HomeMy WebLinkAboutAGENDA REPORT 2020 1202 CCSA REG ITEM 10BCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of December 2, 2020
ACTION Pulled from the Agenda for
Future Consideration. BY B.Garza.
B. SUCCESSOR AGENCY) Consider Resolution Approving Exclusive Negotiating
Agreement with Quail Capital Investments, LLC for 15404 Princeton Avenue
(APN 513-0-024-105, -135). Staff Recommendation: Adopt Resolution No. SA-
2020-___, approving Exclusive Negotiating Agreement with Quail Capital
Investments, LLC subject to final language approval of the Executive Director,
and authorize Executive Director to execute the agreement. (Staff: Jessica
Sandifer)
Item: 10.B.
SUCCESSOR AGENCY TO THE REDEVELOPMENT AGENCY OF
THE CITY OF MOORPARK
AGENDA REPORT
TO: Honorable Successor Agency Members
FROM: Jessica Sandifer, Community Services Manager
DATE: 12/02/2020 Regular Meeting
SUBJECT: Consider Resolution Approving Exclusive Negotiating Agreement
with Quail Capital Investments, LLC for 15404 Princeton Avenue
(APN 513-0-024-105, -135)
BACKGROUND
On March 12, 2007, the Redevelopment Agency of the City of Moorpark (“Agency”)
acquired the property at 15404 Princeton Avenue as a relocation site for the J.E. Clark
fueling station located on High Street. The relocation of the fueling station was not
approved by the Planning Commission and the relocation project did not move forward.
Since then, the Redevelopment Agency attempted to find development partners for the
site. However, prior to any development partners being identified for the property, the
Agency was dissolved pursuant to AB X1 26 (”Dissolution Act”), as upheld and modified
by the Supreme Court in California Redevelopment Association, et al. v. Ana
Matosantos, et al. (53 Cal.4th 231(2011)). As part of the dissolution process, the City of
Moorpark elected to become the Successor Agency of the Redevelopment Agency of
the City of Moorpark (Successor Agency). The Successor Agency was required by the
Dissolution Act to prepare a Long Range Property Management Plan (“LRPMP”)
addressing the disposition of real properties acquired by the former Redevelopment
Agency. The LRPMP provides that the Property identified in the LRPMP as Property
No. 6, APN 513-0-024-105 (15404 Princeton Avenue) will be retained by the City of
Moorpark (“City”), provided that the City pays compensation to the taxing entities.
Subsequent to California Department of Finance approval of the LRPMP, it was
determined that the property on Princeton was purchased with the Agency’s 2006 Tax
Allocation Bond (TAB) proceeds. The bond funded status of the property does not allow
the City to purchase the property and requires that any proceeds of the sale be returned
to the Bond fund or treated in accordance with the Bond covenants.
Item: 10.B.
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Honorable City Council
12/02/2020 Regular Meeting
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DISCUSSION
In 2018, the City’s Oversight Board was dissolved and the Ventura County Consolidated
Oversight Board (VCCOB) was established. The VCCOB functions as Oversight Board
for all the County Successor Agencies. Under the Dissolution Act, Successor Agencies
are required to dispose of the properties on the LRPMP. In August of 2020, the City
hired Kosmont Real Estate to assist with disposition of the Successor Agency and
Successor Housing Agency properties. In September 2020, Kosmont began marketing
the properties in an attempt to dispose of the properties and find meaningful
development partners. As a result of this marketing process, staff received a Letter of
Intent (LOI) from Quail Capital Investments, LLC (Developer) proposing to construct a
housing project on the Princeton property. The Developer has asked that the City not
consider any other development proposals or conduct negotiations with any other
parties while they perform their research, conceptual site planning, and due-diligence
for the project.
Staff has prepared an Exclusive Negotiating Agreement (ENA) with Developer with a
12-month term. The ENA provides a period of exclusivity during which the steps of site
planning, property negotiation, and environmental review can be undertaken. The ENA
also sets forth time periods for key milestones and a framework for reimbursement of
City costs. At the conclusion of the ENA period, if all deliverables meet with City
Council approval, staff would be authorized to negotiate a Disposition and Development
Agreement for the property and the proposed project.
ENVIRONMENTAL DETERMINATION
The ENA is not subject to the California Environmental Quality Act (“CEQA”) because it
is a preliminary agreement that meets the criteria of CEQA Guidelines Section
15004(b)(4), which requires that the ENA: (A) Condition the agreement on compliance
with CEQA, (B) Not bind any party, or commit to any definite course of action prior to
CEQA compliance, (C) Not restrict the lead agency from considering any feasible
mitigation measures and alternatives, including the not project alternative, and (D) Not
restrict the lead agency from denying the project; however, as described in the ENA, the
actual agreement, if any, that results from negotiations under the ENA shall be subject
to CEQA and may not be approved unless/until appropriate findings are made under
CEQA and CEQA is otherwise complied with.
FISCAL IMPACT
There is no fiscal impact from signing the ENA. The ENA provides that all City costs
associated with the ENA period would be reimbursed by Developer.
COUNCIL GOAL COMPLIANCE
This action is consistent with City Council Strategy 1, Goal 3, Objective 1 (1.3.1):
“Dispose of applicable former Moorpark Redevelopment Agency owned properties.”
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Honorable City Council
12/02/2020 Regular Meeting
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STAFF RECOMMENDATION
Adopt Resolution No. SA-2020-_____ approving Exclusive Negotiating Agreement with
Quail Capital Investments, LLC subject to final language approval of the Executive
Director, and authorize Executive Director to execute the agreement.
Attachment: Draft Resolution No. SA-2020-____ approving Exclusive Negotiating
Agreement
60
RESOLUTION NO. SA-2020-____
A RESOLUTION OF THE BOARD OF DIRECTORS OF THE
SUCCESSOR AGENCY TO THE REDEVELOPMENT
AGENCY OF THE CITY OF MOORPARK APPROVING AN
EXCLUSIVE NEGOTIATING AGREEMENT FOR A
PROPERTY ON PRINCETON AVENUE AND TAKING
RELATED ACTIONS
WHEREAS, pursuant to AB X1 26 (enacted in June 2011), and the California
Supreme Court’s decision in California Redevelopment Association, et al. v. Ana
Matosantos, et al., 53 Cal. 4th 231 (2011), the Redevelopment Agency of the City of
Moorpark (the “Former Agency”) was dissolved as of February 1, 2012, and the
Successor Agency was established as the successor entity to the Former Agency; and
WHEREAS, AB X1 26 added Part 1.8 (commencing with Section 34161) and
Part 1.85 (commencing with Section 34170) to Division 24 of the Health and Safety
Code (“HSC”); and such Parts 1.8 and 1.85, together with any amendments and
supplements thereto enacted from time to time, are collectively referred to herein as the
“Dissolution Act”; and
WHEREAS, pursuant to the Dissolution Act, the Successor Agency is tasked with
winding down the affairs of the Former Agency; and
WHEREAS, pursuant to HSC Section 34175(b), all real properties of the Former
Agency transferred to the control of the Successor Agency by operation of law; and
WHEREAS, one of the properties transferred to the Successor Agency is located
on Princeton Avenue (APNs 513-0-024-105 & -135) (the “Princeton Avenue Property”);
and
WHEREAS, there has been presented to the Successor Agency a preliminary
proposal for Quail Capital Investments, LLC, to purchase the Princeton Avenue
Properties; and
WHEREAS, there hae been presented to this Board an Exclusive Negotiating
Agreement (the “Exclusive Negotiating Agreement”) by and between Quail Capital
Investments, LLC and the Successor Agency regarding the sale of the Princeton
Avenue Property.
NOW, THEREFORE, THE BOARD OF DIRECTORS OF THE SUCCESSOR
AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The above recitals are true and correct and are a substantive part
of this Resolution.
ATTACHMENT
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Resolution No. SA-2020-____
Page 2
SECTION 2. The Exclusive Negotiating Agreement, in the form attached hereto
as Exhibit A, is hereby approved. Each of the Chair of this Board, the Vice Chair of this
Board and the Executive Director of the Successor Agency (each, an “Authorized
Officer”), individually, is hereby authorized to execute and deliver, for and in the name of
the Successor Agency, the Exclusive Negotiating Agreement in substantially such form,
with changes therein as the Authorized Officer may approve (such approval to be
conclusively evidenced by the execution and delivery thereof).
SECTION 3. The Exclusive Negotiating Agreement is not subject to the
California Environmental Quality Act (“CEQA”) because it is a preliminary agreement
that meets the criteria of CEQA Guidelines Section 15004(b)(4), which requires that the
Exclusive Negotiating Agreement: (A) condition the agreement on compliance with
CEQA, (B) not bind any party, or commit to any definite course of action prior to CEQA
compliance, (C) not restrict the lead agency from considering any feasible mitigation
measures and alternatives, including the not project alternative, and (D) not restrict the
lead agency from denying the project; however, as described in the Exclusive
Negotiating Agreement, the actual agreement, if any, that results from negotiations
under the Exclusive Negotiating Agreement shall be subject to CEQA and may not be
approved unless/until appropriate findings are made under CEQA and CEQA is
otherwise complied with.
SECTION 4. The Authorized Officers and all other officers of the Successor
Agency are hereby authorized, jointly and severally, to execute and deliver any and all
necessary documents and instruments and to do all things which they may deem
necessary or proper to effectuate the purposes of this Resolution and the Exclusive
Negotiating Agreement.
PASSED AND ADOPTED this 2nd day of December, 2020.
____________________________________
Janice S. Parvin, Chair
ATTEST:
____________________________
Ky Spangler, Secretary
Attachment: Exhibit A – Exclusive Negotiating Agreement
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Resolution No. SA-2020-____
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EXHIBIT A
EXCLUSIVE NEGOTIATING AGREEMENT
between
Quail Capital Investments, LLC, and
the Successor Agency of the Redevelopment Agency of the City of Moorpark
(substantial final form)
(see attached)
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EXCLUSIVE NEGOTIATING AGREEMENT
This EXCLUSIVE NEGOTIATING AGREEMENT (“ENA”) is dated as of
, 2020, and is entered into by and between the SUCCESSOR AGENCY TO THE
MOORPARK REDEVELOPMENT AGENCY, a California Successor Agency created and
existing pursuant to California Health and Safety Code Section 34170 et seq. (the “Successor
Agency” or “Seller”), and Quail Capital Investments, LLC, a Delaware limited liability company
(the “Developer”). The Successor Agency and Developer are sometimes individually referred to
herein as a “Party” and are sometimes collectively referred to herein as the “Parties.”
R E C I T A L S
A. The Successor Agency owns certain real property generally located at Princeton
Avenue in the City of Moorpark, California (APNs: 513-0-024-105, 513-0-024-135) and that is
more specifically described in the legal description attached to this ENA as Exhibit “A” (the
“Property”).
B. The Successor Agency and the Developer desire that Developer construct and
operate the project described on Exhibit “B” on the Property (the “Project”).
C. Developer intends to incur significant costs analyzing the Property and designing
the Project, and Successor Agency intends to incur significant costs in negotiating and preparing
one or more of a purchase and sale agreement, development agreement (DA), disposition and
development agreement (DDA), or other agreement(s) effecting conveyance of ownership for the
Property (each and collectively, a “Conveyance Instrument”). Developer and Successor Agency
have mutually agreed to negotiate on an exclusive basis to establish the terms and conditions of the
Conveyance Instrument.
D. It is anticipated that during the term of this ENA, Successor Agency staff and
consultants and attorneys of the Successor Agency will devote substantial time and effort in
meeting with Developer and its representatives and consultants, reviewing proposals, plans and
reports, negotiating and preparing a Conveyance Instrument, obtaining consultant advice and
reports (including obtaining an appraisal to substantiate fair market value of the Property), and to
the extent necessary, further complying with the California Environmental Quality Act (“CEQA”).
NOW, THEREFORE, the Parties hereto agree as follows:
1. The term of this ENA shall commence on the date hereof and shall end on
the earlier of: (i) the date that is twelve (12) months after the date of this ENA, as may be extended
by the Successor Agency through separate action or (ii) the date on which the Successor Agency
or Developer terminates this ENA as provided in Section 2 below (in either case, the “ENA
Period”).
2. The Successor Agency may terminate this ENA if Developer should fail to
comply with or perform any provisions of this ENA and such failure is not cured within ten (10)
days after written notice from the Executive Director of the Successor Agency (the “Executive
Director”) to Developer, or if reasonable progress is not being made in negotiations hereunder as
determined by the Executive Director in good faith. Developer may terminate this ENA by written
EXHIBIT A
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notice to Successor Agency if the Developer determines, in its sole discretion, that it does not wish
to pursue the Project further.
3. During the ENA Period (as extended under Section 1 above, if applicable),
the Successor Agency shall not negotiate with any person or entity other than the Developer for the
sale, lease, or development of the Property.
4. The Project must include the features/elements described on Exhibit “B”
attached hereto. Developer shall deliver the materials and information identified on Attachment
No. 1 attached hereto to the Successor Agency within the times set forth on Attachment No. 1.
Within ten (10) days after each calendar month during the ENA Period, Developer shall provide a
written report to the Successor Agency describing in reasonable detail Developer’s activities with
respect to the Project during such calendar month.
5. During the ENA Period, the Successor Agency shall use good faith efforts
to complete (or cause to be completed) the tasks set forth in Attachment No. 2 attached hereto.
6. Successor Agency agrees, to the maximum extent permitted by the
California Public Records Act (Government Code Section 6253 et seq.), Moorpark’s Records
Retention Schedule, Government Code Section 34090, or other applicable local, state or federal
disclosure laws (collectively, "Public Disclosure Laws"), to keep confidential all proprietary
financial and other information submitted by Developer to Successor Agency in connection with
Developer's satisfaction of its obligations under this Agreement and any Conveyance Instrument
(collectively, "Confidential Information"). Notwithstanding the preceding sentence, Successor
Agency may disclose Confidential Information to its officials, employees, agents, attorneys and
advisors, but only if and to the extent necessary to carry out the purpose for which the Confidential
Information was disclosed consistent with the rights and obligations provided for hereunder, and
may disclose such information in response to a request for public records under the Public
Disclosure Laws, as provided below.
Developer acknowledges that Successor Agency/City has not made any representations or
warranties that any Confidential Information Successor Agency/City receives from Developer will
be exempt from disclosure under any Public Disclosure Laws. In the event the City
Attorney/Agency Counsel determines that the release of any Confidential Information is required
by Public Disclosure Laws, or by order of a court of competent jurisdiction, Successor
Agency/City shall, within five (5) business days of receipt of the request, notify Developer in
writing of Successor Agency’s/City's intention to release some, none or all of the Confidential
Information so that Developer has the opportunity to evaluate whether to object to said disclosure
and/or to otherwise take whatever steps it deems necessary or desirable to prevent disclosure,
provided that Successor Agency/City shall not be liable for any damages, attorneys' fees and costs
for any alleged failure to provide said notice. If the City Attorney/Agency Counsel, in his or her
discretion, determines that only a portion of the requested Confidential Information is exempt
from disclosure under the Public Disclosure Laws, City/Successor Agency may redact, delete or
otherwise segregate the Confidential Information that will not be released from the non-exempt
portion to be released. In the event the City Attorney/Agency Counsel determines that some
Confidential Information is required to be released to the public pursuant to the Public Disclosure
Laws, and Developer brings an action in court to preclude that release, such action being known as
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a “reverse PRA action,” Developer shall reimburse the Successor Agency for all legal fees and
costs reasonably incurred in responding to that court action. In addition, if the Successor Agency/
City withholds disclosure of Confidential Information at Developer’s request and an action is
brought in court to compel the disclosure of the withheld documents, Developer shall defend,
indemnify and hold the Successor Agency/City harmless in that action.
Developer acknowledges that in connection with the Successor Agency Board’s/City
Council's consideration of any Conveyance Instrument as contemplated by this ENA, Successor
Agency/City will need to present a summary of Developer's anticipated costs of development,
together with such other information as may be reasonably required for a staff report
accompanying the proposed Conveyance Instrument. Provided, however, that to the extent
Developer reasonably determines it is necessary to protect Confidential Information relating to
financial data, said information may be delivered directly to a third party economic consultant. If
this ENA is terminated without the execution of a Conveyance Instrument, Successor Agency/City
shall return to Developer any and all Confidential Information. except as otherwise provided by
Moorpark’s Records Retention Schedule or Government Code Section 34090.
7. Developer shall reimburse the Successor Agency for its actual
out-of-pocket costs and expenses (including legal fees and consultants costs) incurred in preparing
this ENA and fulfilling its obligations under this ENA, including, but not limited to: (i) the costs of
negotiating and preparing a Conveyance Instrument; and (ii) the costs of appraisals, economic
consultants and the like used by Successor Agency to evaluate the Project, proposed transaction
terms, and/or DDA (collectively, the “Reimbursable Costs”). Concurrently with its execution of
this ENA, Developer shall deposit with the Successor Agency the sum of Five Thousand and
No/100 Dollars ($5,000.00) (the “Reimbursement Funds”). The Reimbursement Funds may be
used and applied from time to time by the Successor Agency to pay or reimburse itself for
Reimbursable Costs not otherwise paid or reimbursed by Developer. Developer shall deposit with
the Successor Agency funds sufficient to replenish the Reimbursement Funds held by the
Successor Agency within ten (10) days after written demand by the Executive Director. The
Successor Agency shall provide Developer with a monthly accounting identifying in reasonable
detail the Reimbursable Costs to which Reimbursement Funds have been applied. Any
Reimbursement Funds not applied shall be delivered to the Developer (along with a final
accounting of the Successor Agency’s application of the Reimbursement Funds) within thirty (30)
business days after the earlier of: (i) the execution of the Conveyance Instrument by the Parties, or
(ii) the expiration or earlier termination of this ENA. The provisions of this Section shall survive
the expiration or earlier termination of this ENA, to the extent that the Successor Agency has
incurred actual Reimbursable Costs for which there are insufficient Reimbursement Funds then on
deposit with the Successor Agency, and provided that the Successor Agency shall not enter into
any further agreements or incur any further costs for which Developer is responsible subsequent to
termination or expiration of this ENA. Notwithstanding anything to the contrary in this ENA,
express or implied, the Successor Agency shall have the right in its sole and absolute discretion to
cease evaluation of submittals relating to the Project, stop any other staff work and/or work of its
consultants and stop negotiating or discussing the Project or Conveyance Instrument, in the event
that the Executive Director determines that the sums then on deposit with Successor Agency are
not clearly sufficient to pay for all of the projected/established Reimbursable Costs
projected/estimated in good faith by the Executive Director.
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8. Developer shall have up to ninety (90) days from the Effective Date of this
ENA (the “Due Diligence Period”) to approve, in its sole discretion, the feasibility of acquiring,
entitling and developing the Property as contemplated in the proposed Project plan by: (i)
reviewing the exceptions, legal descriptions and other matters contained in the preliminary title
report prepared by Title Company; (ii) conducting or reviewing such surveys, investigations,
studies and inspections and making or reviewing such geologic, environmental and soils tests and
other studies of the Property (as set forth in Attachment No. 2); and (iii) reviewing all other
applicable due diligence materials respecting the Property.
Unless Developer delivers written notice to the Successor Agency approving the
Conveyance Instrument form and the feasibility of acquiring, entitling and developing the
Property with the proposed Project (the “Due Diligence Approval”) on or before the expiration of
the Due Diligence Period, then this ENA shall automatically terminate, any funds remaining in the
Reimbursable Funds deposit and in the Good Faith Deposit, not including any non-refundable
deposits released to the Successor Agency, shall be returned to Developer, and neither party shall
have any further rights or obligations under this ENA.
9. No later than five (5) days after the Effective Date of the ENA, Developer
shall make a deposit in the form of a cash deposit, cashier's check or other form of security
reasonably acceptable to Successor Agency in the amount of Twenty-Five Thousand Dollars
($25,000.00) ("Good Faith Deposit"). The Good Faith Deposit shall be deposited in an
interest-bearing escrow account with Commonwealth Land Title Insurance Company, 888 South
Figueroa Street, Suite 2100, Los Angeles, CA 90017; (800) 432-0706; Attn: Sara Soudani;
ssoudani@cltic.com with interest accruing for Developer's benefit and shall be nonrefundable and
released to the Successor Agency, but applicable to the Purchase Price, no later than five (5) days
after the expiration of the Due Diligence Period so long as Developer has previously notified
Successor Agency of Developer’s intention to proceed;
The Good Faith Deposit described herein is non-refundable except in the event of
Successor Agency default or if Successor Agency does not approve and execute the Conveyance
Instrument or the failure for whatever reason of the Successor Agency to gain Ventura County
Consolidated Oversight Board or other oversight agency approval of the Conveyance Instrument,
in which case all such deposits shall be refunded to Developer within five (5) days thereof.
Developer under the Conveyance Instrument shall make an additional deposit to augment
the Conveyance Instrument Deposit equal to Twenty-Five Thousand Dollars ($25,000.00) to be
deposited by Developer no later than five (5) days following the approval of the Conveyance
Instrument by the Ventura County Consolidated Oversight Board and so long as no challenge or
litigation is then pending relating to the Conveyance Instrument. The Conveyance Instrument will
provide that such additional deposit shall be non-refundable, except in the event of Successor
Agency default under the terms of the Conveyance Instrument.
10. Developer understands and acknowledges that if negotiations culminate in
a Conveyance Instrument, the Conveyance Instrument will be effective only after, and if, the
Conveyance Instrument has been considered and approved by Successor Agency/City and the City
Council/Successor Agency Board after public hearing thereon as required by applicable laws.
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Successor Agency’s/City's approval of any Conveyance Instrument will require compliance with
any environmental analysis requirements under CEQA.
11. A Conveyance Instrument executed by the Successor Agency is contingent
upon approval by the Ventura County Consolidated Oversight Board (the "OB") and the California
Department of Finance (the “DOF”), as may be required, which will be a condition precedent to
the consummation of the transaction in the Conveyance Instrument. The Successor Agency shall
use its best efforts to obtain OB and DOF approval. If OB and DOF approval is not obtained,
Successor Agency and Developer shall negotiate in good faith to modify the Conveyance
Instrument for a period of sixty (60) days after receipt of notice of disapproval to attempt to reach
an agreement that will be satisfactory to Successor Agency, Developer, OB, and DOF.
12. Developer will acquire the Property in fee interest at a purchase price
subject to confirmation by a fair market value appraisal to be performed during the term of this
ENA by an appraiser selected by the Successor Agency. The purchase price may be subject to
adjustment, subject to Successor Agency’s approval, commensurate with the amount of any
documented and verified costs required to address the presence of any contamination or other
potential conditions at the Property that may be found as part of Developer’s due diligence.
Developer acknowledges that the Purchase Price or adjustment thereof shall be subject to OB and
DOF approval, as may be required.
13. The Successor Agency and Developer acknowledge that all applicable
requirements of CEQA must be met to approve Project entitlements and enter into the Conveyance
Instrument, and that this may require reports and/or analyses for CEQA purposes (collectively, the
“CEQA Documents”). Developer will, at its cost, fully cooperate with the City in the City’s
preparation of any CEQA Documents.
14. Developer shall bear all costs and expenses of any and all title,
environmental, physical, engineering, financial, and feasibility investigations, reports and analyses
and other analyses or activities performed by or for Developer. During the ENA Period, the
Successor Agency shall deliver to Developer complete copies of any and all material
non-privileged reports and other material non-privileged documents pertaining to the Property
which are in Successor Agency’s possession, at no cost to Developer other than the actual cost (if
any) of duplicating such documents.
15. The Developer and the Successor Agency understand and agree that neither
Party is under any obligation whatsoever to enter into a Conveyance Instrument, and that
notwithstanding its approval of this ENA, the Successor Agency shall have the right to disapprove
any proposed Conveyance Instrument in its sole and absolute discretion, and in that regard,
Developer hereby expressly agrees that the Successor Agency shall not be bound by any implied
covenant of good faith and fair dealing in connection with such approval or disapproval of any
proposed Conveyance Instrument. In the event of the expiration or earlier termination of this
ENA, the Successor Agency shall be free to negotiate with any persons or entities with respect to
the Property. No consents, approvals, comments or discussions by staff shall diminish, affect or
waive: (i) rights of the City of Moorpark (“City”) to later impose conditions and requirements
under CEQA; (ii) the right of the Successor Agency not to approve the Conveyance Instrument; or
(iii) the Successor Agency’s other governmental rights, powers and obligations.
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16. Developer shall indemnify, defend, and hold the Successor Agency and the
Successor Agency’s respective officers, directors, members, employees, agents, contractors and
affiliated entities harmless from any and all claims, liabilities, damages, costs and expenses
relating to or arising out of this ENA or Developer’s failure to perform any obligation of
Developer under this ENA, or any challenges to this ENA. Developer’s obligations under the
preceding sentence shall survive the expiration or earlier termination of this ENA.
17. Developer represents and warrants that its undertakings pursuant to this
ENA are for the purpose of the development of the Property and not for speculation in land, and
Developer recognizes that, in view of the importance of the development of the Property to the
general welfare of the community, the qualifications and identity of Developer and its principals
are of particular concern to Successor Agency; therefore, this ENA may not be assigned by
Developer without the prior express written consent of the Executive Director in his or her sole and
absolute discretion. However, the Successor Agency acknowledges that Developer may form a
new entity to be the Developer entity that will be party to the potential Conveyance Instrument,
provided that such new entity assumes all of the obligations of the Developer under the
Conveyance Instrument in a writing reasonably satisfactory to the Successor Agency, and further
is Controlled by or under common Control with the Developer. For purposes of this ENA,
“Control” or “Controlled” means possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of an entity, whether by ownership of equity
interests, by contract, or otherwise.
18. Successor Agency represents it has engaged Kosmont Real Estate Services,
by separate agreement, in connection with the potential sale of the Property and the transaction
contemplated hereunder. Developer agrees to hold City harmless from any claim by any other
broker, agent, or finder retained by Developer in connection with said transaction as shall be set
forth more fully in the Conveyance Instrument and assuming the transaction contemplated
thereunder closes escrow, Successor Agency shall pay all commissions/charges due Kosmont Real
Estate Services under said separate agreement. Developer's indemnification obligations shall
survive the termination or expiration of this ENA for a period of five (5) years from the Effective
Date.
19. Any notice, request, approval or other communication to be provided by
one Party to the other shall be in writing and provided by certified mail, return receipt requested, or
a reputable overnight delivery service (such as Federal Express) and addressed as follows:
If to the Developer:
Quail Capital Investments, LLC
3121 Michelson Drive, Suite 150
Irvine, California 92612
Attn: Michelle L. Thrakulchavee, Managing Director
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If to the Successor Agency:
Moorpark Successor Agency
799 Moorpark Avenue
Moorpark, California 93021
Attn: Executive Director
Notices shall be deemed delivered: (i) if sent by certified mail, then upon the date of
delivery or attempted delivery shown on the return receipt; or (ii) if delivered by overnight
delivery service, then one (1) business day after delivery to the service as shown by records of the
service.
20. This ENA constitutes the entire agreement of the Parties hereto with respect
to the subject matter hereof. There are no agreements or understandings between the Parties and
no representations by either Party to the other as an inducement to enter into this ENA, except as
may be expressly set forth herein, and any and all prior discussions and negotiations between the
Parties are superseded by this ENA.
21. This ENA may not be altered, amended or modified except by a writing
duly authorized and executed by all Parties.
22. No provision of this ENA may be waived except by an express written
waiver duly authorized and executed by the waiving Party.
23. If any Party should bring any legal action or proceeding relating to this
ENA or to enforce any provision hereof, or if the Parties agree to arbitration or mediation relating
to this ENA, the Party in whose favor a judgment or decision is rendered shall be entitled to
recover reasonable attorneys’ fees and expenses from the other. The Parties agree that any legal
action or proceeding or agreed-upon arbitration or mediation shall be filed in and shall occur in the
County of Ventura.
24. The interpretation and enforcement of this ENA shall be governed by the
laws of the State of California.
25. Time is of the essence of each and every provision hereof in which time is a
factor.
26. This ENA may be executed in counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same ENA.
27. Executed counterparts of this ENA may be delivered electronically by
email to: jsandifer@moorparkca.gov (for the Successor Agency), and
michellet@cityventures.com (for the Developer).
IN WITNESS WHEREOF, the Parties hereto have executed this ENA as of the day
and year first written above.
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Old 2110421v2 / New 2478797v1 -8-
12856-0008\2478906v1.doc
OWNER:
MOORPARK SUCCESSOR AGENCY
By:
Troy Brown, Executive Director
DEVELOPER:
Quail Capital Investments, LLC. ,
a Delaware limited liability company
By:
Print Name: Michelle L. Thrakulchavee
Title: Managing Director
Attest:
Ky Spangler, Agency Secretary
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Exhibit “A”
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12856-0008\2478906v1.doc
EXHIBIT “A”
DESCRIPTION OF PROPERTY
All that certain real property situated in the County of Ventura, State of California, described as
follows:
Lots 69 through 82, inclusive, Re-Subdivision of the Colonia Virginia Tract, in the City of
Moorpark, County of Ventura, State of California, as per map recorded in Book 20, Pages 33 and
34 of Miscellaneous Records, in the Office of the County Recorder of said County.
Except all coal, lignite, coal oil, petroleum, naphtha, asphalt, maltha, brea, natural gas and all
kindred or similar minerals or mineral substances which now exist or any time hereafter may exist
upon, in or under said land, together with the rights incidental thereto, as reserved by Simi Land
and Water Company, in deed recorded November 16, 1889, in Book 29, Page 314 of Deeds.
Assessor’s Parcel No: 513-0-024-105, 513-0-024-135
APN MAP ATTACHED
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Exhibit “B”
Page 1 of 4
12856-0008\2478906v1.doc
EXHIBIT "B"
REQUIRED PROJECT FEATURES/ELEMENTS
[TO BE FINALIZED PRIOR TO SIGNING]
Conceptual plan for a residential for-sale project consisting of approximately twenty (20) unit
two-story townhomes. [final signed document to contain additional detail as may be appropriate]
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Exhibit “B”
Page 2 of 4
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ATTACHMENT NO. 1
SPECIFIC DEVELOPER TASKS
[TO BE FINALIZED PRIOR TO SIGNING]
All timelines stated below begin after execution of the ENA
1. Within thirty (30) days, Developer shall deliver to Successor Agency for Successor
Agency staff review and approval, an organizational chart of the proposed Developer
entity proposed to be a party to the Conveyance Instrument.
2. Within sixty (60) days, Developer shall obtain and review a Phase I environmental
(hazmat) report for the Property, and if recommended by the Phase I, Developer shall
promptly obtain a Phase II report subject to entering into a reasonable right of entry
agreement with the Successor Agency. Developer shall promptly deliver copies to the
Successor Agency when received.
3. Within seventy-five (75) days, Developer shall submit a preliminary Site Plan. The parties
anticipate that the Site Plan & Development Program will be further refined during the
term of this ENA, as part of the Conveyance Instrument negotiations, which is herein
defined as specifying the conceptual framework to guide the overall development of the
Project, the approved land uses on the Property, including generalized area of building
pads, height of structures, total square footage, and the conceptual parking and circulation
system for the Property. Assuming the parties enter into a Conveyance Instrument and
Developer decides to pursue the Project, Developer will then prepare the preliminary
design plan of the Project, including building elevations and design themes, as reasonably
required by Successor Agency/City, sufficient, to the extent feasible and practicable, to
allow Successor Agency/City to evaluate architectural design and similar issues as part of
the Project's land use entitlement process.
4. Within seventy-five (75) days, Developer shall submit a preliminary proforma showing the
following preliminary information: an operating income and expense estimate, an
estimated budget for development and construction of the Project, estimated pricing
ranges, projected range of Project value at completion, and relevant market validation (e.g.,
benchmark cap rates) shall be provided to Agency/City. Said proforma should also show
the preliminary estimated economic benefits to Agency/City for at least a ten (10) year
period after completion of the Project with respect to the payment for the Property, all taxes
and fees, property tax revenue generation, and an estimate of anticipated construction and
permanent jobs, as appropriate. Provided, however, that the parties acknowledge and agree
that said proforma shall be based on information reasonably available during the term of
the ENA and shall reflect the parties' understanding that such information is preliminary in
nature.
5. Within ninety (90) days, Developer shall submit to the Successor Agency a proposed
Public Outreach Plan that describes Developer’s anticipated plan and approach on
educating and informing the public about the Project, which shall detail, as appropriate,
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Exhibit “B”
Page 3 of 4
12856-0008\2478906v1.doc
specific outreach efforts and methods, including public meetings (virtual and/or in-person)
and a proposed timeline to hear comments, concerns, questions, and suggestions from
residents and business owners in the City.
6. Within ninety (90) days, Developer shall submit to the Successor Agency a schedule of
development setting forth the proposed timetable for the commencement, substantial
completion and final completion of the Project (including any processing of General Plan
and Zoning Amendment) (the “Development Schedule”).
7. Within one-hundred twenty (120) days, Developer shall deliver to the Successor Agency a
disclosure of the Developer’s principals, partners, joint ventures, and consultants that will
be materially involved in the acquisition and development of the Property.
8. Within one-hundred twenty (120) days, Developer shall deliver to the Successor Agency
for Successor Agency staff review and approval, a preliminary financing plan (including
preliminary deal structure, development entities, financing sources and methods, interest
letters from specific construction lender(s) or mezzanine equity provider(s) (as may be
available)), CPA-certified financial statements, and/or other information, for the purpose
of documenting, to Successor Agency’s/City's reasonable satisfaction, including an
updated financing plan before the parties approve the Conveyance Instrument, evidence of
Developer's financial capacity to proceed with the contemplated transaction.
9. City/Successor Agency reserves the right to and may reasonably request any additional
documentation, including additional reports, studies, analyses and other information, from
Developer in order to negotiate the Conveyance Instrument as contemplated hereunder.
Upon receiving such a request, Developer shall provide such additional documentation to
City/Successor Agency pursuant to a mutually agreed upon deadline.
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Exhibit “B”
Page 4 of 4
12856-0008\2478906v1.doc
ATTACHMENT NO. 2
SPECIFIC SUCCESSOR AGENCY TASKS
All timelines stated below begin after execution of the ENA
1. Within thirty (30) days, Successor Agency shall provide to Developer copies of all
currently existing plans, studies and other written information regarding the Property in its
possession, to the extent not previously delivered to Developer and to the extent material
to the Project and not subject to any attorney-client or attorney work product privilege or
other privilege.
2. Successor Agency shall obtain a fair market value appraisal for the Property.
3. City shall use good faith efforts to prepare and process any required CEQA Documents as
soon as reasonably possible after submission by Developer of a complete development
application and payment of applicable fees/deposits.
4. Successor Agency shall provide initial drafts of the Conveyance Instrument to Developer
and shall thereafter revise them to the extent reasonably permitted by the negotiations.
5. Successor Agency shall obtain and review a preliminary title report for the Property from a
title company selected by the Successor Agency.
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