HomeMy WebLinkAboutAGENDA REPORT 2005 1221 CC REG ITEM 08ATO:
FROM:
DATE:
MOORPARK CITY COUNCIL
AGENDA REPORT
Honorable City Council
ITEM
T A.
dlfY OF MOORPARK, CALIFORNIA
Ity Cduneil Meeting
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David C. Moe II, Redevelopment Manager
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December 9, 2005 (City Council Meeting of 12/21/05)
SUBJECT: Approving the Sale of Property Owned by the
Moorpark Redevelopment Agency, located at 467 High
Street, to the Moorpark Group, LLC.
BACKGROUND
The Moorpark Redevelopment Agency ( "Agency ") and the Moorpark
Group, LLC ( "Developer "), formally known as the
DalyOwensGroup, have been working to finalize the purchase of
Agency owned property at 467 High Street ( "Property ").
On August 3, 2004, the Agency and Developer agreed on the
terms and conditions on the sale of the Property. The
Developer submitted a $5,000 deposit to begin the process of
drafting the Disposition and Development Agreement ( "DDA ") .
However, due to the lack of Agency staffing, the DDA was not
completed until August of 2005.
An appraisal established the fair market value of the
Property's highest and best use in accordance with the
Moorpark Redevelopment Plan to be $477,800.
The Property is currently vacant and blighted. A dilapidated
structure was located on the Property; however, the Agency
has removed it.
DISCUSSION
The Developer is proposing to purchase the Property for
$477,800 and construct a 17,500 square foot building to be
used for commercial purposes in accordance with the Moorpark
Redevelopment Plan and Downtown Specific Plan. A copy of the
Developer's site plan and elevation of the proposed
development can be found in Attachment I.
Moorpark City Council
December 21, 2005
Page 2
Under the proposed DDA, the Developer will have 14 months to
obtain the necessary permits for the project and 14 months to
complete the construction. The Agency will retain the right
to approve all tenants occupying the building for the first
five years of the project (after completion of construction).
California Community Redevelopment Law ( "CCRL ") Section 33433
requires that the City Council approve, by resolution and
after a public hearing, any Agency sale or lease of property
which was acquired with tax increment funds. Therefore,
since the Agency did acquire the Property with tax increment
funds, the City Council will need to make three required
findings. The City Council will need to find that:
1. The sale of property will assist in the
elimination of blight in the Moorpark
Redevelopment Project.
2. The sale of property is consistent with
the goals and objectives in the 2005-
2009 Implementation Plan for the
Moorpark Redevelopment Project pursuant
to Section 33490 of the CCRL.
3. The property is being sold to the
Moorpark Group, LLC at the fair market
value at the highest and best use in
accordance with the Moorpark
Redevelopment Plan.
The Section 33433 Report (Attachment II) summarizes all of
the Agency's cost associated with the acquisition, holding
and sale of the Property; states that the Property is being
sold for the fair market value; and describes how the sale of
the Property will assist with the elimination of blight and
is consistent with the Five Year Implementation Plan.
STAFF RECONNENDATION
1) Open public hearing, take public testimony, and close
the public hearing; and
2) Approve Resolution No. 2005 - approving sale of
Property between the Agency and the Moorpark Group, LLC.
Attachment I Site Plan and Elevation
Attachment II Section 33433 Summary Report
Attachment III Resolution
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ARCHITECTURE
HIGH STREET
Site Plan / First Floor
Scale: 1" = 30' -0
High Street date 1y5/05
5158 GOLDMAN AVENUE SUITE F 467 High Street
Moorpark, CA 9302 Ol
MOORPAKK, CA. 93021 (805) 552 -0088 1 sheet A -
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Second Floor
Scale: 1' = 30' -G
DI CECCO ARCHITECTURE High Street date ,cos
5158 GOLDMAN AVENUF SUITE F 467 High Street
MOOKPARK, CA. 93021 (805) 552 -0088 Moorpark, CA 93021 sheet A -02
rNT (-rr'r'n ARCHITECTURE
5158 GOLDMAN AVENUE SUITE F
MOORPARK, CA. 93021 (805) 552-0088
Renderin
High Street date
467 High Street
Moorpark, CA 93021 sheet
125/05
A -03
ATTACHMENT II
REPORT OF THE MOORPARK REDEVELOPMENT AGENCY ON THE SALE OF REAL
PROPERTY PURSUANT TO A PROPOSED DISPOSITION AND DEVELOPMENT
AGREEMENT BETWEEN THE AGENCY AND MOORPARK GROUP LLC.
This report has been prepared pursuant to Section 33433 of
the California Community Redevelopment Law (Health and Safety
Code Section 33000, et seq.) which requires a redevelopment
agency, prior to selling any real property acquired in whole or
in part, directly or indirectly, with tax increment monies, to
prepare a report which includes a copy of the proposed sale and a
summary which describes and specifies: (1) the cost of the
agreement to the agency; (2) the estimated value of the interest
to be conveyed or leased, determined at the highest and best uses
permitted under the redevelopment plan; (3) the estimated value
of the interest to be conveyed determined at the use and with the
conditions, covenants, and development costs required by the
sale, the purchase price and, if there is a difference between
the fair market value determined at its highest and best use
consistent with the redevelopment plan and the purchase price, an
explanation of the reasons for the difference; and (4) an
explanation of why the sale of the property will assist in the
elimination of blight, with reference to all supporting facts and
materials relied upon in making this explanation.
I. PROPOSED SALE OF REAL PROPERTY
A copy of the proposed Disposition and Development Agreement (the
"DDA ") between The Redevelopment Agency of the City of Moorpark
(the "Agency ") and Moorpark Group LLC (the "Developer ") is
attached as Exhibit A. The proposed DDA provides for the sale of
certain real property owned by the Agency located within the
boundaries of the Moorpark Redevelopment Project Area in the City
of Moorpark described in Exhibit B (the "Site "). Under the terms
of the DDA, the Developer shall construct, or cause to be
constructed, on the Site, a commercial building.
II. FINANCIAL SUMMARY
A. Cost of the DDA to the Aaenc
The Agency has incurred or will incur the following
costs relating to the DDA:
1. Land Acquisition Costs. The Sites, purchased by
the Agency, cost a total of $451,439 and the
improvements were demolished at a cost of $18,805.
2. Land Disposition Costs. The Agency will sell the
Site to the Developer pursuant to the DDA. The
Developer and Agency will each pay for their costs
0000C u
S: \Assistant City Manager \Evervone \DDA's \Dal}'OwensGroup (167 High St) \Da1ey0wensGroup \33433 Report Summary
Report.doc
associated with the escrow, including payment of
the premium for a CLTA title insurance policy.
Should Developer desire an ALTA title insurance
policy, the Developer shall pay the premium of the
ALTA policy.
3. Administration and Staff Costs. The Agency will
incur administrative costs associated with the
DDA, excluding legal costs, for the negotiation
and preparation of the DDA and other related
documents, and ongoing staff costs related to the
monitoring of the obligations of the parties under
the DDA during construction. Following
construction, the Agency will incur additional
administrative and staff costs relating to the
ongoing monitoring during the term of the use
covenants provided for under the DDA.
4. Legal Cost. The Agency has incurred or will incur
$1,006 of legal expenses associated with this DDA.
5. Abandoned
requested
search on
Resource
Abandoned
report wi
$2,013.
Well Search. The County of Ventura
the Agency to conduct an abandoned well
the property. The Agency retained Water
Engineering Associates to conduct an
Well Search on the property and file a
th the County of Ventura at a cost of
6. Appraisal Cost. The Agency incurred $400 expense
to have the property appraised.
B. Estimated Value of the Sites at Highest and Best Use
Based upon an independent appraisal prepared by Stuart
Lane Company, (the "Appraisal ") the estimated fair
market value of the Site determined at the highest and
best use permitted under the Moorpark Redevelopment
Plan is commercial use with the total land valued at
$477,800.
C. Estimated Value of the Site with the Conditions
Covenants, and Development Costs Required by the DDA
The DDA does not require special use, conditions,
covenants or development costs that change the value of
2 12/15/2005 0 00 Cl e 7
the Site from the estimated value at its highest and
best use.
D. Purchase Price
The Developer's purchase price for the Site is
$477,800.00, which is the appraised fair market value
based on the Appraisal conducted by the Stuart Lane
Company.
III. EXPLANATION OF WHY THE SALE OF THE SITE WILL ASSIST IN
ELIMINATING BLIGHT AND IS CONSISTENT WITH THE IMPLEMENTATION PLAN
The goals and objectives of the Moorpark Redevelopment Project,
as stated in the Agency's Five Year Implementation Plan, include,
in part, the revitalization of the downtown area. The
development of the Site pursuant to the DDA is consistent with
and will further the redevelopment goals and objectives.
The sale of the Site will assist in the elimination of blight
because the Site consisted of a blighted structure which was
demolished. The Site is currently vacant and underutilized. The
sale of the Site pursuant to the terms of the DDA will make
development of the Site possible and will require the Developer
to use and develop the Site in accordance with the Moorpark
Redevelopment Plan.
In addition to eliminating blight of the Site, the development
will assist in stimulating other new investment in the Project
Area.
Attachments: Exhibit A Disposition and Development Agreement
Exhibit B Legal Description of Site
3 12/15/2005 0() 0 0 C'S
EXHIBIT A
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
and When Recorded Mail to:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attn: Steven Kueny
Executive Director
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
REDEVELOPMENT AGENCY of the CITY OF MOORPARK
and
MOORPARK GROUP LLC
DATED September _, 2005
A MOORPARK REDEVELOPMENT PROJECT
0000(:,19
ATTACHMENTS
Attachment No. 1 Site Map
Attachment No. 2 Site Legal Description
Attachment No. 3 Grant Deed
Attachment No. 4 Schedule of Performance
Attachment No. 5 Scope of Development
Attachment No. 6 Release of Construction Covenants
"(Opf 0
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement ") is
entered into as of , 2005, by and between the
REDEVELOPMENT AGENCY of the CITY OF MOORPARK, a public body, corporate
and politic (the "Agency "), and MOORPARK GROUP LLC (the "Developer ").
RECITALS
The following recitals are a substantive part of this Agreement:
A. In furtherance of the objectives of the California Community Redevelopment Law,
the Agency desires to redevelop a certain parcel of land, approximately 1/2 acre is
size, located at 467 East High Street (APN 512 -0- 081 -110) in the City of Moorpark
(the "Site "). The Site is vacant.
B. The Site is currently owned by the Redevelopment Agency of the City of Moorpark
and has a zoning designation of "Old -Town Commercial" as provided by the
Moorpark Downtown Specific Plan.
C. The Agency and the Developer desire by this Agreement for the Agency to agree to
convey the Site to the Developer, and for the Developer to agree to construct a new,
approximately 17,570 square foot, commercial building on the Site including
supporting parking and other on -site or off -site improvements (collectively, the
"Improvements ") consistent with the adopted Redevelopment Plan, City General
Plan, zoning and development standards.
D. The Agency's disposition of the Site to the Developer, and the Developer's
acquisition of the Site and construction of the Improvements pursuant to the terms of
this Agreement, are in the vital and best interest of the Moorpark Redevelopment
Agency, the City, and the health, safety, morals and welfare of its residents, and in
accord with the public purposes and provisions of applicable state and local laws
and requirements under which the redevelopment of the Project has been
undertaken.
NOW, THEREFORE, the Agency and the Developer hereby agree as follows:
100. DEFINITIONS
"Actual Knowledge" is defined in Section 208.1 hereof.
"Agency" means the Redevelopment Agency of the City of Moorpark, a public
body, corporate and politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community Redevelopment Law of the
State of California, and any assignee of or successor to its rights, powers and
responsibilities.
"Agency's Conditions Precedent" means the conditions precedent to the
Closing to the benefit of the Agency, as set forth in Section 205.1 hereof.
"Agreement" means this Disposition and Development Agreement between the
Agency and the Developer.
() IN 0, P,4 A
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"City" means the City of Moorpark, a California municipal corporation.
"Closing" means the close of Escrow for the conveyance of the Site from the
Agency to the Developer, as set forth in Section 202 hereof.
"Closing Date" means the date of the Closing, as set forth in Section 202.4
hereof
"Condition of Title" is defined in Section 203 hereof.
"Date of Agreement" means the date set forth in the first paragraph hereof.
"Default" means the failure of a party to perform any action or covenant required
by this Agreement within the time periods provided herein following notice and
opportunity to cure, as set forth in Section 501 hereof.
"Design Development Drawings" means those plans and drawings to be
submitted to the City for its approval, pursuant to Section 302 hereof.
"Developer" means MOORPARK GROUP LLC, a California General
Partnership.
"Developer's Conditions Precedent" means the conditions precedent to the
Closing to the benefit of the Developer, as set forth in Section 205.2.
"Environmental Consultant" means the environmental consultant to be
employed by the Developer pursuant to Section 208.2 hereof.
"Environmental Laws" means any federal, state or local law, statute, ordinance
or regulation pertaining to environmental regulation, contamination or cleanup of any
Hazardous Materials, including, without limitation, (i) Sections 25115, 25117, 25122.7 or
25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste Control Law), (ii) Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter - Presley- Tanner Hazardous Substance Account
Act), (iii) Section 25501 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) Section 25281
of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) Article 9 or Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (vi) Section 311 of the Clean Water Act (33
U.S.C.§ 1317), (vii) Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. §6901 et seq.(42 U.S.C. §6903), (viii) Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq., or
(ix) any state or federal lien or "superlien" law, any environmental cleanup statute or
regulation, or any permit, approval, authorization, license, variance or permission
required by any governmental authority having jurisdiction.
"Escrow" is defined in Section 202 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Exceptions" is defined in Section 203 hereof.
"Governmental Requirements" means all laws, ordinances, statutes, codes,
rules, regulations, orders and decrees of the United States, the state, the county, the
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City, or any other political subdivision in which the Site is located, and of any other
political subdivision, agency or instrumentality exercising jurisdiction over the Agency,
the Developer or the Site.
"Grant Deed" means the grant deed for the conveyance of the Site from the
Agency to the Developer, in the form of Attachment No. 3 hereto which is incorporated
herein.
"Hazardous Materials" means any substance, material, or waste which is or
becomes, regulated by any local governmental authority, the State of California, or the
United States Government, including, but not limited to, any material or substance
which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted
hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section
25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste Control Law), (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter - Presley- Tanner
Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Section 25501 of the California Health and
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section
311 of the Clean Water Act (33 U.S.C. § 1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
§6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §9601 et seq.
"Improvements" means the improvements to be constructed by the Developer
either on or off the Site. The improvements include but are not limited to the
construction of a multiple story, commercial building constructed with material
acceptable to the City, of approximately 17,570 square feet and supporting parking and
landscape improvements all more particularly described herein and in the Scope of
Development.
"Lender" is defined in Section 311.2 hereof.
"Notice" shall mean a notice in the form prescribed by Section 601 hereof.
"Outside Date" shall mean the last date the Closing shall occur, as set forth in
Section 202.4 hereof.
"Project" shall mean the Site as improved including construction of
improvements consisting of a three story, commercial building constructed with material
acceptable to the City, of approximately 17,570 square feet and supporting parking and
landscape improvements all more particularly described herein and in the Scope of
Development.
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"Purchase Price" means the price to be paid by the Developer to the Agency in
consideration for the conveyance of fee title to the Site.
"RAP" means the remedial action plan for the remediation of the Site, as defined
in Section 208.3 hereof.
"Release of Construction Covenants" means the document which evidences
the Developer's satisfactory completion of the Improvements, as set forth in Section 310
hereof, in the form of Attachment No. 6 hereto which is incorporated herein.
"Remedial Work" is defined in Section 208.3 hereof.
"Remediation Cost" is defined in Section 208.3 hereof
"Report" means the preliminary title report, as described in Section 203 hereof
"Schedule of Performance" means the Schedule of Performance attached
hereto as Attachment No. 4 and incorporated herein, setting out the dates and /or time
periods by which certain obligations set forth in this Agreement must be accomplished.
The Schedule of Performance is: (a) subject to revision from time to time as mutually
agreed upon in writing between the Developer and the Agency's Executive Director, and
the Agency's Executive Director is authorized to make such revisions as he or she
deems reasonably necessary; and (b) subject to the provisions of Section 602.
"Scope of Development" means the Scope of Development attached hereto as
Attachment No. 5 and incorporated herein, which describes the scope, amount and
quality of development of the Improvements to be constructed by the Developer
pursuant to the terms and conditions of this Agreement.
"Site" is defined in Recital Paragraph A.
"Site Legal Description" means the description of the Site which is attached
hereto as Attachment No. 2 and incorporated herein.
"Site Map" means the map of the Site which is attached hereto as Attachment
No. 1 and incorporated herein.
"Studies" are defined in Section 207 hereof.
"Threshold Amount" is defined in Section 208.3 hereof.
"Title Company" is defined in Section 203 hereof.
"Title Policy" is defined in Section 204 hereof.
"Trust Deed" is defined in Section 311.2 hereof.
"Use Restriction Period" is defined in Section 301 hereof.
200. CONVEYANCE OF THE SITE
201. Purchase and Sale of Site. The Agency has fee title to the entire Site as
defined in Site Legal Description in Section 100 hereof. Subject to all of the terms and
conditions of this Agreement, Agency shall sell the Site to Developer, and Developer
shall purchase the Site from Agency, for the all- inclusive cash purchase price of Four
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Hundred Seventy Thousand Two Hundred Forty -Four Dollars ($470,244) (the
"Purchase Price "), payable in legal tender of the United States of America, unless
provisions to the contrary are provided herein. Payment of the Purchase Price
represents the agreed upon reuse value of the Site, at the use and with the covenants
and conditions and development costs authorized by this Agreement. Developer
agrees that it shall not purchase the Site for speculation in undeveloped land.
202. Escrow. Within thirty (30) days after the full execution of this Agreement,
the parties shall open escrow ( "Escrow ") with Land America, Lawyers Title, or another
escrow company mutually satisfactory to both parties (the "Escrow Agent ").
202.1 Costs of Escrow. Agency and Developer shall pay their respective
portions of the premium for the Title Policy as set forth in Section 204 hereof, the
Agency shall pay for the documentary transfer taxes, if any, due with respect to the
conveyance of the Site, and Developer and Agency each agree to pay one -half of all
other usual fees, charges, and costs which arise from Escrow.
202.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Agency, and the Escrow Agent to whom these
instructions are delivered is hereby empowered to act under this Agreement. The
parties hereto agree to do all acts reasonably necessary to close this Escrow in the
shortest possible time. Insurance policies for fire or casualty are not to be transferred,
and Agency will cancel coverage of the Site from its own policies after the Closing. All
funds received in the Escrow shall be deposited with other escrow funds in a general
escrow account(s) and may be transferred to any other such escrow trust account in
any State or National Bank doing business in the State of California. All disbursements
shall be made by check from such account. However, if Escrow does not close within
two (2) business days from deposit of the Purchase Price, the funds shall be deposited
into an interest bearing account with such interest accruing to the benefit of the
Developer.
If in the opinion of either party it is necessary or convenient in order to accomplish the
Closing of this transaction, such party may require that the parties sign supplemental
escrow instructions; provided that if there is any inconsistency between this Agreement
and the supplemental escrow instructions, then the provisions of this Agreement shall
control. The parties agree to execute such other and further documents as may be
reasonably necessary, helpful or appropriate to effectuate the provisions of this
Agreement. The Closing shall take place when both the Agency's Conditions Precedent
and the Developer's Conditions Precedent as set forth in Section 205 have been
satisfied. Escrow Agent is instructed to release Agency's escrow closing and
Developer's escrow closing statements to the respective parties.
202.3 Authority of Escrow Agent. Escrow Agent is authorized to and
shall:
a. Pay and charge Agency for the premium of the Title Policy and any amount
necessary to place title in the condition necessary to satisfy Section 203 of this
Agreement.
b. Pay and charge Developer and Agency for their respective shares of any escrow
fees, charges, and costs payable under Section 202.1 of this Agreement.
c. Pay and charge Developer for any endorsements to the Title Policy which is
requested by the Developer.
d. Disburse funds, and deliver and record the Grant Deed when both the Developer's
Conditions Precedent and the Agency's Conditions Precedent have been fulfilled
or waived by Developer and Agency.
e. Do such other actions as necessary, including obtaining the Title Policy, to fulfill its
obligations under this Agreement.
f. Within the discretion of Escrow Agent, direct Agency and Developer to execute
and deliver any instrument, affidavit, and statement, and to perform any act
reasonably necessary to comply with the provisions of FIRPTA and any similar
state act and regulation promulgated there under. Agency agrees to execute a
Certificate of Non - Foreign Status by individual transferor and /or a Certification of
Compliance with Real Estate Reporting Requirement of the 1986 Tax Reform Act
as may be required by Escrow Agent, on the form to be supplied by Escrow Agent.
g. Prepare and file with all appropriate governmental or taxing authorities a uniform
settlement statement, closing statement, tax withholding forms including an IRS
1099 -S form, and be responsible for withholding taxes, if any such forms are
provided for or required by law.
202.4 Closing. This transaction shall close ( "Closing ") within thirty (30)
days of the parties' satisfaction of all of Agency's and Developer's Conditions Precedent
to Closing as set forth in Section 205 hereof, but in no event later than October 30, 2006
(the "Outside Date ").
The Closing shall occur at a location within Ventura County at a time and place
reasonably agreed on by the parties. The "Closing" shall mean the time and day the
Grant Deed is filed for recording with the Ventura County Recorder. The "Closing Date"
shall mean the day on which the Closing occurs.
202.5 Termination. If (except for deposit of money by Developer, which
shall be made by Developer before the Closing) Escrow is not in condition to close by
the Outside Date, then either party which has fully performed under this Agreement
may, in writing, demand the return of money or property and terminate this Agreement.
If either party makes a written demand for return of documents or properties, this
Agreement shall not terminate until five (5) days after Escrow Agent has delivered
copies of such demand to all other parties at the respective addresses shown in this
Agreement. If any objections are raised within said five (5) day period, Escrow Agent is
authorized to hold all papers and documents until instructed by a court of competent
jurisdiction or by mutual written instructions of the parties. Developer, however, shall
have the sole option to withdraw any money deposited by it for the acquisition of the
Site less Developer's share of costs of Escrow. Termination of this Agreement shall be
without prejudice as to whatever legal rights either party may have against the other
arising from this Agreement. If no demands are made, the Escrow Agent shall proceed
with the Closing as soon as possible.
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202.6 Closing Procedure. Escrow Agent shall close Escrow for the Site
as follows:
a. Record the Grant Deed with instructions for the Recorder of Ventura County,
California to deliver the Grant Deed to Developer;
b. Instruct the Title Company to deliver the Title Policy to Developer;
c. File any informational reports required by Internal Revenue Code Section 6045(e),
as amended, and any other applicable requirements; and
d. Deliver the FIRPTA Certificate, if any, to Developer;
e. Forward to both Developer and Agency a separate accounting of all funds received
and disbursed for each party and copies of all executed and recorded or filed
documents deposited into Escrow, with such recording and filing date and
information endorsed thereon.
203. Review of Title. The Agency shall cause Land America, Lawyers Title
Company, or another title company mutually agreeable to both parties (the "Title
Company "), to deliver to Developer a standard preliminary title report (the "Report") with
respect to the title to the Site, together with legible copies of the documents underlying
the exceptions ( "Exceptions ") set forth in the Report, within thirty (30) days from the
date of this Agreement. The Developer shall have the right to reasonably approve or
disapprove the Exceptions.
Developer shall have thirty (30) days from the date of its receipt of the Report to give
written notice to Agency and Escrow Holder of Developer's approval or disapproval of
any of such Exceptions. Developer's failure to give written disapproval of the Report
within such time limit shall be deemed approval of the Report. If Developer notifies
Agency of its disapproval of any Exceptions in the Report, Agency shall have the right,
but not the obligation to notify Developer within ten (10) business days after receiving
written notice of Developer's disapproval that such Exception(s) will be removed on or
before the Closing. If Agency cannot or does not elect to remove any of the disapproved
Exceptions within that period, Developer shall have ten (10) business days after the
expiration of such ten (10) business day period to either give the Agency written notice
that Developer elects to proceed with the purchase of the Site subject to the
disapproved Exceptions or to give the Agency written notice that the Developer elects to
terminate this Agreement. The Exceptions approved by Developer as provided herein
shall hereinafter be referred to as the "Condition of Title." Developer shall have the right
to approve or disapprove any Exceptions reported by the Title Company after Developer
has approved the Condition of Title for the Site (which are not created by Developer).
Agency shall not voluntarily create any new exceptions to title following the date of this
Agreement.
204. Title Insurance. Concurrently with recordation of the Grant Deed conveying
title to the Site, there shall be issued to Developer an CLTA policy of title insurance (the
"Title Policy "), by the Title Company insuring that the title to the Site is vested in
Developer in the condition required by Section 203 of this Agreement. The Title
Company shall provide the Agency with a copy of the Title Policy. The Title Policy shall
be for the amount of the Purchase Price. The Agency agrees to remove on or before the
Closing any deeds of trust or other monetary liens against the Site. The Agency shall
pay that portion of the premium for the Title Policy equal to the cost of a CLTA standard
coverage title policy in the amount of the Purchase Price. Any additional costs, including
the cost of an ALTA policy or any endorsements requested by the Developer, shall be
borne by the Developer.
205. Conditions of Closing. The Closing is conditioned upon the satisfaction of
the following terms and conditions within the times designated below:
205.1 Agency's Conditions of Closing. Agency's obligation to proceed
with the Closing of the sale of the Site is subject to the fulfillment or waiver by Agency of
each and all of the conditions precedent (a) through (h), inclusive, described below
( "Agency's Conditions Precedent "), which are solely for the benefit of Agency, and
which shall be fulfilled or waived by the time periods provided for herein:
a. No Default. Prior to the Close of Escrow, Developer is not in default in any of its
obligations under the terms of this Agreement and all representations and warranties
of Developer contained herein shall be true and correct in all material respects.
b. Deposit. Prior to the Close of Escrow, Developer will provide a Good Faith Deposit
of Five Thousand Dollars ($5,000).
c. Execution of Documents. The Developer shall have executed the Grant Deed and
executed any other documents required hereunder and delivered such documents
into Escrow.
d. Payment of Closing Costs. Prior to the Close of Escrow, Developer has paid all
required costs of Closing into Escrow in accordance with Section 202 hereof.
e. Design Approvals and Building Permits. The Developer shall have obtained approval
by the Agency of the Design Development Drawings and building permits from the
City as set forth in Section 302 hereof.
f. Land Use Approvals. The Developer shall have received all land use approvals and
permits required pursuant to Section 303 hereof.
g. Insurance. The Developer shall have provided proof of insurance as required by
Section 306 hereof.
h. Financing. The Agency shall have approved financing of the Improvements as
provided in Section 311.1 hereof.
205.2 Developer's Conditions of Closing. Developer's obligation to
proceed with the purchase of the Site is subject to the fulfillment or waiver by Developer
of each and all of the conditions precedent (a) through (h), inclusive, described below
( "Developer's Conditions Precedent "), which are solely for the benefit of Developer, and
which shall be fulfilled or waived by the time periods provided for herein:
a. No Default. Prior to the Close of Escrow, Agency is not in default in any of its
obligations under the terms of this Agreement and all representations and warranties
of Agency contained herein shall be true and correct in all material respects.
b. Execution of Documents. The Agency shall have executed the Grant Deed and any
other documents required hereunder, and delivered such documents into Escrow.
c. Payment of Closing Costs. Prior to the Close of Escrow, Agency shall have paid all
required costs of Closing into Escrow in accordance with Section 202 hereof.
d. Review and Approval of Title. Developer shall have reviewed and approved the
condition of title of the Site, as provided in Section 203 hereof.
e. Title Policy. The Title Company shall, upon payment of Title Company's regularly
scheduled premium, have agreed to the Title Policy for the Site upon the Close of
Escrow, in accordance with Section 204 hereof.
f. Environmental. The Developer shall have approved the environmental condition of
the Site and shall not have elected to cancel Escrow and terminate this Agreement
pursuant to Section 208 hereof, and the Remediation (if required pursuant to that
Section) shall have been completed as provided therein.
g. Design Approvals. The Developer shall have obtained approval of the Design
Development Drawings and Building Permits as set forth in Section 302 hereof.
Land Use Approvals. The Developer shall have received all land use approvals and
permits required pursuant to Section 303 hereof.
206. Representations and Warranties.
206.1 Agency Representations. Agency represents and warrants to
Developer as follows:
a. Authority. Agency is a public body, corporate and politic, existing
pursuant to the California Community Redevelopment Law (California
Health and Safety Code Section 33000), which has been authorized to
transact business pursuant to action of the City. Agency has full right,
power and lawful authority to grant, sell and convey the Site as provided
herein and the execution, performance and delivery of this Agreement by
Agency has been fully authorized by all requisite actions on the part of
Agency.
b. FIRPTA. Agency is not a "foreign person" within the parameters FIRPTA
or any similar state statute, or is exempt from the provisions of FIRPTA or
any similar state statute, or that Agency has complied and will comply with
all the requirements under FIRPTA or any similar state statute.
c. No Conflict. To the best of Agency's knowledge, Agency's execution,
delivery and performance of its obligations under this Agreement will not
constitute a default or a breach under any contract, agreement or order to
which Agency is a party or by which it is bound.
d. Lawsuits. There are no claims, actions, suits or proceedings, nor any
order, decree or judgment, in law or in equity in effect against or affecting
the Site.
e. Violations of Law. No outstanding notices of the violation of laws,
ordinances, orders, requirements or regulations of any government
agency related to the Site have been received by the Agency.
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Leases and Contracts. There are no leases, rental agreements or
similar instruments creating a possessory interest in the Site and no
agreements relating to the upkeep, repair, maintenance and operation of
the Site which are in effect as of the execution date of this Agreement or
will be in effect as of the Close of Escrow.
g. Special Assessments. Agency shall pay all assessments due on the
property up to closing of escrow.
h. Purchase Rights. No person, firm, corporation or other entity (other than
Developer by reason of this Agreement) has any right or option to acquire
the Site or any portion thereof unless approved by agency.
Until the Closing, Agency shall, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 206.1 not to be
true as of Closing, immediately give written notice of such fact or condition to
Developer. Such exception(s) to a representation shall not be deemed a breach by
Agency hereunder, but shall constitute an exception which Developer shall have a right
to approve or disapprove if such exception would have an effect on the value and /or
operation of the Site. If Developer elects to close Escrow following disclosure of such
information, Agency's representations and warranties contained herein shall be deemed
to have been made as of the Closing, subject to such exception(s). If, following the
disclosure of such information, Developer elects to not close Escrow, then this
Agreement and the Escrow shall automatically terminate, and neither party shall have
any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 206.1 shall survive the Closing.
206.2 Developer's Representations. Developer represents and warrants
to Agency as follows:
a. Authority. Developer is a duly formed LLC organized within and in good standing
under the laws of the State of California. The copies of the documents evidencing
the organization of the Developer which have been delivered to the Agency are true
and complete copies of the originals, as amended to the date of this Agreement.
Developer has full right, power and lawful authority to purchase and accept the
conveyance of the Site and undertake all obligations as provided herein and the
execution, performance and delivery of this Agreement by Developer has been fully
authorized by all requisite actions on the part of the Developer.
b. No Conflict. To the best of Developer's knowledge, Developer's execution, delivery
and performance of its obligations under this Agreement will not constitute a default
or a breach under any contract, agreement or order to which the Developer is a
party or by which it is bound.
c. No Developer Bankruptcy. Developer is not the subject of a bankruptcy
proceeding.
Until thirty (30) days prior to the Closing, Developer shall, upon learning of any fact or
condition which would cause any of the warranties and representations in this Section
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206.2 not to be true as of Closing, immediately give written notice of such fact or
condition to Agency. Such exception(s) to a representation shall not be deemed a
breach by Developer hereunder, but shall constitute an exception which Agency shall
have a right to approve or disapprove if such exception would have an effect on the
value and /or operation of the Site. If Agency elects to close Escrow following disclosure
of such information, Developer's representations and warranties contained herein shall
be deemed to have been made as of the Closing, subject to such exception(s). If,
following the disclosure of such information, Agency elects to not close Escrow, then
this Agreement and the Escrow shall automatically terminate, and neither party shall
have any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 206.2 shall survive the Closing.
207. Studies and Reports. Prior to the Closing, representatives of Developer
shall have the right of access to all portions of the Site owned by the Agency for the
purpose of obtaining data and making surveys and tests necessary to carry out this
Agreement, including the investigation of the environmental condition of the Site
pursuant to Section 208 hereof. Any preliminary work undertaken on the Site by
Developer prior to the Closing shall be done at the sole expense of the Developer, and
the Developer's execution of a right of entry agreement to be provided by the Agency.
Any preliminary work shall be undertaken only after securing any necessary permits
from the appropriate governmental agencies.
208. Condition of the Site
208.1 Disclosure. Prior to the execution of this Agreement, Agency has
determined there is no visible evidence to indicate the presence of Hazardous Materials
on the Site. The Agency hereby represents and warrants that it has no Actual
Knowledge, and has not received any notice or communication from any government
agency having jurisdiction over the Site, notifying Agency of, the presence of surface or
subsurface zone Hazardous Materials in, on, or under the Site, or any portion thereof.
"Actual knowledge," as used herein, shall not impose a duty of investigation, and shall
be limited to the actual knowledge of the Agency employees and agents who have
participated in the preparation of this Agreement.
208.2 Investigation of Site. The Developer shall have the right, at its sole
cost and expense, to engage its own environmental consultant (the "Environmental
Consultant ") to make such investigations as Developer deems necessary. The Agency
shall promptly be provided a copy of all reports and test results provided by the
Environmental Consultant.
Within thirty (30) days prior to escrow closing, the Developer shall reasonably approve
or disapprove, in its sole and absolute discretion, the environmental condition of the Site
within the time set forth in the Schedule of Performance. The Developer's approval of
the environmental condition of the Site shall be a Developer's Condition Precedent to
the Closing, as set forth in Section 205 hereof. If the Developer, based upon the above
environmental reports, reasonably disapproves the environmental condition of the Site,
then the Developer may terminate this Agreement by written Notice to the Agency.
208.3 Remediation of Site. If the Developer does not elect to terminate
this Agreement pursuant to Section 208.2, based upon Developer's investigation of the
0 0®O :I
environmental condition of the Site, the following provisions shall apply to the
remediation of any Hazardous Materials in, on or under the Site that are discovered in
connection with Developer's environmental investigation. If Developer, based upon the
above environmental reports, reasonably estimates that the cost of remediating the Site
in accordance with all Governmental Requirements (the "Remediation Cost ") is Forty
Thousand Dollars ($40,000) or less (the "Threshold Amount "), then Developer shall be
required to fund the Remediation Cost, not to exceed the Threshold Amount, and
Agency shall cause the Remediation of the Site to be performed with reasonable
diligence, and in accordance with all Governmental Requirements prior to the Close of
Escrow.
If Developer, based upon the above environmental reports, reasonably estimates that
the projected Remediation Cost exceeds the Threshold Amount, then Agency at its
option, either may terminate this Agreement or agree in writing to pay the excess of the
actually incurred Remediation Cost over the Threshold Amount. In such event,
Developer shall be required to fund the portion of the Remediation Cost up to the
Threshold Amount, and Agency shall be required to fund the portion of the Remediation
Cost which exceeds the Threshold Amount.
If the Remediation of the Site is to be performed, Developer shall deliver to Agency a
proposed remedial action plan ( "RAP "), which RAP shall be approved by the City of
Moorpark or any other agency asserting jurisdiction over the remedial work to be
performed pursuant to the RAP (the "Remedial Work "). The Remedial Work shall be
performed by the Agency in accordance with applicable Governmental Requirements
and Environmental Laws prior to the Close of Escrow. Completion of the Remediation
Work and the issuance of closure letters without any requirement of further remedial
work by all governmental agencies which have asserted jurisdiction over the
remediation of the Site shall each be an Agency's Condition Precedent to the Closing.
208.4 No Further Warranties As To Site. Except as otherwise provided
herein, the physical condition, possession or title of the Site is and shall be delivered
from Agency to Developer in an "as -is" condition, with no warranty expressed or implied
by Agency, including without limitation, the presence of Hazardous Materials or the
condition of the soil, its geology, the presence of known or unknown seismic faults, or
the suitability of the Site for the development purposes intended hereunder.
208.5 Developer Precautions After Closing. Upon the Closing, the
Developer shall take all necessary precautions to prevent the release into the
environment of any Hazardous Materials which are located in, on or under the Site.
Such precautions shall include compliance with all Governmental Requirements with
respect to Hazardous Materials. In addition, the Developer shall install and utilize such
equipment and implement and adhere to such procedures as are consistent with
commercially reasonable standards as respects the disclosure, storage, use, removal
and disposal of Hazardous Materials.
208.6 Required Disclosures After Closing. After the Closing, the
Developer shall notify the Agency, and provide to the Agency a copy or copies, of all
environmental permits, disclosures, applications, entitlements or inquiries relating to the
Site, including notices of violation, notices to comply, citations, inquiries, clean -up or
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abatement orders, cease and desist orders, reports filed pursuant to self- reporting
requirements and reports filed or applications made pursuant to any Governmental
Requirement relating to Hazardous Materials and underground tanks. The Developer
shall report to the Agency, as soon as possible after each incident, any unusual or
potentially important incidents with respect to the environmental condition of the Site.
In the event of a release of any Hazardous Materials into the environment after the
Closing, the Developer shall, as soon as possible after the release, furnish to the
Agency a copy of any and all reports relating thereto and copies of all correspondence
with governmental agencies relating to the release. Upon request, the Developer shall
furnish to the Agency a copy or copies of any and all other environmental entitlements
or inquiries relating to or affecting the Site including, but not limited to, all permit
applications, permits and reports including, without limitation, those reports and other
matters which may be characterized as confidential.
208.7 Developer Indemnity. Upon the Closing, Developer agrees to
indemnify, defend and hold Agency harmless from and against any claim, action, suit,
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or
expense (including, without limitation, attorneys' fees), resulting from, arising out of, or
based upon (i) the presence, release, use, generation, discharge, storage or disposal of
any Hazardous Materials on, under, in or about, or the transportation of any such
Hazardous Materials to or from, the Site after the Closing, or (ii) the violation, or alleged
violation, of any statute, ordinance, order, rule, regulation, permit, judgment or license
relating to the use, generation, release, discharge, storage, disposal or transportation of
Hazardous Materials on, under, in or about, to or from, the Site after the Closing. This
indemnity shall include, without limitation, any damage, liability, fine, penalty, cost or
expense arising from or out of any claim, action, suit or proceeding for personal injury
(including sickness, disease or death), tangible or intangible property damage,
compensation for lost wages, business income, profits or other economic loss, damage
to the natural resource or the environment, nuisance, contamination, leak, spill, release
or other adverse effect on the environment.
300. DEVELOPMENT OF THE SITE
301. Scope of Development. The Developer shall develop the Improvements in
three phases (clearing and grubbing, site preparation, and construction of
improvements) in accordance with the Scope of Development and the plans, drawings
and documents submitted by the Developer and approved by the Agency and City as
set forth herein. The Improvements shall generally consist of the construction of a
multiple story, commercial building constructed with material acceptable to the City, of
approximately 17,570 square feet and supporting parking and landscape improvements
associated setbacks, parking and landscaping and other onsite and offsite
improvements as required by the development approval process in accordance with the
Schedule of Performance included as Attachment 4 to this Agreement. The premises
shall be leased to and occupied by appropriate commercial, retail or building tenants for
a period of five (5) years from the issuance of a Certificate of Occupancy for the Project
( "Use Restriction Period ").
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302. Design Review.
302.1 Developer Submissions. Before commencement of construction of
the Improvements or other works of improvement upon the Site, and at or prior to the
times set forth herein, the Developer shall submit to the City any plans and drawings
(collectively, the "Design Development Drawings ") which may be required by the City
with respect to any entitlements and permits which are required to be obtained to
approve and develop the Improvements, and such plans for the Improvements as
required by the City in order for the Developer to obtain building and grading permits for
the Improvements. Within thirty (30) days after the City's disapproval or approval of
such plans, the Developer shall revise the portions of such plans identified by the City
as requiring revisions and resubmit the revised plans to the City. In the event that
Developer objects to any of the proposed revisions, Developer and the City shall meet
and discuss the revisions. Developer shall complete premises within fourteen months
from start of construction, subject to the provisions of Section 602.
302.2 City Review and Approval. The City shall have all rights to review
and approve or disapprove all Design Development Drawings and other required
submittals in accordance with the City Municipal Code, and nothing set forth in this
Agreement shall be construed as the City's approval of any or all of the Design
Development Drawings.
302.3 Revisions. Any and all change orders or revisions required by the
City and its inspectors which are required under the Municipal Code and all other
applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under
other applicable laws and regulations shall be included by the Developer in its Design
Development Drawings and other required submittals and shall be completed during the
construction of the Improvements.
302.4 Defects in Plans. The Agency and the City shall not be responsible
either to the Developer or to third parties in any way for any defects in the Design
Development Drawings, nor for any structural or other defects in any work done
according to the approved Design Development Drawings, nor for any delays
reasonably caused by the review and approval processes established by this Section
302.
303. Land Use Approvals. Before commencement of construction of the
Improvements or other works of improvement upon the Site, the Developer shall, at its
own expense, secure or cause to be secured any and all land use and other
entitlements, permits and approvals which may be required for the Improvements by the
City or any other governmental agency affected by such construction or work, except for
those which are the responsibility of the Agency as set forth herein. The Developer
shall, without limitation, apply for and secure the following, and pay all costs, charges
and fees associated therewith:
a. Commercial Planned Development Permit.
b. All permits and fees required by the City, County of Ventura, and other governmental
agencies with jurisdiction over the Improvements.
c. Pay for any environmental studies and documents required pursuant to the
California Environmental Quality Act.
However, the execution of this Agreement does not constitute the granting of or a
commitment to obtain any required land use permits, entitlements or approvals required
by the Agency or the City. At the request of Developer, the City will allow Developer's
building plans and specifications for the Improvements to be processed concurrently
with its processing of Developer's application for the Commercial Planned Development
Permit, provided that Developer acknowledges that such plans and specifications may
be subject to later revision by the Developer based upon the City's review and approval
of the Commercial Planned Development Permit. The Developer understands that any
revisions to the plans are at the Developer's cost as well as any additional cost for City
plan check.
304. Schedule of Performance. Subject to the provisions of Section 602, the
Developer shall submit all Design Development Drawings, commence and complete all
construction of the Improvements, and satisfy all other obligations and conditions of this
Agreement within the times established therefore in the Schedule of Performance which
is attached hereto as Attachment No. 4 and incorporated herein.
305. Cost of Construction. Except to the extent otherwise expressly set forth in
this Agreement, all of the cost of planning, designing, developing and constructing all of
the Improvements, demolition of existing improvements, site preparation and grading
shall be borne solely by the Developer.
306. Insurance Requirements. The Developer shall take out and maintain or
shall cause its contractor to take out and maintain until the issuance of the Release of
Construction Covenants pursuant to Section 310 of this Agreement, a comprehensive
general liability policy in the amount of Two Million Dollars ($2,000,000) combined
single limit policy, and a comprehensive automobile liability policy in the amount of One
Million Dollars ($1,000,000), combined single limit, or such other policy limits as the
Agency may approve at its discretion, including contractual liability, as shall protect the
Developer, City and Agency from claims for such damages. Such policy or policies shall
be written on an occurrence form. The Developer shall also furnish or cause to be
furnished to the Agency evidence satisfactory to the Agency that Developer and any
contractor with whom it has contracted for the performance of work on the Site or
otherwise pursuant to this Agreement carries workers' compensation insurance as
required by law. The Developer shall furnish a certificate of insurance countersigned by
an authorized agent of the insurance carrier on a form approved by the Agency setting
forth the general provisions of the insurance coverage. This countersigned certificate
shall name the City and the Agency and their respective officers, agents, and
employees as additionally insured parties under the policy, and the certificate
shall be accompanied by a duly executed endorsement evidencing such
additional insured status. The certificate and endorsement by the insurance carrier
shall contain a statement of obligation on the part of the carrier to notify City and the
Agency of any material change, cancellation or termination of the coverage at least
thirty (30) days in advance of the effective date of any such material change,
cancellation or termination. Coverage provided hereunder by the Developer shall be
primary insurance and not be contributing with any insurance maintained by the Agency
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r-
0 C) 0( ���
or City, and the policy shall contain such an endorsement. The insurance policy or the
endorsement shall contain a waiver of subrogation for the benefit of the City and the
Agency. The required insurance shall be obtained and the required certificate shall be
furnished by the Developer at the time set forth therefore in the Schedule of
Performance.
307. Developer's Indemnity. The Developer shall defend, indemnify, assume all
responsibility for, and hold the Agency and the City, and their representatives,
volunteers, officers, employees and agents, harmless from, all claims, demands,
damages, defense costs or liability of any kind or nature relating to the subject matter of
this Agreement or the implementation hereof and for any damages to property or
injuries to persons, including accidental death (including attorneys fees and costs)
which may be caused by any acts or omissions of the Developer under this Agreement,
whether such activities or performance thereof be by the Developer or by anyone
directly or indirectly employed or contracted with by the Developer and whether such
damage shall accrue or be discovered before or after termination of this Agreement.
The Developer shall not be liable for property damage or bodily injury occasioned by the
sole negligence of the Agency or its designated agents or employees.
308. Rights of Access. Prior to the issuance of a Release of Construction
Covenants (as specified in Section 310 of this Agreement), for purposes of assuring
compliance with this Agreement, representatives of the Agency shall have the right of
access to the Site, without charges or fees, at normal construction hours during the
period of construction for the purposes of this Agreement, including but not limited to,
the inspection of the work being performed in constructing the Improvements so long as
Agency representatives comply with all safety rules. The Agency (or its representatives)
shall, except in emergency situations, notify the Developer prior to exercising its rights
pursuant to this Section 308.
309. Compliance With Laws. The Developer shall carry out the design and
construction of the Improvements in conformity with all applicable laws, including all
applicable state labor standards, the City zoning and development standards, building,
plumbing, mechanical and electrical codes, and all other provisions of the City of
Moorpark Municipal Code, and all applicable disabled and handicapped access
requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C.
Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
309.1 Taxes and Assessments. Commencing on the Close of escrow
and continuing throughout Developer's ownership of the Site, the Developer shall pay
prior to delinquency all ad valorem real estate taxes and assessments on the Site,
subject to the Developer's right to contest in good faith any such taxes. The Developer
shall remove or have removed any levy or attachment made on the Site or any part
thereof, or assure the satisfaction thereof within a reasonable time. The Developer shall
not apply for or receive any exemption from the payment of property taxes or
assessments on any interest in or to the Site or the Improvements.
309.2 Liens and Stop Notices. The Developer shall not allow to be
placed on the Site or any part thereof any lien or stop notice which are caused by any
- 16- 0C)0ch10-- G
acts or omissions of Developer or anyone directly or indirectly employed by or
contracted with the Developer. If such a claim of a lien or stop notice is given or
recorded affecting the Improvements the Developer shall within thirty (30) days of such
recording or service or within thirty (30) days of the Agency's demand whichever last
occurs:
a. pay and discharge the same; or
b. affect the release thereof by recording and delivering to the Agency a surety bond in
sufficient form and amount, or otherwise; or
c. provide the Agency with other assurance which the Agency deems, in its sole
discretion, to be satisfactory for the payment of such lien or bonded stop notice and
for the full and continuous protection of Agency from the effect of such lien or
bonded stop notice.
310. Release of Construction Covenants. Promptly after completion of the
Improvements in conformity with this Agreement, the Agency shall furnish the
Developer with a release of project Bonds and a "Release of Construction Covenants,"
substantially in the form of Attachment No. 6 hereto which is incorporated herein by
reference. The Agency shall not unreasonably withhold such Release of Construction
Covenants. The Release of Construction Covenants shall be a conclusive determination
of satisfactory completion of the Improvements and the Release of Construction
Covenants shall so state. Any party then owning or thereafter purchasing, leasing or
otherwise acquiring any interest in the Site shall not (because of such ownership,
purchase, lease or acquisition) incur any obligation or liability under this Agreement
except for those continuing covenants as set forth in Section 405 of this Agreement.
If the Agency refuses or fails to furnish the Release of Construction Covenants, after
written request from the Developer, the Agency shall, within thirty (30) days of written
request therefore, provide the Developer with a written statement of the reasons the
Agency refused or failed to furnish the Release of Construction Covenants. The
statement shall also contain the Agency's opinion of the actions the Developer must
take to obtain the Release of Construction Covenants. The Release of Construction
Covenants shall not constitute evidence of compliance with or satisfaction of any
obligation of the Developer to any holder of any mortgage, or any insurer of a mortgage
securing money loaned to finance the Improvements, or any part thereof. The Release
of Construction Covenants is not a notice of completion as referred to in Section 3093 of
the California Civil Code.
311. Financing of the Improvements.
311.1 Approval of Financing. As required herein and as an Agency
Condition Precedent to the Closing, Developer shall submit to Agency evidence that
Developer has obtained sufficient equity capital or has obtained firm and binding
commitments for construction and permanent financing necessary to undertake the
development of the Site and the construction of the Improvements in accordance with
this Agreement. Agency shall approve or disapprove such evidence of financing
commitments within fifteen (15) business days of receipt of a complete submission.
Approval shall not be unreasonably withheld or conditioned. If Agency shall disapprove
-17- 0()0CA".7
any such evidence of financing, Agency shall do so by Notice to Developer stating the
reasons for such disapproval and Developer shall promptly obtain and submit to Agency
new evidence of financing. Agency shall approve or disapprove such new evidence of
financing in the same manner and within the same times established in this Section
311.1 for the approval or disapproval of the evidence of financing as initially submitted
to Agency. Developer shall close the approved financing concurrently with the Closing.
Such evidence of financing shall include the following: (a) a copy of a legally binding,
firm and enforceable loan commitment(s) obtained by Developer from unrelated
financial institutions for the mortgage loan or loans for financing to fund the purchase,
construction, completion, operation and maintenance of the Improvements, subject to
such lenders' reasonable, customary and normal conditions and terms, and /or (b) a
certification from the chief financial officer or chief executive officer of Developer that
Developer has sufficient funds for such purchase, construction, completion, operation
and maintenance of the Improvements, and that such funds have been committed to
such purchase, construction, completion, operation and maintenance of the
Improvements, and /or other documentation satisfactory to the Agency as evidence of
other sources of capital sufficient to demonstrate that Developer has adequate funds to
cover the difference between the total cost of the acquisition of the Site, and
construction and completion of the Improvements, less financing authorized by those
loans set forth in subparagraph (a) above.
311.2 No Encumbrances Except Mortgages, Deeds of Trust, or Sale
and Lease -Back for Development. Mortgages, deeds of trust and sales and leases -
back are to be permitted before completion of the construction of the Improvements with
the Agency's prior written approval, which shall not be unreasonably withheld or
delayed, but only for the purpose of securing loans of funds to be used for financing the
acquisition of the Site, construction of the Improvements (including architecture,
engineering, legal, and related direct costs as well as indirect costs) on or in connection
with the Site, permanent financing, and any other purposes necessary and appropriate
in connection with development under this Agreement. The Developer shall notify the
Agency in advance of any mortgage, deed of trust or sale and lease -back financing, if
the Developer proposes to enter into the same before completion of the construction of
the Improvements. The words "mortgage" and "trust deed" as used hereinafter shall
include sale and lease -back. The Developer shall not enter into any such conveyance
for financing without the prior written approval of the Agency, which approval Agency
agrees to give if any such conveyance for financing is given to a responsible financial
lending institution or person or entity ( "Lender"). The Developer may enter into a
conveyance for financing after the completion of the Improvements without the approval
of the Agency.
311.3 Holder Not Obligated to Construct Improvements. The holder of
any mortgage or deed of trust authorized by this Agreement shall not be obligated by
the provisions of this Agreement to construct or complete the Improvements or any
portion thereof, or to guarantee such construction or completion; nor shall any covenant
or any other provision in this Agreement be construed so to obligate such holder.
Nothing in this Agreement shall be deemed to construe, permit or authorize any such
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holder to devote the Site to any uses or to construct any improvements thereon, other
than those uses or improvements provided for or authorized by this Agreement.
311.4 Notice of Default to Mortgagee or Deed of Trust Holders; Right
to Cure. With respect to any mortgage or deed of trust granted by Developer as
provided herein, whenever the Agency may deliver any notice or demand to Developer
with respect to any breach or default by the Developer in completion of construction of
the Improvements, the Agency shall at the same time deliver to each holder of record of
any mortgage or deed of trust authorized by this Agreement a copy of such notice or
demand. Each such holder shall (insofar as the rights granted by the Agency are
concerned) have the right, at its option, within thirty (30) days after the receipt of the
notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with
due diligence the cure or remedy of any such default and to add the cost thereof to the
mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall
be deemed to permit or authorize such holder to undertake or continue the construction
or completion of the Improvements, or any portion thereof (beyond the extent necessary
to conserve or protect the improvements or construction already made) without first
having expressly assumed the Developer's obligations to the Agency by written
agreement reasonably satisfactory to the Agency. The holder, in that event, must agree
to complete, in the manner provided in this Agreement, the Improvements to which the
lien or title of such holder relates. Any such holder properly completing such
improvement shall be entitled, upon compliance with the requirements of Section 310 of
this Agreement, to a Release of Construction Covenants. It is understood that a holder
shall be deemed to have satisfied the thirty (30) day time limit set forth above for
commencing to cure or remedy a Developer default which requires title and /or
possession of the Site (or portion thereof) if and to the extent any such holder has within
such thirty (30) day period commenced proceedings to obtain title and /or possession
and thereafter the holder diligently pursues such proceedings to completion and cures
or remedies the default.
311.5 Failure of Holder to Complete Improvements. In any case where,
thirty (30) days after the holder of any mortgage or deed of trust creating a lien or
encumbrance upon the Site or any part thereof receives a notice from Agency of a
default by the Developer in completion of construction of any of the Improvements
under this Agreement, and such holder has not exercised the option to construct as set
forth in Section 311, or if it has exercised the option but has defaulted hereunder and
failed to timely cure such default, the Agency may purchase the mortgage or deed of
trust by payment to the holder of the amount of the unpaid mortgage or deed of trust
debt, including principal and interest and all other sums secured by the mortgage or
deed of trust. If the ownership of the Site or any part thereof has vested in the holder,
the Agency, if it so desires, shall be entitled to a conveyance from the holder to the
Agency upon payment to the holder of an amount equal to the sum of the following:
a. The unpaid mortgage or deed of trust debt at the time title became vested in the
holder (less all appropriate credits, including those resulting from collection and
application of rentals and other income received during foreclosure proceedings);
b. All expenses with respect to foreclosure including reasonable attorneys' fees;
-19-
O00CA29
c. The net expense, if any (exclusive of general overhead), incurred by the holder as a
direct result of the subsequent management of the Site or part thereof;
d. The costs of any improvements made by such holder;
e. An amount equivalent to the interest that would have accrued on the aggregate of
such amounts had all such amounts become part of the mortgage or deed of trust
debt and such debt had continued in existence to the date of payment by the
Agency; and
f. Any customary prepayment charges imposed by the lender pursuant to its loan
documents and agreed to by the Developer.
311.6 Right of the Agency to Cure Mortgage or Deed of Trust Default. In the
event of a mortgage or deed of trust default or breach by the Developer prior to the
completion of the construction of any of the Improvements or any part thereof,
Developer shall immediately deliver to Agency a copy of any mortgage holder's notice
of default. If the holder of any mortgage or deed of trust has not exercised its option to
construct, the Agency shall have the right but no obligation to cure the default. In such
event, the Agency shall be entitled to reimbursement from the Developer of all proper
costs and expenses incurred by the Agency in curing such default. The Agency shall
also be entitled to a lien upon the Site to the extent of such costs and disbursements.
Any such lien shall be junior and subordinate to the mortgages or deeds of trust
pursuant to this Section 311.
400. COVENANTS AND RESTRICTIONS
401. Intentionally deleted
402. Use and Operation Covenants. Subject to the provisions of Section 600,
during the Use Restriction Period, the Developer hereby covenants and agrees that the
Improvements shall be used and operated as described in Section 301 or for such other
use as then permitted in the C -OT Old Town Commercial zone under the City's zoning
ordinance with the prior approval of the Agency, which approval shall not be
unreasonably withheld or delayed.
403. Maintenance Covenants. The Developer shall maintain the Site and all
improvements thereon, including all landscaping, in compliance with all applicable
provisions of the City of Moorpark Municipal Code and all conditions of approval of the
Project. If a default under this Section is not fully cured by Developer as provided in
Section 501, Agency shall have the right to enter the Site at all reasonable times,
complete the maintenance or repair, and invoice Developer for the direct costs and
expenses of said work plus fifteen percent (15 %) of said costs and expenses for
administration. Developer shall pay the invoice in full within fifteen (15) days after
receipt thereof.
404. Nondiscrimination Covenants. The Developer covenants by and for itself
and any successors in interest that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
-20- 000 UP' 401
occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person
claiming under or through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. The
foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the Site on the
basis of race, color, religion, sex, marital status, ancestry or national origin of any
person. All such deeds, leases or contracts shall contain or be subject to substantially
the following nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his or her
heirs, executors, administrators and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or
group of persons on account of race, color, creed, religion, sex, marital status, national
origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or
enjoyment of the land herein conveyed, nor shall the grantee or any person claiming
under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein
conveyed. The foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and for himself or herself, his or her heirs,
executors, administrators, and assigns, and all persons claiming under or through him
or her, and this lease is made and accepted upon and subject to the following
conditions:
"That there shall be no discrimination against or segregation of any person or group of
persons, on account of race, color, creed, religion, sex, marital status, national origin, or
ancestry in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment
of the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use,
or occupancy of tenants, lessees, sublessees, subtenants, or vendees in the premises
herein leased."
c. In contracts: "There shall be no discrimination against or segregation of, any person,
or group of persons on account of race, color, creed, religion, sex, marital status,
national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy,
tenure or enjoyment of the premises, nor shall the transferee himself or herself or any
person claiming under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of
the premises."
405. Effect of Violation of the Terms and Provisions of this Agreement After
Completion of Construction. The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the land, for and in its
own right and for the purposes of protecting the interests of the community and other
parties, public or private, in whose favor and for whose benefit this Agreement and the
-21 - 0 00C31
covenants running with the land have been provided, without regard to whether the
Agency has been, remains or is an owner of any land or interest therein in the Site or in
the Project. The Agency shall have the right, if the Agreement or covenants are
breached, to exercise all rights and remedies, and to maintain any actions or suits at
law or in equity or other proper proceedings to enforce the curing of such breaches to
which it or any other beneficiaries of this Agreement and covenants may be entitled.
The covenants contained in this Agreement shall remain in effect until the issuance of
the Release of Construction Covenants for the completion of the Improvements, except
for the following:
a. The environmental covenants set forth in Sections 208.5, 208.6 and 208.7 shall
remain in effect in perpetuity.
b. Intentionally deleted.
c. The covenants pertaining to the use and operation of the Site set forth in Section
402 shall remain in effect for the Use Restriction Period five (5) years from the date
a Certificate of Occupancy is granted for the Improvements).
d. The covenants pertaining to maintenance of the Site and all improvements thereon,
as set forth in Section 403, shall remain in effect during the Use Restriction Period.
e. The covenants against discrimination, as set forth in Section 404, shall remain in
effect in perpetuity.
500. DEFAULTS AND REMEDIES
501. Default Remedies. Subject to the extensions of time set forth in Section
602 of this Agreement, failure by either party to perform any action or covenant required
by this Agreement within the time periods provided herein following notice and failure to
cure as described hereafter, constitutes a "Default' under this Agreement. A party
claiming a Default shall give written notice of Default to the other party specifying the
Default complained of. Except as otherwise expressly provided in this Agreement, the
claimant shall not institute any proceeding against any other party, and the other party
shall not be in Default if such party within thirty (30) days from receipt of such notice
immediately, with due diligence, commences to cure, correct or remedy such failure or
delay and shall complete such cure, correction or remedy with diligence.
502. Institution of Legal Actions. In addition to any other rights or remedies,
including those set forth in Sections 503 and 504, respectively, and subject to the
restrictions otherwise set forth in this Agreement, either party may institute an action at
law or equity to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default, to recover damages for any Default, or to obtain any
other remedy consistent with the purpose of this Agreement. Such legal actions must be
instituted in the Superior Court of the County of Ventura, State of California, or if federal
jurisdiction exists, in the District of the United States District Court for the Central District
of California.
503. Termination by the Developer. In the event that the Developer is not in
Default under this Agreement and the Agency does not tender title to the Site pursuant
to the Grant Deed in the manner and condition and by the date provided in this
Agreement; or one or more of the Developer's Conditions Precedent to the Closing is
not fulfilled on or before the time set forth in the Schedule of Performance and such
failure is not caused by the Developer; or in the event of any default of the Agency prior
to the Closing which is not cured within the time set forth in Section 501 hereof, and any
such failure is not cured within the applicable time period after written demand by the
Developer, then this Agreement may, at the option of the Developer, be terminated by
written notice thereof to the Agency. From the date of the written notice of termination of
this Agreement by the Developer to the Agency and thereafter this Agreement shall be
deemed terminated and there shall be no further rights or obligations between the
parties, except that the parties may pursue any other remedies they may have
hereunder.
504. Termination by the Agency. In the event that the Agency is not in Default
under this Agreement and prior to the issuance of the Release of Construction
Covenants: the Developer (or any successor in interest) assigns or attempts to assign
the Agreement or any rights therein or in the Site in violation of this Agreement; or one
or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before
the time set forth in the Schedule of Performance and such failure is not caused by the
Agency or City; or the Developer is otherwise in default of this Agreement and fails to
cure such default within the time set forth in Section 501 hereof, then this Agreement
and any rights of the Developer or any assignee or transferee with respect to or arising
out of the Agreement or the Site, shall, at the option of the Agency, be terminated by the
Agency by written notice thereof to the Developer. From the date of the written notice of
termination of this Agreement by the Agency to the Developer and thereafter this
Agreement shall be deemed terminated and there shall be no further rights or
obligations between the parties, except that the parties may pursue any other remedies
they may have hereunder.
505. Termination Prior to Conveyance. If, prior to the close of escrow on the
Site, a default under this Agreement is not fully cured by the defaulting party as
provided in Section 501 hereof, Claimant shall have the right thereafter, but not before,
to terminate this Agreement by giving written notice thereof to the defaulting party. The
termination shall be effective immediately upon receipt of the notice, and thereafter
neither party shall have any further rights of obligation with respect to the Site. Upon
the termination (i) all documents and all monies deposited by either party into escrow
shall be returned to the party that made the deposit, and (ii) any escrow cancellation fee
shall be paid by the defaulting party.
506. Reentry and Revesting of Title in the Agency After the Closing and
Prior to Completion of Construction. The Agency has the right, at its election, to seek
and obtain a judicial order on an expedited basis authorizing it to reenter and take
possession of the Site, with all improvements thereon, and terminate and revest in the
Agency the estate conveyed to the Developer if after the Closing and prior to the
issuance of the Release of Construction Covenants, the Developer (or its successors in
interest) shall:
a. fail to start the construction of the Improvements and to complete Improvements
within fourteen months as required by this Agreement and for a period of thirty (30)
-23- 000 P, 41-213
days after written notice thereof from the Agency, subject to the provisions of
Section 602; or
b. abandon or substantially suspend construction of the Improvements required by this
Agreement for a period of thirty (30) days after written notice thereof from the
Agency subject to the provisions of Section 602; or
c. contrary to the provisions of Section 603 transfer or suffer any involuntary transfer of
the Site or any part thereof in violation of this Agreement.
Such right to reenter, terminate and revest shall be subject to and be limited by and
shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by this Agreement; or
2. Any rights or interests provided in this Agreement for the protection of the holders of
such mortgages or deeds of trust.
The Grant Deed shall contain appropriate reference and provision to give
effect to the Agency's right as set forth in this Section 506, under specified
circumstances prior to recordation of the Release of Construction Covenants, to reenter
and take possession of the Site, with all Improvements thereon, and to terminate and
revest in the Agency the estate conveyed to the Developer. Upon the revesting in the
Agency of title to the Site as provided in this Section 506, the Agency shall, pursuant to
its responsibilities under state law, use its reasonable efforts to resell the Site as soon
and in such manner as the Agency shall find feasible and consistent with the objectives
of such law, as it exists or may be amended, to a qualified and responsible party or
parties (as determined by the Agency) who will assume the obligation of making or
completing the Improvements, or such improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses specified for such Site or
part thereof in the C -OT zone in the City's zoning ordinance. Upon such resale of the
Site, the net proceeds thereof after repayment of any mortgage or deed of trust
encumbering the Site which is permitted by this Agreement, shall be applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of the City, all costs and
expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Site or part thereof (but
less any income derived by the Agency from the Site or part thereof in connection with
such management); all taxes, assessments and water or sewer charges with respect to
the Site or part thereof which the Developer has not paid (or, in the event that Site is
exempt from taxation or assessment of such charges during the period of ownership
thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or
charges as would have been payable if the Site were not so exempt); any payments
made or necessary to be made to discharge any encumbrances or liens existing on the
Site or part thereof at the time or revesting of title thereto in the Agency, or to discharge
or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees; any
expenditures made or obligations incurred by the Agency with respect to the making or
completion of the Improvements or any part thereof on the Site, or part thereof; and any
-24- 0000 4
amounts otherwise owing the Agency, and in the event additional proceeds are
thereafter available, then
ii. Second, to reimburse the Developer, its successor or transferee, up to the amount
equal to the sum of (a) the costs incurred for the acquisition and development of the
Site and for the Improvements existing on the Site at the time of the reentry and
possession, less (b) any gains or income withdrawn or made by the Developer from the
Site or the Improvements thereon.
Any balance remaining after such reimbursements shall be retained by the Agency as
its property. The rights established in this Section 506 are not intended to be exclusive
of any other right, power or remedy, but each and every such right, power, and remedy
shall be cumulative and concurrent and shall be in addition to any other right, power and
remedy authorized herein or now or hereafter existing at law or in equity. These rights
are to be interpreted in light of the fact that the Agency will have conveyed the Site to
the Developer for redevelopment purposes, particularly for development of an industrial
facility, and not for speculation in undeveloped land.
507. Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against the Agency, service of process on the Agency
shall be made by personal service upon the Executive Director of the Agency or in such
other manner as may be provided by law. In the event that any legal action is
commenced by the Agency against the Developer, service of process on the Developer
shall be made by personal service upon the President of the Developer or in such other
manner as may be provided by law.
508. Rights and Remedies Are Cumulative. Except as otherwise expressly
stated in this Agreement, the rights and remedies of the parties are cumulative, and the
exercise by either party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
509. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver
of any Default or of any such rights or remedies, or deprive either such party of its right
to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
510. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications Between the Parties. Any
approval, disapproval, demand, document or other notice ( "Notice ") which either party
may desire to give to the other party under this Agreement must be in writing and may
be given by any commercially acceptable means to the party to whom the Notice is
directed at the address of the party as set forth below, or at any other address as that
party may later designate by Notice.
-25- U000: 5
To Agency: Moorpark Redevelopment Agency
799 Moorpark Avenue
Moorpark, California 93021
Attention: Executive Director
To Developer: Moorpark Group LLC
31304 Via Colinas, Suite 103
Westlake Village, CA 91362
Attention: Michael S. Owens or Vince Daly
Any written notice, demand or communication shall be deemed received immediately if
delivered by hand and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
602. Enforced Delay; Extension of Times of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not
be deemed to be in Default, and all performance and other dates specified in this
Agreement shall be extended, where delays or Defaults are due to causes beyond the
control or without the fault of the party claiming an extension of time to perform, which
may include: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; governmental restrictions or priority; litigation;
unusually severe weather; inability to secure necessary labor, materials or tools; delays
of any contractor, subcontractor or supplier; acts or omissions of the other party; acts or
failures to act of the City or any other public or governmental agency or entity (other
than the acts or failures to act of the Agency which shall not excuse performance by the
Agency). Notwithstanding anything to the contrary in this Agreement, an extension of
time `for any such cause shall be for the period of the enforced delay and shall
commence to run from the time of the commencement of the cause, if not' by the party
claiming such extension is sent to the other party within thirty (30) days of the
commencement of the cause. Times of performance under this Agreement may also be
extended in writing by the mutual agreement of Agency and Developer. Notwithstanding
any provision of this Agreement to the contrary, the lack of funding to complete the
Improvements shall not constitute grounds of enforced delay pursuant to this Section
602.
603. Transfers of Interest in Site or Agreement.
603.1 Prohibition. The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those qualifications and identity that
the Agency has entered into this Agreement with the Developer. For the period
commencing upon the date of this Agreement and until the expiration of the Use
Restriction Period), no voluntary or involuntary successor in interest of the Developer
shall acquire any rights or powers under this Agreement, nor shall the Developer make
any total or partial sale, transfer, conveyance, assignment, subdivision, refinancing or
lease of the whole or any part of the Site or the Improvements thereon without prior
written approval of the Agency, except as expressly set forth herein
603.2 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, Agency approval of an assignment of this Agreement or
conveyance of the Site or Improvements, or any part thereof, shall not be required in
connection with any of the following:
(a) Any transfers to an entity or entities in which the Developer retains management and
control of the transferee entity or entities.
(b) The conveyance or dedication of any portion of the Site to the City or other
appropriate governmental agency, or the granting of easements or permits to facilitate
construction of the Improvements (as defined herein).
(c) Any requested assignment for financing purposes (subject to any approvals by the
Agency that are necessary for any construction financing pursuant to Section 311
herein), including the grant of a deed of trust to secure the funds necessary for land
acquisition, construction and permanent financing or re- financing of the Improvements.
(d) Subleases of the three story, commercial building constructed with material
acceptable to the City, of approximately 17,570 square feet for approved C -OT uses.
In the event of an assignment by Developer under subparagraphs (a) through (c),
inclusive, above not requiring the Agency's prior approval, Developer nevertheless
agrees that at least thirty (30) days prior to such assignment it shall give written notice
to Agency of such assignment and satisfactory evidence that the assignee has
assumed jointly with Developer the obligations of this Agreement.
603.3 Agency Consideration of Requested Transfer. The Agency
agrees that it will not unreasonably withhold approval of a request made pursuant to this
Section 603.3, provided the Developer delivers written notice to the Agency requesting
such approval. Such notice shall be accompanied by sufficient evidence regarding the
proposed assignee's or purchaser's development (in the event that the Improvements
have not been completed) and /or operational qualifications and experience, and its
financial commitments and resources, in sufficient detail to enable the Agency to
evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this
Section 603.3 and as reasonably determined by the Agency. The Agency shall evaluate
each proposed transferee or assignee on the basis of its development (in the event that
the Improvements have not been completed) and /or qualifications and experience in the
operation of facilities similar to the Improvements, and its financial commitments and
resources, and may reasonably disapprove any proposed transferee or assignee,
during the Use Restriction Period, which the Agency determines does not possess
qualifications satisfactory for performing the obligations of Developer hereunder for the
balance of the Use Restriction Period. An assignment and assumption agreement in
form satisfactory to the Agency's legal counsel shall also be required for all proposed
assignments for which Agency consent is required hereunder. Within thirty (30) days
after the receipt of the Developer's written notice requesting Agency approval of an
assignment or transfer pursuant to this Section 603.3, the Agency shall either approve
-27- 000C"4'"!7
or disapprove such proposed assignment or shall respond in writing by stating what
further information, if any, the Agency reasonably requires in order to determine the
request complete and determine whether or not to grant the requested approval. Upon
receipt of such a response, the Developer shall promptly furnish to the Agency such
further information as may be reasonably requested. Developer shall pay all Agency
out -of- pocket costs plus 15% for review of assumption agreement. Developer shall
provide a deposit of $2,500 upon submittal of request for transfer.
603.4 Successors and Assigns. All of the terms, covenants and
conditions of this Agreement shall be binding upon the Developer and its permitted
successors and assigns. Whenever the term "Developer" is used in this Agreement,
such term shall include any other permitted successors and assigns as herein provided.
603.5 Assignment by Agency. The Agency may assign or transfer any of
its rights or obligations under this Agreement with the approval of the Developer, which
approval shall not be unreasonably withheld; provided, however, that the Agency may
assign or transfer any of its interests hereunder to the City at any time without the
consent of the Developer.
604. Non - Liability of Officials and Employees of the Agency and the
Developer. No member, official or employee of the Agency or the City shall be
personally liable to the Developer, or any successor in interest, in the event of any
Default or breach by the Agency (or the City) or for any amount which may become due
to the Developer or its successors, or on any obligations under the terms of this
Agreement.
605. Relationship Between Agency and Developer. It is hereby acknowledged
that the relationship between the Agency and the Developer is not that of a partnership
or joint venture and that the Agency and the Developer shall not be deemed or
construed for any purpose to be the agent of the other. Accordingly, except as expressly
provided herein or in the Attachments hereto, the Agency shall have no rights, powers,
duties or obligations with respect to the development, operation, maintenance or
management of the Improvements.
606. Agency Approvals and Actions. The Agency shall maintain authority of
this Agreement and the authority to implement this Agreement through the Agency
Executive Director (or his duly authorized representative). The Agency Executive
Director shall have the authority to make approvals, issue interpretations, waive
provisions, and /or enter into amendments of this Agreement on behalf of the Agency so
long as such actions do not materially or substantially change the uses or development
permitted on the Site, or materially or substantially add to the costs incurred or to be
incurred by the Agency as specified herein, and such approvals, interpretations, waivers
and /or amendments may include extensions of time to perform as specified in the
Schedule of Performance. All other material and /or substantial interpretations, waivers,
or amendments shall require the consideration, action and written consent of the
Agency Board.
607. Counterparts. This Agreement may be signed in multiple counterparts
which, when signed by all parties, shall constitute a binding agreement. This Agreement
is executed in three (3) originals, each of which is deemed to be an original.
-28- Q00023
608. Integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement. All prior or
contemporaneous agreements, understandings, representations and statements, oral or
written, are merged in this Agreement and shall be of no further force or effect. Each
party is entering this Agreement based solely upon the representations set forth herein
and upon each party's own independent investigation of any and all facts such party
deems material. This Agreement includes pages 1 through 32 and Attachment Nos. 1
through 6, which constitute the entire understanding and agreement of the parties,
notwithstanding any previous negotiations or agreements between the parties or their
predecessors in interest with respect to all or any part of the subject matter hereof.
609. Real Estate Brokerage Commission. The Agency and the Developer each
represent and warrant to the other that no broker or finder is entitled to any commission
or finder's fee in connection with the Developer's acquisition of the Site from the
Agency. The parties agree to defend and hold harmless the other party from any claim
to any such commission or fee from any broker, agent or finder with respect to this
Agreement which is payable by such party.
610. Attorneys' Fees. In any action between the parties to interpret, enforce,
reform, modify, rescind, or otherwise in connection with any of the terms or provisions of
this Agreement, the prevailing party in the action shall be entitled, in addition to
damages, injunctive relief, or any other relief to which it might be entitled, reasonable
costs and expenses including, without limitation, litigation costs and reasonable
attorneys' fees.
611. Titles and Captions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or of
any of its terms. Reference to section numbers is to sections in this Agreement, unless
expressly stated otherwise.
612. Interpretation. As used in this Agreement, masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to include the others
where and when the context so dictates. The word "including" shall be construed as if
followed by the words "without limitation." This Agreement shall be interpreted as
though prepared jointly by both parties.
613. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall
not be construed as a waiver of any succeeding breach of the same or other covenants,
agreements, restrictions or conditions of this Agreement.
614. Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
signed on behalf of each party.
615. Severability. If any term, provision, condition or covenant of this Agreement
or its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term,
provision, condition or covenant to persons or circumstances other than those as to
-29- 0000'x")
whom or which it is held invalid or unenforceable, shall not be affected, and shall be
valid and enforceable to the fullest extent permitted by law.
616. Computation of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and
including the last day, unless the last day is a holiday or Saturday or Sunday, and then
that day is also excluded. The term "holiday" shall mean all holidays as specified in
Section 6700 and 6701 of the California Government Code. If any act is to be done by a
particular time during a day, that time shall be Pacific Time Zone time.
617. Legal Advice. Each party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matters set forth
in this Agreement, or have knowingly chosen not to consult legal counsel as to the
matters set forth in this Agreement; and, they have freely signed this Agreement without
any reliance upon any agreement, promise, statement or representation by or on behalf
of the other party, or their respective agents, employees, or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion, whether
economic or otherwise.
618. Time of Essence. Time is expressly made of the essence with respect to
the performance by the Agency, the Developer of each and every obligation and
condition of this Agreement.
619. Cooperation. Each party agrees to cooperate with the other in this
transaction and, in that regard, to sign any and all documents which may be reasonably
necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement
including, but not limited to, releases or additional agreements.
620. Inspection of Books and Records. Agency may request to inspect,
during normal business hours, the information and records of Developer pertaining to
the performance of this Agreement. Developer agrees that it will not unreasonably
withhold approval of a request made pursuant to a warranted request.
621. Conflicts of Interest. No member, official or employee of the Agency shall
have any personal interest, direct or indirect, in this Agreement, nor shall any such
member, official or employee participate in any decision relating to the Agreement which
affects his personal interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested.
622. Time for Acceptance of Agreement by Agency. This Agreement, when
executed by the Developer and delivered to the Agency, must be authorized, executed
and delivered by the Agency on or before forty -five (45) days after signing and delivery
of this Agreement by the Developer or this Agreement shall be void, except to the extent
that the Developer shall consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement.
-30- 01.300ii0
623. Date of Agreement. The date of this Agreement shall be the date set forth in the
first paragraph hereof.
WITNESS WHEREOF, the Agency and the Developer have signed this Agreement.
ATTEST:
M-
AGENCY:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic
By:
Patrick Hunter, Chair
Deborah S. Traffenstedt, Agency Secretary
DEVELOPER:
MOORPARK GROUP LLC
By M.S. Owens & Associates, Inc., a California corporation,
General Partner and the Daly Family Companies, Inc., a California corporation
Michael S. Owens, President of M.S. Owens & Associates, Inc.
General Partner
Vincent J. Daly, President of the Daly Family Companies, Inc.
General Partner
-31- 0%q-0 0 P, L
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HIGH STREET
5ite Plan / First Floor
5-l.: r = 30-0,
DI CECCO ARCHITECTURE High Street dare 125/05
5158 GOLDMAN AVENUE SUITE F 467 High Street
MOOKPARK, CA. 93021 (805) 552 -0088 Moorpark, GA 93021 sheet A -01
a
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z
ATTACHMENT NO.2
SITE LEGAL DESCRIPTION
LEGAL DESCRIPTION
THAT PORTION OF LOT U, TRACT L, RANCHO SIMI, IN THE COUNTY OF
VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 5
PAGE 5 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, BEING ALSO A PORTION OF THAT CERTAIN PARCEL MARKED
"JOHN BARRETT" ON MAP OF M.L. WICKS SUBDIVISION, RECORDED IN
BOOK 5 PAGE 37 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTERLINE OF HIGH STREET, 80 FEET
WIDE, DISTANT ALONG SAID CENTERLINE AND EASTERLY ALONG
PROLONGATION THEREOF WEST 176 FEET FROM THE CENTERLINE OF
SPRING STREET, 60 FEET WIDE, AS SAID STREETS ARE SHOWN ON SAID
LAST MENTIONED MAP; THENCE CONTINUING ALONG THE CENTERLINE OF
SAID HIGH STREET.
1 ST: - WEST 150 FEET; THENCE,
2ND: - NORTH 185 FEET TO A 2" X 2" REDWOOD STAKE MARKED "LS 1842 ";
THENCE,
3RD: - EAST 1.50 FEET TO A 2" X 2" REDWOOD STAKE MARKED "LS 1842;
THENCE,
4TH: - SOUTH 185 FEET TO THE POINT OF BEGINNING.
EXCEPT THAT PORTION THEREOF LYING WITHIN SAID HIGH STREET.
000f1�3
ATTACHMENT NO.3
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
Moorpark Group LLC
31304 Via Colinas, Suite 103
Westlake Village, California 91362
Attn: Michael S. Owens
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
Documentary Transfer Tax: $
Based on full value of property conveyed
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged,
The REDEVELOPMENT AGENCY of the CITY OF MOORPARK, a
public body, corporate and politic (the "Agency "), acting to carry out the
Redevelopment Plan ( "Redevelopment Plan ") for the Moorpark Redevelopment
Project (the "Project'), under the Community Redevelopment Law of California,
as of , 200_, hereby grants to Moorpark Group LLC, a Limited Liability
Corporation ( "Developer"), the real property hereinafter referred to as the "Site ",
described in Exhibit A attached hereto and incorporated herein, subject to the
existing easements, restrictions and covenants of record described there.
1. Agency excepts and reserves from the conveyance herein described all
interest of the Agency in oil, gas, hydrocarbon substances and minerals of every
kind and character lying more than five hundred (500) feet below the surface,
together with the right to drill into, through, and to use and occupy all parts of the
Site lying more than five hundred (500) feet below the surface thereof for any and
all purposes incidental to the exploration for and production of oil, gas,
hydrocarbon substances or minerals from said Site or other lands, but without,
however, any right to use either the surface of the Site or any portion thereof
within five hundred (500) feet of the surface for any purpose or purposes
whatsoever, or to use the Site in such a manner as to create a disturbance to the
use or enjoyment of the Site.
2. The Site is conveyed in accordance with and subject to the
Redevelopment Plan which was approved and adopted by Ordinance No. 110 of
the City Council of the City of Moorpark, and a Disposition and Development
Attachment No. 3 -1
0C)0eelI
Agreement entered into between Agency and Developer dated
(the "DDA "), a copy of which is on file with the Agency at its offices as a public
record and which is incorporated herein by reference. The DDA generally
requires the Developer to construct improvements on the Site including a multiple
story, commercial building constructed with concrete, concrete block or other
material acceptable to the City, of approximately 17,570 square feet and
supporting parking and landscape improvements (the" Improvements "), and other
requirements as set forth therein. All terms used herein shall have the same
meaning as those used in the DDA.
3. The Developer covenants and agrees for itself, its successors, its
assigns, and every successor in interest to the Site or any part thereof, that upon
the date of this Grant Deed and during construction and thereafter, the Developer
shall devote the Site to the uses specified in the Commercial Planned
Development Permit No. and the DDA for the periods of time specified
therein. All uses conducted on the Site, including, without limitation, all activities
undertaken by the Developer pursuant to this Agreement, shall conform to the
Commercial Planned Development Permit No. , the DDA and all applicable
provisions of the Moorpark Municipal Code. The foregoing covenants shall run
with the land.
4. Until ten (10) years from the date the final Certificate of Occupancy is
issued for the Improvements on the Site:
(a) The Developer shall not make any sale, transfer, conveyance, subdivision,
refinancing or assignment of the Site or any part thereof or any interest therein,
without the prior written consent of the Agency except as permitted by Section
603 of the DDA.
(b) The Developer shall not place or suffer to be placed on the Site any lien or
encumbrance other than mortgages, deeds of trust, or any other form of
conveyance required for financing of the construction of the Improvements on the
Site, and any other expenditures necessary and appropriate to develop the Site
pursuant to the DDA, except as provided in Section 311 of the DDA.
(c) All of the terms, covenants and conditions of this Grant Deed shall be binding
upon the Developer and the permitted successors and assigns of the Developer.
Whenever the term "Developer' is used in this Grant Deed, such term shall
include any other permitted successors and assigns as herein provided.
5. The Developer herein covenants by and for himself or herself, his or her
heirs, executors, administrators and assigns, and all persons claiming under or
through them, that there shall be no discrimination against or segregation of, any
person or group of persons on account of race, color, creed, religion, sex, marital
status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the land herein conveyed, nor shall the
Developer himself or herself or any person claiming under or through him or her,
Attachment No. 3 -2
establish or permit any such practice or practices of discrimination or segregation
with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees in the land herein conveyed. The
foregoing covenants shall run with the land.
6. The Agency has the right, at its election, to reenter and take possession
of the Site, with all improvements thereon, and terminate and revest in the
Agency the estate conveyed to the Developer if after the Closing and prior to the
issuance of the Release of Construction Covenants, the Developer (or its
successors in interest) shall:
a. abandon or substantially suspend construction of the Improvements
required by the DDA for a period of thirty (30) days after written notice
thereof from the Agency subject to the provisions of Section 602; or
b. contrary to the provisions of Section 603 of the DDA transfer or suffer
any involuntary transfer of the Site or any part thereof in violation of the
DDA.
Such right to reenter, terminate and revest shall be subject to and be limited by
and shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by the DDA; or
2. Any rights or interests provided in the DDA for the protection of the
holders of such mortgages or deeds of trust.
Upon the revesting in the Agency of title to the Site as provided in this
Section 506, the Agency shall, pursuant to its responsibilities under state law,
use its reasonable efforts to resell the Site as soon and in such manner as the
Agency shall find feasible and consistent with the objectives of such law, as it
exists or may be amended, to a qualified and responsible party or parties (as
determined by the Agency) who will assume the obligation of making or
completing the Improvements, or such improvements in their stead as shall be
satisfactory to the Agency and in accordance with the uses specified for such
Site or part thereof in the C -OT zone as provided in the City's zoning ordinance.
Upon such resale of the Site, the net proceeds thereof after repayment of any
mortgage or deed of trust encumbering the Site which is permitted by this
Agreement, shall be applied:
i. First, to reimburse the Agency, on its own behalf or on behalf of the City,
all costs and expenses incurred by the Agency, excluding City and Agency staff
costs, but specifically, including, but not limited to, any expenditures by the
Agency or the City in connection with the recapture, management and resale of
the Site or part thereof (but less any income derived by the Agency from the Site
or part thereof in connection with such management); all taxes, assessments and
water or sewer charges with respect to the Site or part thereof which the
Attachment No. 3 -3
(; C) 0Cl u
Developer has not paid (or, in the event that Site is exempt from taxation or
assessment of such charges during the period of ownership thereof by the
Agency, an amount, if paid, equal to such taxes, assessments, or charges as
would have been payable if the Site were not so exempt); any payments made or
necessary to be made to discharge any encumbrances or liens existing on the
Site or part thereof at the time or revesting of title thereto in the Agency, or to
discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, defaults or acts of the Developer, its
successors or transferees; any expenditures made or obligations incurred with
respect to the making or completion of the improvements or any part thereof on
th. Site, or part thereof; and any amounts otherwise owing the Agency, and in the
event additional proceeds are thereafter available, then
ii. Second, to reimburse the Developer, its successor or transferee, up to
the amount equal to the sum of (a) the costs incurred for the acquisition and
development of the Site and for the improvements existing on the Site at the time
of the reentry and possession, less (b) any gains or income withdrawn or made
by the Developer from the Site or the improvements thereon.
Any balance remaining after such reimbursements shall be retained
by the Agency as its property. The rights established in this Section 6 are not
intended to be exclusive of any other right, power or remedy, but each and every
such right, power, and remedy shall be cumulative and concurrent and shall be in
addition to any other right, power and remedy authorized herein or now or
hereafter existing at law or in equity. These rights are to be interpreted in light of
the fact that the Agency will have conveyed the Site to the Developer for
redevelopment purposes, particularly for development of a multiple story
commercial building constructed with concrete, concrete block or other material
acceptable to the City, of approximately 17,570 square feet and supporting
parking and landscape improvements and appurtenant uses, and not for
speculation in undeveloped land.
7. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Grant Deed shall defeat or render
invalid or in any way impair the lien or charge of any mortgage or deed of trust or
security interest permitted by paragraph 4 of this Grant Deed; provided, however,
that any subsequent owner of the Site shall be bound by such remaining
covenants, conditions, restrictions, limitations and provisions, whether such
owner's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's
sale or otherwise.
8. All covenants contained in this Grant Deed shall be covenants running
with the land. All of Developer's obligations hereunder except as provided in
Sections 2, 3, and 5 above shall terminate and shall become null and void ten
(10) years from the date the final Certificate of Occupancy is issued for the
Improvements on the Site. Every covenant contained in this Grant Deed against
Attachment No. 3 -4
0I0(1P, 7
discrimination contained in paragraph 5 of this Grant Deed shall remain in effect
in perpetuity.
9. All covenants without regard to technical classification or designation
shall be binding for the benefit of the Agency, and such covenants shall run in
favor of. the Agency for the entire period during which such covenants shall be in
force and effect, without regard to whether the Agency is or remains an owner of
any land or interest therein to which such covenants relate. The Agency, in the
event of any breach of any such covenants, shall have the right to exercise all
the rights and remedies and to maintain any actions at law or suits in equity or
other proper proceedings to enforce the curing of such breach.
10. Both Agency, its successors and assigns, and Developer and the
successors and assigns of Developer in and to all or any part of the fee title to
the Site shall have the right with the mutual consent of the Agency to consent
and agree to changes in, or to eliminate in whole or in part, any of the covenants,
easements or restrictions contained in this Grant Deed without the consent of
any tenant, lessee, easement holder, licensee, mortgagee, trustee, beneficiary
under a deed of trust or any other person or entity having any interest less than a
fee in the Site. However, Developer and Agency are obligated to give written
notice to and obtain the consent of any first mortgagee prior to consent or
agreement between the parties concerning such changes to this Grant Deed.
The covenants contained in this Grant Deed, without regard to technical
classification, shall not benefit or be enforceable by any owner of any other real
property , or any person or entity having any interest in any other such realty.
Any amendment to the Moorpark Municipal Code which proposes to change the
uses or development permitted on the Site, or otherwise proposes a change of
any of the restrictions or controls that apply to the Site, shall require the written
consent of the first mortgagee and the Developer or the successors and assigns
of Developer in and to all or any part of the fee title to the Site, but any such
amendment which proposes a change affecting the Site shall not require the
consent of any tenant, lessee, easement holder, licensee, mortgagee (other than
the first mortgagee), trustee, beneficiary under a deed of trust or any other
person or entity having any interest less than a fee in the Site.
Attachment No. 3 -5
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic:
By:
Patrick Hunter, Chair
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
DEVELOPER:
MOORPARK GROUP LLC, a Limited Liability Corporation
By M.S. Owens & Associates, Inc., a California corporation,
General Partner and the Daly Family Companies, Inc., a California corporation
MN
as
Michael S. Owens, President of M.S. Owens & Associates, Inc.
General Partner
Vincent J. Daly, President of the Daly Family Companies, Inc.
General Partner
Attachment No. 3 -6
0 000 -A 3
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
LEGAL DESCRIPTION
THAT PORTION OF LOT U, TRACT L, RANCHO SIMI, IN THE COUNTY OF
VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 5
PAGE 5 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, BEING ALSO A PORTION OF THAT CERTAIN PARCEL MARKED
"JOHN BARRETT" ON MAP OF M.L. WICKS SUBDIVISION, RECORDED IN
BOOK 5 PAGE 37 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTERLINE OF HIGH STREET, 80 FEET
WIDE, DISTANT ALONG SAID CENTERLINE AND EASTERLY ALONG
PROLONGATION THEREOF WEST 176 FEET FROM THE CENTERLINE OF
SPRING STREET, 60 FEET WIDE, AS SAID STREETS ARE SHOWN ON SAID
LAST MENTIONED MAP; THENCE CONTINUING ALONG THE CENTERLINE; OF
SAID HIGH STREET.
I ST: - WEST 1.50 FEET; THENCE,
2ND: - NORTH 185 FEET TO A 2" X 2" REDWOOD STAKE MARKED "LS 1842 ";
THENCE,
3RD: - EAST 150 FEET TO A 2" X 2" REDWOOD STAKE MARKED "LS 1842;
THENCE,
4TH: - SOUTH 185 FEET TO THE POINT OF BEGINNING.
EXCEPT THAT PORTION THEREOF LYING WITHIN SAID HIGH STREET.
Attachment No. 3 -7
Exhibit A
STATE OF CALIFORNIA
COUNTY OF
) ss.
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
-or
❑ proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature Of Notary
Attachment No. 3 -8
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
DA
n proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature Of Notary
Attachment No. 3 -9
ems.
ATTACHMENT NO.4
SCHEDULE OF PERFORMANCE
1. Submission of Disposition and
On or before December 13, 2005
Development Agreement. Developer shall
submit to the Agency a copy of the
Disposition and Development Agreement
duly executed by the Developer.
2. Agency Approval of Disposition and
Within 60 days after Developer
Development Agreement. Agency shall
submits an executed Disposition
approve or disapprove the Disposition and
and Development Agreement.
Development Agreement.
3. Submission of Required Development
Within 90 days of Agency
Application. Developer shall submit the
approval of DDA.
Design Development Application to the City.
4. City and Developer Response. City
City will respond to any
shall respond to all submissions and
submission within 30 days.
Developer shall respond to all requests for
Developer shall respond to any
additional information and /or revision to
request within 30 days and make
plans.
all mutually agreeable required
changes to allow the City to
determine the plans complete.
5. Approved Design Development
Within 90 days of submittal of
Application. Developer shall respond to
Design Development Application.
requests from City to obtain a complete
Design Development Application.
6. City Council Hearing on Development
Within 60 days of a determination
Application. The City Council will consider
by City Community Development
the proposed Development Application.
Department of a complete
application.
7. Submission of Grading and Building
Within 150 days after City Council
Construction Drawings for the approved
approval of the proposed Design
Development Application. Developer shall
Development Application.
submit to the City complete Grading and
Building Construction Drawings for the
Development Application.
8. Plan Check of Grading and Building
Within 30 days after submittal.
Construction Drawings. The City shall
review the Grading and Building
Construction Drawings for the
improvements.
9. Revisions of Grading and Building
Within 30 days after receipt of City
Construction Drawings. Developer shall
Comments and any additional
L I00z-
prepare revised Drawings for the Grading
comments made by outside
and Building Construction Improvements, as
agencies, county fire dept. etc.
necessary, and resubmit them to the City for
review.
10. Final Review of Completed Grading
Within 10 days after submittal by
and Building Construction Drawings.
Developer.
The City shall approve or request revisions
of the Grading and Building Construction
Drawings, and the Developer shall be ready
to obtain grading and building permits.
11. Opening of Escrow for Site. The
Within 30 days after execution of
Agency shall open escrow with Escrow
Agreement.
Agent.
12. Conditions Precedent to Closing.
Not later than 30 days prior to
Developer and Agency shall satisfy (or
scheduled date of escrow.
waive) all of their respective Conditions
Precedent to Closing.
13. Close of Escrow. Agency shall convey
As soon as possible after the
Site to the Developer.
satisfaction of all Conditions
Precedent to the Closing has
occurred (within 30 days
thereafter), not later than February
28, 2007.
14. Commencement of Construction of
Within 60 days following the
Improvements. Developer shall commence
Closing.
grading of the Site and construction of the
improvements.
15. Completion of Construction of
Within 14 months following
Improvements. Developer shall complete
commencement of construction of
construction of the improvements.
the improvements.
NOTE: All days are calendar days in this Schedule of Performance. This
Schedule of Performance may be extended or accelerated by mutual
consent of the parties to the Agreement.
0 I 0 (1 Z 1
ATTACHMENT NO. 5
SCOPE OF DEVELOPMENT
Developer shall construct a two story commercial building to be used for retail
and office on the Site, and associated setbacks, parking and landscaping and
other required onsite and offsite improvements.
All development shall be in accordance with approved City of Moorpark
Commercial Planned Development Permit No. and all permits and
fees required by the City, County of Ventura and other governmental agencies
with jurisdiction over the improvements.
G3. QCIL- -15
ATTACHMENT NOX
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
Moorpark Group LLC
31304 Via Colinas, Ste 103
Westlake Village, California 91362
Attn: Michael S. Owensl
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release ") is made as
of 200_ by the REDEVELOPMENT AGENCY of the CITY OF
MOORPARK, a public body corporate and politic (the "Agency"), in favor of
Moorpark Group LLC, a LIMITED LIABILITY CORPORATION (the "Developer'),
as of the date set forth below.
RECITALS
A. The Agency and the Developer have entered into that certain
Disposition and Development Agreement (the "DDA ") dated , 200,,
concerning the redevelopment of certain real property situated in the City of
Moorpark, California as more fully described in Exhibit "A" attached hereto and
made a part hereof.
B. As referenced in Section 310 of the DDA, the Agency is required to
furnish the Developer or its successors with a Release of Construction
Covenants upon completion of construction of the Improvements (as defined in
Section 100 of the DDA), which Release is required to be in such form as to
permit it to be recorded in the Recorder's office of Ventura County. This Release
is conclusive determination of satisfactory completion of the construction and
development required by the DDA.
Attachment No. 6 -1
C. The Agency has conclusively determined that such construction and
development has been satisfactorily completed.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The Improvements to be constructed by the Developer have been fully
and satisfactorily completed in conformance with the DDA. Any operating
requirements and all use, maintenance or nondiscrimination covenants contained
in the DDA shall remain in effect and enforceable according to their terms.
2. Nothing contained in this instrument shall modify in any other way any
other provisions of the DDA.
IN WITNESS WHEREOF, the Agency has executed this Release as of the date
set forth above.
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic:
ATTEST:
Patrick Hunter, Chair
Debborah S. Traffenstedt, Agency Secretary
Attachment No. 6 -2
() 0007
EXHIBIT "A"
LEGAL DESCRIPTION
THAT PORTION OF LOT U, TRACT L, RANCHO SIMI, IN THE COUNTY OF
VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 5
PAGE 5 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, BEING ALSO A PORTION OF THAT CERTAIN PARCEL MARKED
"JOHN BARRETT" ON MAP OF M.L. WICKS SUBDIVISION, RECORDED IN
BOOK 5 PAGE 37 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTERLINE, OF HIGH STREET, 80 FEET
WIDE, DISTANT ALONG SAID CENTERLINE AND EASTERLY ALONG
PROLONGATION THEREOF WEST 176 FEET FROM THE CENTERLINE OF
SPRING STREET, 60 FEET WIDE, AS SAID STREETS ARE SHOWN ON SAID
LAST MENTIONED MAP; THENCE CONTINUING ALONG THE CENTERLINE OF
SAID HIGH STREET.
1 ST: - WEST 150 FEET; THENCE,
2ND: - NORTH 185 FEET TO A 2" X 2" REDWOOD STAKE MARKED "LS 1842 ";
THENCE,
3RD: - EAST 1.50 FEET TO A 2" X 2" REDWOOD STAKE MARKED "LS 1842;
THENCE,
4TH: - SOUTH 185 FEET TO THE POINT OF BEGINNING.
EXCEPT THAT PORTION THEREOF LYING WITHIN SAID HIGH STREET.
Attachment No. 6 -3
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
-or
❑ proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature Of Notary
(replace with standard agency attest form)
Attachment No. 6 -4
EXHIBIT B
SITE LEGAL DESCRIPTION
LEGAL DESCRIPTION
THAT PORTION OF LOT U, TRACT L, RANCHO SIMI, IN THE COUNTY OF
VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 5
PAGE 5 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID
COUNTY, BEING ALSO A PORTION OF THAT CERTAIN PARCEL MARKED
"JOHN BARRETT" ON MAP OF M.L. WICKS SUBDIVISION, RECORDED IN
BOOK 5 PAGE 37 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN THE CENTERLINE OF HIGH STREET, 80 FEET
WIDE, DISTANT ALONG SAID CENTERLINE AND EASTERLY ALONG
PROLONGATION THEREOF WEST 176 FEET FROM THE CENTERLINE OF
SPRING STREET, 60 FEET WIDE, AS SAID STREETS ARE SHOWN ON SAID
LAST MENTIONED MAP; THENCE CONTINUING ALONG THE CENTERLINE OF
SAID HIGH STREET.
1 ST: - WEST 150 FEET; THENCE,
2ND: - NORTH 18.5 FEET TO A 2" X 2" REDWOOD STAKE, MARKED "LS 1842 ";
THENCE,
3RD: - EAST 150 FEET TO A 2" X 2" REDWOOD STAKE, MARKED "LS 1842;
THENCE,
4TH: - SOUTH 185 FEET TO THE POINT OF BEGINNING.
EXCEPT THAT PORTION THEREOF LYING WITHIN SAID HIGH STREET.
03occo
ATTACHMENT III
RESOLUTION NO. 2005-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, APPROVING THE SALE
OF PROPERTY OWNED BY THE MOORPARK
REDEVELOPMENT AGENCY TO THE MOORPARK GROUP,
LLC
WHEREAS, the City Council of the City of Moorpark, adopted
the Redevelopment Plan for the Moorpark Redevelopment Project on
July 5, 1989, by Ordinance No. 110, in accordance with the
California Community Redevelopment Law (Health and Safety Code
Section 33000 et seq.); and
WHEREAS, the Moorpark Redevelopment Agency ( "Agency ")
purchased the property at 467 High Street ( "Property ") with tax
increment funds; and
WHEREAS, California Community Redevelopment Law ( "CCRL ")
Section 33433 requires that the City Council approve, by
resolution and after a public hearing, any Agency sale or lease
of property which was acquired with tax increment funds; and
WHEREAS, notice was published in the Ventura Star once a
week for two weeks prior to the public hearing; and
WHEREAS, on December 21, 2005, the City Council conducted a
public hearing to take public comment on the proposed sale of
Agency owned property; and
WHEREAS, the proposed sale will assist with the elimination
of blight in the Moorpark Redevelopment Project Area; and
WHEREAS, the proposed sale is consistent with the adopted
2005 -2009 Implementation Plan for the Moorpark Redevelopment
Project pursuant to Section 33490 of the CCRL; and
WHEREAS, the Property has been appraised and the fair
market value, at its highest and best use in accordance with the
Moorpark Redevelopment Plan, has been established; and
WHEREAS, on December 21, 2005, the City Council reviewed
the proposed sale and determined that it is consistent with
Section 33433 of the CCRL.
0000C
Resolution No. 2005 -
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The proposed sale of Agency owned property
to the Moorpark Group, LLC is consistent with Section 33433 of
the CCRL and the following findings are made:
1. The sale of property will assist in the
elimination of blight in the Moorpark
Redevelopment Project.
2. The sale of property is consistent with the
goals and objectives in the 2005 -2009
Implementation Plan for the Moorpark
Redevelopment Project pursuant to Section
33490 of the CCRL.
3. The property is being sold to the Moorpark
Group, LLC at the fair market value at the
highest and best use in accordance with the
Moorpark Redevelopment Plan.
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 day of December, 2005.
ATTEST:
Deborah S. Traffenstedt, City Clerk
Patrick Hunter, Mayor
00010C^