/19/2022 Regular Meeting
Page 2
On-Site Remediation and Amendments 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 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. 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.
The Second Amendment to the DDA, approved September 21, 2022, corrected 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 extended 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 extended the timeframe for the close of
escrow and related conditions from September 30, 2022, to April 8, 2023.
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 adjacent City-owned site 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.
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Honorable City Council
10/19/2022 Regular Meeting
Page 3
The proposed First Amendment to the DA (Attachment 2) revises 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. No further changes
are proposed.
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 amendments to the DDA and DA do 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. Open the public hearing, receive public testimony and close the public hearing;
and
2. Introduce Ordinance No. ___, approving the First Amendment to Development
Agreement No. 2018-01 for first reading, waive full reading, and place this
ordinance on the agenda for November 2, 2022, for purposes of providing
second reading and adoption of the ordinance.
Attachment 1: Development Agreement No. 2018-01
Attachment 2: Draft Ordinance No. ____ (First Amendment to Development Agreement
No. 2018-01)
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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
4
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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I 2853-0062 123 I 5 I 75v22.doc 5
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 6
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
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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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12853-0062\23 l 5175v22.doc 9
( 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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l 2853-006212315 l 75v22.doc 11
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)
-20-
l 2853-006212315175v22.doc 24
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 25
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.
-22-
12853-0062\23 l 5175v22.doc 26
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~~
-23-27
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)
28
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
29
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.
A-1 - 1
12853-0062\23 l 5175v22.doc 30
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A-1 -2
12853-0062 \23 I 5 175v22.do c 31
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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l 2853-0062\2315175v22.doc 32
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.
A-2 - 2
l 2853-0062\2315175v22.doc 33
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 34
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
A-2-4
l2853-0062\23 l 5175v22.doc 35
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
A-2 - 5
12853-0062\2315 l 75v22.doc 36
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 37
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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l2853-0062\23 l 5 l 75v22.doc 38
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:
A-2 - 8
12853-0062\23 l 5175v22.doc 39
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.
A-2 - 9
12853-0062\23 I 5175v22.doc 40
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 41
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.
A-2 -11
12853-0062\23 15 I 75v22.doc 42
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 43
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 44
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 45
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 46
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
47
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 48
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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
l 2853-0062\23 l 5175v22.doc 50
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53
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 54
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 55
ORDINANCE NO. ____
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, ADOPTING THE FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2018-01 BETWEEN THE
CITY OF MOORPARK AND DALY GROUP, INC AND
MAKING FINDINGS UNDER CEQA IN CONNECTION
THEREWITH
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; 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 approved
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 21, 2020, the City Council adopted Ordinance No. 484,
approving Development Agreement No. 2018-01 (DA); and
WHEREAS, on September 27, 2022, the Planning Commission adopted
Resolution No. PC-2022-681, recommending approval of the First Amendment to
Development Agreement No. 2018-01 (DA); 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
WHEREAS, a duly noticed public hearing was continued by the City Council to
the October 19, 2022, meeting, to consider the First Amendment the DA and to accept
public testimony related thereto; and
WHEREAS, the City Council has considered all points of public testimony
relevant to the First Amendment to the DA and has given the matter careful
consideration.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES ORDAIN AS FOLLOWS:
ATTACHMENT 2
56
Ordinance No. ___
Page 2
SECTION 1. The City Council of the City of Moorpark does hereby find as
follows:
A. The City Council hereby specifically finds that all the facts set forth in the
Recitals are true and correct.
B. ENVIRONMENTAL FINDINGS: The City Council concurs with the
Community Development Director that the First Amendment to the DA is
consistent with the Mitigated Negative Declaration adopted for the Project,
that there have been no changes to the Project or the circumstances under
which the Project is undertaken that would result in new or substantially
more severe environmental impacts than previously disclosed and
evaluated that would require additional environmental review.
C. The First Amendment to the DA is consistent with the General Plan.
D. The First Amendment to the DA and the assurances that said agreement
places upon the project are consistent with the intent and provisions of the
Mitigated Negative Declaration adopted for the Project.
E. The Development Agreement, as amended by the First Amendment, is
necessary to ensure the public health, safety, and welfare.
SECTION 2. The City Council hereby adopts the First Amendment to the
Development Agreement (Exhibit A) between the City of Moorpark, a municipal
corporation, and the Daly Group, Inc., and the City Clerk is hereby directed to cause
one copy of the signed, adopted agreement to be recorded with the County Recorder no
later than ten (10) days after the City enters into the First Amendment pursuant to the
requirements of Government Code Section 65868.5.
SECTION 3. If any section, subsection, sentence, clause, phrase, part or
portion of this ordinance is for any reason held to be invalid or unconstitutional by any
court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this ordinance. The City Council declares that it would have
adopted this ordinance and each section, subsection, sentence, clause, phrase, part or
portion thereof, irrespective of the fact that any one or more section, subsections,
sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional.
SECTION 4. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
57
Ordinance No. ___
Page 3
SECTION 5. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall
make a written record of the passage and adoption thereof in the minutes of the
proceedings of the City Council at which the same is passed and adopted; and shall
publish notice of adoption in the manner required by law.
PASSED AND ADOPTED this ____ day of _____, 2022.
Janice S. Parvin, Mayor
ATTEST:
___________________________________
Ky Spangler, City Clerk
Attachment: Exhibit A – First Amendment to Development Agreement No. 2018-01
58
Ordinance No. ___
Page 4
EXHIBIT A
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code § 6103
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
DALY GROUP, INC.
59
Ordinance No. ___
Page 5
FIRST AMENDMENT
TO DEVELOPMENT AGREEMENT
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT (“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
WHEREAS, the City and Developer entered into that certain Development Agreement
dated October 23, 2020, which was recorded on November 2, 2020 as Document No. 20201102-
00183317-0 1/52 in the Official Records of Ventura County, California (“DA”); and
WHEREAS, City and Developer desire to amend the DA to exclude the land described
on Exhibit “A” attached hereto (the “Excluded Property”) from the DA (such that the term
“Property” used in the DA shall not include such land).
NOW, THEREFORE, the parties hereby agree as follows:
1. Amendment. The Excluded Property is hereby excluded from the “Property” described
in the DA (and the term “Property” as used in the DA shall no longer include the Excluded
Property).
2. Counterparts. This Amendment may be executed and recorded in counterparts, each of
which shall be deemed an original, and all of which, taken together, shall constitute one and the
same instrument.
60
Ordinance No. ___
Page 6
IN WITNESS WHEREOF, the parties hereto have caused this 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,
a municipal corporation
By:
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
APPROVED AS TO FORM:
By:
Kevin G. Ennis, City Attorney
61
Ordinance No. ____
Page 7
EXHIBIT “A”
DESCRIPTION OF EXCLUDED PROPERTY
EXHIBI T J1
CITY OF MOORPAR'K
lOT lf.. ADJUSTMENT NQ. 20'22 ·01'
l!EGll E:StlRJPDQli\l ::
~ Al REAL P:ACFEJITI' ·
DU.!IFORNIA,. l!BNG I\CNI.E
, llll OFIP.IB:CEI. l llF
□F 'wBffllRl.i,, SIATE Of CiW
JCl.llBIYE. OF [P,q;m_ MIP.i,
E!BI..S □RE PAAT10.!JILMl1.Y ElESCJllBEmliS ~i
,} PDl.1H OO"l9'25" EAST. A Ill~ Of 00 FEET~
P. l.
l ~ SiJtJT1-I B!l~s• E"AST. A 1!6T'.w::E □f 2il.OII IREE'T~ '1H31K:E,.
3 ~ SiJtJT1-I 00".29'25• ~. A l!Cit.W:E OF 5 . FEP,: 8\IOE,,
4) SiJtJT1-I B!I 3D'35 EA5iT. A l!Cif.w::E OF 26..13 FEET. 11El'«E,.
!i~ SiJtJT1-I .29'25• ~. A D15TAOOE CF 3. . FEET 10 ·
LIKE a= SAID [f,q;m_ 2T ENC!E . . ' 90lITEl L!I
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MCNG TIE WEST E
llEA'a-'l ..S : . . WEST E □f
AOOE OF «i.73 FEETiTO S.U:111 JOINT 1Df BECi NG .
. AS-:!:Hl'MII ll ll:EFBI.El'«:EH
62
Ordinance No. ____
Page 8
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
63