HomeMy WebLinkAboutAGENDA REPORT 1988 0217 CC REG ITEM 08B -1 fjw MOORPARK ITEM T9,
JOHN GALLOWAY STEVEN KUENY
Mayor City Manager
ELOISE BROWN oPOPP" �q� "° CHERYL J. KANE
Mayor Pro Tern F v2 City Attorney
CLINT HARPER, Ph.D. ° PATRICK RICHARDS,A.I.C.P.
Councilmember o Director of
JOHN PATRICK LANE Community Development
Councilmember °va o R. DENNIS DELZEIT
MAUREEN W.WALL °ggT�D �" City Engineer
City Clerk JOHN V.GILLESPIE
THOMAS P.GENOVESE Chief of Police
City Treasurer
M E M O R A N D U M
TO: The Honorable City Council
FROM: Patrick J. Richards, Director of Community Development
DATE: February 9, 1988 (CC meeting of 2/17/88)
SUBJECT: AGREEMENT TO ALLOW OCCUPANCY PRIOR TO COMPLIANCE OF
CONDITION NO. 33 OF RESOLUTION NO. 85-201 OF DEVELOPMENT
PLAN PERMIT NO. 302
BACKGROUND
On October 21 , 1987 the City Council considered a request by the
owner of DP-302 to enter into an agreement with the City that would
allow occupancy prior to all the conditions of the development plan
being met.
At that time the City Council considered a draft agreement and
approved of its use. The Council also directed staff to finalize
the details of the agreement.
DISCUSSION
Since October 21 , 1987 the applicant has been working with the City
and his bank to reach resolution on the "details" of the agreement.
The bank desires the deposit funds $380,000 to be placed into an
escrow account which has caused the need to create escrow
instructions (see attachments) . These escrow instructions were
never reviewed by the Council and are now being returned for
Council concurrence. Also, the original agreement has added
language that ties itself to the escrow instructions.
PJR:crl
799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864
DP302/I/PCAGENDA
February 9, 1988
Page 2
The agreement still defers the condition until August 31 , 1988 with
a $30,000 penalty clause (over and above the $380,000) . The
applicant agreed to hold the City harmless and to carry a $2 million
dollar liability insurance policy to protect the City. Applicant
will pay City's legal fees for the escrow instructions and agreement.
RECOMMENDATION
Approve both the Agreement and Escrow Instructions and authorize
the Mayor to sign.
Attachments: Agreement
Escrow Instructions
PJR:crl
DP302/I/PCAGENDA
02/11/88 14.56 $213 623 8257 BFI&S LA --- MOORPARK Z002
mag/AGR2862
AGREEMENT REGARDING A Ri*UEST MR
CERTIrICATE OF OCCUPANCY PRIdR TO COMPLE'T'ION
OF DEVELOPIrM PLAN CUr.NDITIONS
This Agreement is entered int this day of
1988, between the CITY P
a Municipal corporation (here nafter "City" ) and
JERRY GERSHENBERG, an individual (hereinafter "Developer" )
as developer of that certain parcel df real property located
at 10952 Los Angeles Avenue, Moorpark, California and more
particularly described as County Assessor 's Parcel
No. 500-0-340-165 (hereinafter "Property" ) .
R-E-C-I-T-A-L,�S
WHEREAS, pursuant to Reso3ution No. PC-85-201 of
the City Council of the City of Moorpark (incorporated
herein by reference) and Development Plan No. DP-302
( incorporated herein by reference) ; City imposed certain
conditions on Developer (hereinafter "Conditions" ) .
WHERF,AS, Developer agrees tat the Conditions must
be met and completed prior to obtaining a certificate of
occupancy for Development Plan No. DP-302 from the City
(hereinafter "Certificate of Occupanjcy) , or Developer shall
enter into an agreement with City on 'an extension of time to
complete the Conditions.
WHEREAS, the Conditions 4ave not been met or
completed as of the date of this Agreement . Therefore,
Developer desires to obtain the Certificate of occupancy
prior to completion and fulfillmen of the conditions by
entering into an agreement with City for an extension of
time.
W'EEREAS, City is willing to enter into an agreement
for the purpose of allowing Developer to obtain the Certifi-
cate of occupancy prior to the completion and fulfillment of
the Conditions, subject to the term , provisions and stipu-
lations set forth in this Agreement .
NOW THEREFORE, the parties, in consideration of the
mutual promises seL forth beluw du a�ree as fulluws :
1. This Agreement shall 'remain in effect until
Developer has completed and fulfilled the Conditions and
complied with the terms of this Agreement to the satisfac-
tion of City.
02/11/88 14!57 $213 623 8257 BW&S LA -- - MOORPARK U 003
mag/AGR28$2
2. In consideration of tho obligation to be per-
formed by Developer under this Agre#ment, City shall allow
Developer to obtain the Certificate of Occupancy prior to
the completion and fulfillment of Conditions, subject to the
terms, provisions and stipulations set forth below.
3. Developer shall satisfy all of the Conditions
by August 31, 1988, to the satisfaction of City. The City
Manager of Lhe City uL MuorpaA LrLay exLend Lhe Lithe of per-
formance of this Agreement by Developer up to a maximum of
thirty ( 30) calendar days.
4. Developer shall secure from a good and respon-
sible company or companies doing insurance business in the
state of California, pay for , and maintain in full force and
effect for the duration of this Agreement the policy of
insurance required by this section, a, nd shall furnish to the
City Clerk of the City of Moorpark certificates of said
insurance, prior to Developer obtaining the Certificate of
Occupancy.
Notwithstanding any inconsistent statement in any
said policy or any subsequent endorsement attached thereto,
the protection offered by the policy shall :
A. Name City and its officers, employees►
servants and agents as additional insured with Developer ,
whether liability is attributable to Developer or City;
B. insure City and Developer ?nd their re4pective
officers, employees, servants, agents, successors and
assigns, while acting in the scope pf their duty under this
Agreement, against all liability for any and all cost ,
expense, claim, obligation, cause or causes of action,
attorneys ' fees, loss, damage, or injury to any person car
any property arising from, or in any way connected with,
directly or indirectly, the Property, the Conditions or the
performance of this Agreement by Developer or City, includ-
ing without limitation, all consequential damages, whether
or not resulting from the negligence of City or its
officers, employees, servants or agents, and any damage
resulting from traffic accidents at the temporary driveway
entrance, or within Cal Trans right-of-way or the public
right-of-way;
C. Bear an endorsement or have attached a rider ,
executed by a duly authorized officer of the insurance
company, whereby it is provided that such policy provides
primary coverage and that any other policy that may afford
-2-
02/11/38 14.57 $213 623 8297 BW&S LA --- MOORPARK 0004
mag/AGR2$62
coverage to City shall be in excess of, and not concurrent
with, such policy;
D. Bear an endorsement or have attached a rider ,
executed by a duly authorized officer of the insurance
company, whereby it is provided that, in the event of pro-
posed cancellation or amendment of such policy for any
reason whatsoever , City shall be notified by certified or
registered mail, postage prepaid, return receipt requested,
not less than thirty ( 30 ) days before the cancellation or
amendment is effective.
Consistent with the provisions of this section,
Developer shall provide comprehensive and personal injury
insurance as follows :
Bodily Injury and
Property Damage Combined . . . . $2,0100,000 each occurrence
5. Developer shall indemnify and hold harmless
City and its officers, employees, servants and agents from
all liability for any and all cost, expense, claim, obliga-
tion, cause or causes of action, attorneys' fees, loss,
damage or injury to any person or any property arising from,
or in any way connected with; directly or indirectly, the
Property, Conditions or the performance of this Agreement,
Including, without limitation, all consequential damages,
whether or not resulting from the negligence of City or its
otticers, employees, servants or agents, and any damage
resulting from traffic acoidents at the temporary driveway
entrance, or within Cal Trans right-of-way, or the public
right-of-way.
6. Concurrently herewith, City and Developer
shall execute an Agreement regarding Completion of Offsite
Tmprovements and Escrow Instructions ( the "Tnstructions" ) ,
by and among the parties and Mitsui Manufacturers Bank ,
which assures city of the completion and fulfillment of the
Conditions by Developer . Prior to beveloper obtaining the
Certificate of occupancy, the City shall be notified of
Escrow Holder ' s receipt of the Off-Sate Funds in accordance
with Paragraph 3.1 of the Instructions .
7. Prior to developer obtaining the Certificate
of occupancy, Developer shall deposit with City, a lump sum
cash amount of Thirty Thousand Dollars ($301000) to be main-
tained by City in an interest-bearint trust account for the
possible assessment by City of liqu, dated damages (herein-
after "Liquidated Damages Account" ) . Failure of Developer
to complete and fulfill all Conditions and comply with the
-3-
02/11/88 14.58 $213 623 8297 BW&S LA --- MOORPAR.K Z 005
mag/AGR2862
terms of this Agreement within the times specified by this
Agreement, will result in damages to City. Such damages
are, and will continue to be, impiacticable or extremely
difficult to determine. The factors relating to the imprac-
ticability or extreme difficulty of ascertaining damages
include, but are not limited to, the following facts :
A. That the public will be substantially damaged
it Developer fails to timely .install improvements,
as required by the Conditions and this Agreement;
B. That any failure to timely iasLall
improvements causes inconvenience, anxiety,
frustration and deprivation of the benefits of the
Conditions and this Agreement to the public, for
whose benefit these Conditions and this Agreement
exists, in subjective ways and varying degrees of
intensity which are incapAble of measurement in
precise dollar terms; and
C. The termination of Chis Agreement for any
failure to timely comnlete and fulfill the
Conditions and comply with the terms of this
Agreement is, at best, a meAna of future correction
and not a remedy which mak6s the public whole for
past breaches.
For each consecutive calendar day ip excess of the comple-
tion times specified in this Agreement, Developer shall
forfeit One Thousand Dollars frcm the Liquidated
Damages Account held by City. Execution of this Agreement
shall constitute acceptance between City and Developer that
One Thousand Dollars ($1,000 ) per dray is the minimum value
of the costs and actual damage caused by failure of
Developer to complete and fulfill the Conditions and comply
with the terms of this Agreement within the time specified
in this Agreement. without the provision of this section
establishing liquidated damages, the actual damage for which
Developer would be liable could greatly exceed the amount of
liquidated damages provided for in this section. Therefore,
the liquidated damages provisions are of benefit to
Developer and to City and its residents.
The funds in the Liquidated Damages Account minus
any forfeiture will be refunded to Developer within fifteen
( 1S) days upon written verification from the Director of
Community Development that all Conditions have been
completed and fulfilled and all term} of this Agreement have
been complied with by Developer to the satisfaction of City.
-4-
02/11/88 14.59 $213 623 8297 BW&.S LA --- MOORPARK Z 006
mag/AGR2862
B. This Agreement does no in any manner author-
ise the violation of law, or any lawful rules or regulations
or orders of an authorized governmebtal agency, including,
but not limited to, the Ventura County Flood Control
District .
9. Developer hereby agrees to pay for any and all
administrative costs, including legal gees, associated with
the preparation of this Agreement, not to exceed Fifteen
Hundred Dollars ( $1500 ) .
10. Developer shall not assign its rights or dele-
gate its duties and obligations undei this Agreement without
prior express written approval from rity.
11. IL any legal action, including an action for
declaratory relief, is brought to enforce the provisions of
this Agreement, the prevailing party shall be entitled to
recover reasonable attorneys ' fees from the other party.
These fees, which shall be set by the court in the same
action or in a separate action brought for that purpose, are
in addition to any other relief to which the prevailing
party may be entitled. This provisl6n applies to the entire
Agreement .
12. This Agreement supersedes and replaces all
other agreements, either oral or its writing, between City
and Developer with respect to the suYject of this Agreement .
This Agreement contains all of the covenants and agreements
between the parties with respact to Lre conditions, and each
Liarty to this Agreement dc:knowledg�_-s that no representa-
tions, inducements, promises, or ag eements have been made
by, or on behalf of, any party exc pt those covenants and
agreements embodied in this Agreement. The terms of this
Agreement are contractual and not a there recital . No agree-
ment, statement, or promise not con�ained in this Agreement
shall be valid or binding.
13. Each party acknowledg6s that it has entered
into and executed this Agreement solely on the basis of its
own independent investigation of the facts, and the advice
of its own independent selected cou�sel, if any, and other
advisors, and has not relied upon a y statement or omission
by the other party.
14. This Agreement shall riot be amended except by
a writing duly executed by the partibs.
-5-
02/11/83 14.69 $213 623 3297 BW&S LA --- MOORPARK Z007
mag/AGR2862
15. Should any provision of this Agreement be held
by a court of competent jurisdiction to be either invalid,
void or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect unimpaired
by the holding.
16. Should interpretations; of this Agreement be
necessary, il- shall be deemed that ttte Agreement was prepac-
ed by each of the parties hereto, jointly and equally, and
shall not be interpreted against any party on the ground
that the party prepared it or cawed it to be prepared.
This Agreement shall in all respects be interpreted,
enforced and governed by and under tie laws of the state of
California.
Executed on 1988 at
California.
"DEVELO�ER-
JERRY G SHENBERG
"CITY 00 HOORpARK-
aY= --
Title!
APPROVED AS TO FORM:
CITY ATTORNEY
-6-
92i11/1 �8 15:00 $213 623 8207 BW&S LA --- MOORPAR.K 16 003
mag/AGR2862
STATE OF CALIFORNIA )
95.
COUNTY OF LOS ANGELES)
on , 1988, before me,
a Notary Public in an or said State, personally appeared
JERRY GERSHENBERG, personally known to me or proved to me on
the basis of satisfactory evidence to be the persons whose
names are subscribed to the within instrument and
acknowledged that they executed it .
WITNESS my hand and official seal .
Notary Pau lic
STATE OF CALIFORNIA )
) sa.
COUNTY OF LOS ANGELES)
On , 1988, before me,
a Notary Public In and for said State, personally
appeared
of the City of Moorpark, personally nown to me or proveS to
me or. the basis of satisfactory evidence to be the person
whose name and title is subscribed to the within instrument
and ack►iuwledyed that he/she executed it .
WITNESS my hand and official seal .
Wo-f-2-i r y-VdK is
-7-
02/11/88 15.00 $213 623 8297 BW&S LA MOORPARK 0 009
mag/AGR2862
AGREEMENT REGARDING A RiWEST FOR
CERTIFICATE OF OCCUPANCY PRIdR TO COMPLETION
OF DEVELOPMENT PLA14 C6NDITIONS
This Agreement is entered into this day of
1988, between the CITY O,F MOORPARK,=a�ifornia,
a Muni c pal corporation (hereinafter "City" ) and
JERRY GERSBENBERG, an individual (hereinafter "Developer" )
as developer of that certain parcel of real property located
at 10952 LOS Angeles Avenue, Moorpa�k, California and more
particularly described as County Assessor ' s Parcel
No. 500 -0-340-165 (hereinafter "Prop6ty" ) .
R-E-C-I-T-A-L-b
WHEREAS, pursuant to Resolution No. PC-85-201 of
the City Council of the City of Moorpark ( incorporated
herein by reference) and Development Plan No. DP-302
( incorporated herein by reference) ; City imposed certain
conditions on Developer (hereinafter "Conditions" ) .
WHEREAS, Developer agrees that the Conditions must
be met and completed prior to obtaiining a certificate of
occupancyxfor Development Plan No., from the Cit
(hereinafter "Certificate of Occu an ) , or Developer shall
enter into an agreement with y on ,an extension of time to
complete the Conditions.
wHEREAs, the conditions Have not been met or
completed as of the date of this Agreement . 'therefore,
Developer desires to obtain the Certificate of occupancy
prior to completion and fulfilment. of the Conditions by
entering into an agreement with City for an extension of
time.
WHEREAS, City is willing to .enter into an agreement
for the purpose of allowing aevelopet to obtain the Certifi-
cate of Occupancy prior to the completion and fulfillment of
the Conditions, subject to the terms, provisions and stipu-
lations set forth in this Agreement.
NOW THEREFORE, the parties, in consideration of the
mutual promises set forth below do agree as follows:
A-G-R-E-E-DPI-E-NLT
1. This Agreement shall ((rremain in effect until
Developer has completed and fultill.ed the Conditions and
complied with the terms of this Agreement to the satisfac-
tion of City.
02/11/88 15.01 $213 623 8297 BW&S LA --- MOORPARK 2010
mag/AGR2862
2. In consideration of th obligation to be per-
formed by Developer under this Agreement, City shah. allow
Developer to obtain the Certificate of Occupancy prior to
the completion and fu=lment of Conditions, subject to the
terms , provisions and stipulations se,t forth below.
3. Developer shall satisfy all of the Conditions
by August 31, 1988, to the satisfaction of City. The City
Manayer oL the City of MUOLYaik may �xtrnd Lhe Lime oC pet--
formance of this Agreement by Developer up to a maximum of
thirty ( 30) calendar days.
4. Developer shall secure from a good and respon-
sible company or companies doing in.4urance business in the
State of California, pay for , and maintain in full force and
effect for the duration of this Agreement the policy of
insurance required by this section, and shall furnish to the
City Clerk of the City of Moorpart certificates of said
{ insurance, prior to Developer obtaining the Certificate of
I occupx�ncy. - —
Notwithstanding any incons -tatement in any
said policy or any subsequent endorslement attached thereto,
the protection offered by the policy ,shall :
A. Name City and its officers, employees,
servants and agents as additional insured with Developer ,
whether liability is attributable to 'Developer or City;
B. Insure City and Developer and their respective
officers, employees, servants, agents, successors and
assigns, while acting in the scope oE their duty under this
Agreement, against all liability l;or any and all cost ,
expense, claim, obligation, cause or causes of action,
attorneys ' fees, loss, damage, or i0jury to any person or
any property arising from, or in a(ny way connected with,
directly or indirectly, the Property,, the Conditions or the
performance of this Agreement by Developer or City, includ-
ing without limitation, all eonsequ�ntial damages, whether
or not resulting from the negligence of City or its
officers, employees, servants or agents, and any damage
resulting from traffic accidents at the temporary driveway
entrance, or within Cal Trans righi-of--way or the public
right-of-way;
C. Bear an endorsement or have attached a rider ,
executed by a duly authorized officer of the insurance
company, whereby it is provided that such policy provides
primary coverage and that any other policy that may afford
-2-
02/11/88 15:01 $213 623 8257 BW&S LA --- MOORPARK 0011
• 3
mag/AGR2862
coverage to City shall be iu exuesslof, and not concurrent
with, such policy;
D. Bear an endorsement or' have attached a rider ,
executed by a duly authorized offlicer of the insurance
company, whereby it is provided than, in the event of pro-
posed cancellation or amendment oe such policy for any
reason whatsoever, City shall be notified by certified or
registered mail, postage prepaid, relturn receipt requested,
not less than thirty ( 30) days before the cancellation or
amendment is effective.
Consistent with the provigions of this section,
Developer shall provide comprehensi6e and personal injury
insurance as follows:
Bodily Injury and
Property Damage Combined . . . . $2,()00,000 each occurrence
5. Developer shall indemd tify and hold harmless
City and its officers, employees, servants and agents from
all liability for any and all cost , 'expense, claim, obliga-
tion, cause or causes of action, 'attorneys' tees, loss,
damage or injury to any person or any property arising from,
or in any way connected with, diredtly or indirectly, the
Property, Conditions or the performance of this Agreement ,
including, without limitation, all , consequential damages ,
whether or not resulting from the negligence of City or its
officers, employees, servants or agents, and any damage
resulting from traffic accidents at the temporary driveway
entrance, or within Cal Trams righ�-ot-way, or the public
right-of-way.
6. Concurrently herewith' City dill Developer
shall execute an Agreement Regardin Completion of Offsite
( Improvements and Escrow Instruction ( the "Instructions" ) ,u
by and among the parties and Mitsui Man actuiers Bank ,
which assures City of the completion and fulfillment of the
Conditions by Developer . Prior to j'Develoj2er obtaining the
Certificate of occupancy, the Cit shall be notified of
Escrow Holder' s receipt of the Off-Site Funds in accordance
with Paragraph 3.1 of the Instruct.iohs.
7. Prior to Developer obItaining the Certificate
Iof Occupancy, Developer shall deposit with City, a lump sum
cash amount of Thirty Thousand Dolla�s ($30,000) to be main-
tained by City in an interest-beari g trust account for the
possible assessment by City of liquidated damages (herein-
after "Liquidated Damages Account" ) . Failure of Developer
to complete and fulfill all Conditions and comply with the
-3-
i C
02/11/88 15.02 %2213 623 8297 BW&S LA --- MOORPARK U012
mag/AGR2862
terms of this Agreement within the 'times specified by this
Agreement, will result in damages �o City. Such damages
are, and will continue to be, impracticable or extremely
difficult to determine. The factors . relating to the imprac-
ticability or extreme difficulty o.£ ascertaining damages
include, but are not limited to, the following facts:
A. That the public will be substantially damaged
if Developer fails to timely install improvements,
as required by the Conditions and this Agreement;
B. That any failure to timely install
improvements causes inconvenience, anxiety,
frustration and deprivation of the benefits of the
Conditions and this Ayreem nt to the ,{public:, f0t
whose benefit these Condit ons and this Agreement
exists, in subjective waysland varying degrees of
intensity which are incap1ble of measurement in
precise dollar terms; and
C. The termination of this Agreement for any
failure to timely complete and fulfill the
Conditions and _ comply wih the terms of this
Agreement is, at best , a me ins of future correction
and not a remedy which mak6s the public whole for
past breaches.
For each consecutive calendar day ih excess of the comple-
tion times specified in this Agreement, Developer shall
forfeit One Thousand Dollars ( $!.,0d0) fro;ri the Liquidated
Damages Account held by City. Execution of this Agreement
shall constitute acceptance between ;City and Developer that
One 'thousand Dollars ($1,000 ) per day is the minimum value
of the costs and actual damage caused by failure of
Developer to complete and fulfill toe Conditions and comply
with the terms of this Agreement within the time specified
in this agreement. Without the pr�vision of this section
establishing liquidated damages, the actual damage for which
Developer would be liable could greafly exceed the amount of
liquidated damages provided for in this section. Therefore,
the liquidated damages provisiong are of benefit to
Developer and to City and its residents.
The funds in the Liquidate Damages Account minus
any forfeiture will be refunded to �eveloper within fifteen
( 15) days upon written verification from the Director of
Community Development that all Conditions have been
completed and fulfilled and all term6 of this Agreement have
been complied with by Developer to the satisfaction of City.
-4-
02/11/38 15.03 $213 623 3297 BW&S LA --- MOORPAR.K 0013
mag/AGk2862
8. This Agreement does not in any manner author-
ize the violation of law, or any lawf 1 rules or regulations
or orders of an authorized governmeltal agency, including,
but not limited to, the Ventura County Flood Control
District.
9. Developer hereby agrees to pay for any and all
administrative costs, including legal fees, associated with
! the preparation of this Agreement, not to exceed Fifteen
Hundred Dollars ($1500 ) .
10. Developer shall not assign its rights or dele-
gate its duties and obligations under' thi_s Agreement without
prior express written approval from City
11. If any legal action, /including an action for
declaratory relief , is brought to enforce the provisions of
this Agreement , the prevailing part shall be entitled to
recover reasonable attorneys ' fees from the other party.
These fees, which shall be set by the court in the same
action or in a separate action brought for that purpose, are
in addition to any other relief t� which the prevailing
party may be entitled. This provision applies to the entire
Agreement.
12. This Agreement supersedes and replaces all
other agreements, either oral or in writing, between City
and DevelopeL with tespec L Lu thL- subject cf this Agreement.
This Agreement contains all of the covenants and agreements
between the parties with respect to the Condition3, and each
party to this Agreement acknowledges that no representa-
tions, inducements, promises, or agreements have been made
by, or on behalf of, any pai:ty excJwL Lhose uuvenanls and
agreements embodied in this Agreement . The terms of this
Agreement are contractual and not a mere recital . No agree-
ment, statement, or promise not conthined in this Agreement
shall be valid or binding.
13. Each party acknowledges that it has entered
into and executed this Agreement sol�ly on the basis of its
own independent investigation of the facts, and the advice
of its own independent selected cougsel, if any, and other
advisors, and has not relied upon an statement or omission
by the other party.
14. This Agreement shall not be amended except by
a writing duly executed by the parties.
-5-
02/11/88 15.03 $213 623 8297 BW&S LA ... MOORPARK 2 014
mag/AGR2862
15. Should any provision ofjthis Agreement be held
by a court of competent jurisdiction, to be either invalid,
void or unenforceable, the remaining provisions of this
Agreement shall remain in full force and effect unimpaired
by the holding.
J.S. Should interpretations ' of this Agreement be
necessary, it shall be deemed that the Agreement was prepar-
ed by each of the parties hereto, jointly and equally, and
shall not be interpreted against any party on the ground
that the party prepared it or taus d it to be prepared.
This Agreement shall in all res ects be interpreted,
enforced and governed by and under the laws of the State of
California,
Executed on 1988 at ,
Cal.itornia.
"DEVELOPER"
JERRY G SHENEERG
,
"CITY OF HOORPARK"
9y:
Title:
APPROVED AS TO FORM:
CITY ATTORNEY
-6-
02/11/88 15.05 $213 623 8297 BW&S LA --- MOORPARK 0 001
mag/AGR2862
{
i
STATE OF CALIFORNIA )
) se.
COUNTY OF LOS ANGELES)
i
On , 1988, befofe me, ►
a Notary Public in and tor said 5ta�e, personally appeared
JERRY GERSHENBERG, personally known to me or proved to me on
the basis of satisfactory evidence to be the persons whose
names are subscribed to the within instrument and
acknowledged that they executed it .
WITNESS my hand and official' seal .
a ary F4ab13c
STATE OF CALIFORNIA )
sg-
COQNTY OF LOS ANGELES)
On , 1988, bef8re me,
a Notary Pu is in and for sid State, persona y
appeared
of the City o Moorpark, personally known to me or proved 4a
me on the basis of satisfactory evidence to be the person
whose name and title is subscribed t� the within instrument
and acknowledged that he/she execute it .
WITNESS my hand and ofLicia� seal .
i
Notary Public
AGREEMENT REGARDING COMPLETION OFiOFFSITE IMPROVEMENTS
AND ESCROW INSTKUC{ IONS
C
X
To: Gateway Title Company ("Escrow Holder")
877 South victoria Avenue
Ventura, California 93003
x
l
Date: February 2, 1988
Escrow No. . 9800
Escrow officer: Ms. Pat Stiles
This Agreement Regarding Off6ite Improvements and
Escrow Instructions (the "Instructional') is made by And among
Gerald Gershenberg and Judith T Gershienberg (collectively, the
"Borrower$') , the city of Moorpark, a municipality (the "City") ,
and Mitsai. Manufacturers Bank, a California corporation ("Bank") ,
with reference to the following facts:
A. The Bank has previouslyimade a construction loan in
the principal amount of $3,375,000 (the "Doan") to Borrower to
finance the development of a two-story industrial building
containing approximately 109,300 equate feet of space and related
improvements (collectively, the "Project") on the real property
commonly known as 10952 West Los Angeies Avenue, Moorpark,
California (the "Real Property") . Th� Real Property and. Project
are referred to collectively as the "Property".
B. Borrower has requested An additional loan in the
principal amount of $425,000 (the "Additional Lean") from the
Bank to finance certain additional coots relating to the Project.
i
C. Borrower and the City hive entered into or are
about to enter into that certain Agreement Regarding a Request
for Certificate for occupancy prior to Completion of Development
Plan Conditions dated February , 1988 (the "Development
Agreement") regarding the completion of certain offsite
improvements relating to the Project Which are more particularly
described in Exhibit "A+' attached heroto (collectively, the
"Offsite Improvements") .
D. pursuant to the Developi'ment Agreement, the City has
agreed to issue a certificate of occupancy for the Project (the
"Certificate of occupancy") , provided that the Borrower agrees to
complete the Offsite Improvements in accordance with the terms
and conditions of the Development Agreement.
E. Pursuant to the Uevelooment Agreement, Borrower has
agreed to make financial arrangementg acceptable to the City
which assure the City of the Borrower's completion of the Offsite
Improvements.
F
F. Borrower has requested that the Bank enter into
these Instructions to assist Borrowe in complying with the
requirements of the Development Agreement.
G. The Borrower, City and Bank desire to enter into
these Instructions to provide for a mutually acceptable mechanism
for completion of the Offsi.te Improvements.
THEREFORE, the Borrower, B nk and City instruct Escrow
Holder in connection with the above=teferenced escrow (the
"Escrow") and agree as follows$
1. Escrow. Not later than one (1) business day after
the executiorr of es,e Instructions by borrower, City and the
Bank, the parties shall each deliver an executed original
counterpart of these Instructions to Escrow Holder. These
Instructions shall constitute the joint escrow instructions of
Borrower, City, and the Bank to Escrow Holder, and Escrow Holder x
is authorized to act in accordance with the terms of these
Instructions. Escrow Holder's general instructions are attached r
hereto ae Exhibit Ots" and lnvorporated herein by thte rorerenvfa.
The parties shall be bound by such general instructions, except
that if there is a conflict between such general instructions and
the remaining provisions of these Instructions, the remaining X
provisions of these Instructions shall control.
2. Deposit Of Funds by Borrbwer. Escrow Holder Shall. x
notify the parties to this Escrow upon Escrow Holder's receipt of
original counterparts of these instructions executed by Borrower,
City, and the Sank, rospectively. Upon the closing of the
Additional Loan, Borrower authorizes and instructs the Bank to
disburse the amount of $380,000 (the "Offsite funds") directly
into Escrow out of the proceeds of the Loan and Additional Loan
which have been allocated for payment of the costs of the Offsite
Improvements.
3. Notification of Receipt ,of Funds.
3.1 Deposit of funds. The Bank shall disrburse
the offsite Funds directly to Escrow Holder upon the closing of
the Additional Loan. Escrow Holder shall notify Borrower and
City upon Escrow Holder's receipt of the Offsite Funds from the
Sunk.
3.2 Financial Arrangegients for Completion of
offsite Improvements. The City shall issue the Certificate of
Occupancy upon the City's receipt of verification from Escrow
Holder that the Offsite Funds in the amount of $380,000 have been
received by Escrow Holder. The City acknowledges that such
verification from Escrow Holder shall satisfy the requirements of
the Development Agreement regarding financial arrangements for
the completion of the Offsite improvements.
4. Disbursement of Offsite: Funds. Borrower shall be
entitled to obtain d sbursement of thle offsite Funds from Escrow
Bolder for the exclusive purpose of praying the costs of the
offsite Improvements in accordance with the following procedure:
4.1 Disbursement RRcfUests. Not more frequently
than twice per calendar month, Borrower shall submit to the City
and the Bank for approval a written request for disbursement of
the Offsite Funds (the "Disbursement Request") . Each
Disbursement Request shall be accompanied by (a) a written
statement showing the specific items for which the disbursement
is requested; and (b) a statement of the names of all parties who
are to be paid in whole or in part out of the Disbursement
Request. Each Disbursement Request shall be submitted on the
standard form of disbursement request used by the Bank in
Connection with the disbursement of the proceeds of the Loan.
4.2 Certification by, Borrowor. Borrower's
delivery of each Disbursement Request to the City and the Bank
shall constitute Borrower's certification that (a) such
Disbursement Request is accurate; and (b) the Offsite
improvements for which disbursement is requested have been
provided or completed in a good and workmanlike manner and in
accordance with the final plans and specifications for such
Offaitc Improvements which have been approved by the City and the
Bank (the; "Final plans") .
4.3 Payments. Upon {escrow Holder's receipt of
written approval of each such Disbursement Request from both. the
City and the Bank, ]Escrow Holder is ,authorized and instructed to
disburse ninety percent (90t) of the amount requested by Borrower
and approved by the. Gity and the Bank. All disbursements by
Escrow Holder shall be delivered to 'Boxrower and shall be made by
Escrow Holder's joint check payable to Borrower and Borrower's
general contractor, Structural Concept4 of California, Inc. , a
California corporation (the "General Contractor") .
z
4.4 Retention. Escrow� Holder shall disburse the
remaining ten percent (10k) of the Offsite Funds (the "Retention
Amount") upon Escrow Holder's receipt of written approval from
both the City and the Bank of the fine Disbursement Request
submitted by Borrower. The City and to Bank shall have the
right to withhold approval of such fin 4l Disbursement Request ,
until (a) final completion of the OffslIite Improvements in
accordance with the Final Plans; (b) expiration of the applicable
statutory period within which mechanic's liens may be recorded 4
with respect to the Offsite improvelrienits; and (c) if specifically
requested by the Bank or the City, issuance of a title insurance
endorsement satisfactory to the requesting party insuring that
the Offsite Improvements have been completed free of mechanic's
liens.
4.5 Inspections. All inspections made by the
City and the Banx in connection with the Disbursement Requests
shall be made solely for the benefit of the City and the Bank,
respectively, and not for the benofit of Borrower, the Gencrul
Contractor, or any other person or entity. Borrower, the General
Contractor, and such other persons anO entities shall hot be
entitled to rely on any inspections by the City or the Hank but
shall make such independent inspections on their own behalf as
they deem to be advisable.
5. Additional Documentation. The City and the Bank
shall each have the right to require the submission of such
supporting affidavits, statements, lien releases and invoICVa as
the City and the Bank may reasonably tequire prior to approving
any Disbursement Request submitted by Borrower.
6. Escrow Holder's Fees aril Costs. Borrower shall pay
(a) all of Escrow HoldiPs .fees in connection with this Escrow;
and (b) all other costs and charges incurred by Escrow Holder in
carrying out the terms of these Instructions. Neither the City
nor the Bank shall be at any cost or expense whatsoever in
connection with this Escrow.
7. Interest. Pending disb4raement by Escrow Holder,
the Offsite Fun as shall be deposited by Escrow Holder in an
interest-bearing account ("Account") at a bank or savings and
loan association in Los Angeles or Veitura county, California.
The form, of Account shall be selected'by Escrow Holder to permit
the periodic disbursements which are contemplated by these
Instructions. All interest on funds $n the Account shall be held
in the Account and shall be deemed to constitute part of the
Offsite Funds. All interest on funds in the Account shall accrue
for the benefit of Borrower, except that such interest shall be
held and released by Escrow Holder in accordance with these
Instructions.
8. Release of Undisbursed Offsite Funds Upon
Completion. x
8.1 Completion. Borrower shall provide the City
and the Bank with written notice (the "Completion Notice") upon
Borrower's completion of the Offsite improvements and payment of
all claims for labor, materials, sexv�ces, and equipment
furnished to or for Borrower in connection with the Offsite
Improvements. Upon determination by �he City and the Bank that
such statement is accurate by inspection of the Offsite
Improvements, review of the substantiating documentation provided
by Borrower, or by reliance upon Borrower's statement, the City,
the Bank and Borrower shall each provide Escrow Holder with
written instructions terminating this Escrow.
8.2 . Termination. Upon Escrow Holder's receipt of
such termination instructions from all parties, this Escrow shall
terminate, and (a) oath party shall promptly execute and deliver
to Escrow Holder such additional docutnts as Escrow Holder may
reasonably require to evidence such termination; (b) Escrow
Holder shall disburse the balance, if any, remaining in the x
Account, including all interest on rhe. Offsite Funds, directly to
the Bank for application by the Bank in accordance with the
Additional Loan documents; (G) Borrower shall pay any unpaid
costs or expenses of this Escrow, inclluding any balanoo of Escrow
Holder's fees; and (d) Borrower, the City, the Bank shall have no
further obligations under these instructions. r
9. Default borrower.
9.1 Default Notice. If (a) Borrower defaults in
its obligation to complete; the Offsit4 Improvements in accordance
with the terms and conditions of the Oevelopment Agreement; or
(b) Indemnity Company of California (the "Surety") fails to
provide the City with a written statement in which the Surety
acknowledges its obligations to compute the Offsite Improvements
within five (5) days after the city delivers to the Surety
written notice of such default by the Borrower; or (c) the Surety
breaches its obligation to complete the Offsite Improvements
after having acknowledged such obligation, then the City, at its
option and in its sole discretion, shill have the right to give
written notice of such default (the 116efault Notice") to Escrow
Holder and. the Bank.
9.2 Disbursement City. From and after the
fifth (5th) day followin�g he City's delivery of tho Default
Notice to Escrow Holder and the Bank, the City shall have the
right to obtain disbursement of the Offsite Fundb held by Escrow
Holder by delivering a request for di bgreement to Escrow Holder
(the "Default Disbursement Notice") , find all offsite Funds
disbursed to the City shall be used for the exclusive purpose of
paying for the costs of completing tho Offsite Work.
Notwithstanding anything to the contrkiry contained in these
Instructions, immediately upon Escrow Holder's receipt of thru
Default Disburaement Notice, Escrow Holder is irrevocably
authorized and instructed to disburse directly to the City in a
single lump sum disbursement the entire balance of the Offsite
Funds being held by Escrow Holder. Escrow Holder is authorized
to make such disbursement to the City solely on the basis of
Escrow Holder's receipt of the Default Disbursement Notice from
the City. Neither the Bank nor Escrotii Holder shall have a duty,
obligation or right of any kind to dAermine whether or not any
default exists under the Development kgreement as a condition to
such disbursement by Escrow Holder.
9.3 Disbursements to $uraty• If Borrower
defaults in its obligation to completle the Offsite Improvements,
in lieu of obtaining disbursement of the Offsite Funds pursuant
to Section 9.2 above, the City, at its option, shall have the
aright to require the Surety to complete the Offsite Improvements
pursuant to those certain performance and payment bonds which are
described in the set aside letter attached hereto as Exhibit "C".
If Surety acknowledges its obligation to complete the Offsite
Improvements undar the Bonds in a written statement which Surety
delivers to Escrow Holder, the City, and the Bank prior to the
City's delivery of the Default. Disbursement Notice to Escrow
Holder, then%
(a) Surety shall have the right to obtain
disbursement of the Offsite Funds hold by Escrow Holder, and all
offsite Funds disbursed to the Surety or at the Surety's request
shall be used for the exclusive purpose of paying for the costs
of completing the offsite improvements; and
(b) Escrow Holder is authorized and
instructed to make such disbursementst from time to time directly
to Surety rather than Borrower for ilia costs of completing the
Affsite Improvements by following the dame procedure as that set
forth in Section 4 above. The parties advise Escrow Holder that
Surety shall not' in any way be obligatdd to repay the funds so
used.
9.4 Scat Aside Letter. upon Eaarow Holder's
receipt of the Offsite Funds in
the amount of $380,000, Escrow
Holder is authorized and instructed to 'forward a set aside latter
in the form of the letter attached he3r4tto as Exhibit "C" to
Surety.
9.5 No Impairment of Debvelo went A reement.
Nothing contained in these Tnstructiont shall affect or impair
the City's rights under the DesvelopmeA Agreement between the
City and Borrower regarding the Borrow4r's obligation to complete
the Offsite Improvements.
10. Attorneys' Pees. If a4 4 ;tion or proceeding is
commenced by any party to enforce its ight$ under these
Instructions, the prevailing party in tuch action or proceeding
shall be entitled to recover all reasonable costs and expanises
incurred in such action or proceeding, including reasonable
attorneys' fees and costs, in addition to any other relief
awarded by the court.
11. Notices. All notices, eque5ts, approvals, and
other communications provided for in t Me Instructions shall be
in writing and shall be effective (a) when delivered to the
recipient,; or (b) two (2) business day after depomit in a se3alda
envelope in the United States mail, pv tage prepaid, by
registered or certified mail, return r ceipt requested, addressed
to the recipient as set forth below, w, ichever is earlier.
All notices to Borrower sha11 be sent to:
Mr. Gerald Gershenberg nd
Mrs. Judith L. Gershenbprg
14933 Calvert street x
Van Nuys, California 911401
All notices to the City shall be sent to:
The City of Moorpark
799 Moorpark Avenuo
Moorpark, California 93021
Attention: PatrioX Ric ards
Director of Community Development
With a copy to:
Cheryl a. Kane, Esq.
Burke, WA.11iams & Soren+son
624 South Grand Avenue
filth Floor
Los Angeles, California 90017
All notices by mail to the %ank shall be sent to;
Mitsui Manufacturers Bajnk
135 East Ninth Street
Los Angeles, California; 90015
Attention: Alan Naiman, vice president
sent to All notices by personal deiivery to the Bank shall be
Mitsui Manufacturers Sank
864 South Los An eles 3treeet
Los Angeles, Calyfornial 90015
Attention: Alan Naimari, Vice President
5
12. Further Assurances. Ea�h of the parties shall
promptly execute and deliver such further documents, instruments
and information as may reasonably be r quired by Escrow Holder to
comply with the terms of these Instructions.
13. Modifications. These 1�structions may be modified
only by a written amen sent signed by borrower, the City, and the
Bank.
14. Entire Agreement. Thos Instructions contain the
entire agreamen and uhdexstan ing amo g the parties concerning
the subject matter of these Instructions.
15. Interpretation. The he�dings to sections of these
nie
Instructions are or convent reference only and shall not be
used in .interpreting these Instructions,
16. California Law. These !Instructions shall be
governed by and i.nterprete in accordalace with the laws of the
State of California.
17. Successors. These Instructions shall be binding
on and inure to the benefit of the patties and their respective
successors and assigns. Borrower shad have th*e right to assign
its right's under these TnstruQtions to a general partnership in
which Borrower holds at least a fifty-4one percent (51%) interest,
provided that no ouch asasignmeant ehall r®lausa nux'xcrwLZ from any
of its obligations under these Instructions.
is. Counterparts. These lAstructions and any
amendments hereto may be executed in iiultisle counterparts, eacli
of which shall be deemed an original, and all of which together
shall constitute one and the same instrument.
19. Term. These znstructimns shall remain in full
Force and effect until such time as all of the Offsite Funds have
been disbursed to the Borrower, the City and the Surety or any
one or more of them in accoxdan<=a with those Instructions and
shall thereupon terminate.
z
20. ; NO Third Party Benefi4ariea. These Instructiono
are entered into for the sole benefit of Borrower, the City, and
the Bank, and no other party shall have any right of action under
or rights or remedies by reason of th.6se Instructions.
BA�tRUWER:
V,rald ershenberg �� x
Judith L. Gera anb rq
r.
BRINK:
Mitsui Manufacturers Bank,
aICalifornia corporation
Title;
C TY:
Tie City of Moorpark,
almunieip*lity
Mayor, ity of oorpark
9�t
even Rueny, Cit7 Manager
Approved as to form:
Cheryl J. Kane, C ty Attorney
for the City of Moorpark
F
7
I
AGREEMENT HLVARDING COMPLETION QF QPPSITE IMPROVEMENTS
EXHIBIT "A"
' s
g� Ouantity
n
1. .45 AC-.8'Agg. Base - .9 39,500 S.F. x
sub-Base
x
2. Concrete Curb & Gutter 886 L.F.
3. Concrete Sidewalk 7,086 S.F.
4. R,C. Box Channel 250 C.Y.
5. catch Basin 2,500
6, 18" pia, RCP 20 L.F.
7. 42" Oia. CMP 50 L.F.
8, Junction Structure 11000
9, Fill 2,200 C.Y.
10, Misc. Removals 30,000 S.F.
11. Signing & Striping 10,000
12. Street Lights 1,000
I
AGIty:EMENT REGARDING COMPL RN—OF IOlrrszTE IMPROV'LMENT6
ExHiBIT OBO '
You are authorized to deliver,prepare,obtain and record tht.nveUssu�ry instruments to carry out the terms and cuadl-
bona of this escrow and to order to be iwsurd tit close,of cscro'w to,r d�livecy to the order of the buycKa)In this escrow
Policy of Title Iusurarce confirming to California Luna Title Assocl206n Standard Coverage,unless othetwile specified, x
wltll liability as set forth eltiewhere In these irttitrucilons.
As et,cruw holder you shall deposit funds paid into this escrow with lother escruw Ainds in a general cuerow fund ac-
count of iTLE COMPANY with a National of State flank duly qualified to do banking htis1ncx4
in tlic State of California.The aggrcgatc of all such funds so on dvos In:tl�banks altall constitute one_grneral escrow
fund. All disburscntems may be. made by check ofX3LX!€tC]G7[C�?C 6I�X fl,rl,E COMPANl y. *GATEWAY
i
when property being conveyed is held In Joint'1'enancy any cash dcri-40 therefrotl)in this cscruw shall hr Joint tenancy
funds. `
i
You wail, as my agate, aeslgn any insuraficc of mine handud you fok use in this escrow.
Make all adjuitments and proration,on A bsasis of 00 stay month. "Close of 114erow".shall mcun the date the(nstrunitdls
are recorded.
Sclier agrees to pay,outeldc of escrow, and bcforr delinqucnoy, all t�xes nn pcmonal and real property not conveyed
through this escrow,which appear As a Iicn ort tht property described ltrein,And you art;o0i to be concerned therewith_
Deliver assurance of title and insurance policies, if any. to holder of first encumbrance, or order, if Any. Instruments
and checks In my favor to be ittalled to my address shown below, unless you Arc otherwise instructed,
if the conditions of this escrow have not heen compiled with at the time herein provided,you arc ncvertheiess to cort-
pictc the same as$0011 as the conditions(except As to tine)h2ve Deal)complied with. untcss 1 shall have made written
demand upon you for the return of moray and instruments deptisit'ed by me.
No notice,demand or charge of Instructions entail be of any effect Id this escrow unless given In writing by all partlos
affected thereby. In the event conflicting demands are made or notices served upon you with respect to this escrow,
the parties hereto expressly agree that you shall have tlw ainsaltite riglu t your election to do either nr Ixoth of the following:
withhold and stop ail further procerdings In. and performance of,tads csc:row,or file a suit In Idterpleader and obtain
an order front the.court requiring the parties to interlikad and litigue'in such court their several claims and rights smnng
themsclvrt. In the event such inicrpleader suit Is brought, you shall ipso facto be folly rc1cascd sad dischafgcd fronn
all obligations to further perform Ray and All duties or obligations Oposed upon you In this esutiw,:utd the:parties
Jointly and severally agree to pay you all costs,expenses and reason hic attorney's Pecs expended or Incurred by you,
the amount thereof to be fixed and a Iudgmcnt thcrcfor to be WO Zed by the court lit such suit,
You arc not to be held liabit for the sufticieticy or torrcetness as to form, maurta tJ cxci_utiuu or validity of any lnatrw
ment deposited in this c..tcrow, nor as to identity,authority or rlVitti of auy pu buti t xee:utlttg the san'ic,nor for fallure
to eompty with any of the provisions of any agre0ment, contract, or other instrument filed herein, and your duties
hereunder shall be 11311ted to the safekeeping of such money,lnstrupiGntS,or other d,r,{.unienta rccclved by you as escrow
holder, and for the dbKpnsition of same in accordance. with the written tnSMICL Ul1S acctpted by you In this escrow.
All partics hereto further agree,jointly and severally,to pay on dcmind,as N s It�Ls to Incicninifoy and hold you liartn=
from and against all costa,damages,judgments,attorney's feet.expanses,obliylatlous and IlAbllitit:s of auy kind or nature
which, In good faith, you may Incur or sustain in connection with, or arising,our of this escrow, and you are hereby
given alien upon all tale rights,titles and interest of each of the untit,7f aIgJjCd In all escrowed papers attd other property
and monies J4:posit,rd in this escrow,ui protect your rights and to iiitdemnify and rrhaburw you under this agreemcnt.
it ix agreed by the partics hereto that so far as your rlyhts and liabilities arc chiweriwd, this transaction lb an escrow
and not any other 1egAl relation and you are an csernw holder only'on the terms exproted herein,and you shall have
no responsibility of notifying me or any of the partics to this rsczow of any suit,resale,hour+,exchange of other rfansac-
titan Involving any prnperly here-in described or of auy 1310fit re21it,C4 by any perSOln,firm Or COPpOCatiuu(broker,agent,
and partics to this and/or any other cKcrow included)in connection�therewith,reirtrdlrss of the fAct that such traitsac-
don(s)may be handled by you in this escrow or in ainuther escrt4.
Theic instructions may be executed in countcrpurts,each of wi l6h bo executed hh;ku, irrrhpecdce of the date of]Is cti-
ecution and delivery be deemed an original and sA1d counterparts together shall constitutc one and dic swac histrttittcut.
s
Any amended, suplalcmcntAJ, or additional instructions given shall be subject tv the forcgufng �;utiditlons.
F
I
AGREEMENT REGARDING COMPLETION OF ,k)FFSITE IMI?ROVFMEN3'S
I i
EXHIBIT
GATEWAY TITLE COMkNY
877 South Victoria hvenus
Ventura, Californiaj93003
February —, 19188
Indemnity Company of California
c/o INSCO/DICO Group ,
333 Wileshiro Boulevard
Anaheim, California 92801
Re; Gerald M. Gershenberg a d Judith L. Gershenberg
Mitsui Manufacturers Bt$ k�s
Loan No. ICL 28751% 2875-A
2875-A
Your Bond Nos. 921890-61 921889-5, 921887-S
921888-S, and 921861-C
Gentlemen:
We are writing to advise you that pursuant to an
Agreement Regarding Completion of Offsite. Improvements and Escrow
Instructions dated February 2, 1988 (the "Escrow Instructions")
by and among Mitsui Manufacturers Bank (the "Bank") , Gerald M.
Gershanberg and Judith L. Gershenberg (collectively, the
"Borrower") , and the City of Moorpark, a municipality (the
"City") , the above-referenced escrow (the "Escrow") has been
established at our offices (the "Escrota Holder«) .
We have been instructed by the Bank, Dorrower and the
City (collectively, the "Parties") to 1provide Indemnity Company
of California (the "Surety") with this set aside letter in
connection with the surety bonds (coll!ectively, the "Bonds")
which were originally issued by surety, in connection with the
existing set aside latter dated June 19, 1986 (the "Existing Set
Aside Letter") from the Bank to Surety. and the public
improvements more particularly descril5ed in the Existing Set
Aside letter (the "Offsite Improvements") .
As Escrow Holder, we nave boon instructed by the
Parties to advise you as follows$
1. The Bank has aepOgited the sum of $380,000 (the
"Offsite Funds") with Escrow Holder.
2. Escrow Holder has beenlinstructed by the Parties
to disburse the Offsite Funds from Escrow for the purpose of
paying for the costs Of the offsite Improvements upon the
submission to and approval by the Bank of written requests for
disbursement from the Borrower.
3. The Parties have instructed Escrow Holder that it
•(i) Borrower defaults in its obligati n to complete the offsite
Improvements; and (ii) Surety acknowXhdges its obligation to
complete the Offsite Improvements und6r the Bonds in a written
statement which Surety delivers to Escrow Holder, the City and
the Bank prior to the city's dalivery of a notice to Escrow
Holder that the City itself has elected to obtain disbursement of
the offsite Funds to complete the Of Kite Improvements, then$
(a) surety shall have the right to obtain
disbursement of the offsite Funds held by Escrow Holder for the
purpose of completing the offsite Improvements; and
i
A Ii
(b) Escrow Holder is authorized and instructed to
make such disbursements directly to Su'pty rather than to
Borrower for the-costs of completing the dffsite Improvaments by
following the same procedure for disbursement to the Borrower.
3
4. The Parties have advised Escrow Holder that Surety
shall not in any way be obligated to re ay the funds so used.
Very tru* yours,
Gateway Title Company e
Byt
Title:
F
7
x
2