Thousand Oaks City Council
July 18, 2023

BACKGROUND:

In 2010, the Federal Emergency Management Agency (FEMA) revised flood maps in Newbury Park that included over 300 homes within City limits and unincorporated County areas. The revisions to the maps adversely impacted residents with a flood designation, requiring homeowners to obtain flood insurance.

In 2014, the United States Army Corp of Engineers (USACE) funded and conducted a Federal Interested Determination (FID) that pre-qualified the South Branch Arroyo Conejo (SBAC) under Section 205 for investigating and implementing solutions that could authorize up to $10 million in federal funds to analyze, study and construct water flow solutions.

In 2015, the USACE initiated a Phase II Feasibility Study, which included an analysis of the area to determine justifiable financing of possible mitigation improvements. In 2018, the City and Ventura County Watershed Protection District (VCWPD) approved a project management plan and cost-sharing agreement for the Phase II Feasibility Study.

In 2020, USACE made preliminary conclusions that recommended against the completion of a full Feasibility Study of the SBAC due to substantially lower costbenefit ratios than previously estimated. It was also noted that flooding in the SBAC may occur because of a low capacity in the existing culverts as opposed to the floodplain channel, meaning that the floodplain channel would not impose significant damage of more than $1 million from a 100-year flood incident, and thereby disqualifying the City and surrounding area from additional federal support. The USACE recommended that the City and VCWPD pursue local versus federal solutions to mitigate area flooding issues.

The City, in cooperation with VCWPD developed a draft Scope of Work for a formal Request for Proposals/Qualifications (RFP/Q) and the selection of a consultant to complete a Hydrology Deficiency Study for the South Branch Arroyo Conejo. The project area includes the 101 Freeway/Borchard Road interchange to the intersection of Reino Road at Borchard Road (Attachment #1).

The City and VCWPD have developed a Memorandum of Agreement (Attachment #2) between the two agencies that includes a cost-sharing arrangement for the project based on the overall level of effort for each jurisdiction (60 percent to the City and 40 percent to VCWPD). The County Board of Supervisors’ consideration of this item is scheduled for July 25, 2023.

DISCUSSION/ANALYSIS:

In accordance with Government Code section 4526 and Thousand Oaks Municipal Code section 3-10.401, staff solicited an RFP/Q on April 28, 2023. Unlike the low Item No.9K
South Branch Arroyo Conejo Deficiency Study (MI 2527)
July 18, 2023

bid requirements of the Public Contract Code, contracts for professional, management, general, or special services should only be awarded to firms or persons who have demonstrated an adequate level of experience, competence, training, credentials, resources, staffing, and other professional qualifications necessary for more than satisfactory performance of the services solicited. The award of an RFP/Q is based upon a variety of factors that demonstrate the best value to the City for the solicited scope of service. The cost of the service may be considered one of those factors, however; the lowest cost is not the sole factor in deciding who will be awarded the contract.

On May 31, 2023, the City received proposals from four professional consulting firms:

1. Q3 Consulting – Foothill Ranch, CA

2. Kasraie Consulting – Ventura, CA

3. NextGen Engineering – Ventura, CA

4. Smith & Muli - San Juan Capistrano, CA
A review committee comprised of representatives from the City and VCWPD was established to review and evaluate the proposals based on the following criteria:

1. Scope understanding and approach.

2. Relevant experience (past similar scope and size projects).

3. Quality, clarity, responsiveness, conformance with the terms of this RFP/Q, and overall impression of the proposal.

4. Qualifications and availability of key persons to be assigned to the contract resulting from this solicitation.

5. Past experiences with the City and/or VCWPD.

6. Reasonableness of completion schedule and estimated level of effort dedicated to completing each task.

After careful review and consideration of the above criteria, the proposal from Kasraie Consulting was determined to provide the most value in meeting the City’s needs for this project. The scope of work and consulting fees have been negotiated and finalized with Kasraie. Staff recommends City Council approve the Professional Services Agreement in the amount of $288,642 (Attachment #3).

The tentative schedule for completion of the project is as follows:

Award of Consulting Contract July 2023
Start of Work Summer 2023
Project Completion Summer 2024
Item No.9K
South Branch Arroyo Conejo Deficiency Study (MI 2527)
July 18, 2023

This action is not a project as defined under the California Environmental Quality Act because this action will not result in a direct or foreseeable indirect physical change in the environment [14 CCR 15060(c)].

Community Outreach: Staff will develop a public outreach plan at the conclusion of the local drainage study when a particular project has been identified, with a focus on the residents located adjacent to the project. Various communications tools and strategies, including community meetings (if needed), press releases, and social media posts will be utilized to inform the public and receive feedback.

This project meets City Council’s Top Ten Priorities #6, “Public Works + Infrastructure Investments across the community”.

CIP PROJECT PRIORITY (as outlined in FY 2023-24 and FY 2024-25 CIP Program Budget)
Priority One – Addresses Health & Safety, legal and regulatory requirements, or a top City Council Priority.

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goals:

C. Operate City government in a fiscally and managerially responsible and prudent manner to ensure that the City of Thousand Oaks remains one of California's most desirable places to live, work, visit, recreate, and raise a family.

F. Provide and enhance essential infrastructure to ensure that the goals and policies of the Thousand Oaks General Plan are carried out and the City retains its role and reputation as a leader in protecting the environment and preserving limited natural resources.

PREPARED BY: Grahame Watts, Emergency Program Manager
Attachments:

Attachment #1 – Vicinity and Location Map
Attachment #2 – Memorandum of Agreement
Attachment #3 – Consultant Agreement
DPW:850-20\GW\ev\Council\2023\071823\ South Branch Arroyo staff report.docx Item No.9K
DPW:850-20\GW\ev\Council\2023\071823\ South Branch Arroyo Att 1.docx ATTACHMENT #1
South Branch Arroyo Conejo
(MI 2527-2)

VICINITY MAP

LOCATION MAP
Item No.9K
ATTACHMENT #2

MEMORANDUM OF AGREEMENT

SOUTH BRANCH ARROYO CONEJO DEFICIENCY STUDY

BETWEEN

CITY OF THOUSAND OAKS
AND

VENTURA COUNTY PUBLIC WORKS

WATERSHED PROTECTION DISTRICT
WP-3-2018-02
THIS AGREEMENT is made and entered into this 18th day of July 2023, by and between the CITY OF THOUSAND OAKS (herein referred to as “City”), and VENTURA COUNTY PUBLIC WORKS WATERSHED PROTECTION DISTRICT (hereafter referred to as “District”).

RECITALS
WHEREAS floodplain maps in the vicinity of the South Branch of Arroyo Conejo Creek in the southwest region of the City were created by the Federal Department of Homeland Security (DHS)/Federal Emergency Management Agency (FEMA) National Flood Insurance Program in January 1983, and were revised in January 2010; and WHEREAS residents of both the City and unincorporated Ventura County are adversely impacted with regard to the structure and contents of homes and businesses due to the presence of the floodplain; and
WHEREAS the City and the District requested assistance from the USACE to prepare a Federal Interest Document (FID) to investigate the qualification of a possible local and federally funded floodplain reduction project under the USACE Continuing Authorities Program (CAP) Section 205 with the City identified as the Non-Federal Sponsor (NFS); and
WHEREAS the published USACE FID and Feasibility Study (FS) of the specific risks to life, structures and property concluded this channel improvement project does not merit further investigation and the benefits and costs ratio of channel design alternatives do not meet the USACE minimum threshold; and
WHEREAS the FS further revealed that the channel alteration may not be an effective solution since the cause of the flooding is mostly due to the local drainage system in the area which should be examined for deficiencies; and WHEREAS, the City and the District have issued an RFP/Q and desire to hire a consultant to perform Hydrology studies for the area, define the deficiencies, and propose solutions to reduce the overall size of the floodplain area; and WHEREAS the City and the District will include the proposed improvement projects into their respective Capital Improvement Programs (CIP) and coordinate the completion of such projects; and
Item No.9K
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WHEREAS the City and the District will request FEMA to revise the Federal (DHS)/(FEMA) National Flood Insurance Program maps in this area with the goal of reducing the size of the flood plain and the overall number of homes and businesses in the flood plain; and
WHEREAS the City has agreed to serve as the lead agency and will directly coordinate the efforts described above, on behalf of the City and District; and WHEREAS, the District has agreed to make available staff skills and in particular talents that lend themselves toward participating in certain tasks of the Deficiency Study and subsequent CIP and FEMA Map Revisions.

NOW, THEREFORE, in consideration of the mutual covenants, promises, and agreements set forth, the parties agree as follows:

AGREEMENT

1. City and District hereby agree to each provide the services described in Section 2.

Staff time required to perform said services shall be at each respective agency’s own cost. Other expenses shall be shared as described in Section 3.

2. DESCRIPTION OF SERVICES
Once a consultant is selected pursuant to the issued RFP/Q, the City and District shall each provide to the Consultant information support, document review, and participation in project components through the preparation of the Deficiency Study. This Agreement will be amended to include any additional tasks added. The parties’ responsibilities for each component task are summarized below.

Task City District
Overall Study Phase
Project Management
Meetings & Coordination
RFP/Q, Consultant
Selection
Meetings & Coordination Provide Data & Support
Review & Comment
Hydrology & Hydraulics
Study Support/Review
Review & Comment Provide Data, Review Model
Review & Comment
Geospatial Information
Systems (GIS) Support &
Review
Provide Data & Support Provide Data & Support
Engineering Deficiency
Study Support/Review,
including preliminary
design recommendations.

Review & Comment Review & Comment
Implementation of Capital
Projects Recommended by
Deficiency Study
Provide Funding for Design
and Construction, Asbuilts, Utility Research, and
Review & Comment
Provide Funding for Design
and Construction, As-builts,
Utility Research, and
Review & Comment
Item No.9K
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Continued
Task City District
FEMA Map Revision Provide funding for the final
FEMA Map Revision, as
well as Review/Comment.

Provide funding for the final
FEMA Map Revision, as well
as Review and Comment.

3. COST SHARE, PAYMENT AND EXCHANGE OF SERVICES
(a) Cost Share Contributions. The intent of this agreement is to minimize expenditures through the shared contribution of services and by implementing the Deficiency Study, CIP and FEMA Map Revisions collectively. The costs of the tasks specified in Section 2 above required to complete the Deficiency Study will be divided between the City and District as follows:
i. Consultant engagement – The cost of advertisement, RFP/Q preparation, and hiring the consultant will be equally divided between the City and District.
ii. Consultant compensation - The cost of all engineering work by the consultant and preparation of the Deficiency Study will be divided between the City and District at a 60/40 ratio (60 percent City and 40 percent District).

The costs of the remainder of the tasks, including the implementation of recommended Capital Improvement (CI) projects and the revision of the FEMA map shall be divided as follows:
iii. CI Program – City and County will individually manage and fund the design, engineering, bid, and construction of the future CI projects which are recommended by the deficiency study within their respective areas. Said projects will be budgeted and included within each agency’s next 5-year capital improvement budget. County projects will also need to comply with Zone budget prioritization guidelines before induction into the 5-year CIP. iv. FEMA Map Revision – City and County will work together to process the requested FEMA Map Revisions. The cost of preparation of documents, application to FEMA, and obtaining approval will be divided between the City and District at a 60/40 ratio (60 percent City and 40 percent District). (b) Payment. City shall be responsible for the upfront payment of costs for any of the above-listed tasks. For those items requiring District contribution, City shall provide District with written invoices of the actual cost, in a form reasonably satisfactory to City's and County’s Project Managers. Invoices shall be issued monthly, and describe the work performed. Payments shall be made within 30 days of the date of invoice.

4. INFORMATION EXCHANGE
The information exchange between the City and the District shall be coordinated with designated City staff who presently is Jim Taylor, Senior Engineer with Mohammad Fatemi, Engineering Division Manager as alternate, and District staff who presently is Shweta Chervu, with Matthew Ehret as an alternate.

Item No.9K
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5. TERMS, PROGRESS AND COMPLETION
The term of this Agreement is from the date first written above to June 30, 2028, unless extended or terminated as provided for herein.

6. HOLD HARMLESS AND INDEMNITY
(a) Mutual Hold Harmless.
(i) The District holds the City, its elected officials, officers, agents, and employees harmless from all claims, demands, lawsuits, judgments, damages, losses, injuries or liability to the District, to the District's employees, to the District's contractors or subcontractors which damages, losses, injuries or liability occur during the work required under this Agreement, or occur while the District is on City property, or which are connected, directly or indirectly, with the District's performance of any activity or work required under this Agreement. (ii.) The City holds the District and County of Ventura, their elected officials, officers, agents, and employees harmless from all claims, demands, lawsuits, judgments, damages, losses, injuries, or liability to the City, to the City's employees, to the City's contractors or subcontractors which damages, losses, injuries or liability occur during the work required under this Agreement, or occur while the City is on District or County property, or which are connected, directly or indirectly, with the City's performance of any activity or work required under this Agreement.
(b) Mutual Defense and Indemnity of Third-Party Claims/Liability. (i.) The District shall investigate, defend, and indemnify the City, its elected officials, officers, agents, and employees, from any claims, lawsuits, demands, judgments, and all liability including, but not limited to, monetary or property damage, lost profit, personal injury, wrongful death, general liability, automobile, infringement of copyright/patent/trademark, or professional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of the District or any of the District’s officers, agents, employees, representatives, or subcontractors, or the willful misconduct of the District or any of the District’s officers, agents, employees, representatives, or subcontractors, in performing the services described in, or associated with this type of work. The duty to defend shall include any suits or actions concerning any activity, product or work required under this Agreement, and include the payment of all court costs, attorney fees, expert witness costs, investigation costs, claims adjusting costs, and any other costs required for and related thereto.
(ii.) The City shall investigate, defend, and indemnify the District and County of Ventura, their elected officials, officers, agents, and employees, from any claims, lawsuits, demands, judgments, and all liability including, but not Item No.9K
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limited to, monetary or property damage, lost profit, personal injury, wrongful death, general liability, automobile, infringement of copyright/patent/trademark, or professional errors and omissions arising out of, directly or indirectly, an error, negligence, or omission of the City or any of the City's officers, agents, employees, representatives, or subcontractors, or the willful misconduct of the City or any of the City's officers, agents, employees, representatives, or subcontractors, in performing the services described in, or associated with this type of work. The duty to defend shall include any suits or actions concerning any activity, product, or work required under this Agreement, and include the payment of all court costs, attorney fees, expert witness costs, investigation costs, claims adjusting costs, and any other costs required for and related thereto.
(c) No Waiver. The City and the District do not waive, nor shall be deemed to have waived, any indemnity, defense, or hold harmless rights under this section because of the acceptance by City or the District, or the deposit with City or the District, of any insurance certificates or policies described in Section 7.

7. INSURANCE
The District shall, at the District’s sole cost and expense and throughout the term of this Agreement and any extensions thereof, carry workers' compensation statutory benefits as required by law. The District shall also, at the District’s sole cost and expense and throughout the term of this Agreement and any extensions thereof, carry: (1) General Liability insurance and Automobile Liability insurance with liability limits of not less than $1,000,000 per each claimant, and $1,000,000 each occurrence for the injury or death of a person or persons, and property damage (which policy may have an aggregate annual limit, but in an amount of no less than $2,000,000).

The City, its elected officials, officers, and employees, shall be named as additional insured. The District shall provide the City with evidence of self-insurance or copies of certificates (on a City certificate form or an Accord form as modified per City direction) for all policies, with the appropriate named additional insured coverage and endorsement that they are not subject to cancellation without 30 days prior written notice to City.

The City shall, at the City's sole cost and expense and throughout the term of this Agreement and any extensions thereof, carry workers' compensation statutory benefits as required by law. The City shall also, at the City's sole cost and expense and throughout the term of this Agreement and any extensions thereof, carry: (1) General Liability insurance and Automobile Liability insurance with liability limits of not less than $1,000,000 per each claimant, and $1,000,000 each occurrence for the injury or death of a person or persons, and property damage (which policy may have an aggregate annual limit, but in an amount of no less than $2,000,000).

The District and County of Ventura, their elected officials, officers, and employees, shall be named as additional insured. The City shall provide the District with evidence of selfinsurance or copies of certificates (on a County certificate form or an Accord form as Item No.9K
DPW:850-20\GW\ev\Council\2023\071823\ South Branch Arroyo Att 2.docx

modified per District direction) for all policies, with the appropriate named additional insured coverage and endorsement that they are not subject to cancellation without 30 days prior written notice to District.

8. RELATION OF THE PARTIES
The relationship of the parties to this Agreement shall be that of independent contractors; In no event shall the District be considered an officer, agent, servant, or employee of the City, and in no event shall the City be considered an officer, agent, servant, or employee of District. The District, as well as the City, shall be solely responsible for any worker’s compensation insurance, withholding taxes, unemployment insurance, and any other employer obligations associated with the described work.

9. TERMINATION OF AGREEMENT
The City or the District may terminate without cause any portion or all the services agreed to be performed under this agreement by providing the remaining party written notice 60 calendar days in advance of termination. If termination is for cause, no notice period need be given.

10. RETENTION AND REVIEW OF RECORDS
All records generated by the District, its agents, and contractors and by the City, its agents, and contractors in performing work related to this agreement, such as but not limited to financial records, time sheets, work progress reports, invoices, and bills, shall be kept for three (3) years beyond the expiration date of this agreement or any extension.

These records shall be made available upon request.

11. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach or cover any other period, other than any default or breach and/or period specified. All the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.

12. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this Agreement shall be construed as a whole according to its common meaning of the purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, to achieve the objectives Item No.9K
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and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.

13. MITIGATION OF DAMAGES
In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

14. GOVERNING LAW
This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California. Should litigation occur, venue shall be in Superior Court of Ventura County.

15. TAXPAYER IDENTIFICATION NUMBER
In the event there is a compensatory exchange of funds because of this agreement, the Payee shall provide the Payor a Taxpayer Identification Number and Certification, Form W-9 as most recently issued by the Internal Revenue Service.

16. NON-APPROPRIATION OF FUNDS
Payments due and payable to the District for current services are within the current budget and within an available, unexhausted, and unencumbered appropriation of City funds. In the event City has not appropriated sufficient funds for payment of the District services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year.

17. MODIFICATION OF AGREEMENT
The tasks described in this Agreement and all other terms of this Agreement may be modified only upon mutual written consent of the City and the District.

18. USE OF THE TERM "CITY"
Reference to "City" in this Agreement includes the City Manager or any authorized representative acting on behalf of the City.

19. PERMITS AND LICENSES
The District and the City shall obtain and maintain during the term of this Agreement, all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement.

Item No.9K
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20. CAPTIONS
The captions or headings in this Agreement are for convenience only and in no other way define, limit, or describe the scope or intent of any provision or section of the Agreement.

21. AUTHORIZATION
Each party has expressly authorized the execution of this Agreement on its behalf and bind said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint ventures, insurance carriers and any others who may claim through it to this Agreement.

22. ENTIRE AGREEMENT BETWEEN PARTIES
This Agreement supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services and contains all the covenants and agreements between the parties with respect to said services.

23. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

24. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

CITY OF THOUSAND OAKS
Jim Taylor, Senior Engineer (Project Manager)
Public Works Department
2100 Thousand Oaks Boulevard
Thousand Oaks, CA 91362

VENTURA COUNTY WATERSHED PROTECTION DISTRICT
Glenn Shephard, Director (Project Manager)
800 So. Victoria Avenue
Ventura, CA 93009
Item No.9K
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In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first above written.

VENTURA COUNTY PUBLIC WORKS

WATERSHED PROTECTION DISTRICT
________________________________
Glenn Shephard, Director
________________________
Date

COUNTY COUNSEL
___________________________ ________________________
Alberto Boada Date
Principal Assistant County Counsel

CITY OF THOUSAND OAKS
________________________________
Kevin McNamee, Mayor
_________________________
Date
ATTEST:
____________________________ _________________________
Laura B. Maguire Date
City Clerk
APPROVED AS TO ADMINISTRATION:
_________________________________ _________________________ Andrew P. Powers Date:

City Manager
Item No.9K
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APPROVED BY DEPARTMENT HEAD:
_________________________________ _________________________ Clifford G. Finley, Public Works Director Date
APPROVED AS TO FORM:

Office of the City Attorney
_________________________________ _________________________ Tracy Friedl Date:

Assistant City Attorney
Item No.9K
ATTACHMENT #3

AGREEMENT FOR PROFESSIONAL SERVICES

BETWEEN THE CITY OF THOUSAND OAKS
AND

KASRAIE CONSULTING
THIS AGREEMENT is made and entered into this 18th day July of, 2023 by and between CITY OF THOUSAND OAKS, a municipal corporation ("City"), and KASRAIE CONSULTING, (hereafter referred to as “Consultant”).

City and Consultant agree as follows:

1. RETENTION OF CONSULTANT
City hereby retains Consultant, and Consultant hereby accepts such engagement, to perform the services described in Section 2. Consultant warrants it has the qualifications, experience, and facilities to properly and timely perform said services.

2. DESCRIPTION OF SERVICES
Professional services in conjunction with a local drainage and floodplain modeling for the Arroyo Conejo South Branch area extending from the US 101/Borchard interchange to the intersection of Reino at Borchard Roads. Tasks are more particularly set forth in the Scope of Work, attached as Exhibit “A,” which is incorporated herein by reference, along with a Project Area Map Exhibit “B”.

3. COMPENSATION AND PAYMENT
(a) Maximum and Rate. The total compensation payable to Consultant by City for the services under this Agreement SHALL NOT EXCEED the sum of $262,402 (herein "not to exceed amount"), and shall be earned as the work progresses on the following basis:

Hourly, at the hourly rates and with reimbursement to Consultant for those expenses set forth in Consultant's Schedule of Fees, attached as Exhibit "C" and incorporated herein. The rates and expenses set forth in that exhibit shall be binding upon Consultant for the three-year term of this Agreement. after which any change in the rates and expenses must be approved in writing by the City's Project Manager (City is to be given 60 days’ notice of any rate increase request), provided the not to exceed amount is the total compensation due Consultant for all work described under this Agreement (b) Payment. Consultant shall provide City with written verification of the actual compensation earned, in a form satisfactory to City's Project Manager. Invoices shall be made no more frequently than monthly, and describe the work performed (including, if applicable, a list of hours worked by personnel classification). All payments shall be made within 30 days after the City’s approval of the invoice.

Item No.9K
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(c) Extra Services. Additional work not reasonably encompassed by the Scope of Services described in Section 2 may be agreed upon only by the execution of a written Amendment to this Agreement. No liability or right to compensation for extra services shall exist without such Amendment. Unless otherwise stated in the Amendment, applicable rates for extra services shall be at the rates set forth in Exhibit “C.”

4. CITY PROJECT MANAGER
The services to be performed by Consultant shall be accomplished under the general direction of, and coordinate with, City's "Project Manager", as that staff person is designated by City from time to time, and who presently is Jim Taylor, Senior Engineer.

5. TERM, PROGRESS AND COMPLETION
The term of this Agreement is from the date first written above to June 30, 2026, unless term of this Agreement is extended, or the Agreement is terminated as provided for herein.

Consultant shall not commence work on the services to be performed under the Agreement until (i) Consultant furnishes proof of insurance as required by paragraph 9 below, and (ii) City’s Project Manager gives written authorization to proceed with the work.

6. OWNERSHIP OF DOCUMENTS
All drawings, designs, data, photographs, reports, and other documentation (other than Consultant's drafts, notes, and internal memorandum), including duplication of same prepared by Consultant in the performance of these services, are the property of the City.

City shall be entitled to immediate possession of the same upon completion of the work under this Agreement, or at any earlier or later time when requested by City. City agrees to hold Consultant harmless from all damages, claims, expenses, and losses arising out of any reuse of the plans, specifications, graphics, brochures, reports, and other documentation for purposes other than those described in this Agreement, unless the written authorization of Consultant is first obtained.

7. PERSONAL SERVICES/NO ASSIGNMENT
This Agreement is for professional services, which are personal to City. This Agreement is not assignable by Consultant without City's prior written consent.

8. HOLD HARMLESS AND INDEMNITY
(a) Hold Harmless for Consultant's Damages. Consultant hold City, its elected officials, officers, agents, employees, and volunteers, harmless from all of Consultant's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to Consultant, to Consultant's employees, to Consultant’s contractors or subcontractors, Item No.9K
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or to the owners of Consultant's firm, which damages, losses, injuries or liability occur during the work or services required under this Agreement or performance of any activity or work required under this Agreement.
(b) Defense and Indemnity of Third-Party Claims/Liability. To the maximum extent allowed by law, Consultant shall indemnify, defend with legal counsel approved by City, and hold harmless City, its officers, officials, agents, employees, and volunteers from and against all liability including, but not limited to, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Consultant’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in the Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of City. Should a conflict of interest principles preclude a single legal counsel from representing both City and Consultant or should City otherwise find Consultant’s legal counsel unacceptable, then Consultant shall reimburse City its costs of defense, including without limitation reasonable legal counsel fees, expert fees, and all other costs and fees of litigation. The Consultant shall promptly pay City any final judgment rendered against City (and its officers, officials, employees, and volunteers) with respect to claims determined by a trier of fact to have been the result of the Consultant’s negligent, reckless, or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination of this Agreement.

Consultant’s obligations under this section apply regardless of whether such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee.

However, without affecting the rights of City under any provision of this Agreement, Consultant shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by findings of a court of competent jurisdiction. In instances where the City is shown to have been actively negligent and where the City’s active negligence accounts for only a percentage of the liability involved, the obligation of the Consultant will be for that entire portion or percentage of liability not attributable to the active negligence of City.
(c) Nonwaiver. City does not waive, nor shall be deemed to have waived, any indemnity, defense, or hold harmless rights under this section because of the acceptance by City, or the deposit with City, of any insurance certificates or policies described in Section 9.

9. MINIMUM SCOPE AND LIMIT OF INSURANCE
Without limiting Consultant's indemnification of City, and prior to commencement of Work, Consultant shall obtain, provide, and maintain at its own expense during the Item No.9K
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term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below and in a form that is satisfactory to City. Coverage shall be at least as broad as:
(a). Commercial General Liability (CGL): Consultant shall, at Consultant's sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry General Liability insurance coverage at least as broad as Insurance Services form CG 00 01 in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate for bodily injury, personal and advertising injury, and property damage, including without limitation, blanket contractual liability. (b). Automobile Liability: Consultant shall, at Consultant's sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry Automobile Liability insurance coverage at least as broad as Insurance Services form CA 00 01 or the exact equivalent covering bodily injury and property damage for all activities of Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage of any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c). Worker’s Compensation: Consultant shall, at Consultant's sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry workers’ compensation statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for bodily injury or disease. Consultant shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its elected officials, officers, agents, employees, and volunteers for all work performed by Consultant, its employees, agents, and subcontractors. (d). Professional Errors and Omissions Insurance: Consultant shall, at Consultant’s sole cost and expense throughout the term of this Agreement, and any extensions thereof, carry professional errors and omissions coverage of no less than $2,000,000 per occurrence or claim, $2,000,000 aggregate, with tail coverage for an extended reporting period of three (3) years.

If Consultant maintains higher limits than the minimum shown above, City requires and shall be entitled to coverage for the higher limits maintained by the Consultant. Any available insurance proceeds more than the specified minimum limits of insurance and coverage shall be available to City.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status
City, its elected officials, officers, agents, employees, and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of the Consultant including materials, parts, or equipment furnished in connection with such work or operations. General liability Item No.9K
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coverage can be provided in the form of an endorsement to Consultant’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 if a later edition is used). The provision shall also apply to any excess liability policies. In addition, the Consultant shall ensure that the automobile liability policy contains a provision covering City as an additional insured and shall obtain an endorsement to that effect if it does not.

Excess Insurance
The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Umbrella or excess policies shall provide coverage at least as broad as specified for underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf” with defense costs payable in addition to policy limits. There shall be no cross-liability exclusion of claims or suits by one insured against the other. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and no-contributory basis for the benefit of the City as required in a written contract or agreement before the City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

City’s Rights of Enforcement
In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by Consultant, or City will withhold amounts sufficient to pay premium from Consultant’s payments. In the alternative, City may cancel this Agreement.

City’s Right to Revise Specifications
City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Consultant ninety (90) days advance written notice of such change. If such change results in a substantial additional cost to Consultant, City, and Consultant may renegotiate Consultant's compensation.

Primary and Non-Contributory Coverage
For any claims related to this Agreement, the Consultant's insurance coverage shall be primary insurance as respects City, its elected officials, officers, agents, employees, and volunteers. Any insurance or self-insurance maintained by City, its officers, officials, employees, or volunteers shall be excess of the Consultant's insurance and shall not contribute with it and shall be at least as broad as CG 20 01 04 13.

Item No.9K
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Notice of Cancellation
Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by City. City may require Consultant to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Acceptability of Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with a current A.M. Best’s rating of no less than A: VII, (unless otherwise acceptable to the City).

Waiver of Subrogation
All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected officials, officers, agents, employees, or volunteers or shall specifically allow the Consultant or others providing insurance evidence in compliance with these specifications - to waive their right of recovery prior to a loss. Consultant hereby waives his own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to City prior to the commencement of work.

Claims Made Policies
If any of the required policies provided coverage on a claims-made basis:
(a). The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of contract work.
(b). Insurance must be maintained, and evidence of insurance must be provided for at least five (5) years after completion of the work required under this Agreement. (c). If coverage is canceled or non-renewed, and not replaced with another claimsmade policy form with a Retroactive Date prior to the Agreement effective date, Consultant must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.

Item No.9K
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Verification of Coverage
Consultant shall provide City with copies of certificates (on City certificate form or an Accord form as modified per City direction) for all policies, with the appropriate named additional insured coverage and an endorsement that they are not subject to cancellation without 30 days prior written notice to City. All certificates and endorsements are to be received and approved by City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Consultant's obligation to provide them. The city reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors
Consultant shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Consultant shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

10. RELATION OF THE PARTIES
(a) Consultant is and shall always remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Consultant or any of Consultant's officers, employees, or agents except as set forth in this Agreement. Consultant shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City. Consultant shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner. (b) No employee benefits shall be available to Consultant in connection with the performance of this Agreement. Except for the fees paid to Consultant as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Consultant for performing services hereunder for City. City shall not be liable for compensation or indemnification to Consultant for injury or sickness arising out of performing services hereunder.

11. CORRECTIONS
In addition to the above indemnification obligations, the Consultant shall correct, at its expense, all errors in the work that may be disclosed during the City's review of the Consultant's report or plans. Should Consultant fail to make such correction in a reasonably timely manner, such correction shall be made by City, and the cost thereof shall be charged to Consultant or withheld from any funds due to Consultant hereunder.

Item No.9K
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12. TERMINATION BY CITY
City may terminate without cause any or all the services agreed to be performed under this Agreement upon 30 calendar days written notice. If termination is for cause, no advance notice needs to be given. In the event of termination, the Consultant shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by City to Consultant within 30 days following submission of a final statement by the Consultant unless termination is for the cause. In such event, the Consultant shall be compensated only to the extent required by law.

13. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by Consultant of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Consultant for anything done, furnished, or relating to Consultant's work or services.

Acceptance of payment shall be any negotiation of the City's check or the failure to make a written extra compensation claim within 10 calendar days of the receipt of that check.

However, approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of the Consultant, its employees, subcontractors, agents, and consultants for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Consultant, its employees, subcontractors, agents, and consultants.

14. AUDIT OF RECORDS
Consultant shall maintain, in accordance with generally accepted accounting principles, complete and accurate records of all activities and operations relating to this Agreement. Records, including but not limited to, timecards, employment records, work progress reports, reimbursements, invoices, project records, proprietary data, and information, as well as licensed software and any electronic records shall be kept for a period of four years beyond the termination of this Agreement. Consultant agrees that City, or its authorized representative, shall have the right to examine, audit, excerpt, copy or transcribe any of the records pertaining to this Agreement at any time during normal business hours. Consultant shall reimburse City for all reasonable costs of the audit, including travel time and auditor costs, should such audit reveal an overcharge of five (5) percent or more. Any overcharge will be considered a breach of this Agreement and could be cause for termination. The obligations of this section shall be explicitly included in any subcontracts or other agreements entered into by Consultant with respect to this Agreement.

15. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure Item No.9K
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continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period, other than any default or breach and/or period specified. All the remedies permitted or available to a party under this Agreement, or at law or in equity, shall be cumulative and alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or available right of remedy.

16. CONFLICT OF INTEREST
The Consultant is unaware of any City employee or official that has a financial interest in Consultant's business. During the term of this Agreement and/or because of being awarded this Agreement, Consultant shall not offer, encourage, or accept any financial interest in Consultant's business by any City employee or official.

17. CONSTRUCTION OF LANGUAGE OF AGREEMENT
The provisions of this Agreement shall be construed according to its common meaning of the purpose of providing a public benefit and not strictly for or against any party. It shall be construed consistent with the provisions hereof, to achieve the objectives and purposes of the parties. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa.

18. MITIGATION OF DAMAGES
In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

19. GOVERNING LAW
This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California. Should litigation occur, the venue shall be in the Superior Court of Ventura County.

20. TAXPAYER IDENTIFICATION NUMBER
Consultant shall provide City with a complete Request for Taxpayer Identification Number and Certification, Form W-9, as most recently issued by the IRS.

Item No.9K
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21. NON-APPROPRIATION OF FUNDS
Payments due and payable to the Consultant for current services are within the current budget and within an available, unexhausted, and unencumbered appropriation of City funds. In the event City has not appropriated sufficient funds for payment of the Consultant’s services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year.

22. MODIFICATION/AMENDMENT OF AGREEMENT
Any amendment, modification, or variation of the terms or tasks of this Agreement shall be in writing and shall be effective only upon the mutual written approval of the City and Consultant.

23. USE OF THE TERM “CITY”
Reference to “City” in this Agreement includes the City Manager or any authorized representative acting on behalf of City.

24. PERMITS AND LICENSES
Consultant, at its sole expense, shall obtain and maintain during the term of this Agreement all appropriate permits, licenses, and certificates that may be required in connection with the performance of services under this Agreement.

25. CAPTIONS
The captions or headings in this Agreement are for convenience only and in no other way define, limit, or describe the scope or intent of any provision or section of the Agreement.

26. AUTHORIZATION
Each party has expressly authorized the execution of this Agreement on its behalf and binds said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this Agreement.

27. ENTIRE AGREEMENT BETWEEN PARTIES
Except for Consultant's proposals and submitted representations for obtaining this Agreement, this Agreement supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering of services and contains all the covenants and agreements between the parties with respect to said services.

Item No.9K
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28. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

29. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Jim Taylor, Senior Engineer (Project Manager)
City of Thousand Oaks
Public Works Department
2100 Thousand Oaks Boulevard
Thousand Oaks, CA 91362
TO CONSULTANT: Hassan Kasraie, President
Kasraie Consulting
3287 Island View Drive
Ventura, CA 93003

30. SIGNATURES
(a) Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument.
(b) Scanned Signatures. If any signature is delivered by facsimile transmission or submitted electronically as a scanned image (i.e., files with .pdf, .tiff or .jpeg extensions), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or scanned signature page were an original thereof. (c) Digital/Electronic Signatures. This Agreement may be executed using digital or electronic signatures provided they meet the requirements of the Electronic Signatures in the Global and National Commerce (ESIGN) Act and the California Uniform Item No.9K
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Electronic Transactions Act (UETA) and are produced using a city-approved method. The presence of an electronic signature on this document shall be construed as the parties’ consent to do business electronically.

In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first above written.

KASRAIE CONSULTING
________________________________
Hassan Kasraie
President

CITY OF THOUSAND OAKS
_ __________________________________
Kevin McNamee, Mayor
ATTEST:
_____________________________
Laura B. Maguire City Clerk
APPROVED AS TO ADMINISTRATION:
___________________________
Andrew P. Powers, City Manager
APPROVED BY DEPARTMENT HEAD:

Clifford G. Finley, Public Works Director
APPROVED AS TO FORM:

Office of the City Attorney
Tracy Friedl, Assistant City Attorney
Item No.9K
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EXHIBIT A

SCOPE OF WORK

SOUTH BRANCH ARROYO CONEJO DEFICIENCY STUDY
Consultant shall perform hydrologic and hydraulic analyses to identify deficiencies in South Branch Arroyo Conejo (SBAC) and its tributaries in the City and the unincorporated County areas and perform alternative analyses to identify improvement alternatives.

Specific tasks shall include the following:

Task 1: Project Kickoff
Arrange and conduct the project kick-off meeting, visit the project site, and review the project concept and available data.

Task 2: Data Collection
Consultant shall collect and review all data, files, plans, and study reports pertinent to the SBAC watershed to better understand the flood control issues in the study area and to build a technical foundation for the study. At a minimum, the following data shall be collected and reviewed:
a. All hillsides, streets, inlets, conveyances, and storm drains tributary to SBAC between Borchard Road/101 Freeway and Reino Road
b. 2006/07 Master Plan
c. VCPWA-WP SBAC currently accepted VCRAT model
d. 2011 SBAC 2-Dimensional Floodplain Analysis - September 15, 2011 e. 2013 WPD Preliminary Design of SBAC Phase I Addendum Study Report f. LOMR processing materials
g. USACE FLO-2D model
h. USACE Findings memo
i. Local road and drainage facility record drawings (VCWPD/City) j. City GIS 1-foot contours
Task 3: Hydrology Review
The current SBAC watershed hydrology was generated by using Ventura County Rational Method model (VCRAT) with legacy rainfall zones and intensities in 2004. In the updated hydrology manual of VCPWA-WP, the rainfall zones and intensities of NOAA Atlas 14 were used as an alternative.
a. Methodology comparison: Consultant shall perform a hydrologic analysis using VCRAT with NOAA Atlas 14 rainfall, and/or other method as recommended by the Consultant, to generate design peak flowrates and hydrographs for 10-, 25-, 50-, 100-, and 500-year flood events
b. Consultant shall investigate and determine the most suitable design hydrology for SBAC and subject tributaries.

Item No.9K
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Task 4: Project Management & Meetings
Plan for a minimum of a total of six project update meetings with City and VCWPD staff (including Kickoff Meeting) for 3 hours per meeting, on dates and locations determined by the City. This shall include preparing the meeting agenda and meeting minutes, and email distribution to all attendees.

Task 5: City Local Drain-Specific Peak Hydrology Quantification Using new NOAA Atlas 14 or published VCRAT Q100
a. Quantify flows to each intersection
b. Quantify cumulative flows to each inlet
c. Model preparation: flows along each segment of roadway and pipe/channel Task 6: City Facility Improvement Alternatives
a. Evaluate hydraulic conveyance- and intercept capacities of facilities, including:
i. Roads (surface drains)
ii. Catch basins assuming top-of-curb ponding
iii. Catch basin lateral capacity
iv. Check inlet-control
b. Open channel drains
i. Examine floodplain impacts using TUFLOW or other software approved by the City to evaluate flood channel capacity and floodplain impacts under existing conditions
ii. Generate floodplain mapping for 10-, 25-, 50- 100-, 500-year flood events c. Identify deficiencies
i. Road ponding jeopardizing existing homes (specific proximity to the home perimeter)
ii. Inlet deficiency Q100 vs. capacity
iii. Lateral full-depth capacity vs. delivered
iv. Underground Storm drains
v. Open channel drains
d. Formulate improvement alternatives and perform alternative analysis to recommend preferred alternatives. This includes performing hydraulic analysis for the proposed alternatives and producing conceptual plans for the preferred alternative(s)
e. Order-of-magnitude cost estimates
a. Provide an order of magnitude cost estimate for each recommended improvement
f. Perform Benefit-Cost analysis using the FEMA B/C analysis toolkit Task 7: Deliverables to City
a. Consultant shall develop and submit a technical memorandum/study with the information listed above
Item No.9K
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b. Study shall include a detailed and prioritized list of recommended improvements to address deficiencies in the City
c. Consultant shall also provide a preliminary cost/benefit analysis of each recommended improvement
d. Conceptual plans for the preferred alternatives
e. All digital files including GIS shapefiles, AutoCAD drawings, model inputs/outputs files, and so on
f. Consultant shall provide the above reports at a draft (60%) stage, 90% stage, and 100% stage, and incorporate all comments received during that process. At the 100 percent stage include indexed reference information, model input/output, and all relevant documentation utilized by the study
Task 8: County Local drain specific peak hydrology quantification (new NOAA Atlas 14 or published VCRAT)
a. Q100
i. Quantify flows to each intersection
ii. Quantify accumulative flows to each inlet
b. Model Preparation: flows along each segment of roadway and pipe/channel Task 9: County Facility Improvement Alternatives
a. Evaluate hydraulic conveyance- and intercept capacities of facilities, including:
i. Roads (surface drains)
ii. Catch basins assuming top-of-curb ponding
iii. Catch basin lateral capacity, including inlet-control check iv. Open channel drains
v. Examine floodplain impacts using either TUFLOW, or other software approved by the City to evaluate flood channel capacity and floodplain impacts under existing conditions. Generate floodplain mapping for 10-, 25-, 50- 100-, 500-year flood events
vi. Incorporate hydraulic analyses and floodplain Benefit-to-Cost findings of ACOE 2018 report examining SBAC main channel, and Newbury Park Drain No’s 1 and 2, including the 2013 VCWPD Preliminary Design of SBAC Phase I Addendum Study Report
b. Identify deficiencies
i. Road ponding jeopardizing existing homes (specific proximity to the home perimeter)
ii. Inlet deficiency Q100 vs. capacity
iii. Lateral full-depth capacity vs. delivered
iv. Underground Storm drains
v. Open channel drains
c. Formulate improvement alternatives and perform alternative analysis to recommend preferred alternatives. This includes performing hydraulic analysis for Item No.9K
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the proposed alternatives and producing conceptual plans for the preferred alternative(s).
d. Order-of-magnitude cost estimates
i. Provide an order of magnitude cost estimate for each recommended improvement
e. Perform Benefit-Cost analysis using the FEMA B/C analysis toolkit Task 10: Deliverables to County
a. Consultant shall develop and submit a technical memorandum/study with the information listed above
b. Study shall include a detailed and prioritized list of recommended improvements to address deficiencies for VCWPD
c. Conceptual plans for the preferred alternatives
d. Consultant shall also provide a preliminary cost/benefit analysis of each recommended improvement
e. All digital files including GIS shapefiles, AutoCAD drawings, model inputs/outputs files, and so on
f. Consultant shall provide the above reports at a draft (60 percent) stage, 90 percent stage, and 100 percent stage, and incorporate all comments received during that process. At the 100 percent stage include indexed reference information, model input/output, and all relevant documentation utilized by study Item No.9K
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EXHIBIT B

PROJECT AREA MAP

SOUTH BRANCH ARROYO CONEJO DEFICIENCY STUDY
Item No.9K
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EXHIBIT C

SCHEDULE OF FEES

SOUTH BRANCH ARROYO CONEJO DEFICIENCY STUDY
Item No.9K
TO: City Council
FROM: Andrew P. Powers, City Manager
DATE: July 18, 2023
SUBJECT: City Manager Authority During Summer Recess
RECOMMENDATION:

1. Adopt resolution granting City Manager authority for designated actions during summer recess, July 19, 2023, through September 11, 2023.

2. Find that this action is not a project as defined in the California Environmental Quality Act.

FINANCIAL IMPACT:

No Additional Funding Requested. Minimal staff time to prepare the resolution granting City Manager authority for designated actions during summer recess is included in the Adopted FY 2023-24 General Fund Budget.

BACKGROUND:

The City’s practice during lengthy breaks between City Council meetings is for the City Council to give the City Manager authority by resolution (Attachment #1) to consider and, where appropriate, approve certain actions needed for the ongoing operation of the City within existing budgetary appropriations. These actions may include agreements, agreement extensions, and contracts.

Typically, such actions would be placed on the Consent Calendar Agenda for consideration, and approvals would be consistent with City guidelines, patterns, and practices.

Item No.9L
City Manager Authority During Summer Recess
July 18, 2023

DISCUSSION/ANALYSIS:

The following actions may be needed for specific projects or programs:

1. Amendment to Energy Services Agreement with EDF Renewables, Inc.

On January 26, 2021, City Council approved an Energy Services Agreement (No. 12652-2021) with EDF Renewables Distributed Solutions, Inc. (EDF) to design, construct, and operate a microgrid at Hill Canyon Treatment Plant (HCTP). The Agreement allows EDF to recoup its project costs through California’s SelfGeneration Incentive Program. Lengthy delays in SCE’s interconnection approval have impacted project costs for EDF, who desire to recoup these through the new 30 percent Investment Tax Credit (ITC) available for battery and microgrid projects through the 2022 Federal Inflation Reduction Act (IRA). As owner of the system, the City would need to apply for the ITC funds following specific guidance for taxexempt entities to be issued by the Federal government in the coming months, a draft of which was published on June 14, 2023. This change will require an Amendment to the existing Agreement or new Amended & Restated Energy Services Agreement(s) to be developed that includes these provisions while ensuring that the City encumbers no additional project costs and that any risk remains with PowerFlex. Since time is of the essence, a recommendation is hereby made to authorize City Manager to sign the revised Agreement(s) and/or Amendment(s) as approved by the City Attorney’s Office.

2. Second Amendment to Contract No. 12224-2019 with the City of Agoura Hills for Dial-a-Ride services operated by Thousand Oaks Transit. The First Amendment, approved on June 20, 2023, extended the term of the agreement through June 30, 2025.

This amendment addresses changes to the service requested by Agoura Hills and aligns the services provided to Agoura Hills with services provided to Westlake Village, Moorpark, and the County of Ventura. Agoura Hills has requested changes that require some negotiation and possibly substantial modifications to terms that could not be completed prior to the July 18, 2023, City Council meeting. Due to the value of the overall contract, City Council must approve the amendment and staff requests delegation authority to the City Manager during the City Council recess to avoid billing delays for services rendered which will continue unabated while the two agencies negotiate the final terms and costs of the contract extension period.

Item No.9L
City Manager Authority During Summer Recess
July 18, 2023

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goal:

C. Operate City government in a fiscally and managerially responsible and prudent manner to ensure that the City of Thousand Oaks remains one of California's most desirable places to live, work, visit, recreate, and raise a family.

PREPARED BY: Whitney Luxenberger, Senior Administrative Specialist Attachments:

Attachment #1 – City Manager Authority Resolution
CMO:100-90/wl//H:Common/Council Items/2023/071823/City Manager Authority During Summer Recess Item No.9L
CMO:100-90\CMO\Council Items\2023 Staff Reports/071823/071823 City Manager Summer Recess Authority Resolution

RESOLUTION NO.

A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF THOUSAND OAKS DELEGATING CERTAIN

INTERIM AUTHORITY TO CITY MANAGER
WHEREAS, it is the City’s practice that, during lengthy breaks between City Council meetings, the City Manager is given authority to consider and, where appropriate, approve certain actions needed for the ongoing operation of the City within existing budgetary appropriations; and
WHEREAS, generally, such actions are normally listed on the Consent Agenda calendar, and actions would be consistent with City guidelines, patterns and practice; and
WHEREAS, staff is aware of specific actions that will be needed for ongoing projects, programs, or settlements during Council’s recess July 19, 2023 through September 11, 2023; and,
WHEREAS, staff presented a staff report providing details of each contract to be acted upon during the recess along with a recommendation at the July 18, 2023 City Council Meeting.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Thousand Oaks as follows:

1. Grant and delegate to the City Manager the authority to consider and, where appropriate, approve the following actions needed for the ongoing operation of the City within existing budgetary appropriations:

A. Amendment to Energy Services Agreement with EDF Renewables, Inc.

On January 26, 2021, City Council approved an Energy Services Agreement (No. 12652-2021) with EDF Renewables Distributed Solutions, Inc. (EDF) to design, construct, and operate a microgrid at HCTP.

ATTACHMENT #1
Item No.9L
CMO:100-90\CMO\Council Items\2023 Staff Reports/071823/071823 City Manager Summer Recess Authority Resolution

B. Second Amendment to Contract No. 12224-2019 with the City of Agoura Hills for Dial-a-Ride services operated by Thousand Oaks Transit.

PASSED AND ADOPTED this 18th day of July, 2023, by the following vote:

Ayes:

Noes:

Absent:
________________________________
Kevin McNamee, Mayor
ATTEST: City of Thousand Oaks, California
_______________________________
Laura B. Maguire, City Clerk
Date Attested: ___________________
APPROVED AS TO FORM:

Office of the City Attorney
________________________________
Tracy M. Noonan, City Attorney
APPROVED AS TO ADMINISTRATION:
_______________________________
Andrew P. Powers, City Manager
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the City of Thousand Oaks City Council on the date cited above.

Item No.9L
TO: Andrew P. Powers, City Manager
FROM: Kelvin Parker, Community Development Director
DATE: July 18, 2023
SUBJECT: Arroyo Conejo Open Space Acquisition (865 W. Hillcrest Drive) RECOMMENDATION:

1. Approve Purchase and Sale Agreement with Escrow Instructions for Assessor Parcel Number 663-0-093-225 between the City of Thousand Oaks and Zada Susan W TR et al, and authorize City Manager, or designee, to execute the Purchase and Sale Agreement and all other documents necessary to effectuate the purchase of APN 663-0-093-225 (Owner: ZADA SUSAN W TR ET AL) by the City of Thousand Oaks, including the authority to accept the deed, subject to resolution of any liens and encumbrances affecting said parcel.

2. Approve budget appropriation and expenditure of funds in the amount of $620,000 ($610,000, plus closing costs not-to-exceed $10,000) for APN 663-0- 093-225 from A/C #512-0000-311-10-00 (Community Recreation and Open Space Endowment Fund – Fund Balance) to A/C #512-4410-679-81-00 (CI 1227, Capital – Land).

3. Find this real property acquisition is consistent with the General Plan as to location and purpose.

4. Find that this action is categorically exempt from California Environmental Quality Act pursuant to CEQA Guidelines, 14 CCR Sections 15313 and 15325).

FINANCIAL IMPACT:
$620,000 Increase to the Adopted FY 2023-24 Community Recreation and Open Space Endowment Fund Budget. Increase of $620,000 to the Adopted FY 2023-24 Community Recreation and Open Space Endowment Fund (CROSEF) for purchase of open space parcel and closing costs. The current balance in CROSEF is approximately $2.5 million. CROSEF funds can only be used for open space and recreation-related purposes, including land acquisition. Minimal staff time required to prepare and execute the transaction is included in the Adopted FY 2023-24 General Fund Budget.

Item No.9M
Arroyo Conejo Open Space Acquisition (865 W. Hillcrest Dr.) July 18, 2023

BACKGROUND:

The proposed open space acquisition is a parcel located along W. Hillcrest Drive at the opening of Arroyo Conejo. It is immediately adjacent to existing Conejo Open Space Conservation Agency (COSCA) property and contains the channel and floodplain of Arroyo Conejo Creek, a tributary waterway channel, approximately 15 mature coast live oak trees, and several mature black walnut trees. Additionally, the property offers an opportunity to link adjacent COSCA property to a public sidewalk, providing the last link in a potential public trail route along Arroyo Conejo Creek between this property and the Rancho Conejo Playfields Park. Adding this property to the Arroyo Conejo Open Space will provide consistent management of an extended and contiguous reach of Arroyo Conejo Creek, protect vital riparian and oak woodland habitats, and provide a potential public trail route.

The parcel is 1.93 acres in size and is zoned C-O (Commercial-Office). The purchase price is based on a contemporary full narrative appraisal. Staff has tentatively agreed with the seller to a purchase price of $610,000, which lies slightly below the appraised value. A Draft Purchase and Sale Agreement is contained in Attachment #1. The location of the parcel is shown in Attachments #2 and #3. Attachment #4 is an aerial photo of the property and the adjacent area.

DISCUSSION/ANALYSIS:

The Arroyo Conejo Open Space encompasses the most valuable riparian habitat land in COSCA’s open space system. It is in this region where sufficient year-round water volume supports a broad assemblage of native vegetation communities, aquatic life, and habitat for several protected species. The natural resources are described in the Conejo Canyons Open Space Management Plan and include habitat for the southwestern pond turtle, a state species of special concern, and least Bell’s vireo, an endangered bird species. While not initially included within the management plan boundary due to private ownership, the subject parcel is immediately adjacent and supports similar natural resources.

Arroyo Conejo was identified in the Conejo Canyons Study (1976) as an area with particularly important and sensitive resources. Purchase of the subject property is consistent with the policies adopted in the Open Space Element of the Thousand Oaks General Plan, including:

OS-1 (Preservation of Natural Resources) Open space shall include those areas which contain resources and/or characteristics as described by the Conservation Element as necessary to preserve in an essentially undisturbed state.

Item No.9M
Arroyo Conejo Open Space Acquisition (865 W. Hillcrest Dr.) July 18, 2023

OS-5 (Trails Master Plan) This Trail Master Plan is hereby incorporated as a component of the Open Space Element. In carrying out its responsibilities, the City shall support completion of this trail system in a manner compatible with the other policies of this Element.

OS-7 (Health and Safety / Floodplains) Open space shall contain those areas, such as flood plains, areas of unstable slopes, and fuel modification zones which are identified by the Safety Element of the General Plan as necessary to remain in an undeveloped state for the purposes of maintaining public safety.

OS-17 (Preservation and Stewardship) Generally, natural open space land should be transferred to public ownership, to provide consistent management, linkage with other components of the open space system, and appropriate recreational and educational opportunities.

Additionally, the property acquisition will support the City’s Oak Tree and Landmark Tree Preservation and Protection Ordinances through permanent protection of mature oaks and landmark trees.

The value of this parcel was established by a contemporary narrative appraisal prepared by a licensed appraiser that yielded a value of $659,000. Staff has negotiated a purchase price of $610,000. Staff anticipates up to $10,000 in closing costs for this purchase, although costs are anticipated to be less. CROSEF funding is proposed for this acquisition. CROSEF was established for the purpose of open space and parks acquisition and maintenance.

Pursuant to Policy #20 of the Open Space Element of the City’s General Plan, staff anticipates the transfer of the parcel, after purchase, from the City to COSCA for long-term stewardship. Any subsequent transfer of the property to COSCA would be contemplated by the City Council at a future meeting.

Pursuant to CEQA Guidelines, 14 CCR Sections 15313 and 15325), the acquisition of open space parcel in the Arroyo Conejo Area is categorically exempt under CEQA as the proposed acquisition is intended to preserve the land in its natural condition and maintain the property as open space.

Item No.9M
Arroyo Conejo Open Space Acquisition (865 W. Hillcrest Dr.) July 18, 2023

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goal:

E. Complete ring of open space around the City; Protect and preserve ridgelines, natural habitat, and designated open space areas.

PREPARED BY: Brian Stark, COSCA Administrator
Attachments:

Attachment #1 – Draft Purchase Agreement
Attachment #2 – Vicinity Map
Attachment #3 – Location Map
Attachment #4 – Aerial Photo
cdd:531-40\bs\H:\COMMON\COSCA\Real Property (531-40)\1-Active Projects\Zada - Hillcrest - Arroyo Conejo\Council Actions\20230718 ARROYO CONEJO OPEN SPACE ACQUISITION STAFF REPORT-v1.docx Item No.9M
Attachment 1

PURCHASE AND SALE AGREEMENT WITH ESCROW

INSTRUCTIONS FOR ASSESSOR PARCEL NUMBER
663-0-093-225 BETWEEN THE CITY OF THOUSAND

OAKS AND ZADA SUSAN W TR ET AL

THIS PURCHASE AND SALE AGREEMENT AND ESCROW INSTRUCTIONS ("Agreement") made and entered into this ___ day of ______, 2023, by and between the CITY OF THOUSAND OAKS, a municipal corporation (herein referred to as “City”), and ZADA SUSAN W TR ET AL (“Seller”).

Recitals
A. Seller is the owner of approximately 1.93 acres of real property ("Property") located in the City of Thousand Oaks, County of Ventura, California, more particularly described as follows: [TBD – Legal Description]; and illustrated on attached Exhibit A, which is incorporated into this Agreement by this reference.

B. Property consists of one legal lot (Assessor Parcel Number [APN] 663-0-093-225 located in the Arroyo ConejoOpen Space.

C. City desires to purchase Property to preserve as open space.

D. Seller desires to sell Property to City on the terms and conditions of this Agreement.

Findings
City determines that entering into this Agreement to purchase Property for open space and the actual purchase of Property is categorically exempt from California Environmental Quality Act pursuant to CEQA Guidelines, 14 CCR Sections 15313 and 15325.

NOW THEREFORE for good and valuable consideration, the receipt and adequacy of which are acknowledged, the parties agree as follows.

Section 1. Purchase and Sale
Seller agrees to sell and City agrees to purchase the Property subject to the terms and conditions in this Agreement.

Section 2. Purchase Price
The purchase price for the Property shall be Six hundred and five thousand dollars ($610,000) ("Purchase Price") and shall be payable as follows:

Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 2 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf A. Within ten (10) business days of the opening of escrow as described in Section 3 below, City shall deposit with Escrow Agent the sum of Sixty-one thousand dollars ($61,000.00) as earnest money ("Deposit"), which shall be held in an interest-bearing account with all interest credited to City and applied in accordance with the terms of this Agreement.

B. On or before the Closing Date, City shall deposit with Escrow Agent the balance of the Purchase Price in cash or in immediately available funds.

Section 3. Escrow
Within five (5) business days of full execution of this Agreement by the parties, City shall open an escrow ("Escrow") with Chicago Title Company, Attn: Dori Mittner, 2945 Townsgate Rd. Suite #200, Westlake Village, CA 91361, Phone No. 805-497-7430 and Fax No. 805-230-8235 ("Escrow Agent"), subject to the provisions of the standard conditions for acceptance of escrow and the terms and conditions in this Agreement, with a signed counterpart of this document to be delivered as escrow instructions to Escrow Agent. In the event of any conflict between the terms of this Agreement and the standard conditions for acceptance of escrow, the terms of this Agreement shall control.

Section 4. Conditions to City's Performance
City's obligation to perform under this Agreement is subject to the following conditions.

A. Seller conveying a marketable fee simple title to the property by Grant Deed pursuant to Section 8. B. 1, herein.

B. Seller's representations and warranties in this Agreement being correct as of the date of this Agreement and as of the Close of Escrow.

C. Seller’s Performance of all obligations under this Agreement.

D. Escrow Agent being prepared to issue the Title Policy on the Close of Escrow subject only to the Approved Exceptions.

Section 5. Conditions to Seller's Performance
Seller's obligation to perform under this Agreement is subject to satisfaction of the following conditions.

A. City's performance of all the obligations which it is required to perform pursuant to this Agreement.

B. Escrow Agent's commitment to issue the Seller's Title Policy at the Close of Escrow subject only to the Approved Exceptions.

C. Escrow closing within 30 days of opening of escrow.

Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 3 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf Section 6. Access
A. Access to Property shall be given to City, its agents, employees, or contractors during normal business hours upon at least one (1) business days’ notice to Seller, at his/her own cost and risk, for any purposes, including, but not limited to, inspecting Property and conducting an environmental audit (including an investigation of past and current uses of Property). To the extent that any damage is caused to the Property as a result of City’s or its agent’s, employee’s or contractor’s inspection, sampling or audit of the Property, the City shall restore the Property to the condition that existed prior to its inspection, sampling or audit. City shall indemnify and defend Seller against and hold Seller harmless from all losses, costs, damages, liabilities, and expenses, including, without limitation, reasonable attorney fees arising out of City's entry onto Property or any activity thereon by City or its agents, employees, or contractors prior to the Close of Escrow except to the extent any such losses, costs, damages, liabilities, and expenses arise out of the negligence or willful acts of Seller. Any third parties besides City employees or officers entering onto the Property shall have comprehensive general liability insurance with limits not less than $1,000,000 and shall name Seller as Additional Insured under said coverage prior to entry onto the Property. Seller acknowledges that City is self-insured for one million dollars and such self-insurance satisfies the insurance requirements of this subsection. Any entry onto Property by City or its agents, employees, or contractors shall be at reasonable times. The provisions of this Section shall survive the Close of Escrow.

B. In addition to the provisions of Section 6.A, above, City and its agents, employees, or contractors shall have the right, from the date of this Agreement until the Closing Date, to contact any federal, state, or local governmental authority or agency to investigate any matters relating to Property. Seller agrees to cooperate reasonably with City and its agents, employees, or contractors in the inspection of Property.

Section 7. Title
A. Immediately following the opening of Escrow, City shall cause Escrow Agent to issue to City (with a copy to Seller) a preliminary report for a California Land Title Association (“CLTA”) Owner's Policy for the Property, setting forth all liens, encumbrances, easements, restrictions, conditions, pending litigation, judgments, administrative proceedings, and other matters affecting Seller's title to Property ("Preliminary Report"), together with copies of all documents relating to title exceptions referred to in the Preliminary Report.

B. City shall approve or disapprove each exception shown on the Preliminary Report and each encroachment, overlap, or boundary line dispute, or any other matter that materially and adversely affects title to Property or that violates any law, rule, or regulation (each an "Exception") within ten (10) days following the receipt of the Preliminary Report.

City's failure to object within the ten-day period shall be deemed to be an approval of the Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 4 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf Exceptions. The Exceptions approved by City hereunder shall be referred to as the "Approved Exceptions."
C. If any Exception is disapproved (each a "Disapproved Exception"), Seller shall have the right, but not the obligation, within ten (10) days following expiration of the tenday period provided under Section 7.B above, to cause each Disapproved Exception to be discharged, satisfied, released, or terminated, as the case may be, of record, and in a form that is reasonably satisfactory to City and Escrow Agent, all at Seller's sole cost and expense. Seller authorizes Escrow Agent to disburse from the cash portion of the Purchase Price and proceeds otherwise disbursable to Seller upon Closing the sum sufficient to discharge any Disapproved Exception that may be discharged only by the payment of money.

If Seller is unable or unwilling to obtain a discharge, satisfaction, release, or termination of any Disapproved Exception within the period specified above, then this Agreement shall automatically terminate ten (10) business days after expiration of the 10- day period for curing the Disapproved Exceptions or after Seller advises City in writing that Seller is unable or unwilling to cause such discharge, satisfaction, release, or termination, whichever occurs first, unless within such 10-business-day period City waives in writing such Disapproved Exception, in which event such Disapproved Exception shall be deemed an Approved Exception under this Agreement. If this Agreement terminates pursuant to the foregoing sentence, then Seller shall pay all charges of the Escrow Agent in connection with this transaction; and the parties shall be relieved of all further obligations and liabilities to each other under this Agreement except as otherwise provided herein, and all funds and documents deposited with Escrow Agent shall be promptly refunded or returned, as the case may be, by Escrow Agent to the depositing party. Anything above to the contrary notwithstanding, it is understood and agreed that City's indemnity obligations under Section 6 above, and the indemnities under Section 10 and 13 below, shall not terminate upon termination of this Agreement pursuant to this or any other provision hereof.

Section 8. Close of Escrow
A. Title. Simultaneously with the Close of Escrow, Escrow Agent shall issue:

1. An CLTA Owner's Policy of Title Insurance ("Title Policy") in the amount of the Purchase Price, subject only to the following matters:
(a) Lien for real property taxes, bonds, and assessments not then due; and (b) Approved Exceptions.

B. Seller's Deposits into Escrow. Seller shall deposit with Escrow Agent on or prior to the Close of Escrow the following documents:

1. A grant deed executed and acknowledged by Seller conveying to City good and marketable fee simple title to the Property, subject only to the Approved Exceptions ("Deed");
Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 5 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf

2. A Non-Foreign Person Affidavit under Section 1445 of the Internal Revenue Code of 1986, as amended ("FIRPTA Affidavit"); and

3. Either California Franchise Tax Board Form 593-C or 593-W regarding the withholding of California taxes on the sale of California real estate (“Withholding Affidavit”).

C. City's Deposits into Escrow. City shall deposit with Escrow Agent, on or prior to the Close of Escrow, the balance of the Purchase Price in accordance with Section 2.B.

D. Closing Date. The conveyance of the Property to City and the closing of this transaction ("Close of Escrow") shall take place within 10 business days following the satisfaction of the conditions set forth in Sections 4 and 5 ("Closing Date"), or by the date specified in Section 5. C., whichever is earlier.

E. On the Closing Date, Escrow Agent shall close Escrow as follows:

1. Record the Deed (marked for return to City) with the Ventura County Recorder (which shall be deemed delivery to City);

2. Issue the CLTA Owner's Policy of Title Insurance;

3. Prorate taxes, assessments and other charges as provided in Section 8. H;

4. Disburse to Seller the Purchase Price less prorated amounts and charges to be paid by or on behalf of Seller;

5. Charge City for those costs and expenses to be paid by City pursuant to this Agreement and disburse any net funds remaining after the preceding disbursements to City;

6. Prepare and deliver to both City and Seller one signed copy of Escrow Agent's closing statement showing all receipts and disbursements of the Escrow; and

7. Deliver to City the Foreign Investment in Real Property Tax Act (“FIRPTA”) Affidavit, and the Withholding Affidavit.

F. If Escrow Agent is unable to simultaneously perform all of the instructions set forth in E, above, Escrow Agent shall notify City and Seller and retain all funds and documents pending receipt of further instructions jointly issued by City and Seller.

G. Prorations. Escrow Agent shall prorate the following costs at the Close of Escrow:

1. Seller shall pay:
(a) All governmental conveyance-related fees and taxes due upon transfer of the Property, except as same may be exempt as a result of the conveyance of the Property to an exempt public agency.

2. City shall pay:
(a) The recording charges, if any, in connection with recordation of the Deed;
(b) All charges in connection with issuance of a CLTA Standard Policy of Title Insurance in the amount of the Purchase Price, that portion of the Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 6 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf premium for the Title Policy in excess of the premium for a CLTA Standard Policy of Title Insurance, and all endorsements requested by the City; and
(c) All escrow fees charged by Escrow Agent.

H. Real Estate Taxes, Bonds, and Assessments. Real property taxes shall be prorated at the Close of Escrow based on the most current real property tax bill available, including any additional property taxes that may be assessed after the Close of Escrow but that relate to a period prior to the Close of Escrow, regardless of when notice of those taxes is received or who receives the notice. Seller shall pay all installments of any bond or assessment that constitutes a lien on the Property at the Close of Escrow.

I. Possession. Possession of the Property shall be delivered to City at the Close of Escrow.

Section 9. Default
A. If Escrow fails to close by reason of any default by Seller, City shall be entitled to the return of the Deposit and all accrued interest, and the Escrow shall be canceled and neither party shall have any rights or responsibilities to the other, except as otherwise provided in this Agreement.

B. If Escrow fails to close by reason of any default by City, Seller shall be entitled to retain the Deposit and all accrued interest as liquidated damages, and the Escrow shall be canceled and neither party shall have any rights or responsibilities to the other, except as otherwise provided in this Agreement.

Section 10. Seller's Representations and Warranties
A. Seller represents and warrants to City that as of the date of this Agreement and as of the Close of Escrow that to the best of Seller’s knowledge:

1. The Property is free and has always been free from Hazardous Substances and is not and has never been in violation of any Environmental Laws.

2. Seller has received no notice, warning, notice of violation, administrative complaint, judicial complaint, or other formal or informal notice alleging that conditions on the Property are or have been in violation of any Environmental Law, or informing Seller that the Property is subject to investigation or inquiry regarding Hazardous Substances on the Property or the potential violation of any Environmental Law.

3. There is no existing monitoring program required by the Environmental Protection Agency ("EPA") or any similar state agency concerning the Property.

4. No toxic or hazardous chemicals, waste, or substances of any kind have ever been spilled, disposed of, or stored on, under, or at the Property, whether by accident, burying, drainage, or storage in containers, tanks, or holding areas, or by any other means.

Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 7 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf

5. Seller has disclosed to City all information, records, and studies in Seller's possession in connection with the Property concerning Hazardous Substances.

6. No condition on the Property violates any health, safety, fire, environmental, sewage, building, or other federal, state, or local law, code, ordinance, or regulation.

7. No leases, licenses, easements not reflected in the Preliminary Title report, or other agreements exist by which Seller has granted any third-party rights to use the Property are or will be in force.

8. There is no pending or threatened litigation, administrative proceeding, or other legal or governmental action with respect to the Property.

9. Any information that Seller has delivered to City, either directly or through Seller's agents, is accurate and Seller has disclosed all material facts concerning the operation, development, or condition of the Property known to Seller.

B. Seller shall promptly notify City of any facts that would cause any of the representations contained in this Agreement to be untrue as of the Close of Escrow and shall deliver to City at the Close of Escrow a certificate ("Closing Certificate") confirming that the representations contained in this Agreement continue to be true as of the Close of Escrow. The obligations of City to consummate the transactions contemplated are conditioned upon the delivery by Seller of the Closing Certificate. If City reasonably concludes that a fact materially and adversely affects the Property, City shall have the option to terminate this Agreement by delivering written notice to Seller and Escrow Agent. If City terminates this Agreement pursuant to this Section, Escrow Agent shall, within five (5) days following receipt of City's notice to terminate, return to City the Deposit and all accrued interest, and cancel the Escrow.

C. Seller agrees to indemnify City and agrees to defend and hold City harmless from all loss, cost, liability, expense, damage, or other injury, including without limitation, attorney fees and expenses, to the fullest extent not prohibited by applicable law, and all other costs and expenses incurred by reason of, or in any manner resulting from the breach of any warranties and representations in this Section 10.

Section 11. Seller's Covenants
A. Commencing with the full execution of this Agreement by both parties and until the Close of Escrow:

1. Seller shall not permit any liens, encumbrances, or easements to be placed on the Property, other than the Approved Exceptions, nor shall Seller enter into any agreement regarding the sale, rental, management, repair, improvement, or any other matter affecting the Property that would be binding on City or the Property after the Close of Escrow without the prior written consent of City.

Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 8 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf

2. Seller shall not knowingly permit any act of waste or act that would tend to diminish the value of the Property for any reason, except that caused by ordinary wear and tear.

Section 12. Authority of Parties
A. Seller warrants that this Agreement and all other documents delivered prior to or at the Close of Escrow:

1. Have been authorized, executed, and delivered by Seller;

2. Are binding obligations of Seller; and

3. Are collectively sufficient to transfer all of Seller's rights to the Property.

B. City warrants that this Agreement and all other documents delivered prior to or on the Close of Escrow:

1. Have been authorized, executed, and delivered by City; and

2. Are binding obligations of City.

C. The parties warrant that the persons executing this Agreement on their behalf are authorized to do so, and on execution of this Agreement, this Agreement shall be valid and enforceable against City or Seller in accordance with this Agreement.

Section 13. Mutual Indemnification
Each party agrees to defend, indemnify, and hold harmless the other party from any claims, expenses, costs, or liabilities arising in connection with a breach of that party's representations, warranties, or covenants under this Agreement.

Section 14. Notices
A. All notices to be given under this Agreement shall be in writing and sent by:

1. Certified mail, return receipt requested, in which case notice shall be deemed delivered three (3) business days after deposit, postage prepaid in the United States Mail;

2. A nationally recognized overnight courier, in which case notice shall be deemed delivered one (1) business day after deposit with that courier;

3. Hand delivery, in which case notice shall be deemed delivered upon receipt; or E-mail or similar means if a copy of the notice is also sent by United States Mail, in which case notice shall be deemed delivered on transmittal by e-mail or other similar means, provided that a transmission record is generated that reflects the accurate transmission of the notice.

Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 9 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf B. Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY: Brian Stark, COSCA Administrator
City of Thousand Oaks
2100 Thousand Oaks Blvd.

Thousand Oaks, CA 91362
TO SELLER: [TBD – Legal Owner]
Section 15. Entire Agreement
This Agreement and the documents referenced herein contain the entire agreement between the parties to this Agreement and shall not be modified in any manner except by an instrument in writing executed by the parties or their respective successors in interest.

Section 16. Miscellaneous
A. Severability. If any term or provision of this Agreement shall, to any extent, be held invalid or unenforceable, the remainder of this Agreement shall not be affected.

B. Waivers. A waiver or breach of covenant or provision in this Agreement shall not be deemed a waiver of any other covenant or provision in this Agreement and no waiver shall be valid unless in writing and executed by the waiving party. An extension of time for performance of any obligation or act shall not be deemed an extension of the time for performance of any other obligation or act.

C. Construction. The Section headings and captions of this Agreement are, and the arrangement of this instrument is, for the sole convenience of the parties to this Agreement. The Section headings, captions, and arrangement of this instrument do not in any way affect, limit, amplify, or modify the terms and provisions of this Agreement.

The singular form shall include plural, and vice versa. This Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. Unless otherwise indicated, all references to Sections are to this Agreement. All exhibits referred to in this Agreement are attached to it and incorporated in it by this reference.

D. Merger. All of the terms, provisions, representations, warranties, and covenants of the parties under this Agreement shall survive the Close of Escrow and shall not be merged in the Deed or other documents.

Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 10 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf E. Counterparts. This Agreement may be executed in one or more counterparts.

Each shall be deemed an original and all, taken together, shall constitute one and the same instrument.

F. Successors. This Agreement shall inure to the benefit of and shall be binding upon the parties to this Agreement and their respective heirs, successors, and assigns.

G. Governing Law. This Agreement shall be governed and construed in accordance with California law.

The parties have executed this Agreement as of the date first written above.

SELLERS

CITY OF THOUSAND OAKS
Andrew P. Powers, City Manager
ATTEST: APPROVED AS TO FORM:

Office of the City Attorney
Laura B. Maguire Noel Doran
City Clerk Assistant Attorney
Item No.9M
Purchase Agreement – APN 663-0-093-225 Page 11 of 11
CDD: 531-40\bs\C:\inetpub\wwwroot\multitenant\temp\Attachment 1 Draft Purchase Agreement.pdf EXHIBIT A – PROPERTY MAP
Item No.9M
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Item No.9M
City of Thousand Oaks

THIS MAP IS NOT TO BE USED FOR NAVIGATION
This map is a user generated static output from an Internet mapping site and is for reference only. Data layers that appear on this map may or may not be accurate, current, or otherwise reliable.

Notes
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Feet
309.8 77.4
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ATTACHMENT #4
cdd:531-40\bs\H:\COMMON\City Council\CC Agenda Items\2-23\07182023\COSCA OS ACQ ARROYO CONEJO\20230718 ARROYO CONEJO OPEN SPACE ACQUISITION ATTACHMENT 4.docx
Item No.9M
TO: Andrew P. Powers, City Manager
FROM: Jaime Boscarino, Finance Director
DATE: July 18, 2023
SUBJECT: Surety Bond Claim for Hanover Insurance Company against Thousand Oaks Fitness LLC DBA Athletic Society
RECOMMENDATION:

1. Approve settlement of surety bond claim with Hanover Insurance Company relating to Thousand Oaks Fitness LLC DBA Athletic Society in the amount of $43,645.17 and execute the Full & Final Release and Assignment related to the claim.

2. Find that this action is not a project as defined under the California Environmental Quality Act (CEQA).

FINANCIAL IMPACT:

No Additional Funding Requested. Sufficient funds are available to repay claims from Athletic Society members from the surety bond held by Hanover Insurance.

BACKGROUND:

On July 18, 1991, City Council passed an Ordinance to provide health club consumers with a means of obtaining a refund of pre-paid memberships when their health club closes and does not reimburse their members.

Pursuant to Thousand Oaks Municipal Code (TOMC) Section 5-22.03, every health club must provide a cash deposit, surety bond, or letter of credit in the amount of seventy-five thousand dollars ($75,000) or provide proof of exemption.

In the event of a health club closure, TOMC Section 5-22.05 requires a health club operator to refund its consumers in an amount equal to the prorated value of the remaining time of the consumer’s health club contract. If the health club operator fails to issue refunds within thirty (30) days, the City will place a claim against any surety bond provided and refund affected consumers.

Thousand Oaks Fitness LLC DBA Athletic Society (Athletic Society), opened in Thousand Oaks on November 6, 2017, and provided the Finance Department with a surety bond issued by Hanover Insurance Company (Hanover). Athletic Society Item No.9N
Surety Bond Claim for Hanover Insurance Company
July 18, 2023

closed their business on June 1, 2022, and failed to provide refunds to their customers for prepaid contracts that were in effect at the time of closure.

DISCUSSION/ANALYSIS:

The Finance Department was contacted by several Athletic Society customers regarding the sudden closure of the business and the failure of Athletic Society to provide the required refunds.

Finance staff worked with the Athletic Society customers to obtain copies of contracts and receipts in order to determine the refund amounts owed to customers. The City and Hanover reviewed the validity of each customer’s refund request and the City and Hanover agreed upon a total refund amount of $39,677.43. Pursuant to TOMC Section 5-22.06(d), the claim also includes a 10 percent (10%) administrative fee to the City in the amount of $3,967.74, bringing the total surety bond claim to $43,645.17. Athletic Society customers had six (6) months from the closure of the gym to file a claim.

Staff requests approval of the claim amount and authorization for the City Manager to execute the Full & Final Release and Assignment of the claim (Attachment #1). Upon City Council approval and receipt of funds from Hanover, refunds will be issued to all health club consumers who have filed verified claims. Health club customers will be required to sign a release.

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goals:

B. Provide municipal government leadership which is open and responsive to residents, and is characterized by ethical behavior, stability, promoting public trust, transparency, confidence in the future, and cooperative interaction among civic leaders, residents, business representatives, and staff, while recognizing and respecting legitimate differences of opinion on critical issues facing the City.

C. Operate City government in a fiscally and managerially responsible and prudent manner to ensure that the City of Thousand Oaks remains one of California's most desirable places to live, work, visit, recreate, and raise a family.

PREPARED BY: Tara Tosatto, Revenue Operations Manager
Attachment:

Attachment #1 – Full & Final Release and Assignment
FIN:390-60\tt\H:\COMMON\Council\2023\Public Services\071823 Surety Bond Claim Hanover Ins Co Staff Report.docx Item No.9N
CLAIM No.: 00-00039941
BOND No.: BM4-D359664

FULL & FINAL RELEASE AND ASSIGNMENT
KNOWN ALL MEN AND WOMEN BY THESE PRESENTS:

That, for and in consideration of the sum of Forty-Three Thousand Six Hundred Forty-Five and 17/100 Dollars ($43,645.17), to be paid by Hanover Insurance Company, a corporation organized under the laws of the State of New Hampshire, and its subsidiaries, affiliates, parents. successors and assigns (hereinafter collectively referred to as “Hanover”) the receipt and sufficiency of which is hereby acknowledged, the Undersigned does hereby release, remise, and discharge Hanover of and from any and all past, present and future liability that Hanover has had, now has, or may have, by virtue of its issuance of Bond No. BM4-D359664 naming Thousand Oak Fitness, LLC, as Principal, and the City of Thousand Oaks as Obligee; and In further consideration of the aforesaid payment, Undersigned does hereby sell, assign, transfer and set over unto Hanover the Undersigned’s claims, rights, causes of action, title and interest in and to the account which arose and became due and owing to Undersigned from Principal and does hereby irrevocably constitute and appoint Hanover, Undersigned’s lawful agent and attorneyin-fact, with full power and authority for its own use and benefit, but at its own cost, to ask demand, collect, and receive and give acquittance for the same, or any part thereof, to prosecute and withdraw any suits or proceedings at law or in equity therefore.

Undersigned does hereby agree to execute any and all further papers, releases and/or assignments that may be necessary to effectuate the purposes of this assignment. The rights assigned hereunder shall be in addition to those arising in law or equity in favor of a surety.

Dated this,______day of , 2023.

City of Thousand Oaks.:

By (signature): _____________________________________
Print Name: _______________________________________
Print Title: _________________________________________

THIS RELEASE MUST BE EXECUTED BEFORE A NOTARY PUBLIC
State of_______________________________
County of_____________________________
On________________before me_________________________________________, DATE, NAME, TITLE OF OFFICER – (e.g. JANE DOE, PRESIDENT) personally appeared____________________________________________________

NAME(S) OF SIGNER(S)
WITNESS my hand and official seal.

Signature of Notary_______________________________
ATTACHMENT #1
FIN:390-60\tt\H:\COMMON\Council\2023\Public Services\071823 Surety Bond Claim Attach 2 Release and Assignment Claim.pdf Item No.9N
TO: Andrew P. Powers, City Manager
FROM: Jaime Boscarino, Finance Director
DATE: July 18, 2023
SUBJECT: Security Patrol and Guard Services at Royal Oaks Site RECOMMENDATION:

1. Award service contract for security guard and patrol services at the city-owned Royal Oaks site to Taurus Protection, Inc. (Taurus), of Thousand Oaks, CA, effective August 1, 2023 and ending July 31, 2026 with two annual options to extend, with a not-to-exceed amount of $378,000 over the lifetime of the contract.

Contract not-to-exceed total includes $343,827 for regular services and $34,173 for additional/as-requested services.

2. Authorize expenditure in the total amount of $132,000 from A/C #001-3583-671- 5660 (General Fund, Contracted Services – Security), for FY 2023-24 and FY 2024-25.

3. Find that this action is not a project as defined under the California Environmental Quality Act.

FINANCIAL IMPACT:

No Additional Funding Requested. Funds are included in the Adopted FY 2023- 24 and FY 2024-25 General Fund Budget. The additional funds for the remaining contract term will be requested during the upcoming biennial budget process.

BACKGROUND:

Since 2003, the greenbelt area on Royal Oaks Drive off of Hampshire Road has been utilized as a gathering area for day laborers. The City originally provided security monitoring through Community Development Block Grant (CDBG) grants and since 2020 through the General Fund. The Facilities Division currently manages the site and security vendor. Taurus has been providing security guard and patrol services for the past three years and was originally selected through an informal solicitation process. The security services for the Royal Oaks site were most recently included in the Request for Proposals (RFP) process for citywide Item No.9O
Security Patrol and Guard Services at Royal Oaks Site
July 18, 2023

security services so a five-year agreement could be established to reduce staff time issuing informal RFPs each year.

DISCUSSION/ANALYSIS:

In accordance with Government Code section 4526 and Thousand Oaks Municipal Code section 3-10.401, staff solicited a formal Request for Proposals/Qualifications (RFP/Q) for Security Guard and Patrol Services at Various City Facilities on April 7, 2023, which was publicly advertised in the Thousand Oaks Acorn newspaper and the City’s e-procurement website. Unlike the low bid requirements of the Public Contract Code, contracts for professional, management, general, or special services should only be awarded to firms or persons who have demonstrated an adequate level of experience, competence, training, credentials, resources, staffing, and other professional qualifications necessary for more than a satisfactory performance of the services solicited.

The award of an RFP/Q is based upon a variety of factors that demonstrate best value to the agency for the solicited scope of service. The cost of the service may be considered as one of those factors; however, the lowest cost is not the sole factor in deciding who will be awarded the contract.

Locations for services in the RFP/Q included:

Facility Location

1. Civic Arts Plaza 2100 E. Thousand Oaks Blvd.

2. Child Care Center 110 S. Conejo School Rd.

3. Vacant Building/Property 384 Erbes Rd.

4. Day Labor Gathering Area Royal Oaks Dr.

5. Goebel Adult Community Center 1385 E. Janss Rd.

6. Hill Canyon Treatment Plant 9600 Santa Rosa Rd.

7. Hillcrest Center 401 and 403 W. Hillcrest Dr.

8. Janss House 482 Greenmeadow Dr.

9. Newbury Park Library 2331 Borchard Rd.

10. Thousand Oaks Library 1401 E. Janss Rd.

11. Thousand Oaks Teen Center 1375 E. Janss Rd.

12. Thousand Oaks Transportation Center 265 S. Rancho Rd.

Item No.9O
Security Patrol and Guard Services at Royal Oaks Site
July 18, 2023

From this effort, six proposals were received:

Vendor Location

1. Alltech Industries, Inc. Monterey Park, CA

2. Taurus Protection, Inc.* (Taurus) Thousand Oaks, CA

3. Securitas Security Services* (Securitas) Van Nuys, CA

4. Precision Private Security Yuba City, CA

5. Power Security Group Corona, CA

6. American Global Security Chatsworth, CA
*Selected Vendors
The staff evaluation committee consisted of representatives from the Public Works, Cultural Affairs, and Finance departments. Proposals were reviewed and evaluated based on qualifications, background, experience, price, and client references. Oral interviews were conducted with five of the proposers. The consensus of the committee was that Taurus provided unique experience and expertise to meet the needs for continued service at the Royal Oaks site, but another vendor would be selected for the citywide patrol and guard services.

Taurus has been performing well and previous reoccurring issues at the site have been reduced to rare occurrences. Taurus has addressed issues in cooperation with City staff. Because of staff’s confidence in Taurus, and their proven ability to perform, staff recommends continuing the relationship and awarding the Royal Oaks site? Drive scope of work to Taurus.

The proposed costs are reasonable, and increases are in sync with the current economic environment. Based on the above discussion, staff recommends approval of the agreement with Taurus (Attachment #1). The five-year agreement with Taurus guarantees consistency of service in a cost-effective manner. Contract negotiations with the potential provider for City-wide patrol and guard services are on-going and that contract award will be brought back to City Council at a later date.

COUNCIL GOAL COMPLIANCE:

Meets the following City Council goal:

C. Operate City government in a fiscally and managerially responsible and prudent manner to ensure that the City of Thousand Oaks remains one of California's most desirable places to live, work, visit, recreate, and raise a family.

Item No.9O
Security Patrol and Guard Services at Royal Oaks Site
July 18, 2023

F. Provide and enhance essential infrastructure to ensure that the goals and policies of the Thousand Oaks General Plan are carried out and the City retains its role and reputation as a leader in protecting the environment and preserving limited natural resources.

PREPARED BY: Elizabeth Perez, Facilities Manager
Attachments:

Attachment #1 – Agreement with Taurus Protection, Inc.

FIN: 201-10\edp\H:\COMMON\Council\2023\Facilities\071823 Security Guard Cont Award Staff Report.docx Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

Project Name: Security Patrol and Guard Services at
Royal Oaks Gathering Area

AGREEMENT FOR SECURITY SERVICES

BETWEEN THE CITY OF THOUSAND OAKS
AND
TAURUS PROTECTION, INC.

THIS AGREEMENT made and entered into this 1st day of August, 2023, by and between the CITY OF THOUSAND OAKS, a municipal corporation (hereinafter referred to as "City"), and TAURUS PROTECTION, INC., a corporation, (hereinafter referred to as "Service Provider"). City and Service Provider agree as follows:

1. RETENTION OF SERVICE PROVIDER
City hereby retains Service Provider, and Service Provider hereby accepts such engagement, to perform the services described in Section 2. Service Provider warrants it has the qualifications, experience, and facilities to properly and timely perform said services.

2. DESCRIPTION OF SERVICES
The general services to be performed by Service Provider are as follows and are more particularly described in the Scope of Work, attached as Exhibit “A” and incorporated herein: Security guard and patrol services at the Royal Oaks Gathering Area.

3. COMPENSATION AND PAYMENT
(a) Maximum. The total compensation earned by or payable to Service Provider, by City, for any and all services under this Agreement shall not exceed $378,000 (herein "Not-to-Exceed amount”).
(b) Rate. Service Provider shall be paid on an hourly/shift basis at the rates described in Service Provider’s Schedule of Fees, attached as Exhibit “B.” Any changes or modifications resulting in an increase to this fixed sum must be approved in writing by City’s Project Manager in advance, and may not surpass the Not-to-Exceed amount. The rates and expenses set forth in that exhibit shall be binding upon Service Provider until July 31, 2024, after which any change in the rates and expenses must be approved in writing by City’s Project Manager (City is to be given 60 days’ notice of any rate increase request,) provided the Not-to-Exceed amount is the total compensation due Consultant for all work described under this Agreement.
(c) Payment. All payments shall be made within 30 days after receipt of written verification from Service Provider of the actual compensation earned, in a form satisfactory to City's Project Manager.

ATTACHMENT #1
Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

(d) Reserve. Additional work reasonably encompassed by the Scope of Services described in Section 2, but which cannot be specifically identified until the work progresses, may be agreed upon only by valid Work Authorization issued by City’s Project Manager. No liability or right to compensation for this work shall exist without such Authorization. Costs for these services shall be at the rates set forth in Exhibit “B” or by negotiated lump sum. The available funds shall be limited to those identified as “Reserve” in said Exhibit.

4. CITY PROJECT MANAGER AND SERVICES BY CITY
The services to be performed by Service Provider shall be accomplished under the general direction of, and in coordination with, City's "Project Manager", as that staff person is designated by City from time to time, and who presently is, Elizabeth Perez, Facilities Manager.

City is to provide the following services under this Agreement:
a) Access to all facilities where service is to be performed.

5. TERMS OF PERFORMANCE
Non-Exclusivity. This Agreement is non-exclusive. City reserves the rights to retain, employ, or contract with other qualified services providers during the term of this Agreement on such occasions and in such circumstances as City shall determine are appropriate.

Ability to Perform. Service Provider warrants that it possesses, or has arranged through subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations.

Laws to be Observed. Service Provider shall keep itself fully informed of and shall observe and comply with all applicable state and federal laws as well as with Ventura County and City of Thousand Oaks ordinances, regulations and adopted codes during its performance of the work.

Payment of Taxes. The contract prices shall include provision for all taxes that Service Provider is required to pay. Service Provider is responsible for all taxes required to be paid under this Agreement.

Permits and Licenses. Service Provider shall procure all permits and licenses, pay all charges and fees, and give all necessary or legally required notices. Service Provider shall maintain a current Private Patrol Operator License during the term of this agreement.

Prevailing Wage. Service Provider may be obligated to pay prevailing wages under the California Labor Code. Service Provider agrees to indemnify, defend and hold City Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

harmless from any claim that prevailing wages should have been paid, and shall be liable for the payment of the same and any penalties thereon. It is the responsibility of Service Provider to be familiar with the California Labor Code, and failure or neglect of Service Provider to understand the California Labor Code shall in no way relieve Service Provider from any obligations.

Department of Industrial Relations Requirements. The Work may be subject to the payment of not less than prevailing wages under California Labor Code Section 1770 et seq. The work is subject to compliance monitoring and enforcement by the Department of Industrial Relations. No contractor or subcontractor may be awarded a contract for public work on a public works project unless currently registered with the Department of Industrial Relations pursuant to Labor Code section 1725.5.

Safety Provisions. Service Provider shall conform to the rules and regulations pertaining to safety established by Occupational Safety & Health Administration (OSHA) and the California Division of Industrial Safety.

Preservation of City Property. Service Provider shall provide and install suitable safeguards, approved by City, to protect City property from injury or damage. If City property is injured or damaged as a result of Service Provider's operations, it shall be replaced or restored within a reasonable time at Service Provider's expense. The facilities shall be replaced or restored to a condition as good as when Service Provider began work.

Subcontractors. Service Provider shall be solely responsible for ensuring that any subcontractors used in completing tasks under the Agreement comply with all pertinent laws and regulations as well as the relevant terms of this Agreement. City shall have no obligation to monitor or oversee subcontractors.

Immigration Act of 1986. Service Provider warrants on behalf of itself and all subcontractors engaged for the performance of this work that only persons authorized to work in the United States pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work hereunder.

Service Provider Non-Discrimination. In the performance of this work, Service Provider agrees that it will not engage in, nor permit such subcontractors as it may employ, to engage in discrimination in employment of persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons.

Work Delays. Should Service Provider be obstructed or delayed in the work required to be done hereunder by changes in the work or by any default, act, or omission of City, or by strikes, fire, earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of defense or war programs, then the time of completion may, at City's sole option, be extended for such periods as may be agreed upon by City and Service Provider.

Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

Inspection. Service Provider shall furnish City with every reasonable opportunity for City to ascertain that the services of Service Provider are being performed in accordance with the requirements and intentions of this Agreement. All work done and all materials furnished, if any, shall be subject to City's inspection and approval. The inspection of such work shall not relieve Service Provider of any of its obligations to fulfill its contract requirements.

Audit. Service Provider shall maintain, in accordance with generally accepted accounting principles, complete and accurate records of all activities and operations relating to this Agreement. Records, including but not limited to, timecards, employment records, work progress reports, reimbursements, invoices, project records, proprietary data and information, as well as licensed software and any electronic records shall be kept for a period of four years beyond the termination or expiration of this Agreement. Service Provider agrees that City, or its authorized representative, shall have the right to examine, audit, excerpt, copy or transcribe any of the records pertaining to this Agreement at any time during normal business hours. Service Provider shall reimburse City for all reasonable costs of the audit, including travel time and auditor costs, should such audit reveal an overcharge of five (5) percent or more. Any overcharge will be considered a breach of this Agreement and could be cause for termination. The obligations of this section shall be explicitly included in any subcontracts or other agreements entered into by Service Provider with respect to this Agreement, if allowed by this Agreement.

6. TERM, PROGRESS AND COMPLETION
This Agreement shall expire on July 31, 2026, unless Service Provider's authorized work assigned before the expiration of the term is not completed by that date. If work has not been completed during the allotted Agreement period, the terms and conditions of the Agreement, including all rights and obligations, shall remain in effect and bind the parties until the work is completed.

The City Manager or their designee shall have the authority to extend the term of the Agreement for a maximum number of two (2), one-year terms by written notification to the Service Provider within sixty (60) days prior to the expiration date of the Agreement, provided the Not-to-Exceed amount is the total compensation available under this Agreement without formal amendment.

Service Provider shall not commence work on the services to be performed until (i) Service Provider furnishes proof of insurance as required by paragraph 9 below, and (ii) City gives written authorization to proceed with the work provided by City’s Project Manager.

7. NO ASSIGNMENT
This Agreement is not assignable by Service Provider without City's prior consent in writing.

8. HOLD HARMLESS AND INDEMNITY
Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

(a) Hold Harmless for Service Provider's Damages. Service Provider holds City, its elected officials, officers, agents, employees and volunteers, harmless from all of Service Provider's claims, demands, lawsuits, judgments, damages, losses, injuries or liability to Service Provider, to Service Provider's employees, to Service Provider’s contractors or subcontractors, or to the owners of Service Provider's firm, which damages, losses, injuries or liability occur during the work or services required under this Agreement, or performance of any activity or work required under this Agreement. (b) Defense and Indemnity of Third Party Claims/Liability. Service Provider shall indemnify, defend with legal counsel approved by City, and hold harmless City, its elected officials, officers, agents, employees and volunteers from and against all liability including, but not limited to, loss, damage, expense, cost (including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation) of every nature arising out of or in connection with Service Provider’s negligence, recklessness or willful misconduct in the performance of work hereunder or its failure to comply with any of its obligations contained in the Agreement, except such loss or damage which is caused by the sole or active negligence or willful misconduct of City.

Should conflict of interest principles preclude a single legal counsel from representing both City and Service Provider, or should City otherwise find Service Provider’s legal counsel unacceptable, then Service Provider shall reimburse City its costs of defense, including without limitation reasonable legal counsel fees, expert fees and all other costs and fees of litigation. Service Provider shall promptly pay City any final judgment rendered against City (and its officers, officials, employees and volunteers) with respect to claims determined by a trier of fact to have been the result of Service Provider’s negligent, reckless or wrongful performance. It is expressly understood and agreed that the foregoing provisions are intended to be as broad and inclusive as is permitted by the law of the State of California and will survive termination or expiration of this Agreement.

Service Provider’s obligations under this section apply regardless of whether or not such claim, charge, damage, demand, action, proceeding, loss, stop notice, cost, expense, judgment, civil fine or penalty, or liability was caused in part or contributed to by an Indemnitee. However, without affecting the rights of City under any provision of this Agreement, Service Provider shall not be required to indemnify and hold harmless City for liability attributable to the active negligence of City, provided such active negligence is determined by agreement between the parties or by findings of a court of competent jurisdiction. In instances where City is shown to have been actively negligent and where City’s active negligence accounts for only a percentage of the liability involved, the obligation of Service Provider will be for that entire portion or percentage of liability not attributable to the active negligence of City.
(c) Nonwaiver. City does not waive, nor shall be deemed to have waived, any indemnity, defense or hold harmless rights under this section because of the acceptance by City, or the deposit with City, of any insurance certificates or policies described in Section 9.

Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

9. MINIMUM SCOPE AND LIMIT OF INSURANCE
Without limiting Service Provider’s indemnification of City, and prior to commencement of Work, Service Provider shall obtain, provide, and maintain at its own expense during the term of this Agreement, and any extension thereof, policies of insurance of the type and amounts described below in a form that is satisfactory to City.

Coverage shall be at least as broad as:
(a). Commercial General Liability (CGL): Service Provider shall, at Service Provider’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry General Liability insurance coverage at least as broad as Insurance Services form CG 00 01 in an amount not less than $2,000,000 per occurrence, $4,000,000 general aggregate for bodily injury, personal and advertising injury and property damage, including with limitation, blanket contractual liability. (b). Automobile Liability: Service Provider shall, at Service Provider’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry Automobile Liability insurance coverage at least as broad as Insurance Services form CA 00 01 or the exact equivalent covering bodily injury and property damage for all activities of Service Provider arising out of or in connection with the work to be performed under this Agreement, including coverage of any owned, hired, non-owned, or rented vehicles, in an amount not less than $1,000,000 combined single limit for each accident. (c). Worker’s Compensation: Service Provider shall, at Service Provider’s sole cost and expense and throughout the term of this Agreement, and any extensions thereof, carry workers’ compensation statutory benefits as required by law with employer’s liability limits no less than $1,000,000 per accident for bodily injury or disease.

Service Provider shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees and volunteers for all work performed by Service Provider, its employees, agents and subcontractors.

If Service Provider maintains higher limits than the minimum shown above, City requires and shall be entitled to coverage for the higher limits maintained by Service Provider. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to City. Additional coverage types or riders may be required if armed security guards are used at any point during the term of the agreement.

Other Insurance Provisions
The insurance policies are to contain, or be endorsed to contain, the following provisions:

Additional Insured Status
City, its elected officials, officers, agents, employees and volunteers are to be covered as additional insureds on the CGL policy with respect to liability arising out of work or operations performed by or on behalf of Service Provider including materials, parts, or Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

equipment furnished in connection with such work or operations. General liability coverage can be provided in the form of an endorsement to Service Provider’s insurance (at least as broad as ISO Form CG 20 10 11 85 or if not available, through the addition of both CG 20 10 10 01 and CG 20 37 10 01 if a later edition is used). The provision shall also apply to any excess liability policies. In addition, Service Provider shall ensure that the automobile liability policy contains a provision covering City as an additional insured, and shall obtain an endorsement to that effect if it does not.

Excess Insurance
The limits of insurance required in this agreement may be satisfied by a combination of primary and umbrella or excess insurance. Umbrella or excess policies shall provide coverage at least as broad as specified for underlying coverages and covering those insured in the underlying policies. Coverage shall be “pay on behalf” with defense costs payable in addition to policy limits. There shall be no cross-liability exclusion of claims or suits by one insured against the other. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City as required in written contract or agreement before City’s own insurance or self-insurance shall be called upon to protect it as a named insured.

City’s Rights of Enforcement
In the event any policy of insurance required under this Agreement does not comply with these specifications or is cancelled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary and any premium paid by City will be promptly reimbursed by Service Provider, or City will withhold amounts sufficient to pay premium from Service Provider’s payments. In the alternative, City may cancel this Agreement.

City’s Right to Revise Specifications
City reserves the right at any time during the term of the Agreement to change the amounts and types of insurance required by giving Service Provider ninety (90) days advance written notice of such change. If such change results in substantial additional cost to Service Provider, City and Service Provider may renegotiate Service Provider's compensation.

Primary and Non-Contributory Coverage
For any claims related to this Agreement, Service Provider's insurance coverage shall be primary insurance as respects City, its elected officials, officers, agents, employees and volunteers. Any insurance or self-insurance maintained by City, its elected officials, officers, agents, employees or volunteers shall be excess of Service Provider's insurance and shall not contribute with it and be at least as broad as CG 20 01 04 13.

Notice of Cancellation
Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

Each insurance policy required above shall provide that coverage shall not be canceled, except with notice to City.

Deductibles and Self-Insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by City. City may require Service Provider to provide proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention.

Acceptability of Insurers
All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with a current A.M. Best’s rating of no less than A: VII, (unless otherwise acceptable to City).

Waiver of Subrogation
All insurance coverage maintained or procured pursuant to this Agreement shall be endorsed to waive subrogation against City, its elected officials, officers, agents, employees or volunteers or shall specifically allow Service Provider, or others providing insurance evidence in compliance with these specifications, to waive their right of recovery prior to a loss. Service Provider hereby waives his own right of recovery against City, and shall require similar written express waivers and insurance clauses from each of its subcontractors. Copies of these waivers shall be submitted to City prior to commencement of work.

Claims Made Policies
If any of the required policies provided coverage on a claims-made basis:
(a). The Retroactive Date must be shown and must be before the date of the Agreement or the beginning of contract work.
(b). Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work required under this Agreement.
(c). If coverage is canceled or non-renewed, and not replaced with another claimsmade policy form with a Retroactive Date prior to the Agreement effective date, Service Provider must purchase “extended reporting” coverage for a minimum of five (5) years after completion of Agreement work.

Verification of Coverage
Service Provider shall provide City with copies of certificates (on City certificate form or an Accord form as modified per City direction) for all policies, with the appropriate named Item No.9O
FIN:201-10\aw\ep\H:\COMMON\Council\2023\Facilities\071823 Security Guard Taurus Award Attach 1. docx

additional insured coverage and an endorsement that they are not subject to cancellation without 30 days prior written notice to City. All certificates and endorsements are to be received and approved by City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive Service Provider's obligation to provide them. City reserves the right to require complete, certified copies of all required insurance policies, including endorsements required by these specifications, at any time.

Subcontractors
Service Provider shall require and verify that all subcontractors maintain insurance meeting all the requirements stated herein, and Service Provider shall ensure that City is an additional insured on insurance required from subcontractors. For CGL coverage, subcontractors shall provide coverage with a form at least as broad as CG 20 38 04 13.

10. RELATION OF THE PARTIES
(a) Service Provider is and shall at all times remain as to the City a wholly independent contractor. The personnel performing the services under this Agreement on behalf of Contractor shall at all times be under Service Provider's exclusive direction and control. Neither City nor any of its officers, employees, agents, or volunteers shall have control over the conduct of Service Provider or any of Service Provider's officers, employees, or agents except as set forth in this Agreement. Service Provider shall not at any time or in any manner represent that it or any of its officers, employees or agents are in any manner officers, employees or agents of the City. Service Provider shall not incur or have the power to incur any debt, obligation or liability whatever against City, or bind City in any manner.
(b) No employee benefits shall be available to Service Provider in connection with the performance of this Agreement. Except for the fees paid to Service Provider as provided in the Agreement, City shall not pay salaries, wages, or other compensation to Service Provider for performing services hereunder for City. City shall not be liable for compensation or indemnification to Service Provider for injury or sickness arising out of performing services hereunder.

11. TERMINATION BY CITY
City may terminate any portion or all of the services agreed to be performed under this Agreement by notifying Service Provider in writing ten (10) calendar days prior to any termination. In the event of such termination, Service Provider shall have the right and obligation to immediately assemble work in progress for the purpose of closing out the job. All compensation for actual work performed and charges outstanding at the time of termination shall be payable by City to Service Provider within 30 days following submission of a final statement by Service Provider.

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12. CORRECTIONS
Service Provider shall correct, at its expense, all errors in the work which may be disclosed during City's review of Service Provider's work. Should Service Provider fail to make such correction in a reasonably timely manner, such correction shall be made by City, and the cost thereof shall be charged to Service Provider.

13. ACCEPTANCE OF FINAL PAYMENT CONSTITUTES RELEASE
The acceptance by Service Provider of the final payment made under this Agreement shall operate as and be a release of City from all claims and liabilities for compensation to Service Provider for anything done, furnished or relating to Service Provider's work or services. Acceptance of payment shall be any negotiation of City's check or the failure to make a written extra compensation claim within five (5) calendar days of the receipt of that check, whichever occurs first. However, any approval or payment by City shall not constitute, nor be deemed, a release of the responsibility and liability of Service Provider, its employees, subcontractors, agents and consultants for the accuracy and competency of the information provided and/or work performed; nor shall such approval or payment be deemed to be an assumption of such responsibility or liability by City for any defect or error in the work prepared by Service Provider, its employees, subcontractors, agents and consultants.

14. WAIVER; REMEDIES CUMULATIVE
Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, irrespective of the length of time for which such failure continues, shall not constitute a waiver of such party's right to demand strict compliance by such other party in the future. No waiver by a party of a default or breach of the other party shall be effective or binding upon such party unless made in writing by such party, and no such waiver shall be implied from any omissions by a party to take any action with respect to such default or breach. No express written waiver of a specified default or breach shall affect any other default or breach, or cover any other period of time, other than any default or breach and/or period of time specified.

15. CONFLICT OF INTEREST
Service Provider is unaware of any City employee or official that has a financial interest in Service Provider's business. During the term of this Agreement and/or as a result of being awarded this Agreement, Service Provider shall not offer, encourage or accept any financial interest in Service Provider's business by any City employee or official. If a portion of Service Provider's services called for under this Agreement shall ultimately be paid for by reimbursement from and through an agreement with a developer of any land within City or with a City franchisee, Service Provider warrants that it has not performed any work for such developer/franchisee within the last 12 months, and shall not negotiate, offer or accept any contract or request to perform services for that identified developer/franchisee during the term of this Agreement.

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16. NON-APPROPRIATION OF FUNDS
Payments due and payable to Service Provider for current services are within the current budget and within an available, unexhausted and unencumbered appropriation of City funds. In the event City has not appropriated sufficient funds for payment of Service Provider’s services beyond the current fiscal year, this Agreement shall cover only those costs incurred up to the conclusion of the current fiscal year.

17. GOVERNING LAW; CAPTIONS; ENTIRE AGREEMENT BETWEEN PARTIES This Agreement, and the rights and obligations of the parties, shall be governed and interpreted in accordance with the laws of the State of California. The provisions of this Agreement shall be construed as a whole according to its common meaning of purpose of providing a public benefit and not strictly for or against any party. Wherever required by the context, the singular shall include the plural and vice versa, and the masculine gender shall include the feminine or neutral genders or vice versa. The captions or headings in this Agreement are for convenience only and in no other way define, limit or describe the scope or intent of any provision or section of the Agreement.

This Agreement supersedes any other agreements, either oral or in writing, between the parties hereto with respect to the rendering or services and contains all of the covenants and agreements between the parties with respect to said services. Any modifications of this Agreement will be effective only if it is in writing and signed by the party to be charged.

18. MITIGATION OF DAMAGES
In all situations arising out of this Agreement, the parties shall attempt to avoid and minimize the damages resulting from the conduct of the other party.

19. TAXPAYER IDENTIFICATION NUMBER
Service Provider shall provide City with a complete Request for Taxpayer Identification Number and Certification, Form W-9, as most recently issued by the Internal Revenue Service.

20. MODIFICATION/AMENDMENT OF AGREEMENT
Any amendment, modification, or variation of the terms or tasks of this Agreement shall be in writing and shall be effective only upon the mutual written approval of the City Manager, or his designee, and Service Provider.

21. AUTHORIZATION
Each party has expressly authorized the execution of this Agreement on its behalf and binds said party and its respective administrators, officers, directors, shareholders, divisions, subsidiaries, agents, employees, successors, assigns, principals, partners, joint venturers, insurance carriers and any others who may claim through it to this Agreement.

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22. PARTIAL INVALIDITY
If any provision in this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.

23. NOTICES
Any notice required to be given hereunder shall be deemed to have been given by depositing said notice in the United States mail, postage prepaid, and addressed as follows:

TO CITY:

Elizabeth Perez, Facilities Manager
City of Thousand Oaks
Finance Dept/Facilities Div.
2100 E. Thousand Oaks Blvd.

Thousand Oaks, CA 91362
TO SERVICE PROVIDER:

Shane Quartararo, CFO/Owner
Taurus Protection, Inc.
275 E. Hillcrest Dr., #160-225
Thousand Oaks, CA 91360

24. SIGNATURES
(a) Counterparts. This Agreement may be executed in two or more counterparts, each of which together shall be deemed an original, but all of which together shall constitute one and the same instrument.
(b) Scanned Signatures. In the event that any signature is delivered by facsimile transmission or submitted electronically as a scanned image (i.e. files with .pdf, .tiff or .jpeg extensions), such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or scanned signature page were an original thereof.

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(c) Digital/Electronic Signatures. This Agreement may be executed through the use of digital or electronic signatures provided they meet the requirements of the Electronic Signatures in Global and National Commerce (ESIGN) Act and the California Uniform Electronic Transactions Act (UETA) and are produced using a City-approved method. The presence of an electronic signature on this document shall be construed as the parties’ consent to do business electronically.

In concurrence and witness whereof, this Agreement has been executed by the parties effective on the date and year first written above.

TAURUS PROTECTION, INC.
__________________________________
By: Shane Quartararo
Title: CFO/Owner
__________________________________
By: Tom Roberts
Title: CEO/Owner
ATTEST: CITY OF THOUSAND OAKS
_______________________________ ________________________________ Laura B. Maguire, City Clerk Kevin McNamee, Mayor
APPROVED AS TO ADMINISTRATION:
_________________________________
Andrew P. Powers, City Manager
APPROVED BY DEPARTMENT HEAD: APPROVED AS TO FORM:

Office of the City Attorney
________________________________ _______________________________ Jaime Boscarino, Finance Director Tracy Friedl, Assistant City Attorney Item No.9O
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EXHIBIT A
TAURUS PROTECTION, INC.

Security Guard and Patrol Services at Royal Oaks Gathering Area

SCOPE OF WORK
Service Providers shall provide security services at the Royal Oaks Gathering Area, located at 3120 Royal Oaks Drive (shown on Exhibit C), including, the following tasks:

1. Provide one (1) unarmed guard seven (7) days a week, all year except the following eight days associated with major holidays: Memorial Day (Fourth Monday in May), Independence Day (July 4), Labor Day (First Monday in September), Thanksgiving (Third Thursday in November), Christmas/Eve (December 24-25), New Year’s Eve/Day (December 31 & January 1). Guard will work a total of six (6) hours each day as a continual shift. Shift time shall be 6:00 a.m. through 12:00 p.m. City may reduce the length or change the start/end times of the shift based on demand or time of year. City will provide written notice prior to any shift revisions.

2. Upon arrival at Site at beginning of the shift, guard will unlock the portable toilet enclosure and inspect each toilet’s service log. If a service has been missed, or there is damage/vandalism to the toilets, guard shall immediately report this to the City of Thousand Oaks Facilities Division at (805) 449-2214, or after business hours to the on-call staff at (805) 444-9186.

3. Prior to the end of the shift, guard shall re-inspect toilets and Site, making notes as needed and lock portable toilet enclosure prior to leaving Site.

4. Service Provider will be given a key to the portable toilet enclosure for the guard’s use. Guard must ensure the security of the key and immediately report a lost or stolen key to the Facilities Division at (805) 449-2214, or after business hours to the on-call staff at (805) 444-9186.

5. Guard shall provide daily reports and email them to [email protected] and copy [email protected], with the following information:
a. Number of people on-site at the beginning each shift and the end of each shift.
b. Damage to the property or Site, including graffiti or excessive litter. c. Unusual interactions with the users of the Site that may or may not result in police intervention.
d. People found soliciting work in the surrounding neighborhood patrol area (Exhibit C).

6. Guard shall patrol the surrounding area in the “Neighborhood Patrol Area” specified on Exhibit C at the beginning of the shift after initial work is completed, mid-way through the shift, and prior to the end of the shift to identify individuals Item No.9O
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soliciting work off-site. Anyone found soliciting work off-site should be asked to move to the Royal Oaks site area, and if they are uncooperative, local police should be called.

7. While on-site, guard shall enforce all Site rules (Exhibit C) which are posted and maintain order with all Site users. It is expected that guards shall attempt to resolve conflicts and correct behavior to the best of their abilities prior to contacting police if necessary. Guard may sit in a company-marked vehicle when not completing tasks required in this scope of work as long as the entire Site is visible from the vehicle.

8. Guard shall enforce use of the semi-circular driveway for drop-offs or pick-ups only.

No parking is allowed in that area as signage indicates.

9. City staff shall have a contact phone number of the guard, supervisor or dispatch if contact is required during a shift.

10.Guards must be able to communicate in English with City staff and bilingual (Spanish) guards are preferred.

11.Uniform and Equipment - all Service Provider’s employees shall wear a company uniform while on duty unless otherwise specified.

12.Neglect of Duties - Neglect of duties includes sleeping while on duty, unreasonable delays or failures to carry out assigned tasks, conducting personal affairs during duty hours, and refusing to render assistance or cooperate in upholding the integrity of the City’s security. Service Provider will be held responsible for damages and/or costs determined to be a result of neglect of duties. City reserves the right to request replacement of any guard found in violation of this or any other contract requirement, and Service Provider shall provide a replacement guard within 48 hours.

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EXHIBIT B
TAURUS PROTECTION, INC.

Security Guard and Patrol Services at Royal Oaks Gathering Area

SCHEDULE OF COSTS/FEES

SUMMARY OF SCHEDULE OF COSTS
Yearly 1 Cost (6-hour shifts/day)
July 18, 2023 though July 17, 2024 = $62,118.00
Estimated Cost For Years 2, 3,
and Optional Contract Years 4 and 5* = $281,709.00
Reserve** = $34,173.00
Not-to-Exceed Amount = $378,000.00
*Estimated costs based on current escalation. Actual amounts may be higher, must be approved by City in writing, and must be within the current not-to-exceed amount. **Reserve to be used as described in Section 3(d) of Agreement. Available Reserve funds may also be used to cover Optional Years 4 and 5 extensions if necessary.

HOURLY SERVICE RATES**
Standard
Hourly Rate Unarmed Security Guard = $32.00 Patrol Officer = $34.00 Overtime
Hourly Rate Unarmed Security Guard = $48.00 Patrol Officer = $51.00 Holiday* Hourly
Rate Unarmed Security Guard = $48.00 Patrol Officer = $51.00 Minimum hours required for services not include in scope of work: 4 hours
The following holidays do not require security and patrol services: Memorial Day (Fourth Monday in May), Independence Day (July 4), Labor Day (First Monday in September), Thanksgiving (Third Thursday in November), Christmas/Eve (December 24-25), New Year’s Eve/Day (December 31 & January 1).
*Years 2,3 and Optional contract years 4 and 5 are subject to annual increases. **Reserve includes any approved periodic Security Guard and/or Patrol Officer needs as deemed necessary by City’s Project Manager and mutually agreed to in advance in writing. Extra services will be on an as-needed basis and charged as listed in the hourly security and patrol services cost schedule.

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EXHIBIT C
TAURUS PROTECTION, INC.

Security Guard and Patrol Services at Royal Oaks Gathering Area

SITE RULES, LOCATION MAP AND PATROL AREA
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ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE

CITY OF THOUSAND OAKS, CALIFORNIA,
AMENDING TITLE 1, "GENERAL PROVISIONS," BY
ADDING CHAPTER 16, "DISTRICT-BASED
ELECTIONS," OF THE THOUSAND OAKS MUNICIPAL

CODE TO ESTABLISH A DISTRICT-BASED

ELECTORAL SYSTEM, ADOPT A MAP DESCRIBING

THE BOUNDARIES OF EACH DISTRICT, AND
IDENTIFY THE DISTRICTS TO HOLD A DISTRICTBASED ELECTION IN 2024 AND 2026 TO IMPLEMENT DISTRICT-BASED ELECTIONS (ELECTIONS CODE §
10010)
WHEREAS, the City of Thousand Oaks supports the full participation of all citizens in electing Members of the City Council; and
WHEREAS, the City of Thousand Oaks currently elects its five (5) Members of the City Council using an at-large election system, where candidates may reside in any part of the City and each Member of the City Council is elected by the voters of the entire City; and
WHEREAS, on March 15, 2023, the City received a letter from the law firm of Radcliff Mayes, LLP alleging the City's at-large method of electing members of City Council violates the California Voting Rights Act (CVRA/the Act). The letter demanded the City transition to district-based elections or face litigation under the CVRA; and
WHEREAS, under the provisions of California Elections Code Section 10010, a city that changes from an at-large City Council method of election to a district-based City Council method of election requires a total of four public hearings, which includes at least two public hearings regarding potential voting district boundaries prior to the release and consideration of any draft voting district maps, and two public hearings following the release of draft voting district map(s); and
WHEREAS, the council finds the most suitable by-district method of electing councilmembers is to divide the city into five districts and have the residents of each district elect a resident who resides in their district to the council; and

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WHEREAS, at a regular meeting of the City Council of the City of Thousand Oaks held on April 25, 2023, the City Council adopted Resolution No. 2023-011 that initiated the process of establishing a district-based election system and adopting the schedule therefore; and
WHEREAS, thereafter, at a regular meeting of the City Council of the City of Thousand Oaks held on May 9, 2023, and May 16, 2023, respectively, pursuant to California Elections Code Section 10010(a)(1), the City Council held public hearings where the public was invited to provide input regarding the composition of the City's voting districts before any draft maps were drawn, and the City Council of the City of Thousand Oaks considered and discussed the same; and WHEREAS, thereafter, at a regular meeting of the City Council of the City of Thousand Oaks held on June 20, 2023, and July 11, 2023, respectively, pursuant to California Elections Code Section 10010(a)(2), the City Council held public hearings where the public was invited to provide input regarding the content of the draft maps that had been released at least seven days before the meetings of June 20, 2023, and July 11, 2023, and the proposed sequence of elections, and the City Council of the City of Thousand Oaks considered and discussed the same; and
WHEREAS, at the regular meeting of the City Council of the City of Thousand Oaks held on July 11, 2023, the City Council held the final public hearing on the proposal to establish district boundaries, reviewed additional public input, formally selected the voting district map known as the "Map 106B", (attached hereto as Exhibit A), and selected Council District Nos. 4 and 5 seats for the 2024 ballot, and Council District Nos. 1, 2, and 3 seats for the 2026 ballot, incorporated in, and set forth in this Ordinance, which was introduced for a first reading at the same regular meeting of the City Council of the City of Thousand Oaks; and WHEREAS, throughout the foregoing process, the City engaged in a significant amount of public outreach and engagement above and beyond the public hearings and other procedures required by California Elections Code Section 10010, but not limited to, public workshops held on May 11, 2023; June 3, 2023; June 22, 2023; and June 24, 2023; and a pop-up event held on June 23, 2023; and
WHEREAS, the purpose of this Ordinance is to enact provision providing for the election of Members of the City Council of the City of Thousand Oaks on a district-based system for single-member districts as reflected in Exhibit A to this Ordinance, in furtherance of the purposes of the California Voting Rights Act of 2001, Elections Code Section 14025 et seq., and to implement the guarantees of Section 7 of Article I and of Article II of the California Constitution.

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NOW, THEREFORE, the Council of the City of Thousand Oaks does hereby ordain as follows:

Part 1
Section 1. RECITALS. The foregoing recitals are true and correct.

Part 2
Section 2. AMENDMENT OF CODE. Title 1, "General Provisions," of the City of Thousand Oaks Municipal Code is hereby amended to read as follows:

Chapter 16
District-based Elections
Sections:
1-16.01 Purpose.
1-16.02 District-Based Electoral System.
1-16.03 Establishment of City Council Electoral Districts. 1-16.04 Election Schedule.
1-16.01 Purpose.

The City’s at-large voting system used to elect members of the City Council was challenged under the California Voting Rights Act. In response, the City Council voted to voluntarily transition from at-large elections to districtbased elections. The purpose of this Chapter is to establish the respective districts; set forth the schedule for district elections; and set forth the other procedures applicable to the City’s transition from at-large elections to district-based elections.
1-16.02 District-Based Electoral System.

Pursuant to California Government Code Section 34886 and the schedule established in Section 1-16.03 of this Chapter, beginning in November 2024, Members of the City Council shall be elected on a district-based electoral system from five (5) single-member City Council Districts. For purposes of this Chapter, the term 'district-based electoral system' shall mean the election of Members of the City Council by the voters of the district alone. The City's district-based electoral system shall be conducted in accordance with California Government Code Section 34871, subdivision (a).
1-16.03 Establishment of City Council Electoral Districts.

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(a) Pursuant to Section 1-16.02 of this Chapter, Members of the City Council shall be elected on a district-based electoral system, from the five City Council Districts described as follows, which shall continue in effect until they are amended or repealed in accordance with law:
(1) City Council District 1 shall comprise all that portion of the City reflected in Exhibit A.
(2) City Council District 2 shall comprise all that portion of the City reflected in Exhibit A.
(3) City Council District 3 shall comprise all that portion of the City reflected in Exhibit A.
(4) City Council District 4 shall comprise all that portion of the City reflected in Exhibit A.
(5) City Council District 5 shall comprise all that portion of the City reflected in Exhibit A.
(b) Members of the City Council shall be elected in the electoral districts established by this Section and subsequently reapportioned pursuant to applicable State and federal law.
(c) Except as provided in subdivision D herein and notwithstanding any other provision of this Chapter, once this Ordinance is fully phased in, the Member of the City Council elected to represent a district must reside in that district and be a registered voter in that district, and any candidate for City Council must live in, and be a registered voter in, the district in which he or she seeks election at the time nomination papers are issued, pursuant to Elections Code Section 10227.

Termination of residency in a district by a Member of the City Council shall create an immediate vacancy for that Council district unless a substitute residence within the district is established within thirty (30) days after the termination of residency.
(d) Notwithstanding any other provision of this Section, and consistent with the requirements of California Government Code Section 36512, the Members of the City Council in office at the time the Ordinance codified in this Chapter takes effect shall continue in office until the expiration of the full term to which he or she was elected and until his or her successor is qualified. At the end of the term of each Member of the City Council, that Member of the City Council's successor shall be elected on a district-based system in the districts established in Section 1-16.02 of this Chapter.

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1-16.04 Election Schedule.

Except as otherwise required by California Government Code Section 36512, the Members of the City Council shall be elected in Council Districts Nos. 4 and 5 beginning at the General Municipal Election in November, 2024, and every four years thereafter, as such Council Districts shall be amended. Members of the City Council shall be elected from Council Districts Nos. 1, 2, and 3 beginning at the General Municipal Election in November, 2026, and every four years thereafter, as such Council Districts shall be amended."
Section 3. MAP. A map showing the districts described in this Ordinance and codified in Section 1-16.03 of the City of Thousand Oaks Municipal Code is attached hereto as Exhibit A and incorporated herein by reference.

Section 4. SEVERABILITY. If any section, subsection, sentence, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional by a decision of any court of competent jurisdiction, such decision will not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have passed this Ordinance and each and every section, subsection, sentence, clause, or phrase not declared invalid or unconstitutional without regard to whether any portion of the Ordinance would be subsequently declared invalid or unconstitutional.

Section 5. TECHNICAL ADJUSTMENTS. If necessary to facilitate the implementation of this Ordinance, the City Clerk is authorized to make technical adjustments to the district boundaries that do not substantively affect the populations in the districts, the eligibility of candidates, or the residence of elected officials within any district. The City Clerk shall consult with the City Manager and City Attorney concerning any technical adjustments deemed necessary and shall advise the City Council of any such adjustments required in the implementation of the districts.

Section 6. CONFLICTING TERMS. To the extent the terms and provisions of this Ordinance may be inconsistent or in conflict with the terms or conditions of any prior City ordinance, motion, resolution, rule or regulation governing the same subject, the terms of this Ordinance shall prevail with respect to the subject matter thereof.

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Part 3
(Uncodified)
Severability
If any section, subsection, clause, or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this title; it being hereby expressly declared that this title, and each section, subsection, sentence, clause and phrase hereof, would have been prepared, proposed, adopted, approved and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

Part 4
(Uncodified)
Effective Date
The Ordinance shall take effect immediately pursuant to California Government Code section 36937(a).

PASSED AND ADOPTED this xx day of xx, 2023, by the following vote:

Ayes:

Noes:

Absent:
_______________________________
Kevin McNamee, Mayor
City of Thousand Oaks, California
ATTEST/CERTIFY:
________________________________
Laura B. Maguire, City Clerk
Date Attested: ____________________

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APPROVED AS TO FORM
Office of the City Attorney
________________________________
Tracy M. Noonan, City Attorney
APPROVED AS TO ADMINISTRATION:
________________________________
Andrew P. Powers, City Manager
Introduced: July 11, 2023
Published: July 13, 2023, and July 25, 2023
Ordinance No.:

The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the City of Thousand Oaks City Council on the date cited above.

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EXHIBIT A
Item No.9P
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ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE

CITY OF THOUSAND OAKS ADOPTING SPECIFIC
PLAN NO. 24 (2150 WEST HILLCREST DRIVE), AND
ITS ASSOCIATED ZONE CHANGE; AND

AUTHORIZING THE LAND USES AND

DEVELOPMENT STANDARDS IN SAID SPECIFIC
PLAN (APPLICANT: LATIGO HILLCREST LLC)
The City Council of the City of Thousand Oaks does hereby ordain as follows:

Part I
Based upon the information contained in the Staff Report, exhibits, and public testimony given at a public hearing on June 20, 2023 and July 11, 2023, the City Council approved this Specific Plan with the following findings:

WHEREAS, the Thousand Oaks Planning Commission held a noticed public hearing on June 5, 2023 and thereafter, recommended that City Council certify the Final Environmental Impact Report No. 2022-70774-EIR, and that the City Council approve General Plan Land Use Element Amendment (LU) 2021- 70169-LU; Zoning Change (Z) 2022-70776-Z; Specific Plan (SP) 2022-70778-SP; Development Agreement (DAGR) 2022-70777-DAGR; Development Permit (DP) 2022-70773-DP; Special Use Permit (SUP) 2022-70779-SUP; and Protected Tree Permit (PTP) 2022-70780-PTP to regulate specific land uses and design standards for approximately 8.19 net acres of property located at 2150 West Hillcrest Drive; and,
WHEREAS, the zoning on the property is currently “Community Shopping Center (C-3)” and new designation would be “Specific Plan-24 (SP-24)” to facilitate the development of a four-story mixed-use development comprised of 333 multifamily residential units (including 30 very low-income affordable units and 3 moderate-income units) and 5,300 square feet of commercial restaurant space; and
WHEREAS, upon notice duly given, a hearing was held at the regular meeting of the City Council of the City of Thousand Oaks on June 20, 2023 and July 11, 2023, at which time evidence, both oral and written, including a Staff Report and a Final Environmental Impact Report, were presented and received, and testimony was taken from all interested parties appearing in the matter; and Item No.9Q
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WHEREAS, an ordinance is required to formalize Council action pursuant to Section 65453 of the California Government Code, and this ordinance is adopted; therefore, for that purpose and reflects the action of a majority of the members of the City Council (voting 5 - 0) in rendering a decision on this matter following the public hearing at the regular meeting of June 20, 2023 and July 11, 2023.

Part 2
NOW, THEREFORE, BE IT RESOLVED that pursuant to Government Code Sections 65453 and 65850, the City Council of the City of Thousand Oaks does hereby ordain as follows:

SECTION 1. The Final Environmental Impact Report No. 2022-70774-EIR is certified and approved, along with the corresponding General Plan amendment and development entitlements.

SECTION 2. 2022-70776-Z is hereby approved and found to be consistent with all Elements of the Thousand Oaks General Plan as proposed in Exhibit "A," based on the following findings:
(a) The proposed zone change will re-designate approximately 8.28-acres of land from Community Shopping Center (C-3) to the Hillcrest Specific Plan– 24 (SP-24) in order to remain consistent with the subject property’s General Plan Land Use Element designation, which will be Commercial/Residential, upon adoption by City Council. This designation permits commercial uses, residential uses, or a combination of both commercial and residential, in support of the General Plan goal “to provide the framework for a planned and unified community containing a balance of living, working, shopping, educational, civic, cultural and recreational facilities.”. The proposed project includes commercial and residential development on the site. Further, the proposed project is consistent with the General Plan goals to provide opportunities “enabling commercial, industrial and residential development to flourish in an efficient and compatible manner.” Therefore, the proposed specific plan is in alignment with Thousand Oaks General Plan goals and policies.
(b) The proposed Zone Change has been reviewed for conformance with the provisions of the California Environmental Quality Act. For this application, the City is the Lead Agency and, on behalf of the Applicant, the City Council is being asked to certify the Final Environmental Impact Report that was prepared for the project. The Final EIR identifies where all areas listed as potentially significant have been mitigated to levels that are no longer significant, through the inclusion of mitigation measures, which the applicant shall comply with under the proposed conditions of approval.

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SECTION 3. Specific Plan No. 24 is hereby approved and found to be consistent with all Elements of the Thousand Oaks General Plan as proposed in Exhibit "B”, based on the following findings:
(a) The proposed Specific Plan (SP-24) establishes development standards, allowed uses and policy guidelines for a mixed-use development. SP-24 is required as the TOMC does not currently include a zoning designation which allows for a mix of commercial and residential uses on the same site.

Along with the allocation of 246 dwelling units of the Citywide Measure E capacity to SP-24, the mixed-use project with building frontage along Hillcrest Drive is consistent with all Elements of the Thousand Oaks General Plan.
(b) The development standards and uses of the Specific Plan, along with the companion land use amendment, is consistent with all applicable Elements of the Thousand Oaks General Plan, including the Land Use Element designation of “Commercial/Residential” and with the General Plan goal, “to provide the framework for a planned and unified community containing a balance of living, working, shopping, educational, civic, cultural and recreational facilities.” In addition, the Specific Plan and project will be consistent with the housing element to provide rental housing in the form of 30 very-low-income affordable units and 3 moderate-income units. (c) The proposed project and Specific Plan are unified by design. The specific plan specifies development standards with respect to building location, height, number of required parking spaces, allowed uses, and other development standards. Since these project details are specified in the specific plan, the project’s standards are bound by SP-24, and are therefore, consistent.
(d) The Specific Plan standards and proposed project are consistent with the City’s Architectural Guidelines as conditioned in that the project design provides for vertical and horizontal building articulation and a variety of colors/materials.
(e) The project is consistent with all applicable laws, regulations and policies, including the Thousand Oaks Municipal Code that allows for specific development standards through adoption of a specific plan. (f) The proposed Specific Plan has been reviewed for conformance with the provisions of the California Environmental Quality Act (CEQA). For this application, the City is the Lead Agency and, on behalf of the Applicant, the City Council is being asked to certify the Final Environmental Impact Report that was prepared for the project. The Final EIR identifies where all areas listed as potentially significant have been mitigated to levels that are no longer significant, through the inclusion of mitigation measures, which the applicant shall comply with under the proposed conditions of approval.

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SECTION 4. The foregoing findings and determinations are based upon the following:
(a) The Recitals set forth in this Ordinance, which are deemed true and correct;
(b) The City’s General Plan, as amended by General Plan Amendment 2021-70169-LU (City Council Resolution No. 2023-043) prior to adoption of this Ordinance;
(c) Resolution Nos. 2023-043 and 2023-044 for the Project entitlements, adopted by the City Council on July 11, 2023, and which Resolutions and exhibits are incorporated herein by reference as if set forth in full;
(d) All City Staff reports (and all other public reports and documents) prepared for the Planning Commission and City Council, relating to the zone change, Specific Plan, and other actions relating to the Project;
(e) All documentary and oral evidence received at public hearings or submitted to the City during the comment period relating to the zone change, Specific Plan, and other actions relating to the Project; and (f) All other matters of common knowledge to the Planning Commission and City Council, including, but not limited to the City’s fiscal and financial status; City policies and regulations; reports, projections and correspondence related to development within and surrounding the City, State laws and regulations and publications.

SECTION 5. The City Council hereby approves the zone change and Specific Plan, attached hereto as Exhibits A and B, respectively, subject further to such minor, conforming and clarifying changes consistent with the terms thereof as may be approved by the City Manager, in consultation with the City Attorney to execution thereof, including completion of references and status of planning approvals, and completion and conformity of all exhibits thereto, and conformity to the General Plan, as amended, as approved by the City Council.

SECTION 6. The approval contained in Section 5 hereof is subject to and conditioned upon Resolution No. 2023-043, adopted by the City Council approving the General Plan Amendment, becoming effective.

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Part 3
(Uncodified)
Severability
If any section, subsection, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this title; it being hereby expressly declared that this title, and each section, subsection, sentence, clause and phrase hereof, would have been prepared, proposed, adopted, approved, and ratified irrespective of the fact that any one or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

Part 4
(Uncodified)
Effective Date
This ordinance shall become effective on and after the thirty-first (31st) day following its adoption, provided, however, that if the actions referred to in Section 6 hereof are not effective on such date, then the effective date of this Ordinance shall be the date on which all of said actions become effective, as certified by the City Clerk

PASSED AND ADOPTED this XXth day of XXXX, 202X, by the following vote:

Ayes:

Noes:

Absent:

Kevin McNamee, Mayor
City of Thousand Oaks City Council
ATTEST/CERTIFY:
________________________________
Laura B. Maguire, City Clerk
Date Attested: ___________________

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APPROVED AS TO FORM:

Office of the City Attorney

Patrick J. Hehir,
Chief Assistant City Attorney
APPROVED AS TO ADMINISTRATION:

Andrew P. Powers, City Manager
Introduced: XXXX XX, 202X
Published: XXXX XX, 202XX
Ordinance No.: XXXX-NS
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the City of Thousand Oaks City Council on the date cited above.

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EXHIBIT “A”
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ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE

CITY OF THOUSAND OAKS APPROVING A

DEVELOPMENT AGREEMENT WITH LATIGO

HILLCREST, LLC, RELATING TO THE
DEVELOPMENT OF PROPERTY LOCATED AT 2150
WEST HILLCREST DRIVE (APN #667-0-113-075),

THOUSAND OAKS, CALIFORNIA (DEVELOPMENT
AGREEMENT 2022-70777-DAGR)
The City Council of the City of Thousand Oaks does hereby ordain as follows:

Part I
Based upon the information contained in the Staff Report, exhibits, and public testimony given at a public hearing on June 20, 2023 and July 11, 2023, the City Council approved this Development Agreement with the following findings:

WHEREAS, to strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted Government Code Sections 65864 et seq. (the “Development Agreement Statute”) which authorizes cities to enter into agreements for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and
WHEREAS, in accordance with the Development Agreement Statute, the City of Thousand Oaks (the “City”) has adopted regulations (the “Development Agreement Regulations”) to implement procedures for the processing and approval of development agreements in accordance with the Development Agreement Statute, which are contained in Section 9-11.01 et seq. of the Thousand Oaks Municipal Code; and
WHEREAS, the Latigo Hillcrest, LLC (“Developer”) desires to carry out the development of a mixed-use commercial and residential project (“Project”) located at 2150 West Hillcrest Drive (APN 667-0-113-075), (“Property”), consistent with the General Plan, Specific Plan (SP-24), other City rules and regulations, and the Development Agreement and vested entitlements referenced therein; WHEREAS, this Development Agreement (2022-70777-DAGR) will assure the City and the Developer that the Project will proceed as proposed and that the Item No.9R
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Project can proceed without disruption caused by a change in City planning and development policies and requirements, which assurance will thereby reduce the actual or perceived risk of planning, financing, and proceeding with construction of the Project and promote the achievement of the private and public objectives of the Project;
WHEREAS, the Planning Commission held a duty noticed public hearing on June 5, 2023 on the Project, during which the Planning Commission received comments from the Developer, City staff, and members of the general public and made a recommendation to the City Council on the Project entitlements and legislative actions.

WHEREAS, the City Council of the City of Thousand Oaks held a duly noticed public hearing on the Project on June 20, 2023, and July 11, 2023, during which the City Council received comments from the Developer, City staff, and members of the general public and approved related entitlements and legislative actions, including a 2022-70774-EIR, 2021-70169-LU, 2022-70776-Z, 2022- 70778-SP, 2022-70773-DP, 2022-70779-SUP, 2022-70780-PTP and 2022- 70777-DAGR.

Part 2
NOW THEREFORE, the City Council of the City of Thousand Oaks does hereby ordain as follows:

SECTION 1. This Ordinance incorporates, and by this reference makes a part hereof, the Development Agreement (including all exhibits to the Agreement), attached hereto as Exhibit A, subject to the provisions of Section 5 hereof.

SECTION 2. This Ordinance is adopted under the authority of Government Code Section 65864 et seq. and pursuant to the City’s “Development Agreement Regulations.”
SECTION 3. In accordance with the Development Agreement Regulations, the City Council hereby finds and determines, as follows:
(a) The Development Agreement is consistent with the goals and policies of the Thousand Oaks General Plan and Specific Plan 24, (b) The Development Agreement establishes certain development rights, obligations and conditions for implementation of the Project located at 2150 West Hillcrest Drive (APN 667-0-113-075).

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(c) The Development Agreement is in conformity with public convenience, general welfare and good land use practice; (d) The Development Agreement will not be detrimental to the public health, safety and general welfare;
(e) The Development Agreement will support the orderly development of the Property and the preservation of property values; (f) The project qualifies as a “mixed-use” project consisting of approximately 5,300 square feet of commercial space and 333 units of multi-family residential development, which is a development concept for the Specific Plan area intended to produce a mix of interactive uses, which will create an active and interesting atmosphere in both the site and within nearby properties.

Complementary uses are to be located in close proximity to each other in order to promote interaction between uses to advance the development concept of the Specific Plan.
(g) The project is consistent with the “Commercial/ Residential” land use designation of the Thousand Oaks General Plan.
(h) The architectural design of the project complies with the development standards of SP-24 and the intent of the City’s Architectural Design Review Guidelines, Precise Plan of Design Guidelines, Commercial Design Guidelines, and Freeway Corridor Guidelines.
(i) 2022-70774-EIR was prepared for the subject project in accordance with the California Environmental Quality Act (CEQA). A comprehensive evaluation of the potential environmental impacts for this project was performed. This evaluation determined that the project could have a significant effect on the environment without appropriate mitigation measures in place, therefore an EIR was prepared for the project. Appropriate measures are detailed in the report to ensure appropriate mitigation is in place so no significant adverse environmental impact results from the project. To that end, a mitigation monitoring plan is required to ensure the indicated mitigation measures are applied to the project.

SECTION 4. The foregoing findings and determinations are based upon the following:

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(a) The Recitals set forth in this Ordinance, which are deemed true and correct;
(b) The City’s General Plan, as amended by General Plan Amendment 2021-70169-LU (City Council Resolution No. 2023-043) prior to adoption of this Ordinance;
(c) Resolution Nos. 2023-043 and 2023-044 for the Project entitlements, adopted by the City Council on July 11, 2023, and which Resolutions and exhibits are incorporated herein by reference as if set forth in full;
(d) All City Staff reports (and all other public reports and documents) prepared for the Planning Commission and City Council, relating to the Development Agreement and other actions relating to the Project; (e) All documentary and oral evidence received at public hearings or submitted to the City during the comment period relating to the Development Agreement, and other actions relating to the Project; and (f) All other matters of common knowledge to the Planning Commission and City Council, including, but not limited to the City’s fiscal and financial status; City policies and regulations; reports, projections and correspondence related to development within and surrounding the City, State laws and regulations and publications.

SECTION 5. The City Council hereby approves the Development Agreement, attached hereto as Exhibit A, subject further to such minor, conforming and clarifying changes consistent with the terms thereof as may be approved by the City Manager, in consultation with the City Attorney to execution thereof, including completion of references and status of planning approvals, and completion and conformity of all exhibits thereto, and conformity to the General Plan, as amended, as approved by the City Council.

SECTION 6. The approval contained in Section 5 hereof is subject to and conditioned upon Resolution No. 2023-043, adopted by the City Council approving the General Plan Amendment, becoming effective.

SECTION 7. The City Manager is hereby authorized and directed to perform all acts authorized to be performed by the City Manager in the administration of the Development Agreement pursuant to the terms of the Development Agreement.

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Part 3
(Uncodified)
Severability
SECTION 8. If any section, subsection, clause or phrase of this Ordinance is for any reason held to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect the validity or constitutionality of the remaining portions of this title; it being hereby expressly declared that this title, and each section, subsection, sentence, clause and phrase hereof, would have been prepared, proposed, adopted, approved and ratified irrespective of the fact that anyone or more sections, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

Part 4
(Uncodified)
Effective Date
SECTION 9. This ordinance shall become effective on and after the thirtyfirst (31th) day following its adoption, provided, however, that if the actions referred to in Section 6 hereof are not effective on such date, then the effective date of this Ordinance shall be the date on which all of said actions become effective, as certified by the City Clerk.

PASSED AND ADOPTED this XX day of XXXX, 202X, by the following vote:

Ayes:

Noes:

Absent:

Kevin McNamee, Mayor
City of Thousand Oaks City Council
ATTEST/CERTIFY:

Laura B. Maguire, City Clerk
Date Attested: ___________________

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APPROVED AS TO FORM:

Office of the City Attorney

Patrick J. Hehir,
Chief Assistant City Attorney
APPROVED AS TO ADMINISTRATION:

Andrew P. Powers, City Manager
Introduced: XXXX XX, 202X
Published: XXXX XX, 202XX
Ordinance No.: XXXX-NS
The presence of electronic signature certifies that the foregoing is a true and correct copy as approved by the City of Thousand Oaks City Council on the date cited above.

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EXHIBIT “A”

DEVELOPMENT AGREEMENT

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:

City of Thousand Oaks
2100 E. Thousand Oaks Boulevard
Thousand Oaks, CA 91362
Attn: City Clerk
WITH A COPY TO:

Thomas S. Cohen, Esq.

Cohen Land Use Law, LLP
1534 N. Moorpark Road, #337
Thousand Oaks, CA 91360
Email: [email protected]
(Space Above this Line is for Recorder’s Use Only)
This Development Agreement
is recorded at the request and
for the benefit of the City of
Thousand Oaks and is exempt
from the payment of a
recording fee pursuant to
Government Code § 6103.

DEVELOPMENT AGREEMENT
by and between

CITY OF THOUSAND OAKS
and

LATIGO HILLCREST, LLC
THIS DEVELOPMENT AGREEMENT is entered into this ___ day of ________________, 2023, by and among the CITY OF THOUSAND OAKS, a California municipal corporation (“City”), on the one hand, and LATIGO HILLCREST, LLC (“Owner”), on the other hand. City and Owner are at times collectively referred to as the “Parties” herein.

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R E C I T A L S
This Agreement is predicated upon the following facts, understandings, and intentions of the Parties.

A. The State of California adopted the Development Agreement Act to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development. Sections 65865 through 65869.5 of the California Government Code Section (the Development Agreement Act), authorizes City and persons who have legal or equitable interests in real property to enter into a binding development agreement establishing certain development rights in the real property that is the subject of the development project application. City has also codified the process of development agreements in Chapter 11 of Title 9 of the Thousand Oaks Municipal Code (“TOMC”).

B. Throughout this Agreement, including the Recitals contained herein, certain capitalized terms are used which are defined in Section 1 of this Agreement. City and Owner intend to refer to those definitions when the capitalized terms are used.

C. Pursuant to Government Code Section 65865, City adopted Title 9, Chapter 11 of the TOMC – Development Agreements (“Development Agreement Ordinance”), further authorizing this Agreement and establishing the City Council’s intent that development agreements be entered into in those situations where the agreement is fair, just and reasonable at the time of its execution; and where it is prompted by the necessities of the situation, or is, by its nature, advantageous to City.

D. Throughout this Agreement the terms “Owner” or “Developer” may be used synonymously, and both refer to LATIGO HILLCREST, LLC.

E. On April 27, 2021, per the applicant Amgen, Inc.’s (“Amgen”) request to change the use of the Property located at 2150 W. Hillcrest Drive from administrative offices to commercial/residential use, the City Council adopted Resolution No. 2021-014, “A Resolution of the City Council of the City of Thousand Oaks Declaring Intention to Consider an Amendment to the Land Use Element of the General Plan and Allowing Concurrent Processing of Entitlement Applications for Land Located at 2150 W Hillcrest Drive (LU 2021-70169). As part of that Resolution, the City Council approved initiating LU 2021-70169 and allocated 246 residential dwelling units of Citywide Measure E residential capacity to the Property under RCA 2021-70168. On March 29, 2022, City Council approved an extension of time for Amgen to submit its formal application for the proposed project at the site. Subsequent to the City’s authorization of the extension, Amgen transferred its rights to the property and the project applications to Latigo Hillcrest, LLC.

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F. Owner and the City have agreed that the parties should enter into a development agreement pursuant to City’s Development Agreement Ordinance and proceedings have been taken in accordance with the rules and regulations of City and State law.

G. Owner voluntarily enters into this Agreement to implement the General Plan and in consideration for the rights conferred and the procedures specified herein for the development of 2150 W Hillcrest Drive, Thousand Oaks, California A.P.N. Number 667- 0-113-075 (“Property” or “Project site”). City, in the exercise of its legislative discretion, voluntarily enters into this Agreement to implement the General Plan Amendment and in consideration of the agreements and undertakings of Owner as specified herein.

H. Concurrent with this Agreement (2022-70777-DAGR), Owner proposed that City grant Owner the following land use entitlement approvals (hereinafter “Project Approvals”) for the Project (defined below in Section 1 – Definitions) which are incorporated and made a part of this Agreement.
a. General Plan Land Use Amendment No. LU 2021-70169 to Commercial/Residential

b. Specific Plan 2022-70778 (No. 24; with density bonus units in exchange for affordable housing)
c. Zone Change and Zoning Map Amendment 2022-70776
d. Development Permit (DP) 2022-70773
e. Protected Tree Permit No. 2022-70780
f. Environmental Impact Report (EIR) 2022-70774
g. Special Use Permit (SUP) 2022-70779
I. During the application process, Owner submitted architectural plans, site plans, landscape plans and grading plans to the City for review by staff. The Parties worked on creating a specific plan (2022-70778-SP) that will govern the development of the Project and identify land use standards for the Property. The Project was approved subject to certain conditions and the approved plan and conditions of approval are attached to this Agreement as Exhibits C and D.

J. City has approved the Project, subject to the associated conditions, and determined that this Agreement is consistent with City’s General Plan and Specific Plan No. 24 and specifically determined that this Agreement: (1) is fair, just and reasonable; (2) is prompted by the necessities of the situation and is by its nature advantageous to Item No.9R
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City; and, (3) that this Agreement encourages and assures private participation in the construction of housing stock, as determined in the absolute discretion of the City Council.

K. On June 5, 2023, the Planning Commission of City considered the Project, the material terms of this Agreement, and the Environmental Impact Report (“EIR”) at a duly noticed public hearing and made appropriate findings that the provisions of this agreement are consistent with the General Plan and recommended approval / disapproval of the Project to City Council.

L. The City Council, after conducting a duly noticed public hearing on June 20, 2023 and July 11, 2023, certified and adopted the Final EIR and associated mitigation monitoring and reporting program, and considered, confirmed, and approved that the Project’s Final EIR adequately addresses the environmental impacts of the Project at the Project Site, including consideration of the Project Approvals, approved the form and material elements of this Agreement, authorized the execution of this Agreement, and found that the provisions of this Agreement are consistent with the General Plan, State law, and the Development Agreement Ordinance. The City Council conducted the first reading of the new ordinance on June 20, 2023 and July 11, 2023, followed by the City Council’s second reading of the new ordinance on July 18, 2023.

M. In exchange for the benefits to City listed herein, City agrees to take those actions required to facilitate Owner’s development of the Project, including the approval, adoption, or issuance of necessary development permits and the future ministerial approval of any additional building plans, building permits, occupancy permits, and other such permits necessary to implement the Project (“Ministerial Approvals”) which are consistent with this Agreement.

N. It is the intent of the Parties that all acts referred to in this Agreement shall be accomplished in such a way as to fully comply with the California Environmental Quality Act (“CEQA”), state law governing adoption of development agreements, the Thousand Oaks Municipal Code, City’s Development Agreement Ordinance, and applicable development entitlements.

O. This Agreement is made and entered into in consideration of the mutual covenants and in reliance upon the various representations and warranties contained herein. The Parties acknowledge that, in reliance on the agreements, representations, and warranties contained herein, Owner will take certain actions, including making substantial investments and expenditures of monies, relative to the Property and the development thereof.

P. This Agreement will eliminate uncertainty in planning for and securing orderly development of the Project, provide certainty necessary for the Owner to make significant investments in public infrastructure, public gathering areas, and other improvements, assure the timely and progressive installation of necessary improvements Item No.9R
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and public services, establish the orderly and measured build-out of the Project consistent with the vision of City’s Specific Plan No. 24 and will provide public benefits to City it would not be entitled to absent this Agreement. All such public improvements or projects are beneficial to the health, safety, and general welfare of the City in general.

Q. The terms of this Agreement support a vital and important interest of City by ensuring the development is consistent with the General Plan, Specific Plan No. 24 and the proposed improvements to the property. The Agreement is necessary to assure Developer that the Project will not be reduced in density, intensity or use, or be subjected to new rules, regulations, ordinances, or policies unless otherwise expressly allowed by this Agreement.

R. In exchange for the benefits to City, Developer desires to receive the General Plan Amendment and other Project Approvals to permit mixed use on the Property, the designated number of residential units allocated for the Project, assurance that it may proceed with the Project in accordance with the Project Approvals and existing land use ordinances and development standards in effect on the Agreement Date, subject to the terms and conditions contained in this Agreement and, to secure the benefits afforded Developer by Government Code §65864 et seq., and the City’s Development Agreement Ordinance.

S. For the foregoing reasons, Owner, and the City (each individually, a “Party” and, collectively, the “Parties”) desire to enter into a development agreement for the Project pursuant to the Development Agreement Act and other applicable laws upon the terms and conditions set forth herein and, in the exhibits, attached hereto.

A G R E E M E N T
NOW, THEREFORE, in consideration of the above-stated recitals and of the mutual covenants contained in this Agreement as well as in consideration of the mutual promises and covenants herein contained and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Definitions

1.1. “Agreement” means this Development Agreement, identified as City of Thousand Oaks Development Agreement No. 2022-70777.

1.2. “Agreement Date” means the date this Agreement is executed by both City and Owner.

1.3. “Agreement Effective Date” is the date on which this Agreement is attested by the City Clerk of the City after execution by Owner and Mayor of the City.

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1.4. “Applicable Rules and Laws” means the City’s rules, regulations, ordinances, and official policies in force and effect as of the Agreement Effective Date governing permitted uses of the land, the density or intensity of use, the maximum height and size of proposed buildings, parking requirements, setbacks, development standards, the provisions for reservation or dedication of land for public purposes, as well as those rules and laws governing design, improvement, and construction standards, specifications, policies and guidelines applicable to development of the Property, including the General Plan, as amended by the General Plan Amendment, and Specific Plan No. 24, and unless otherwise provided by this Agreement or the Project Approvals.

1.5. “Area Median Income” or “AMI” means the median income for Ventura County, California, adjusted for Actual Household Size, as determined by the U.S. Department of Housing and Urban Development (“HUD”) pursuant to Section 8 of the United States Housing Act of 1937 and as published from time to time by the State of California Department of Housing and Community Development (“HCD”) in Section 6932 of Title 25 of the California Code of Regulations or any successor provision published pursuant to California Health and Safety Code section 50093(c). If there is a discrepancy between applicable HUD and HCD AMI levels, then the HCD AMI will be applied, unless otherwise required by mandatory requirements of applicable federal law.

1.6. “CEQA” means the California Environmental Quality Act and any state and local rules, regulations or guidelines adopted pursuant thereto.

1.7. “City” means the City of Thousand Oaks, California.

1.8. “Development Agreement Ordinance” means Title 9, Chapter 11 of the Thousand Oaks Municipal Code wherein City has set forth the procedures and requirements for consideration and administration of development agreements.

1.9. “Development Fees” means any monetary fee or exaction other than a tax or special assessment that would be charged by a local government agency pursuant to Government Code Section 66000, et seq., to a project applicant in connection with new development for the purpose of defraying all or a portion of the cost of public facilities related to the new development, including without limitation, fees for utility construction, use, linkage or connection fees; public transit; traffic improvement and operations and any other traffic-related fees; affordable housing; sustainability or green initiatives; capital facilities; police and fire; parks; libraries; and other exactions, assessments, fair share charges or other similar impact fees or charges imposed on and in connection with new development.

1.10. “Future Development Entitlements” means all necessary City discretionary approvals (including conditions of approval) for the development of the Project that are not addressed in this Agreement and that must be consistent with the Item No.9R
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current General Plan and Zone Change Ordinance for the Project Site, the Applicable Laws, and this Agreement.

1.11. “General Plan” means the General Plan of the City.

1.12. “Measure E Residential Capacity” means the citywide residential units available for reallocation to a proposed development project pursuant to Section 9-

2.203 of City’s Municipal Code.

1.13. “Ministerial Approvals” means the non-discretionary City permits and approvals necessary for the development of the proposed Project as required by the Applicable Laws or State law, including but not limited to approval of building plans, final map, building permits, occupancy permits, and other similar types of permits necessary to implement the Project. Notwithstanding the foregoing, Ministerial Approvals may be processed and approved in accordance with amended versions of the Applicable Laws upon Owner’s request and in Owner’s sole discretion.

1.14. “Moderate Income Households” means a household with income that does not exceed the greater of (i) 120 percent of the Area Median Income, as adjusted by Actual Household Size, or (ii) the then current income range limit for Moderate Income Households established for Ventura County under Section 6932 of Title 25 of the California Code of Regulations as in effect at the time the household submits its application for occupancy of the Moderate Income rental Unit, as such limit is adjusted by Actual Household Size. Refer to the 2022 Ventura County Income Limits chart attached hereto as Exhibit E and future amendments and revisions thereto.

1.15. “Owner” or “Developer” means LATIGO HILLCREST, LLC, and each and all of their respective transferees, partners, successors, and assigns, whether voluntary or involuntary.

1.16. “Processing Fees” means fees and charges (i) adopted by the City for the purpose of defraying the City’s reasonable costs incurred or to be incurred in the processing and administration of any form of permit, license, or land use entitlements, or (ii) imposed by the City to defray the costs of periodically updating its plans, policies, and procedures, including but not limited to, the fees and charges referred to in Government Code Section 66014.

1.17. “Project” means the proposed development of the Property in accordance with the Project Approvals, this Agreement, and the conditions of approval and mitigation measures adopted as part of this Agreement.

1.18. “Project Approvals” means those discretionary City permits and approvals, including those listed in Recital H of this Agreement (including conditions of Item No.9R
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approval), necessary for the development of the proposed Project consistent with the needed General Plan amendment and Zone Change for the Project Site, the TOMC and other Applicable Laws in effect on the Agreement Effective Date, any amendment to such permit or approval allowed by the TOMC and this Agreement.

1.19. “Property” is that certain real property located within the City of Thousand Oaks at 2150 W Hillcrest Drive, Thousand Oaks, California 91320, A.P.N 667- 0-113-075 and as more particularly described in Exhibit A attached hereto. The Property may also be referred to from time to time herein as the “Project Site.”

1.20. “Reserved Powers” means the rights and authority expected from this Agreement’s restriction on the City’s police powers and which are instead reserved to the City. The Reserved Powers include (a) the powers to enact regulations or take future Discretionary Actions after the approval of the Project Approvals that may be in conflict with the Applicable Rules and Project Approvals, but (i) are necessary to protect the public health and safety, and are generally applicable on a citywide basis (except in the event of natural disasters as found by City Council such as floods, earthquakes, pandemics and similar acts of God), (ii) are necessary to comply with State or federal laws and regulations (whether enacted previous or subsequent to the final administrative approval of the Project Approvals), or (iii) constitute Processing Fees and charges imposed or required by the City to cover its actual costs in processing applications, permit requests and approvals of the Project or in monitoring compliance with permits issued or approvals granted for the performance of any conditions imposed on the Project, unless otherwise waived in writing by the City, and (b) the power to enact and amend the Building Codes.

1.21. “Term” means the period of time for which this Agreement shall be effective in accordance with Section 3 below.

1.22. “Very Low Income Households” means a household with income that does not exceed the greater of (i) 50 percent of the Area Median Income, as adjusted by Actual Household Size, or (ii) the then current income range limit for Very Low Income Households established for Ventura County under Section 6932 of Title 25 of the California Code of Regulations as in effect at the time the household submits its application for occupancy of the Very Low Income Rental Unit, as such limit is adjusted by Actual Household Size.

2. Exhibits. The following documents are referred to in this Agreement, attached hereto and made a part hereof by this reference.

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Exhibits Designation Description
A Legal Description of Property
B Site Plan
C Project Plan Set dated May 26, 2023
D Conditions of Approval
E Ventura County Income Limits Chart

3. Agreement Effective Date and Term. This Agreement shall become effective (“Agreement Effective Date”) as set forth in Subsection 1.3 above. Unless extended by mutual written agreement of the Parties, this Agreement shall expire and be of no further force or effect on the earlier of seven (7) years from the Agreement Effective Date (“Term”) or the date on which the City issues a Certificate of Occupancy or approves final permits to allow occupancy of buildings for the Project. The term may be terminated, modified, or extended by mutual consent in writing of the Parties with good cause, not to be unreasonably withheld by the City. Owner intends to submit plans for building permits within the first year of the Term, subject to unforeseen delays and the Parties will act in good faith to move the project forward through construction and completion in a time efficient manner. Notwithstanding the Owner’s intent, Owner shall submit plans for building permits within two years of the Effective Date. Following the expiration of the Term, this Agreement shall terminate and be of no further force and effect, except with respect to terms and provisions that expressly survive the termination of this Agreement.

If this Agreement is terminated because the City has issued a Certificate of Occupancy or otherwise issued final occupancy permits for the entire Project, then Owner’s obligations to make any Public Benefit Payments or provide the Public Benefits as identified in Section 6.1, below, shall survive such termination until the obligation has been completely satisfied. In the event the Project Approvals are challenged, the Term is tolled through the duration of the litigation. All Project Approval expiration dates will extend through the term of the Agreement.

4. State Enabling Statute. To strengthen the public planning process, encourage private participation in comprehensive planning and reduce the economic risk of development, the Legislature of the State of California adopted the Development Agreement Act which authorizes any city to enter into binding development agreements establishing certain development rights in real property with persons having legal or equitable interest in such property. Section 65864 of the Development Agreement Act expressly provides as follows:

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“The Legislature finds and declares that:
(a) The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other development to the consumer, and
discourage investment in and a commitment to
comprehensive planning which would make maximum
efficient utilization of resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules, and regulations, and subject to conditions of approval will strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic cost of development.”
Notwithstanding the foregoing, to ensure that the City remains responsive and accountable to its residents while pursuing the benefits of development agreements contemplated by the Legislature, the City: (1) accepts restraints on its police powers contained in development agreements only to the extent and for the duration required to achieve the mutual objectives of the Parties as permitted hereunder; and (2) to offset controls and conditions imposed on development project applications.

5. Purpose of this Agreement.

5.1. General Acknowledgement. This Agreement is entered into for the purpose of permitting the development of the Property in a manner that will assure certain anticipated benefits to both City and Owner as set forth in this Agreement.

5.2. Developer Objectives. In accordance with the legislative findings set forth in the Development Agreement Act, and with full recognition of the City’s policy of judicious restraints on its police powers, Developer wishes to obtain reasonable assurance that the Project may be developed in accordance with the Applicable Rules, the Project Approvals, and other Discretionary Actions and with the terms of this Agreement, but subject to the City’s Reserved Powers. In the absence of this Agreement, Developer would have no assurance that it can complete the Project with the zoning, and proposed density for the development (including, without limitation, the location and number of improvements, proposed height and building limits (e.g., requested density, maximum floor area, etc.) and the provisions of open space, vehicular access, and Item No.9R
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parking set forth in this Agreement, the Project Approvals, and other Discretionary Actions. This Agreement, therefore, is necessary to assure Developer that, except as otherwise expressly provided in this Agreement, the Project will not be (a) reduced or otherwise modified in density, intensity or use from what is set forth in the Project Approvals and other Discretionary Actions, (b) “subjected to new rules, regulations, ordinances or official policies or plans that are not adopted or approved pursuant to the City’s Reserved Powers or (c) subjected to unreasonable delays for reasons other than Citywide health and safety enactments related to force majeure events such as, but not limited to, floods, earthquakes, pandemics, labor shortages and similar acts of God.

5.3. Mutual Objectives. Development of the Project in accordance with this Agreement will provide for the orderly development of the Property in accordance with the policies and objectives set forth in the General Plan, as amended by the General Plan Amendment. Moreover, this Agreement will eliminate uncertainty in planning for and securing orderly development of the Property, assure installation of necessary improvements for, and other features of, the Project reflected in the Project Approvals, assure attainment of maximum efficient resource utilization within the City at the least economic cost to its citizens and otherwise achieve the goals and purposes for which they Development Agreement Act was enacted. The Parties believe that such orderly development of the Project will provide public benefits to the City through the imposition of development standards and requirements under this Agreement, including without limitation increased tax revenues, installation of onsite improvements, creation and retention of jobs, and the development of an aesthetically attractive Project, as well as the public benefits described in Section 6.1, below. In addition, although development of the Project in accordance with this Agreement will restrain the City’s land use or other relevant police powers, this Agreement provides the City with sufficient reserved powers during the Term hereof to remain responsible and accountable to its residents. In exchange for these and other benefits to the City, Developer will receive assurance that the Project may be developed during the Term of this Agreement in accordance with the Applicable Rules, Project Approvals and other Discretionary Actions, and the Reserved Powers, subject to the terms and conditions of this Agreement.

5.4. Applicability of the Agreement. This Agreement does not (a) grant height, density or intensity in excess of that otherwise established in the Applicable Rules and the Project Approvals; (b) eliminate future Discretionary Actions relating to the Project if applications requiring such Discretionary Action are initiated and submitted by the Owner of the Property after the Effective Date of this Agreement; (c) guarantee that Developer will receive any profits from the Project; (d) prohibit the Project’s participation in any benefit assessment district that is generally applicable to surrounding properties; (e) amend the General Plan; or, (f) amend the City’s Planning and Zoning Code (Title 9).

This Agreement has a fixed Term. Furthermore, in any subsequent Discretionary Actions applicable to the Property, the City may apply such new rules, regulations and official policies as are contained in its Reserved Powers.

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6. Public Benefits. This Agreement provides assurances that the public benefits identified in Section 6.1, below, will be achieved in accordance with the Applicable Rules and Project Approvals and with the terms of this Agreement and subject to the City’s Reserved Powers.

6.1. Benefits to City and Obligations of Owner. The benefits to City (including, without limitation, the residents of City) and obligations of Owner under this Agreement include, but are not limited to:

6.1.1. Construction of the Project in a single phase which increases residential stock in the City by adding 300 market-rate apartments in a mixture of onebedroom, one bedroom with a den, two bedroom, and three bedroom units;

6.1.2. Owner is pursuing a 35% density bonus pursuant to the State Density Bonus Law. To qualify for this percentage of additional market-rate units, Owner is going to construct and preserve 11% (28 units) of the base 246 units as Very Low Income Household. Two additional Very Low Income Household units are provided in exchange for certain modifications to the Objective Design Standards. The thirty (30) affordable Very Low-Income Households apartment units are made up of 17 onebedroom units, 11 two-bedroom units, and 2 three-bedroom units. All affordable units will be protected by a recorded covenant to maintain the units in the relevant income range for fifty-five (55) years;

6.1.3. Three Moderate Income Household Affordable units are provided in exchange for modifications to the Objective Design Standards. The three Moderate Income Household units will be made up of 2, one-bedroom units, and 1, twobedroom unit. All affordable units will be protected by a recorded covenant to maintain the units in the relevant income range for fifty-five (55) years;

6.1.4. Removal of vacant commercial use and structures, and replacement with mixed-use residential and commercial uses and structures;

6.1.5. Two (2) live/work units which results in the Project providing vehicular trip reduction benefits as a result of the dedication of live/work units and work share space for use by the residents of Latigo Hillcrest. In addition, onsite retail and restaurants will also result in fewer vehicles miles traveled thereby reducing air, noise, and traffic impacts on the community at-large;

6.1.6. Construction of 5,300 square feet of Commercial retail space with 3,000 square feet of public exterior commercial plaza;

6.1.7. Approximately 1,050 square feet of work/share space; Item No.9R
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6.1.8. Enhanced architectural design with appropriate massing and scale, extensive articulation, glazing, and extensive detailing with upgraded materials;

6.1.9. Provision of necessary fees, dedications and public improvements that will provide benefits for the community;

6.1.10. Integrate sustainable features including but not limited to electric-only residential utilities, rooftop solar farm (as required by state law), electric bicycle stations, and EV charging stations including the following:

6.1.10.1 226 EV Capable parking spaces (40% of overall
Parking) with pre-wiring installed for future Level 2 EV Charging;

6.1.10.2 174 EV Ready parking spaces (30% of parking)
that equates to 5% more than required by Cal Green) and which are equipped with low power Level 2 EV charging 120-240 volt 30 Amp receptacles;

6.1.10.3 57 EV Chargers (10% of overall Parking)
equipped with Level 2 EVSE Supply Equipment installed and operational prior to issuance of the Certificate of Occupancy;

6.1.10.4 Indoor/Outdoor bike parking with electric bicycle and scooter charging stations;

6.1.11. In lieu of providing public art on the site, Owner will modify or replace the gateway sign currently installed on Rancho Conejo Boulevard west of the Property with a new gateway sign adjacent to Rancho Conejo Boulevard. The Parties agree to use good faith efforts to design and construct the gateway sign as outlined in the Conditions of Approval.

6.2. Benefits to Owner and Obligations of City. Owner will expend time and money in constructing public improvements and facilities in connection with the Project, and thus the vested rights provided by this Agreement will be of considerable benefit to Owner. The benefits to Owner and obligations of City also include the following:

6.2.1. City’s adoption of a General Plan amendment that provides residential units on the property in conjunction with a mixed-use project that also provides an affordable housing component that is necessary for the proposed number of residential units, which significantly enhances the value of the Property;

6.2.2. City’s allocation of 246 Measure E residential units for the Project;
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6.2.3. City’s adoption of a General Plan amendment that provides for commercial/retail uses as detailed in the attached exhibits;

6.2.4. Approval of a Specific Plan No. 24 that provides unique elements to the building facades, and permits the overall composition, standards, and placement of buildings within the plan;

6.2.5. As more fully set forth in the Conditions of Approval, some specific waivers of the City’s objective standards pertaining to architectural design and construction materials;

6.2.6. Consistent with California Government Code Section 65915, the City’s approval of 87 “density bonus” market rate units above and beyond the 246 base density units permitted by the General Plan’s 30 dwelling units per acre limitation;

6.2.7. City’s guarantee that certain City fees related to development of the Property will not increase during the term of this Agreement;

6.2.8. City’s agreement to allow Owner to file all applications for City entitlements and any required maps in a single process not restricted as to the time of filing, but not later than the expiration of this Agreement;

6.2.9. City’s agreement to not change the existing zoning and General Plan designations of the Property without Owner’s consent during the term of this Agreement;

6.2.10. City’s assurance that any permits for the Project as described herein for which owner has submitted plans entitled “Project Plans” (attached as Exhibit “C”) will be processed expeditiously and in accordance with the terms and provisions of this Agreement, the approved Project Plans, and the Conditions of Approval (attached as Exhibit “D”).

7. Project Development

7.1. Project Description and Binding Covenants. The Property is that property described in the attached Exhibits A and B which include a map showing its location and boundaries. The Property is commonly described as located at 2150 West Hillcrest Drive, Thousand Oaks, California, A.P.N. 667-0-113-075. Owner represents that it has a legal or equitable interest in the Property and that all other persons holding legal or equitable interests in the Property (excepting owners or claimants in easements) agree to be bound by this Agreement. The Parties intend and determine that the provisions of this Agreement shall constitute covenants which shall run with said Property, Item No.9R
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and the burdens and benefits hereof shall bind and inure to all successors in interest to the Parties hereto.

7.2. General Development. Any development of the Project on the Property shall be conducted in accordance with the terms and conditions of this Agreement and attached exhibits.

7.3. Ministerial Approvals. City hereby agrees that Ministerial Approvals for the Project will be approved in a manner consistent with the Project Approvals and Applicable Laws, provided that Owner satisfactorily complies with all preliminary procedures, actions, payments, criteria, and regulations applicable as of the Agreement Effective Date and generally required of developers by City for processing applications for developments at such time.

7.4. CEQA Compliance. The City Council approved the current General Plan Land Use Element designation and zoning for the Property after considering the information and findings of the Environmental Checklist for this Project and EIR No. 2022- 70774. The Project is subject to all applicable mitigation measures and project design features as described in EIR No. 2022-70774.

7.5. Permitted Uses and Development Standards. In accordance with and subject to the terms and conditions of this Agreement, Developer shall have a vested right to develop the Property for the uses and in accordance with and subject to the terms and conditions of this Agreement, the Project Approvals, the Future Development Entitlements (if and when approved), Ministerial Approvals (if and when approved), any amendments to the foregoing approved by the City, and, to the extent not addressed in the foregoing, the Applicable Laws, the exhibits attached hereto and incorporated herein by reference, and any amendments to the Project Approvals or Agreement as may, from time to time, be approved pursuant to this Agreement.

7.6. Owner to Build Approved Project. Owner hereby agrees that development of the Project shall be in accordance with the Project Approvals, including the conditions of approval and the mitigation measures and project design features for the Project as adopted by City, any amendments to the Project Approvals or Agreement as may, from time to time, be approved pursuant to this Agreement, the Future Development Entitlements (if and when approved), Ministerial Approvals (if and when approved), any amendments to the foregoing approved by the City, and, to the extent not addressed in the foregoing, the Applicable Laws. Nothing in this Section shall be construed to restrict the ability to make minor changes and adjustments in accordance with Subsection 10.2. Notwithstanding the foregoing, nothing in this Agreement shall require Owner to construct the Project or pay fees for any portion of the Project that Owner does not construct.

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7.7. Timing of Development. The California Supreme Court held in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), that failure of the parties in that case to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over the parties’ agreement. It is the intent of Developer and the City to cure that deficiency by expressly acknowledging and providing that any future City action that purports to limit over time the rate or timing of development or to alter the sequencing of development phases (whether adopted or imposed by the City Council or through the initiative or referendum process) shall not apply to the Project and shall not prevail over this Agreement. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed by the City on the amount of total square feet or the number of buildings, structures, residential units that can be built each year on the Property except as expressly provided in this Agreement.

The Project shall be completed within the Term unless extended pursuant to this Agreement. Owner intends to submit plans for building permits within the first year of the Term, subject to unforeseen delays.

8. Rules, Regulations, and Fees.

8.1. Main Rules, Regulations, Ordinances and Policies. For the Term of this Agreement, the rules, regulations, ordinances and official policies governing the permitted uses of land, the density and intensity of use, phasing, design, improvement and construction standards and specifications applicable to the development of the Property, including the maximum height and size of proposed buildings, shall be the Applicable Laws, the Project Approvals, Conditions of Approval (Exhibit D), the Future Development Entitlements (if and when approved), Ministerial Approvals (if and when approved), any amendments to the foregoing approved by the City, and Project Plan Set dated May 26, 2023 (Exhibit C). Except as otherwise provided in this Agreement, to the extent any future changes in the General Plan, zoning codes or any future rules, ordinances, regulations, or policies adopted by the City purport to be applicable to the Property but are inconsistent with the terms and conditions of this Agreement, the terms of this Agreement shall prevail, unless the Parties mutually agree to amend or modify this Agreement.

8.2. Changes in State and Federal Rules and Regulations. Nothing in this Agreement shall preclude the application to the development of the Property of changes in City’s laws, regulations, plans, or policies, the terms of which are specifically mandated and required by changes in state and federal laws or regulations as provided in Government Code Section 65869.5. This includes, but is not limited to, the California Building Code, California Fire Code, California Mechanical Code, California Plumbing Code, California Residential Code, California Green Building Standards Code, and California Energy Code all of which have also been adopted in the TOMC. In the event State or federal laws or regulations enacted after the Agreement Date prevent or preclude compliance with one or more provisions of this Agreement or require changes in plans Item No.9R
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maps or permits approved by the City, this Agreement, or portions thereof, may be modified, extended, or suspended as may be necessary to comply with such State or federal laws or regulations or the regulations of such other governmental jurisdiction.

8.3. No City Liability for Federal or State Actions Affecting Project. To the extent that any actions of federal or state agencies (or actions of regional and local agencies, including City, insofar as they are required by said federal or state agencies) have the effect of preventing, delaying, or modifying development of the Property, City shall not in any manner be liable for any such prevention, delay, or modification of said development or for costs incurred by Developer in complying with such actions. To the extent possible, in the event of any ambiguity, any such regulations shall be applied and construed so as to provide the Owner with the rights and assurances provided under this Agreement.

8.4. Development Impact Fees and Public Benefit Program Cash Contribution. All City Processing Fees and Development Fees Owner shall pay for the Project shall be at the rates in effect on the Agreement Effective Date. Fees payable directly to, or collected by City for payment on behalf of, other public agencies, including but not limited to the State of California, County of Ventura, Ventura County Watershed Protection District, Calleguas Municipal Water District, Cal-Am, Conejo Recreation and Park District, and Conejo Valley Unified School District, are not subject to the limitation set forth herein. Any fees, charges, taxes, assessments, or levies (including, but not limited to, those for water and wastewater usage, and landscape and lighting assessments) other than Processing Fees and Development Fees that are revised or adopted on a Citywide or regional or communitywide basis during the term of this Agreement shall apply to the Property. Owner shall be entitled to fee credits where Owner demonstrates credits should be applied.

Per California Government Code Section 65915 and Section 65915.1, affordable housing impact fees, including inclusionary zoning fees and in-lieu fees, shall not be imposed on Project's affordable units.

8.5. Health and Safety Exception. Nothing herein shall be construed to limit the authority of City to adopt and apply codes, ordinances and regulations which have the legal effect of protecting persons or property from conditions which create a serious and imminent health, safety, or physical risk. To the extent possible, any such codes, ordinances, and regulations shall be applied and construed so as to provide the Owner with the rights and assurances provided under this Agreement.

8.6. Uniform Codes Applicable. All project construction, grading, and building plans for the Project shall comply with the uniform codes, construction standards and specifications in effect at the time the construction and improvements plans are approved, including those standards and specifications set forth in the California Building Item No.9R
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Code, California Fire Code, California Mechanical Code, California Plumbing Code, California Residential Code, California Green Building Standards Code, and California Energy Code all of which have also been adopted in the TOMC.

8.7. Future Development Entitlements. City agrees to cooperate with Owner to facilitate the processing of and to expeditiously process all Future Development Entitlements and City shall exercise its discretion in a manner consistent with and in recognition of this Agreement, the Project Approvals, the Applicable Laws, and other approved documents associated with this Agreement. City and Owner shall meet to identify all necessary Future Development Entitlements and to develop a schedule processing them. City and Owner agree to cooperatively work together to ensure expeditious review and processing and assign a dedicated City planner of the Future Development Entitlements.

8.8. Reserved Discretionary Approvals. Development Permit (DP) 2022- 70773 and other land use entitlements identified in Exhibit H have been approved and adopted for the development of the Project on the Subject Property. Owner will first need to obtain a building permit(s) and other future discretionary approvals to complete construction and development of the Project on the Subject property as described in the exhibits attached to this Agreement. City agrees to cooperate with Owner to facilitate the processing of and to expeditiously process all future applications for such reserved discretionary approvals and City shall exercise its discretion in a manner consistent with and in recognition of this Agreement and other approved documents associated with this Agreement.

8.9. Governing Rules, Regulations, Ordinances, Conditions, and Policies. Notwithstanding anything to the contrary set forth in this Agreement, for the term of this Agreement, the rules, regulations, ordinances and official policies governing the permitted uses of the Property, the density and intensity of use, design, improvement and construction standards and specifications applicable to the development of the Property, including the maximum height and size of proposed buildings, shall be those rules, regulations and official policies in force on the effective date the City Council approves this Agreement, including the Conditions of Approval and Exhibits labeled “Project Plans” dated May 26, 2023, and attached as Exhibit “C”. To the extent any future changes in the General Plan, zoning codes or any future rules, ordinances, regulations or policies adopted by the City purport to be applicable to the Property but are inconsistent with the terms and conditions of this Agreement, the terms of this Agreement shall prevail, unless the Parties mutually agree to amend or modify this Agreement. To the extent that any future changes in the General Plan, zoning codes or any future rules, ordinances, regulations, or policies adopted by the City are applicable to the Property and are not inconsistent with the terms and conditions of this Agreement or are otherwise made applicable by other provisions of this Agreement, such future changes in the General Plan, zoning codes or such future rules, ordinances, regulations or policies shall be applicable to the Property.

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8.10. Applicable City Construction Standards. All project construction and improvement plans for the Project shall comply with the applicable governmental rules, regulations, and design guidelines in effect at the time the Project Plans are approved.

If no permit is required for the public improvements, the date of permit approval shall be the date the improvement plans are approved by the City or the date construction for the public improvements is commenced, whichever occurs first.

8.11. Uniform Codes Applicable. This Project shall be constructed in accordance with the requirements of all applicable California Building Codes and local amendments, in effect at the time of submittal of the appropriate building, grading, encroachment or other construction permits for the Project. The Project must be built consistently with the City’s General Plan, Thousand Oaks Municipal Code, and Specific Plan No. 24. If no permits are required for any infrastructure improvements, such improvements will be constructed in accordance with the provisions of the codes delineated herein in effect at the start of construction of such infrastructure.

9. Relationship of Parties. The contractual relationship between City and Owner is independent and under no circumstances shall Owner be considered an agent or partner of City.

10. Amendments to Agreement. This Agreement may be amended in whole or in part only in writing and only by the mutual consent of the Parties. Amendments shall be processed either as Major Amendments or Minor Amendments, as defined and set forth below in Subsections 10.1 and 10.2.

10.1. Major Amendments. Amendments to this Agreement which affect or relate to (a) the Term of this Agreement; (b) the permitted uses of the Property; (c) the provisions for the reservation or dedication of land; (d) an increase in the density or intensity of use of the Property or the maximum height or maximum gross square footage; (e) changes to the percentage of commercial uses to residential use; (f) changes to the community benefits affecting the total monetary contributions by Developer; (g) changes to building materials which are not comparable or better than those included in the project plans dated May 26, 2023; or, (h) changes to the features of the conceptual landscape plan, including common outdoor spaces which are to comparable or better than the details included in the Specific Plan dated May 25, 2023, shall be deemed a “Major Amendment” and shall require giving of notice and a public hearing before the Planning Commission and the City Council in accordance with Government Code Section 65868 and TOMC Section 9-11.14(a). Any amendment which is not a Major Amendment shall be deemed a Minor Amendment subject to Subsection 10.2 below. Consistent with Sections 10.1 and 10.2, the City Manager or his or her designee shall have the discretionary authority to determine if any amendment is a Major Amendment subject to this Section or a Minor Item No.9R
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Amendment subject to Subsection 10.2 below. Said determination may be appealed to the City Council.

10.2. Minor Amendments. The Parties acknowledge that refinement and further implementation of the Project may demonstrate that certain minor changes may be appropriate with respect to the details of the development and performance of the Parties under this Agreement, Minor changes include any modification to the Project that is substantially consistent with the intent of the Project Approvals and does not involve any deviation from Specific Plan No. 24 or Applicable Laws. The Parties desire to retain a certain degree of flexibility with respect to the details of the Project and with respect to those items covered in the general terms of this Agreement. If and when the Parties find that clarifications, minor changes, or minor adjustments are necessary or appropriate and do not constitute a Major Amendment under Subsection 10.1, they shall effectuate such clarifications, minor changes or minor adjustments through a written Minor Amendment approved in writing by Owner and the City Manager. Minor amendments authorized by this subsection are ministerial and may not constitute a discretionary action or “amendment” for the purposes of Government Code Sections 65867, 65867.5, and 65868. Unless otherwise required by law, no such Minor Amendment shall require prior notice or hearing.

11. Cancellation and Termination. This Agreement may be canceled, in whole or in part, by mutual consent of the Parties in the manner provided for in Government Code Section 65868 and TOMC Section 9-11.14. Any termination under Government Code Section 65865.1 or TOMC Section 9-11.14(b) shall be effective only if Owner is provided no less than thirty (30) days in which to cure any alleged noncompliance, provided that City shall not terminate this Agreement pursuant to Section 65865.1 or Section 9-11.14(b) if City determines that the nature of the noncompliance requires more than thirty (30) days to cure and that Owner is capable of effecting such cure, and within such thirty (30) days Owner commences such cure and thereafter diligently and with continuity prosecutes such cure to completion. Any termination of this Agreement pursuant to Government Code Section 65865.1 or TOMC Section 9-11.14(b) shall be preceded by an opportunity for Owner to be heard before the City Council. This provision shall not limit City’s or Owner’s remedies as provided in this Agreement.

12. Enforcement. Unless canceled or terminated as provided herein, this Agreement is enforceable by City, Owner, or any successor in interest, notwithstanding any change in any applicable General or specific plan, zoning, or subdivision regulation adopted by City or otherwise imposed which alters or amends the rules, regulations or policies specified in this Agreement.

13. Periodic Review of Compliance with Agreement.

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13.1. Periodic Review. City may review compliance with this Agreement every twelve (12) months from the date this Agreement is executed unless a shorter time is specified by the City Council. City shall notify Owner in writing of the date for review at least thirty (30) days prior thereto, and Owner shall provide such information as City may require so City may properly perform the review. The City shall conduct any such annual review to determine whether Developer is acting in good-faith compliance with the provisions of this Agreement in accordance with Section 65865.1 of the California Government Code. Developer shall reimburse the City for the cost of each annual review conducted during the term of this Agreement. Such cost reimbursement shall include all direct and indirect expenses actually incurred in such annual reviews, provided that such cost shall be generally consistent with the cost charged for annual reviews for other development agreements to which the City is a party.

13.2. Good Faith Compliance. During each periodic review, Owner shall be required, in accordance with TOMC Section 9-11.13, to demonstrate by substantial evidence good faith compliance with the terms and conditions of this Agreement.

14. Events of Default.

14.1. Defaults by Owner. If City determines that Owner is in default under the terms and conditions of this Agreement, City shall, by written notice to Owner, specify the manner in which Owner is in default and state the steps Owner must take to comply.

If, within thirty (30) days after the effective date of notice from City specifying the manner in which Owner has failed to so comply, Owner does not commence all steps reasonably necessary to comply as required and/or thereafter diligently and with continuity pursue such steps to cure the default, then Owner shall be deemed to be in default under the terms of this Agreement and City may seek to terminate this Agreement providing Owner an opportunity to be heard before the City Council in accordance with Government Code Section 65865.1 and TOMC Section 9-11.14(b), or seek other remedies as set forth in this Agreement.

14.2. Defaults by City. If Owner determines that City is in default under the terms and conditions of this Agreement, Owner shall, by written notice to City, specify the manner in which City is in default and state the steps City must take to comply. If, within thirty (30) days after the effective date of notice from Owner specifying the manner necessary to comply as required and/or thereafter diligently and with continuity pursue such steps to completion, then City shall be deemed to be in default under the terms of this Agreement and Owner may terminate this Agreement or seek other remedies as set forth in this Agreement.

14.3. Failure to Cure Default Procedures. If after the cure period has elapsed, the City finds and determines that Owner remains in default, the City shall make a report to the City Council and then set a public hearing in accordance with the notice and hearing requirements of Government Code Section 65867 and 65868. If, after public Item No.9R
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hearing, the City Council finds and determines, on the basis of substantial evidence that the Owner has not cured the applicable default pursuant to this Section, City Council may terminate the Agreement and seek all remedies as set forth in this Agreement.

14.4. No Monetary Damages. It is acknowledged by the Parties that neither the City nor Owner would have entered into this Agreement if it were liable in monetary damages under or with respect to this Agreement or the application thereof.

The Parties agree and recognize that, as a practical matter, it may not be possible to determine an amount of monetary damages that would adequately compensate Owner for its investment of time and financial resources in planning to arrive at the kind, location, intensity of use, and improvements for the Project, nor to calculate the consideration the City would require to enter into this Agreement to justify the exposure. Therefore, the Parties agree that each of the Parties may pursue any remedy at law or equity available for any breach of any provision of this Agreement, except that neither Party nor any Transferee shall be liable in monetary damages and the Parties covenant not to sue for or claim any monetary damages for the breach of any provision of this Agreement. The Parties understand and agree, however, that nothing in this Section 14.4 shall prohibit, restrict, or otherwise affect the rights of a Party to seek monetary damages as a result of Owner's failure to make the required Benefit Payments or pay to the City any other required payments under this Agreement. If Owner fails to make the Public Benefit Payments as required by this Agreement, the City shall be entitled to sue for the City's actual, direct monetary damages in the amount of such unpaid Benefit Payments. In no event shall either Party be entitled to special, consequential, or punitive damages or damages measured by lost profits.

14.5. Remedies. The exclusive remedy for Owner for a default by City shall be specific performance under the terms of this Agreement to construct the Project as described within this Agreement. To the extent permitted by applicable law, Owner shall not assert, and hereby waives, any claim against City, its Officials, Officers, Employees, and Agents, on any theory of liability, for special, indirect, consequential, or punitive damages arising out of, in connection with, or as a result of, this Agreement and any actions by City to approve the Project and this Agreement. Owner further waives any right to monetary damages such as compensatory damages, loss of economic benefit, or lost profits.

14.6. Commencement of Legal Action. In addition to any other rights or remedies, either Party may initiate legal action to cure, correct, or remedy any default, to enforce any covenants or agreements herein, to enjoin any threatened or attempted violation hereof, to recover damages or any default, or to obtain any other remedies consistent with the purpose of this Agreement. Venue for such action shall be in Ventura County.

15. Waivers and Delay.

Item No.9R
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15.1. Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, and failure by a Party to exercise its rights upon a default by the other Party hereto, shall not constitute a waiver of such Party’s right to demand strict compliance by such other Party in the future.

15.2. Third Parties. Non-performance shall not be excused because of a failure of a third person, except as provided in Subsection 15.4.

15.3. Covenant Not to Sue. Notwithstanding anything to the contrary in this Agreement, Developer hereby agrees that neither Developer nor any of its agents, employees, representatives, members, managers, officers, assigns, heirs and successors in interest shall commence, prosecute, assist, promote or encourage, financially or otherwise, either individually or in any collective way, either directly or indirectly, either on its own behalf or on behalf of any other person or entity, any arbitration, litigation or any other judicial proceeding of any kind, nature or description against or involving the City challenging that any applicable conditions, mitigation measures, obligations, requirements or restrictions contained in the Agreement violate any California statutory requirements, constitute an abuse of the police power, violate substantive due process, deny equal protection of the laws, constitute or result in a taking of property without payment of just compensation, or impose an unlawful fee, or exaction or tax. Nothing in this Section shall prevent Developer from exercising its rights under Section 14, above, with respect to a default by the City.

15.4. Force Majeure. The Parties shall not be deemed to be in default of any provision of this Agreement where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, pandemic, states of emergency, stay-at-home orders, strikes and other labor difficulties, or similar events and occurrences beyond the Parties’ control. If any such events shall occur, the terms of this Agreement and the time for performance by a Party of any of its obligations hereunder shall be extended by the period of time that such events prevented performance of the obligation. To assist the Parties in determining the period of time for excusable delay, the Parties may refer to federal, State, and local orders, including health orders, adopted by any of the various agencies that directly impact this Project and the Parties’ ability to either work on the Project or process permits.

15.5. Nexus/Reasonable Relationship Challenges. Notwithstanding Subsection 15.1, Owner consents to, and waives any rights it may have now or in the future to bring a nexus/reasonable relationship challenge relating to the legal validity of (1) the express conditions, requirements, policies, rules, regulations or programs required by City’s Applicable Laws, including City’s General Plan, TOMC, Subdivision Map Act regulations, Specific Plan No. 24, Residential Planned Development rules and regulations, and Oak/Landmark Tree Preservation rules and regulations as they exist on the Agreement Date as to the Project; or (2) this Agreement, including without limitation, Item No.9R
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any claim that the Agreement constitutes an abuse of the police power, violates substantive due process, denies equal protection of the laws, constitutes or results in a taking of property without payment of just compensation, or imposes an unlawful fee, exaction, or tax.

15.6. Cooperation by Owner. Owner will, in a timely manner, provide City with all documents, applications, plans, and other information necessary for City to carry out its obligations hereunder, and cause Owner’s planners, engineers, and all other consultants to submit in a timely manner all required materials and documents, therefore.

Owner shall also apply in a timely manner for such other permits and approvals from other governmental or quasi-governmental agencies having jurisdiction over the Property as may be required for the development of the Project.

16. Notices. All notices required or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid and email.

Notices required to be given to City shall be addressed as follows:

City of Thousand Oaks
2100 E. Thousand Oaks Boulevard
Thousand Oaks, California 91362
Attention: Community Development Director
Email: [email protected]
Notices required to be given to Owner shall be addressed as follows:

Latigo-Hillcrest, LLC
11845 West Olympic Blvd, Suite 515W
Los Angeles, CA 90064
Attn: Mark Maron, Co-Founder and Managing Partner
Email: [email protected]
With a copy to:

Thomas S. Cohen, Esq.

Cohen Land Use Law, LLP
1534 N. Moorpark Road, #337
Thousand Oaks, CA 91360
Email: [email protected]
Formal written notices, demands, correspondence and communications between City and Owner shall be sufficiently given if dispatched by certified mail, postage prepaid, to the principal office of City and Owner, as set forth in this Section. Owner shall give written notice to City, at least thirty (30) days prior to the close of escrow, of any sale or Item No.9R
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transfer of any portion of the Property and any assignment of this Agreement, specifying the name or names of the transferee, the transferee’s mailing address, the acreage and location of the land sold or transferred, and the name and address of a single person or entity to whom any notice relating to this Agreement shall be given, and any other information reasonably necessary for City to consider approval of an assignment pursuant to Section 18 or any other action City is required to take under this Agreement.

Any notice given as required, herein, shall be deemed given a seventy-two (72) hour notification after deposit in the United States mail, if sent by mail, or upon delivery if personally delivered. A Party may change its address for notices by giving notice in writing to the other Party as required, herein, and thereafter notices shall be addressed and transmitted to the new address.

17. Cooperation in the Event of Legal Challenge.

17.1. Challenges to Agreement. In the event of any legal action instituted by a third party, including but not limited to any other governmental entity or official, challenging the validity of any provision of this Agreement, City and Owner hereby agree to use reasonable efforts to cooperate in defending such action. Each Party shall bear their own costs and attorney’s fees in defending any such third-party challenge to the Agreement, except that the Parties may by mutual written consent agree to joint legal representation in any such suit, the cost of which shall be equally shared between City and Owner. In the event of any litigation challenging this Agreement, or any portion hereof, this Agreement shall remain in full force and effect while such litigation, including any appellate review, is pending.

17.2. Challenges to Entitlements. In the event of any administrative, legal, or equitable action or other proceeding instituted by any person or entity not a party to the Agreement challenging any entitlement issued in reliance upon City approvals or challenging the sufficiency of any environmental review of this Project (each an “Entitlement Challenge”), each Party must cooperate in the defense of such Entitlement Challenge, in accordance with this Section. Owner agrees to pay City’s costs of defending an Entitlement Challenge, including all court costs and reasonable attorney’s fees incurred by City in defense of any Entitlement Challenge, as well as the time of the City’s staff spent in connection with such defense, and any costs and attorneys’ fees awarded against the City to a successful third party. Owner may select its own legal counsel to represent Owner’s interests in any Entitlement Challenge at Owner’s sole cost and expense. City agrees that it will not enter into a settlement agreement to any Entitlement Challenge without Owner’s written consent. Owner’s obligation to pay City’s costs in the defense of an Entitlement Challenge does not extend to those costs incurred on appeal filed by City as against a successful third party unless otherwise authorized by Owner in writing.

Item No.9R
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17.3. City’s Right to Independent Legal Evaluation. Nothing in this Section shall be construed as preventing City from independently evaluating its rights, obligations and causes of action in the event of litigation.

17.4. Cooperation. The City shall cooperate with Developer in the defense of the Proceeding; provided, however, that such obligation of the City to cooperate in its defense shall not require the City to (a) assert a position in its defense of the Proceeding which it has determined, in its sole discretion, has no substantial merit, (b) advocate in its defense of the Proceeding legal theories which it has determined, in its sole discretion, lack substantial merit, or (c) advocate in its defense of the Proceeding legal theories which it has determined, in its sole discretion, are contrary to its best interests, or to public policy.

Nothing contained in this Section 17.4 shall require Developer to refrain from asserting in its defense of the Proceeding positions or legal theories that do not satisfy the foregoing requirements.

17.5. Defending The Proceeding. Developer shall have the right, but not the obligation, to timely retain legal counsel to defend against any Proceeding, including without limitation a lawsuit to challenge a Project Approval or this Agreement based on an alleged violation of CEQA. The City shall have the right, if it so chooses, to defend any Proceeding utilizing in-house legal staff, or to retain outside legal counsel. Whether the City utilizes in-house legal staff, or outside legal counsel, Developer shall be liable for all legal costs, fees and expenses reasonably incurred by the City in defending a Proceeding. Provided that Developer is not in breach of the terms of this Agreement, the City shall not enter into any settlement of a Proceeding that involves the modification of any Project Approval or otherwise results in Developer incurring liabilities or other obligations, without the prior written consent of Developer.

18. Transfers and Assigns.

18.1. Transfers in General. Owner shall have the right to sell, assign or transfer (collectively “transfer”) this Agreement, and any and all of its rights, duties and obligations hereunder, to any person or entity at any time during the term of this Agreement, provided, however, in no event shall the rights, duties and obligations conferred upon Owner pursuant to this Agreement be at any time so transferred to or assigned except through a transfer of Owner's interest in the Property or a portion thereof.

18.2. City Review of Proposed Transfer. Prior to any such proposed transfer, Owner shall provide a Notice of Transfer to City, including the name, net worth, and development experience of the transferee. Any such transfer to an entity whose development experience confirms the transferee's ability to develop a project comparable in size and complexity to the Project shall be approved by the Community Development Director. Unless agreed to in writing, if Owner transfers the rights under the Agreement before the Project is completely constructed, the subsequent Owner will be required to build or complete the construction of the Project based on the architectural plans Item No.9R
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