HomeMy WebLinkAboutAGENDA REPORT 2002 0918 CC REG ITEM 09AITEM .
crry it1FMOORpARK. C,'ALTFORNTA
City r.n1l" 1 Meeting
of ;ep�e�nber 15, ��C
W631 ! m o ; +•
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
st Anal
FROM: Nancy Burns, Senior Management y
DATE: September 12, 2002 (CC Meeting of September 18, 2002)
SUBJECT: Consider Amending FY 2002 -2003 Annual Action Plan of
Ventura County Community Development Block Grant
(CDBG) FY 2000 -2005 Consolidated Plan to Include
Theater on High Project; Consider Adoption of
Resolution No. 2002- , to Apply for Section 108
Loan for Theater on High Project for $500,000 from the
U. S. Department of Housing and Urban Development
(HUD) for Furnishings, Fixtures and Equipment (FF &E)
for the Theater at 45 East High Street and for the
Acquisition of 11 -17 East High Street; and Consider
Approving Agreement Between City of Moorpark and Janss
IV Recreation for Theater on High Project
BACKGROUND
The City was asked to consider a request for funding assistance
from Janss IV Recreation, owner of the former Moorpark
Playhouse, at 45 East High Street. The funds are to be used for
furnishings, fixtures, and equipment (FF &E) for the theater and
for the acquisition of 11 -17 East High Street. The City was
asked to consider authorizing a loan application to the
Department of Housing and Urban Development (HUD) for a Section
108 loan for $500,000 for this project.
DISCUSSION
At its September 4, 2002, regular meeting, the City Council was
asked to consider amending the FY 2002 -2003 Annual Action Plan
of the FY 2002 -2003 Annual Action Plan of the Ventura County
Community Development Block Grant (CDBG) FY 2000 -2005
Consolidated Plan, in order to include the Theater on High
project as a funding priority. An Agreement between the City
Honorable City Council
Meeting of September 18, 2002
Page 2
and Janss IV Recreation, the owner of the theater at 45 East
High Street, was not completed at the time of the September 4,
2002, meeting, and Council continued the public hearing on this
item to its September 18, 2002, meeting. Council also directed
that the matter be referred to the Budget and Finance Committee
(Mayor Hunter and Councilmember Wozniak) for review. If the
Council approves a Section 108 loan, a Resolution will need to
be adopted. A draft of the Resolution as well as a draft
Agreement between the theater owner and the City is attached.
The Budget and Finance Committee will consider this at a Special
Meeting on September 18, 2002.
STAFF RECOMMENDATION
Direct staff as deemed appropriate.
Attachment Budget and Finance Committee Report from Meeting
of 9/18/02 (excluding Draft Agreement Between
Janss IV Recreation and the City, provided under
separate cover)
Attachment Resolution No. 2002 -
C 13 3 U21 tS'.y
MEMORANDUM
TO: Budget and Finance Committee
Mayor Hunter and Councilmember Wozniak
Burns Senior Management Analyst
FROM: Nancy g Y
DATE: September 12, 2002 (Special Mtg. of 9/18/02)
SUBJECT: Theater on High Project
(CDBG Section 108 HUD Loan)
SUMMARY
This project concerns a request for funding assistance from Janss
IV Recreation, owner of the former Moorpark Playhouse, at 45 East
High Street. The funds are to be used for furnishings, fixtures,
and equipment (FF &E) for the theater and for the acquisition of 11-
17 East High Street. The City was asked to consider authorizing a
loan application to the Department of Housing and Urban Development
(HUD) for a Section 108 loan for $500,000 for this project. The
loan, authorized in Section 108 of the Housing and Community
Development Act of 1974, as amended, will be repaid by the City
from future annual CDBG allocations. The use of CDBG funds as a
direct grant, without applying for a Section 108 loan, also is
discussed in this report. With or without a Section 108 loan, the
funds to the theater owner are a grant.
BACKGROUND
The former Moorpark Playhouse, dark since Summer 1999, was acquired
in 2001 by Janss IV Recreation. The new owner's plans included the
rehabilitation and update of the structure, to eliminate code
violations and ensure access by disabled persons. Plans were made
to re -open the theater as a venue for live theatrical performances
and motion picture presentations. An option for four hundred
thousand dollars ($400,000) was obtained to purchase an adjacent
property, at 11 -17 East High Street. This property will provide
space for set design, rehearsal, and other support services for the
theater. The building also will continue to provide commercial
space for small commercial enterprises, such as those currently
occupying space in that building.
At its September 4, 2002, regular meeting, the City Council was
asked to consider amending the FY 2002 -2003 Annual Action Plan of
Agenda Reports /B &F/ Committee Report - Theater on High y
the Ventura County Community Development Block Grant (CDBG) FY
2000 -2005 Consolidated Plan, in order to include the Theater on
High project as a funding priority. An Agreement between the City
and Janss IV Recreation, the owner of the theater at 45 East High
Street, was not completed at the time of the September 4, 2002,
meeting, and Council continued the public hearing on this item to
its September 18, 2002, meeting. Council also directed that the
matter be referred to the Budget and Finance Committee for review.
DISCUSSION
Since the theater was acquired by Janss IV Recreation for $275,000
in 2001, Larry Janss, owner, has expended approximately $527,770
for architectural studies, engineering reports, and some of the
needed repairs. Engineering and architect's reports revealed that
needed repairs exceeded budgeted funds. Exhibit "A" shows
expenditures to date, and budgeted expenditures. An estimated six
hundred eighty -one thousand nine hundred dollars ($681,900) still
needs to be spent to allow it to re -open as a theater.
In order to complete the needed repairs and re -open the theater,
additional funds were requested by the project's owner, in the form
of a HUD Section 108 loan for $500,000. This type of loan conforms
to Community Development Block Grant (CDBG) regulations and is
provided by the Department of Housing and Urban Development (HUD)
for large projects. The Theater on High project is eligible on the
basis of addressing a blighted condition in the City's
Redevelopment Project Area.
Staff has met with the owner and his consultant, representatives
from the County, and HUD staff to discuss the project and the
City's desire to revitalize its downtown. These meetings have
provided the opportunity to identify concerns and answer questions,
as the County must take the role of loan applicant, due to the
Cooperative Agreement between the City and the County for the CDBG
program. Staff believes that Davis -Bacon wage requirements will
not be invoked for this project, and continues to work with HUD
staff on compliance matters.
The City is responsible for loan repayment, and terms will be set
forth in an agreement with the County. Repayment of the Section
108 loan will be made from the City's annual allocation of CDBG
funds received by the County. The annual payment is estimated to
be approximately forty -two thousand dollars ($42,000) per year.
Interest is based on treasury note rates. The loan term is 20
years, and could be repaid after ten (10) years, if the City chose
to do so. City staff and County staff are developing this
agreement.
Agenda Reports/B &F/ Committee Report - Theater on High 2
X
An Agreement (Exhibit "B ") between the City and Janss IV Recreation
has been developed which defines funding terms and stipulates that
the theater must be used only for motion picture presentations and
live musical and theatrical productions, consistent with the
conditions of any City permits. As long as the theater continues
to be used as stipulated and no default of the Agreement has
occurred, the City will continue to pay the semi - annual loan
payment to HUD, from the City's annual CDBG allocation. If the
theater ceases to be used as defined, the remainder of the loan
will become due and payable by Janss IV Recreation. This will be
appropriately secured as a part of the Agreement between the City
and Janss.
The City of Moorpark participates with certain other cities in the
County, and with the County of Ventura, in the Ventura County CDBG
Entitlement Area. The Entitlement Area's FY 2000 -2005 Consolidated
Plan is a planning document required by HUD which identifies the
participating jurisdictions' unmet needs for affordable and
supportive housing, community development programs, social service
programs and economic development opportunities for low income
residents. The Plan also outlines a five -year Strategic Plan to
address those needs through specific projects. The FY 2002 -2003
Annual Action Plan is the third year of the five -year period and
includes projects to be undertaken during the program year. An
amendment to this Annual Plan is needed to add projects mid -year.
This matter has been publicly noticed, as required by CDBG
regulations, to consider amending the FY 2002 -2003 Annual Action
Plan. The public notice references the creation of jobs for low
income residents. Subsequent discussions with HUD staff have
clarified that project eligibility is more appropriately based on
the blighted condition of the immediate neighborhood, and the
desire to improve that area. Staff anticipates the project will
create jobs that may be filled by low income residents, but project
eligibility will not be based on that.
The Section 108 loan request requires an application from the
County to HUD, on behalf of the City, with repayment to HUD made by
the City from future CDBG allocations. As such, it is a loan of
$500,000 to the City, which the City would, in turn, grant to the
theater owner.
As an option, CDBG funds previously allocated for other purposes
could be re- allocated to this project if the City deemed it a
priority, and amended the Annual Plan to reflect this. This would
eliminate the need for obtaining a Section 108 loan. A noticed
public hearing would be required to consider a reallocation of CDBG
funds.
Agenda Reports /B &F/ Committee Report - Theater on High
C'�)` 005
The following reflects current CDBG allocations and estimates of
funds, if the Council wants to use existing CDBG funds:
Project
Existing
Funding
Projected
Balances
Comments
Affordable Housing
$49,710
$49,710
Affordable Housing
(6479 -B Penn)
0
$230,000
Net to City, if
property was sold
Street Lights
(Downtown
Residential)
$146,876
$95,000
Assumes project
continues at
estimated cost
Public Park
$143,400
$143,400
No action to date
Code Enforcement
$21,567
0
Boys & Girls Roof
Repair (Teen Ctr.)
$20,000
0
Administration
$36,694
$10,000
RAIN Facility
Rehab
$5,000
0
Catholic Charities
$10,920
0
Senior Nutrition
$13,519
0
Senior Center
Operations
$13,563
0
Senior
Survivalmobile
$1,000
$900
Fair Housing
$2,000
0
TOTALS
$464,249
$529,010,
STAFF RECOMMENDATION
1. That the City Council amend the FY 2002 -2003 Annual Action
Plan to include Theater on High Project; and
2. Provide recommendation to City Council for funding Theater
on High Project by methods such as the following:
A. Section 108 loan;
B. Public hearing to consider re- allocation of CDBG funds;
or
C. Alternative funding source as grant or loan or some
combination thereof.
Exhibit "A" Theater on High: Investment and Construction Cost
Exhibit "B" Agreement Between City of Moorpark and Janss IV
Recreation
cc: Honorable City Council
Steven Kueny, City Manager
Hugh Riley, Assistant City Manager
Agenda Reports /B &F/ Committee Report - Theater on High
\y 130(o G
THEATER ON HIGH
INVESTMENT AND CONSTRUCTION COST
Exhibit A
_� -,J V E
27- Aug -02
Description of Work
Budget
Change
Orders
Adjusted
Budget
Actual
Cost to
Date
Variance
Percentage
of
Completion
Dec -01
Jan -02
Feb -02
Mar-02
Apr -02
May -02
Jun -02
Jul -02
Aug-02
Sep -02
Oct -02
Nov -02
Dec -02
Rifait7AL�AF1'1`AL
INVESTMENT
--
-
--
49-E Hig"trest
275,000.00
V-5,000.6-6-27-50-00.0-0
0
100.00%
275,000.00
-
- --
669tretegies-Stuay
4,000.00
4,000.00
4000_0
6
100.00%
4,000.00
-
- -
ZaefiricReArcfiitedtsA[A_
7,110.14
7,1- 10.14-
7_11oA1a
o
-loo.00%
77,1-1-0 -14-
-
- -Ll Associates
1,500.00
1,500.00
1500.00
0
100.00%
1,500.00
--
_PHR _�rnironmentai
2,740.00
2,740.00
2740.00
0
100.00%
2,740.00
HIU[NAL CAPITA
INVESTMENT
290,350.14
290,350.14
290350.14
290,350.14
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
0.00
- - - --
-AE Mi1ODEiIN C-0 S'f
---------- -- - - - --
--- - - - ---
-
--
-
- - --
-
Janss Subcontractors _
_
_
ABC Liquour License__
_ _ 3,600.00
_3,600.00
1000.00
2,6_00.00
27.713%
1,0.00.00_
-
- - --
- --
Permits and Fees
7,000.00
7,0_00.00
616.00
6,384.00
8.80 °h
616.00
Behr Browers Architect_
60,000.00
60,000.00
64,2116.6642M.66
107.03%
9,515.15
5,726.50
23,704.68
11,72.5.14
3,900.20
928_.58
8,716.41
DC Foote & Vinci
20,000.00
20,000.00
0.00
20,000.00
0.00%
_ -
--
-
Electrical
3,975.00
3,975.00
0.00
3,975.00
HVAC
2,800.00
2,800.00
0.00
2,800.00
_0.00%
0.00%
Plumbing &Sewer
-- - -- --- -
5,200.00
-
5,200.00
---- -- --
0.00
5,200.00
0.00%
-
arm
Fire Alarm
-- -- -- - - - --
1,200.00
--
--
1,200.00
-- -
0.00
-1,206-.00 -
-
--
--
--
- --
- -
- -
Sewer Fees
7,500.00
_ 7,500.00
0.00
7,500.00
-
- --
- - --
--
-
--
_ Water Meter Fees
7,000.00
_ _
7,000.00
0.00
7,000.00
_0.00%
0.00%
__
Site Utilities
15,500.00
15,500.00
0.00
15,500_0
0.00
-- -
- -- -
Mar e
e u
q_ _
_ 44,000.00
_ -_
44,000.0_0
23000.00
21,000.00
52.27%
-
-
1,000.00
2_2,000.00
Pink Cadillac
15,257.00
15,257.00
0.00
15,257.00
0.00%
_
_
__
__
Haynco
48,214.67
48,214.67
24107.34
24,107.33
24,107.34
DeClerc
64,440.80
64,440.80
32220.17
32,220.63
_50.00%
50.00%
32,220.17
_ Cinetec
32,466.00
_ 32,466.00
11327.75
21,138.25
34.89_%
E, 000.0-
4,290.60
2,037.75
Poster_Cases
3,600.00
3,600.00
0.00
3,660.00
0.00%
_
_
_Electronic Creations software
23,588.20
23,586.20
18870.56
4,717.64
60.00%
18,870.56
Telephone Systems
4,50600
4,500.00
0.00
4,500.00
0.00%
Demolition-
1,000.00
1,000.00
2105.00
- 1,105.00
_
210.50%
1,120.00
985.00
Mark Briggs _
19,000.00
19,000.00
5947.50
13,052.50
3,315.00
780.00
1,852.50
Total Janss Subcontractors
386,241.67
386,241.67
202,830.69
47.49%
5,000.00
616.00
10,515.15
5,726.50
24,704.68
66,557.48
7,702.95
53,871.81
8,716.41
0.00
0.00
0.00
0.00
Forest _Co_ntru_ction
-
-
1010
Plans
28,000.00
28,000.00
25882.33
2,117.67
92.44%
7,000.0013,012.00
470.33
5,400.00
_1_040
_Supervision
Project Management
16,800.00
750.00
16,800.00
8079.59
8,720.41
340.00
1,060.00
3,335.00
450.00
1,050.00
1,124.59
1051
750.00
0.00
7- 50.00
_4_8.09%
0.00%
_720.00
-
1060
Permits
100.00
100.00
1678.96
- 1,578.96
1678.96%
100._00
1,301.46
277.50
116631
Telephone /Supplies
3,500.00
_3,500.00
0.00
3,500.00
0.00%
_ _
_
--
- --
1504
Temp Power
600.00
600.00
0.00
600.00
0.00%
_
-
1505
_ Temp Toilet
480.00
_
480.00
0.00
480.00
0.00%
-
15 08
Cleanup /Misc Labor
8,383.00
8,383.00
0.00
8,38100
0.00%
_
-
1507
Temporary Fence
750.00
750.00
0.00
750.00
0.00%
_
-
2050
Demolition
1-6,89b.001'
6,890.00
16,890.00
13724.78
3,165.22
81.26%
6,655.50
73.9.50
108.00
60.00
6,161.78
2100
Site Preparation
640.00
640.00
3.21
636.79
0.50 °�
3.21
2640
Site Utilities
35,500.00
35,500.00
0.00
35,500.00
0.00%
_
-
--
- -
_� -,J V E
THEATER ON HIGH
INVESTMENT AND CONSTRUCTION COST
Exhibit A
(�d
�a
Description of Work
Budget
Change
Orders
Adjusted
Budget
Actual
Cost to
Date
Variance
Percentage
of
Completion
Dec -01
Jan -02
Feb -02
Mar -02
Apr -02
May -02
Jun -02
Jul -02
Aug -02
Sep -02
Oct -02
Nov -02
Dec -02
2740
Site Concrete
15,550.00
15,550.00
120.00
15,430.00
0.77%
120.00
3300
Building Concrete
13,400.00
13,400.00
0.00
13,400.00
0.00%
_ 5120
Structural Steel
1,250.00
1,250.00
0.00
1,250.00
0.00%
5500
Misc Metals
7,905.00
7,905.00
0.06
7,905.00
0.00%
6100
Rough Carpentry
39,500.00
39,500.00
0.00
39,50_0.00
0.00_%
6200
Finish Millwork Allowance
5,250.00
5,250.00
0.00
5,250.00
0.00%
72_00
Insulation
14,766.00
14,766.00
0.00
14,766.00
0.00%
7500
Membrane Roofing
4,120.00
4,120.00
0.00
4,120.00
0.00%
7620
Sheet Metal Flashing
750.00
750.00
0.00
750.00
0.00%
8110
--
Doors & Frames & Hardware
- --
13,625.00
13,625.00
0.00
13,625.00
0.00%
8600
Glass & Glazing
--
2,250.00
2,250.00
0.00
2,250.00
0.00%
-
--
- --
-
--..-__..------
9220
Lath & Plaster
6,000.00
6,000.00
0.00
6,000.00
0.00%
9250
Metal Stud & Drywall
21,250.00
21,250.00
0.00
21,250.00
0.00%
931_0
Ceramic Tile Allowance
12,000.00
12,000.00
0.00
12,000.00
0.00%
9320
Countertop Allowance
1,575.00
1,575.00
0.00
1,575.00
0.00%
_
9680
Flooring Allowance
23,089.00
23,089.00
0.00
23,089.00
0.00%
9900
_
Paint
25,000.00
25,000.00
0.00
25,000.00
0.00%
10465
Supplies
0.00
0.00
0.00
_ Singnage
1,1_50.00
1,150.00
0.00
1,150.00
0.00%
_
Toiltet Partitiions
4,030.00
4,030.00
0.00
4,030.00
0.00%
Ticket Booth Counter
1,000.00
1,000.00
0.00
1,000.00
0.00%
-
0.00
0.00
0.00
--
- - --
-
- - --
--
10520
- - - --
Fire Exting - &Cabinets
-
1,500.00
--T-,566-.66
1 -,500.- 00
0.00 -
--
0.00%
-
-
-
-
-
-
-
-
--
10810
Toilet Accessories
3,600.00
3,600.00
0.00
3,600.00
0.00%
15300
Fire Sprinklers
10,291.00
10,291.00
0.00
10,291.00
0.00%
15400
Plumbing
50,300.00
50,300.00
265.00
0.53%
265.00
15500
HVAC __
12,300.00
12,300.00
214.00
_50,035.00
12,086.00
1.74%
214.00
_
16010
_ _
Electrical
92,942.00
92,942.00
0.00
92,942.00
0.00%
0.00
0.00
468,786.00
468,786.00
49967.87
418,818.13
10.66%
14,309.50
15,033.46
1,799.50
4,301.54
5,850.00
1,387.50
7,286.37
0.00
0.00
0.00
0.00
0.00
0.00
Over Head and Profit- Sitewor
7,657.50
7,657.50
0.00
7,657.50
0.00%
Over Head and Profit-Contract
62,549.40
62,549.40
9989.57
52,559.83
15.97%
2,861.90
3,002.69
359.90
860.31
1,170.00
277.50
1,457.27
70,206.90
70,206.90
9,989.57
60,217.33
14.23%
2,861.90
3,002.69
359.90
860.31
1,170.00
277.50
1,457.27
0.00
0.00
0.00
0.00
0.00
0.00
Total Forest Contract
538,992.90
538,992.90
59,957.44
479,035.46
11.12%
17,171.40
18,036.15
2,159.401
5,161.851
7,020.00
I 1,665.UOI
8,743.64
0.001
0.001
0.00
I 0.00
1 0.00
0.00
Description of Work
Budget
Change
Orders
Adjusted
Budget
Actual Cost
to Date
Variance
Percentage
of
Completion
Dec-01
Jan-02
Feb-02
Mar -02
Apr-02
May -02
Jun-02
Jul -02
Aug-02
Sep-02
Oct-02
Nov-02
Dec-02
Total Costs for T O H
43.91%
(�d
�a
RESOLUTION NO. 2002-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, AUTHORIZING THE
CITY'S APPLICATION FOR A $500,000 SECTION
108 LOAN FROM THE U. S. DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT (HUD), TO BE
SUBMITTED THROUGH THE COUNTY OF VENTURA, FOR
THE THEATER ON HIGH PROJECT
WHEREAS, the City of Moorpark, a municipal corporation,
together with certain other cities within the County of Ventura
and the County of Ventura constitute the County of Ventura
Community Development Block Grant (CDBG) Entitlement Area; and
WHEREAS, the City of Moorpark and the County of Ventura
have entered into a Cooperation Agreement for the CDBG Program,
most recently amended in June 2000, which provides that the
County shall assume certain administrative responsibilities from
HUD; and
WHEREAS, the City of Moorpark has publicly noticed and
conducted a public hearing on September 18, 2002, to consider
applying for a Section 108 loan from HUD to benefit the Theater
on High project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City of Moorpark shall apply for a Section
108 loan from HUD to benefit the Theater on High project.
SECTION 2. The City Clerk shall certify to the adoption
of this resolution and shall cause a certified resolution to be
filed in the book of original resolutions.
PASSED AND ADOPTED this 18th day of September, 2002.
Patrick Hunter, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
' 0 N Iq
ITEM A
AGREEMENT BETWEEN
THE CITY OF MOORPARK AND JANSS IV RECREATION, INC.
THIS AGREEMENT BETWEEN THE CITY OF MOORPARK AND JANSS IV
RECREATION, INC. ( "Agreement ") is entered into this day of
September, 2002, by and between THE CITY OF MOORPARK, a
Municipal corporation, hereinafter referred to as "City" and
JANSS IV RECREATION, INC., a California corporation, hereinafter
referred to as "JANSS IV ", with reference to the following
facts:
RECITALS:
A. JANSS IV is the owner of certain real property
improved by a theatre building and commonly known as The
Moorpark Playhouse, located at 45 High Street in the City of
Moorpark, County of Ventura, State of California (the "'Moorpark
Property "), as more particularly described on Exhibit "A"
attached hereto and by this reference incorporated herein;
B. JANSS IV has
certain real property
Moorpark ( "High Street
property shall be used
and musical performances
purposes;
entered into an agreement to purchase
commonly known as 11 -17 High Street,
Property ") with the intent that said
to assist in the production of theatre
at The Moorpark Playhouse and for other
C. JANSS IV has requested that the City provide to
JANSS IV certain financing to complete the rehabilitation and
renovation of The Moorpark Playhouse and to purchase the High
Street Property; and
D. The City wishes to promote the rehabilitation of the
Moorpark Theater and has agreed to provide to JANSS IV a loan to
complete the renovation of the Moorpark Playhouse and the
purchase of the High Street Property.
PROVISIONS
NOW, THEREFORE, in consideration of the mutual covenants,
representations and provisions contained herein and for other
good and valuable consideration, the undersigned do hereby agree
as follows:
1. LOAN.
The City shall diligently pursue all requirements of the CDBG
program necessary for the release of funds for this project.
A. Amount
principal
($500,000).
Of The Loan. The Loan shall be in the
amount of Five Hundred Thousand Dollars
B. Terms of Loan. The Loan will be due in full upon any
default identified within this document which is not cured
within thirty (30) days of notice, properly delivered to
Janss IV.
2. LOAN DOCUMENTS.
The Loan will be evidenced by a Promissory Note ( "Note ") , and
secured by a first deed of trust on the Moorpark Property and a
second deed of trust on the High Street Property (collectively,
"the Deeds of Trust "). The Deed of Trust on the Moorpark
Property shall be junior to no other. The Deed of Trust on the
High Street Property may be junior to a first mortgage loan
( "First Mortgage Loan "), and no other, to be obtained by
JANSS IV from a third party lender, in an amount not to exceed
Two Hundred Eighty Thousand Dollars ($280,000). The Note and
Deeds of Trust are collectively referred to as the "Loan
Documents ". The City may record a request for notice of default
and any notice of sale under any deed of trust or mortgage with
power of sale encumbering either property in the Office of the
Recorder of Ventura County.
3. LETTER OF CREDIT.
JANSS IV will provide credit enhancement in the form of an
irrevocable letter of credit ( "Letter of Credit ") in the amount
of Five Hundred Thousand Dollars ($500,000) as additional
security for the Loan. The Letter of Credit shall be for one
year and renewed annually in an amount equal to the then
outstanding balance of the Loan for the duration of the Loan.
The Letter of Credit may be called by the City at any time upon
an event of default by JANSS IV under the Loan Documents or this
Agreement with no other obligations or requirements by the City
except to notify the issuer that the Loan is in default. JANSS
IV may select a recognized financial institution of its choice,
reasonably approved by the City, to issue the Letter of Credit.
The Letter of Credit shall be in a form acceptable to the City
Attorney for the City. All fees incurred relating to the
issuance and renewal of the Letter of Credit shall be paid by
Janss IV, or paid from loan proceeds.
4. LENDER'S TITLE INSURANCE.
The City shall require a lender's policy of title insurance on
both the Moorpark Property and the High Street Property.
5. USE OF LOAN PROCEEDS.
JANSS IV agrees that the Loan proceeds shall be used solely for
the purchase price of the High Street Property, and for
furnishings, fixtures, equipment, building permits,
architectural fees and engineering costs regarding The Moorpark
Property.
6. PREPAYMENT.
No prepayment penalty will be charged to JANSS IV for payment of
all or any portion of the unpaid balance prior to the date on
which said amount is due.
7. EVENT OF DEFAULT.
The Moorpark Playhouse shall be maintained as an operating
theatre used for motion picture presentations and live musical
and theatrical productions. The entertainment at the theatre
shall be in accordance with the conditions of any City permit
approval, and shall at no time provide "X" rated or adult movies
or other forms of entertainment. Should The Moorpark Theatre
cease its operations as a theatre for a period in excess of
thirty (30) consecutive days or more (unless said cessation
results from any casualty (i.e., fire, flood, earthquake,
etc.)), or be found in violation of any City Code or permit by a
court of competent jurisdiction, then the City shall provide
written notice to JANSS IV of the default of this Agreement.
JANSS IV shall have thirty (30) days from the date notice is
received from the City to cure the default. In the event JANSS
IV does not cure the default within this time period, the City
may accelerate the Loan and declare the outstanding balance all
due and payable.
8. INSURANCE AND INDEMNIFICATION.
Janss IV shall obtain fire, hazard (including earthquake) and
liability insurance on both the Moorpark Property and the High
Street Property and shall maintain insurance coverage as
required by City for the life of the Loan. Janss IV shall
further indemnify the City and its officers, employees, servants
and agents and independent contractors who serve in the role of
City Manager, Assistant City Manager, City Clerk, Director of
Community Development, City Engineer, or City Attorney from any
claim, demand, damage, liability, loss, cost or expense, for any
damage whatsoever, to any property and injury to any person
resulting from or in any way connected with the properties
assisted by this loan.
9. APPLICABLE LAW.
This Agreement shall be interpreted under the laws of the State
of California.
10. ATTORNEYS' FEES.
Should it become necessary for either party to commence legal
action to enforce the provisions of this Agreement, then the
prevailing party in such action shall be entitled to all costs
of such attorneys' fees as a court may adjudge reasonable.
11. JOINT PREPARATION.
Should interpretation of this Agreement, or any portion thereof,
be necessary, it is deemed that this Agreement was prepared by
the parties jointly and equally, and shall not be interpreted
against either party on the ground that the party prepared the
Agreement or caused it to be prepared.
12. VENUE.
This Agreement is made, entered into, and executed in Ventura
County, California, and any action filed in any court or for
arbitration for the interpretation, enforcement or other action
of the terms, conditions or covenants referred to herein shall
be filed in the applicable court in Ventura County, California.
13. TIME IS OF THE ESSENCE in this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of this day of September, 2002.
CITY OF MOORPARK: JANSS IV RECREATION, INC.:
Steven Kueny, City Manager Larry Janss, President
ATTEST:
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