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Resolution No. 2001 -98
MOORPARK REDEVELOPMENT AGENCY
REGULAR MEETING AGENDA
WEDNESDAY, MAY 2, 2001
6:30 P.M.
Moorpark Community Center 799 Moorpark Avenue
1. CALL TO ORDER:
2. ROLL CALL:
3 . PUBLIC COMMENT:
4. PRESENTATION /ACTION /DISCUSSION:
A. Consider Mid -Year Amendments to 2000/2001 Fiscal Year
Budget. Staff Recommendation: Adopt Resolution No. 2001 -
amending the 2000/2001 budget as noted in Exhibit "A"
to the resolution. (ROLL CALL VOTE REQUIRED)
B. Consider Second Amendment to Disposition and Development
Agreement for Cabrillo Economic Development Corporation
(CEDC) (Tract No. 5161, Residential Planned Development No.
98 -7). Staff Recommendation: Approve second (2 ") amendment
to the Disposition and Development Agreement and related
documents.
C. Consider Notification to Foster Enterprises to Modify or
Terminate Existing Lease at 192 High Street. Staff
Recommendation: 1) Authorize staff to enter into
negotiations with Foster Enterprises to negotiate an
amendment to the current lease to a month -to -month lease,
with a 90 -day notification requirement; and 2) In the event
that Foster Enterprises is not willing to amend the terms
of the lease as described above, authorize staff to issue
a termination notice no later than May 31, 2001, with the
lease terminating as of September 1, 2001.
5. CONSENT CALENDAR:
A. Consider Approval of Minutes of Special Meeting of April 4,
2001. Staff Recommendation: Approve minutes as processed.
6. CLOSED SESSION:
Redevelopment Agency Agenda
May 2, 2001
Page 2
A. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION
Significant exposure to litigation pursuant to Subdivision
(b) of Section 54956.9 of the Government Code: (Number of
cases to be discussed - 4)
B. CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION
Initiation of litigation pursuant to Subdivision (c) of
Section 54956.9 of the Government Code: (Number of cases to
be discussed - 4)
C. CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION
(Subdivision (a) of Section 54956.9)
Mission Bell Plaza Phase II, LLC, a California limited
partnership vs. Redevelopment Agency of the City of
Moorpark. (Case No. SCO28906)
D. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
(Pursuant to Government Code Section 54956.8)
Property: (APN 512 -0- 062 -020)
Agency Negotiator: Steven Kueny, Executive Director
Negotiating Parties: The Redevelopment Agency of the City
of Moorpark and The County of Ventura
Under Negotiation: Price and terms of payment
Property: (APN 511 -0- 050 -175)
Agency Negotiator: Steven Kueny, Executive Director
Negotiating Parties: The Redevelopment Agency of the City
of Moorpark and In Young Kim
Under Negotiation: Price and terms of payment
Property: 798 Moorpark Ave., Moorpark CA 93021
Agency Negotiator: Steven Kueny, Executive Director
Negotiating Parties: The Redevelopment Agency of the City
of Moorpark and Laszlo B. Kovacs
Under Negotiation: Price and terms of payment
7. ADJOURNMENT:
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Any member of the public may address the Agency during the Public Comments portion of the Agenda, unless
it is a Public Hearing or a Presentation /Action /Discussion item. Speakers who wish to address the Agency
concerning a Public Hearing or Presentations /Action/ Discussion item must do so during the Public
Hearing or Presentations /Action /Discussion portion of the Agenda for that item. Speaker cards must be
received by the City Clerk for Public Comments prior to the beginning of the Public Comments portion
of the meeting and for Presentation /Action /Discussion items prior to the beginning of the first item
of the Presentation /Action /Discussion portion of the Agenda. Speaker Cards for a Public Hearing must
be received prior to the beginning of the Public Hearing. A limitation of three minutes shall be imposed
upon each Public Comment and Presentation /Action /Discussion item speaker. A limitation of three to five
minutes shall be imposed upon each Public Hearing item speaker. Written Statement Cards may be submitted
in lieu of speaking orally for open Public Hearings and Presentation /Action /Discussion items. Copies
of each item of business on the agenda are on file in the office of the City Clerk and are available
for public review. Any questions concerning any agenda item may be directed to the City Clerk at (805)
517 -6223.
In compliance with the Americans with Disabilities Act, if you need assistance to participate in this
meeting, please contact the City Clerk's Department at (805) 517 -6223. Notification 48 hours prior to
the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting
(CFR 35.102- 35.104 ADA Title II).
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss
CITY OF MOORPARK
AFFIDAVIT OF POSTING
I, La-Dell VanDeren, declare as follows :
That I am the Deputy City Clerk of the City of Moorpark and that a
notice for a Regular meeting of the Moorpark Redevelopment Agency
to be held May 2 , 2001, at 6 : 30 p.m. in the Council Chambers of the
Moorpark Community Center, 799 Moorpark Avenue, Moorpark,
California, was posted on April 27, 2001, at a conspicuous place at
the Moorpark Community Center, 799 Moorpark Avenue, Moorpark,
California .
I declare under penalty of perjury that the foregoing is true and
correct .
Executed on April 27 , 2001 .
La-Dell VanDeren, Deputy City Clerk
MOORPARK REDEVELOPMENT
AGENDA REPORT
ITEM . A* �
CITY OF MOORPARK, CALIFORNIA
Redevelopment Agency Meeting
of 6-2-200 1
ACTION: ADc* -7 p Re SO #
Zook- 9r
BY:�
AGENCY
TO: Honorable Board of Directors
FROM: Dana Shigley, Administrative Services Direct QL l v
DATE: March 27, 2001 (meeting of May 2, 2001)
SUBJECT: CONSIDER MID -YEAR AMENDMENTS TO 2000/2001 FISCAL YEAR
BUDGET
BACKGROUND
The Board of Directors adopted a budget for fiscal year
2000/2001 on June 21, 2000 and has amended it several times for
various projects and programs. After a review of the current
budget status, in anticipation of developing a budget
recommendation for the new fiscal year, staff has compiled
additional recommended budget amendments for the Board's
consideration.
DISCUSSON
The attached resolution makes two adjustments to the currently
adopted 2000/2001 fiscal year budget, with an explanation for
each in exhibit "A ". Both of these adjustments are simply
actions to "clean up" the budget for actions already taken or
directed by the Board.
STAFF RECOMMENDATION (Roll Call Vote Required)
1. Adopt Resolution 2001- amending the 2000/2001 budget
as noted in exhibit "A" to the attached resolution.
C "')0c,c
RESOLUTION 2001-
A RESOLUTION OF THE BOARD OF DIRECTORS
OF THE REDEVELOPMENT AGENCY OF THE CITY
OF MOORPARK, CALIFORNIA, AUTHORIZING AN
AMENDMENT TO THE FISCAL YEAR 2000/2001
ADOPTED OPERATING BUDGET
WHEREAS, on June 21, 2000, the Board of Directors adopted
the operating budget for fiscal year 2000/2001; and
WHEREAS, certain additions and adjustments to the budget
are proposed to allow for effective service delivery for the
balance of the fiscal year; and
WHEREAS, the Board of Directors now wishes to amend the
2000/2001 fiscal year budget as noted in exhibit "A ".
NOW, THEREFORE, THE AGENCY BOARD OF DIRECTORS OF THE CITY
OF MOORPARK DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. A budget amendment as described in Exhibit "A"
attached hereto is hereby approved.
SECTION 2. The Agency Secretary shall certify to the
adoption of this resolution and shall cause a certified
resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 2nd day of May, 2001.
Patrick Hunter, Chair
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
Resolution No. 2001 -
Page 2
Exhibit "A"
Amendment to 2000/2001 Adopted Budget
Budget Unit
Object
Title
Current
Change
New
Notes
Purchase of property on
LA Avenue as previously
approved by Redevelopment
2901.5420.0000
9610
MRA Purchase of Real Property
225,000
252,000
477,000
Agency Board
Funding for MRA's annual
property tax assessments
for park maintenance
omitted from original
2902.5410.0000
9272
MRA Park Assessments
-
2,700
2,700
budget in error.
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A M eNDz D.
MOORPARK REDEVELOPMENT
AGENDA REPORT
To: Honorable Agency Board of Directors
From: Nancy Burns, Senior Management Analyst
Date: April 23, 2001 (MRA Meeting of May 2, 2001)
Subject: CONSIDER SECOND AMENDMENT TO DISPOSITION AND
DEVELOPMENT AGREEMENT FOR CABRILLO ECONOMIC
DEVELOPMENT CORPORATION (CEDC) (TRACT NO. 5161,
RESIDENTIAL PLANNED DEVELOPMENT NO. 98 -7)
BACKGROUND
In July 1998 the Moorpark Redevelopment Agency entered into a
Disposition and Development Agreement (DDA) with Cabrillo
Economic Development Corporation (CEDC) for the construction of
fifty -nine (59) homes on the Gisler Field Site, fifteen (15) of
which are to be affordable to low and very low income
households. The Schedule of Performance (Attachment 4 of the
DDA) was amended on February 17, 1999, to extend the time
periods for the performance of certain actions. Since that
time, regular updates have been provided to the Agency and City
Council on the progress of this development in nearing its
readiness for Final Map approval and subsequent construction.
DISCUSSION
The purpose of the Second Amendment to the
facilitate the implementation of the DDA,
within the DDA and conformity with Stat(
including definitions of Affordable Hous
amended to reflect a larger number c
Affordable Units, to be constructed in Phase
DDA is to revise and
ensuring consistency
Redevelopment Law,
Lng. It has been
f units, including
I.
Honorable Agency Board of Directors
Date 04/26/01
Page 2
The Schedule of Performance has been updated to reflect
anticipated completion of identified milestones. The original
order of the actions described in the right hand column has been
retained from the DDA, for ease in comparison of dates. Dates
of the completion of certain actions or anticipated completion
dates are shown in the left column.
The Grant Deed has been revised to incorporate the First and
Second Amendments to the DDA. Text has been added to the
Agreement Containing Covenants Affecting Real Property to
confirm the Covenants shall run with the land and the document
has been modified to allow it to be recorded. Explanations have
been provided for terms applicable to the Affordable Units, such
as "gross income ", "housing cost ", "Low Income" and "Very Low
Income ". Preference is provided to Moorpark residents for the
Affordable Units, and "Resident" is defined.
Documents have been prepared to facilitate the closing of escrow
on the site and development of the property, consistent with the
DDA. These documents include a Promissory Note and Deed of
Trust for the developer's purchase of the site from the
Redevelopment Agency; and Certificates of Completion, both for
the individual parcels and the Final Certificate of Completion
for the project.
The DDA anticipates the subordination of the Deed of Trust
securing the promissory note for the developer's purchase of the
site to a construction loan. A draft Subordination and
Agreement, in the form of that which is attached to and follows
the related documents for this project, has been prepared by
Wells Fargo Bank, National Association, the construction lender
for this project. When this document is completed, final
language will be subject to review and approval by Agency
Counsel and the Executive Director.
RECObRdENDAT I ON
Approve Second (2nd) Amendment to the DDA and the Following
Related Documents:
• Schedule of Performance
• Grant Deed
• Agreement Containing Covenants Affecting Real Property
Honorable Agency Board of Directors
Date 04/26/01
Page 3
• Promissory Note
• Deed of Trust
• Final Certificate of Completion
• Parcel Certificate of Completion
• Subordination and Agreement (subject to final approval of
Executive Director and Agency Counsel)
Attachments
i �L' fit: fig►
AMENDMENT NO. 2
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK
and
CABRILLO ECONOMIC DEVELOPMENT CORPORATION
for the
GISLER FIELD PROJECT
This Amendment No. 2 to Disposition and Development Agreement
(this "Second Amendment ") is entered into by and between the
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK ( "Agency ") and
CABRILLO ECONOMIC DEVELOPMENT CORPORATION ( "Developer").
For and in consideration of the mutual covenants and
conditions set forth herein, the Agency and the Developer hereby
agree as follows:
Section 1. PURPOSE OF SECOND AMENDMENT
a. The Agency and the Developer have heretofore entered into
that certain Disposition and Development Agreement dated as of July
8, 1998, as amended by that certain Amendment No. 1 (the "First
Amendment ") as of February 17, 1999 (collectively referred to as
the "DDA "), which is incorporated herein by this reference. Any
capitalized term contained in this Second Amendment that is not
otherwise defined shall have the meaning attributed to such term in
the DDA.
b. The purpose of the DDA is to effectuate the Redevelopment
Plan for the City of Moorpark Redevelopment Project by providing,
among other things, for the sale of certain real property owned by
the Agency, defined in the DDA as the "Site" and the development of
59 single family homes thereon by Developer, of which 15 are to be
restricted to low income households and very low income households,
as provided in the DDA (the "Project ") . The purpose of this Second
Amendment is to revise and facilitate the implementation of the DDA
and the various exhibits attached to the DDA, on the terms and
conditions more specifically set forth below.
Section 2. SCHEDULE OF PERFORMANCE
The Schedule of Performance which is attached to the DDA as
Attachment No. 4, as amended by the First Amendment, is hereby
deleted in its entirety and replaced in its entirety with the
Second Amended Schedule of Performance attached to this Second
Amendment as Exhibit "A ", which is incorporated herein by this
reference.
moor \mv \secamd4
4 -20 -01
Section 3. FORM OF DEED
The form of Grant Deed which is attached to the DDA as
Attachment No. 5 is hereby deleted in its entirety and replaced in
its entirety with the form of Grant Deed attached to this Second
Amendment as Exhibit "B ", which is incorporated herein by this
reference.
Section 4. AGREEMENT CONTAINING COVENANTS AFFECTING REAL
PROPERTY
a. The form of Agreement Containing Covenants Affecting Real
Property which is attached to the DDA as Attachment No. 6 is hereby
deleted in its entirety and replaced with the form of Agreement
Containing Covenants Affecting Real Property which is attached to
this Second Amendment as Exhibit "C", which is incorporated herein
by this reference.
Section 5. AGENCY LOAN DOCUMENTS
The Promissory Note and Deed of Trust relating to the Agency
Loan referred to in Attachment No. 3 to the DDA shall be
substantially in the forms attached to this Second Amendment as
Exhibit "D" (Promissory Note) and Exhibit "E" (Deed of Trust),
which exhibits are incorporated herein by this reference.
Section 6. SUBORDINATION
Concurrently with the close of escrow, Agency shall execute in
recordable form a Subordination and Agreement in favor of Wells
Fargo Bank, substantially in form attached to this Second Amendment
as Exhibit "H ".
Section 7. MISCELLANEOUS AMENDMENTS TO DDA
The DDA is hereby amended as follows:
a. Section 01.01 is hereby amended to delete the second un-
numbered paragraph thereof in its entirety and to insert the
following new paragraph in its place:
moor \mv\secamd4
4 -20 -01
When used in this Agreement, "Affordable Housing" or
"Affordable Housing Units" shall have the meaning
determined in accordance with paragraphs d., e., f. and
g. of Section 2 of the Agreement Containing Covenants
Affecting Real Property (attached to this Second
Amendment as Exhibit "C", and incorporated herein by this
reference) .
-2-
..r t �l r i
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b. Paragraph (4) of Section 02.03 is hereby amended to
replace the reference to Section 11.01 in the last line thereof to
Section 08.01.
c. Section 04.01 is hereby amended to revise the phasing of
the Project, as follows:
(1) In Phase One, consisting of a total of twenty -six (26)
units, five (5) units for sale to low income households
and two (2) units for sale to very low income households
shall be constructed.
(2) In Phases Two and Three, consisting of a total of thirty -
three (33) units, the following shall be constructed:
(a) Phase Two: two (2) units for sale to low income
households and one (1) unit for sale to very low
income households; and
(b) Phase Three: four (4) units for sale to low income
households and one (1) unit for sale to very low
income households.
d. Section 08.01 is hereby amended to provide that the Final
Certificate of Completion shall be substantially in the form
attached to this Second Amendment as Exhibit "F" and each Parcel
Certificate of Completion shall be substantially in the form
attached to this Second Amendment as Exhibit "G", which exhibits
are hereby incorporated herein by this reference.
e. The second paragraph of Section 6 of Attachment No. 9,
Schedule of Fees, is hereby amended to read as follows: "Unless
otherwise modified by the City Council, said fees shall be paid in
accordance with Section 04.12 of this Agreement."
Section 8. EFFECTUATION OF THIS SECOND AMENDMENT
The parties agree to execute such other instruments,
agreements and amendments to documents as may be necessary or
appropriate to effectuate the DDA, as amended by this Amendment.
Section 9. AGREEMENT TO REMAIN IN EFFECT
Except as expressly provided otherwise in this Second
Amendment, the DDA remains in full force and effect, enforceable in
accordance with its terms.
moor \mv \secamd4
4 -20 -01
-3-
Section 10. DATE OF THIS SECOND AMENDMENT
This Second Amendment is executed in five (5) duplicate
originals, each of which is deemed to be an original.
This Second Amendment shall be dated for reference purposes as
of May 2, 2001, but shall become effective on the date this Second
Amendment shall have been executed on behalf of the Agency.
Section 11. TIME FOR ACCEPTANCE OF SECOND AMENDMENT
This Second Amendment, when executed by Developer and
delivered to the Agency, must be authorized, executed and delivered
by the Agency within thirty (30) days after such delivery to the
Agency, or this Second Amendment may be terminated by the Developer
upon written notice to the Agency.
IN WITNESS WHEREOF, the Agency and the Developer have executed
this Agreement.
Dated:
ATTEST:
Deborah S. Traffenstedt,
Agency Secretary
moor \mv \secamd4
4 -20 -01
REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK
By:
Patrick Hunter
Chair
CABRILLO ECONOMIC
DEVELOPMENT CORPORATION,
By:
-4-
Rodney Fernandez
President
EXHIBIT "A" TO AMENDMENT NO. 2
SECOND AMENDED SCHEDULE OF PERFORMANCE
1. Schedule of Performance by Developer
Unless extended as a result of an enforced delay, as provided for
in Section 13.04 of the Agreement, or otherwise agreed to by
Agency, Developer shall be required to perform in accordance with
the following schedule. Failure to perform shall result in
assessment of penalties as provided for in Section 04.08 of the
Agreement, and may, at the option of the Agency, result in a
default of the Agreement.
June 1998 Good faith payment due
July 1998 Disposition and Development Agreement executed
August 1998 Submittal of basic concept and schematic
drawings for Agency approval (Sec. 04.02)
September 1998 Agency approval of concept and schematic
drawings (Sec. 04.05)
November 1998 Submittal of waiver requests
December 1998 Application for entitlements submitted (Sec.
04.07)
March 1999 Applications submitted to Planning Commission
and /or Council for review and action
April 1999 Entitlements approved
April 1999 Begin final engineering and architectural
design
June, 2000 Civil engineering plans submitted to
engineering
June,
2000
Grading plans submitted
to engineering
June,
2000
Building plans submitted
for plan check
May,
2001
Civil engineering plans
approved
May, 2001 Building plans approved
July, 2001 Other government agencies' approval obtained
moor \mv \amdsop4 Page 1 of 2
4 -20 -01
April, 2001
Submit proof of financing (Sec. 03.14)
October, 1999
Escrow opened (Sec. 03.02)
May, 2001
Submit copy of Developer's executed contract
documents (Sec. 03.14)
October, 1999
Promissory Note prepared for Agency review
(Sec. 03.07)
April 1, 2000
Interest begins to accrue
May, 2001
Final Map recorded
July, 2001
HOA recorded (if needed)
April, 2000
Construction Loan commitment and documents
submitted for review (Sec. 03.04)
April, 2001
Evidence of financing submitted.
June, 2001
Escrow closes within 30 days of recordation,
title conveyed to CEDC (Sec. 03.03)
June, 2001
Construction loan closes
July, 2001
Interest payments begin
July, 2001
Phase One construction to begin
April 1, 2000
Interest begins to accrue if Final Map not yet
recorded
September, 2000
Marketing begins
October, 2002
Payment of Site Purchase Price begins with
sale of market value units
December, 2002
Phase Two construction begins
December, 2002
Sales completed, Phase One
June, 2003
Phase Three construction begins
February, 2004
Sales completed, Phase Two
February, 2004
Full construction of new public street
completed
October, 2004
Sales completed, Phase Three
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4 -20 -01
o U i ;'
EXHIBIT "B"
FORM OF GRANT DEED
[BEHIND THIS PAGE]
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
THE REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDER'S USE
GRANT DEED
For valuable consideration, the receipt of which is hereby
acknowledged,
The REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK, a public
body corporate and politic (the "Grantor "), acting to carry out
its redevelopment purposes pursuant to the Community
Redevelopment Law of the State of California, hereby grants to
CABRILLO ECONOMIC DEVELOPMENT CORPORATION, a California nonprofit
public benefit corporation (the "Grantee ") the real property (the
"Property ") described in Exhibit A attached hereto and
incorporated in this Grant Deed by this reference.
1. The Property is conveyed subject to the Disposition and
Development Agreement by and between the Grantor and the Grantee,
dated July 8, 1998, amended February 17, 1999 and May 2, 2001
(the "Agreement ") .
2. The Grantee hereby covenants and agrees, for itself and
its successors and assigns that the Grantee and such successors
and such assigns shall promptly begin and diligently prosecute to
completion the redevelopment of the Property through the
construction of the improvements required to be constructed
pursuant to the Agreement (the "Improvements "), and that such
construction shall be commenced and completed within the times
provided in the Agreement.
Promptly after completion of the Improvements, or portions
thereof, on the Property in accordance with the provisions of the
Agreement, the Grantor will furnish the Grantee with an
appropriate instrument so certifying (a "Certificate of
Completion "). Such Certificate of Completion by the Grantor shall
moor \mv \deed5 Page 1 of 7
4 -20 -01
be a conclusive determination of satisfaction and termination of
the agreements and covenants in the Agreement and this Grant Deed
with respect to the obligations of the Grantee and its successors
and assigns to construct the Improvements, or applicable portion
thereof, and the dates for the beginning and completion of such
construction.
3. The Grantee covenants and agrees, for itself and its
successors and assigns, that there shall be no discrimination
against or segregation of any person or group of persons on
account of race, color, creed, religion, sex, sexual orientation,
marital status, national origin, ancestry or disability in the
sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the Property, nor shall the Grantee itself or any
person claiming under or through it, establish or permit any such
practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees, or vendees in the
Property and the Improvements thereon.
All deeds, leases or contracts made relative to the
Property and the Improvements thereon or any part thereof, shall
contain or be subject to substantially the following
nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and
for itself, its successors and assigns, and all
persons claiming under or through them, that there
shall be no discrimination against or segregation
of, any person or group of persons on account of
race, color, creed, religion, sex, sexual
orientation, marital status, national origin or
ancestry in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the land
herein conveyed, nor shall the grantee itself or
any person claiming under or through it, establish
or permit any such practice or practices of
discrimination or segregation with reference to
the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees, or
vendees in the land herein conveyed. The
foregoing covenants shall run with the land."
b. In leases: "The lessee herein covenants by and
for itself, its successors and assigns, and all
persons claiming under or through them, and this
lease is made and accepted upon and subject to the
following conditions:
moor \mv \deed5 Page 2 of 7
4 -20 -01
That there shall be no discrimination against or
segregation of any person or group of persons, on
account of race, color, creed, religion, sex,
sexual orientation, marital status, national
origin or ancestry in the leasing, subleasing,
renting, transferring, use, occupancy, tenure or
enjoyment of the land herein leased, nor shall
lessee itself, or any person claiming under or
through it, establish or permit such practice or
practices of discrimination or segregation with
reference to the selection, location, number, use
or occupancy of tenants, lessees, sublessees,
subtenants, or vendees in the land herein leased."
C. In contracts: "There shall be no discrimination
against or segregation of any person or group of
persons on account of race, color, creed,
religion, sex, sexual orientation, marital status,
national origin or ancestry in the sale, lease,
sublease, transfer, use, occupancy, tenure or
enjoyment of the land, nor shall the transferee
itself or any person claiming under or through it,
establish or permit any such practice or practices
of discrimination or segregation with reference to
the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees, or
vendees of the land."
4. The Grantee represents and agrees that the Property
will be used for the purposes of timely redevelopment as set
forth in the Agreement and not for speculation in landholding.
The Grantee further recognizes that in view of the following
factors, the qualifications of the Grantee are of particular
concern to the community and the Grantor:
a. The importance of the redevelopment of the
Property to the general welfare of the community;
and
b. The land acquisition assistance and other public
aids that have been made available by law and by
the government for the purpose of making such
redevelopment possible; and
C. The reliance by the Grantor upon the unique
qualifications and ability of the Grantee to serve
as the catalyst of development of the Property and
upon the continuing interest which the Grantee
will have in the Property to assure the quality of
moor \mv\deed5 Page 3 of 7
4 -20 -01
the use, operation and maintenance deemed critical
by the Grantor in the development of the Property;
and
d. The fact that a change in ownership or control of
the owner of the Property, or of a substantial
part thereof, or any other act or transaction
involving or resulting in a significant change in
ownership or with respect to the identity of the
parties in control of the Grantee or the degree
thereof is for practical purposes a transfer or
disposition of the Property; and
e. The fact that the Property is not to be acquired
or used for speculation, but only for development
and operation by the Grantee in accordance with
the Agreement; and
f. The importance to the Grantor and the community of
the standards of use, operation and maintenance of
the Property.
The Grantor further recognizes that it is because of such
qualifications and identity that the Grantor has entered into the
Agreement and has conveyed the Property to Grantee.
For the reasons stated above, the Grantee covenants, for
itself and its successors and assigns, that there shall be no
sale, transfer, assignment, conveyance, lease, pledge or
encumbrance of the Agreement, or the Property and the
Improvements thereon or any part thereof, or of other ownership
interest in Grantee in violation of the Agreement.
No voluntary or involuntary successor in interest of the
Grantee shall acquire any rights or powers under this Grant Deed
or the Agreement except as expressly set forth in this Grant Deed
or the Agreement.
5. The covenants contained in Sections 2 and 4 regarding
construction, and transfers of interests, shall remain in effect
until a Final Certificate of Completion has been issued (or is
required to be issued) for all the Improvements. The covenants
contained in Section 3 regarding nondiscrimination shall remain
in perpetuity.
6. No violation or breach of the covenants, conditions,
restrictions, provisions or limitations contained in this Grant
Deed shall defeat or render invalid or in any way impair the lien
or charge of any mortgage or deed of trust or other financing or
moor \mv \deed5
4 -20 -01
Page 4 of 7
security instrument permitted by the Agreement or otherwise
approved by the Agency; provided, however, that any successor of
Grantee to the Property shall be bound by such covenants,
conditions, restrictions, limitations, and provisions, whether
such successor's title was acquired by foreclosure, deed in lieu
of foreclosure, trustee's sale or otherwise.
7. The covenants contained in Sections 2, 3 and 4 of this
Grant Deed shall, without regard to technical classification or
designation, legal or otherwise specifically provided in this
Grant Deed, be, to the fullest extent permitted by law and
equity, binding for the benefit and in favor of, and enforceable
by Grantor, its successors and assigns, and the City of Moorpark
and any successor in interest to the Property or any part
thereof, and such covenants shall run in favor of the Grantor and
such aforementioned parties for the entire period during which
such covenants shall be in force and effect, without regard to
whether the Grantor is or remains an owner of any land or
interest therein to which such covenants relate. In the event of
any breach of any of such covenants, the Grantor and such
aforementioned parties shall have the right to exercise all the
rights and remedies, and to maintain any actions at law or suits
in equity or other proper proceedings, to enforce the curing of
such breach. The covenants contained in this Grant Deed shall be
for the benefit of and shall be enforceable only by the Grantor,
its successors and such aforementioned parties.
8. Title to the Property shall be subject to the specific
exclusion (to the extent now or hereafter validly excepted and
reserved by the parties named in deeds, leases and other
documents of record) of all oil, gas, hydrocarbon substances and
minerals of every kind and character lying more than 500 feet
below the surface, together with the right to drill into,
through, and to use and occupy all parts of the Property lying
more than 500 feet below the surface thereof for any and all
purposes incidental to the exploration for and production of oil,
gas, hydrocarbon substances or minerals from the Property, but
without, however, any right to use or disturb either the surface
of the Property or any portion thereof within 500 feet of the
surface for any purpose or purposes whatsoever.
9. Subject to and in accordance with the procedures and
provisions of Section 12.01 of the Agreement, the Grantor shall
have the right, at its option, to reenter and take possession of
the Property hereby conveyed, or such portion thereof, with all
Improvements thereon, and revest in the Grantor the estate
conveyed to the Grantee, if the Agreement is terminated pursuant
to Sections 11.01 or 11.02 of the Agreement prior to recordation
of a Certificate of Completion for all the Improvements.
moor \mv \deed5 Page 5 of 7
4 -20 -01
The Grantor shall have the right to institute such actions
or proceedings as it may deem desirable for effectuating the
purposes of this Section, including also the right to execute and
record or file with the Recorder of the County of Ventura, a
written declaration of the termination of all rights and title of
the Grantee, and its successors in interest and assigns, in the
Property, and the revesting of title thereto in the Grantor. Any
delay by Grantor in instituting or prosecuting any such actions
or proceedings or otherwise asserting its rights under this
Section shall not operate as a waiver of such rights or to
deprive it of or limit such rights in any way (it being the
intent of this provision that Grantor shall not be constrained so
as to avoid the risk of being deprived of or limited to the
exercise of the remedy provided by this Section because of the
concepts of waiver, laches or others), nor shall any waiver in
fact made by Grantor with respect to any specific default by
Grantee, its successors and assigns, be considered or treated as
a waiver of the rights of the Grantor with respect to any other
defaults by the Grantee, its successors and assigns, or with
respect to the particular default except to the extent
specifically waived.
10. Only the Grantor, its successors and assigns, and the
Grantee and the successors and assigns of the Grantee in and to
all or any part of the fee title to the Property shall have the
right to consent and agree to changes or to eliminate in whole or
in part any of the covenants contained in this Grant Deed or to
subject the Property to additional covenants, easements or other
restrictions. For purposes of this Section, successors and
assigns of the Grantee shall be defined to include only those
parties who hold all or any part of the Property in fee title,
and not to include a tenant, lessee, easement holder, licensee,
mortgagee, trustee, beneficiary under deed of trust, or any other
person or entity having an interest less than a fee in the
Property.
In the event there is a conflict between the provisions of
this Grant Deed and the Agreement, it is the intent of the
parties hereto and their successors in interest that the
Agreement shall control.
11. This Grant Deed may be executed and recorded in two or
more counterparts, each of which shall be considered for all
purposes a fully binding agreement between the parties.
moor \mv \deed5 Page 6 of 7
4 -20 -01
-;CU-s- i l
IN WITNESS WHEREOF, the parties hereto have executed this
Grant Deed as of , 2001.
Grantor:
REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK, a public body corporate and
politic
By:
Name:
Its:
The grantee hereby accepts the foregoing deed, subject to
all of the matters hereinbefore set forth.
Grantee:
CABRILLO ECONOMIC DEVELOPMENT
CORPORATION, a California nonprofit
public benefit corporation
By:
Name:
Its:
moor \mv \deed5 Page 7 of 7
4 -20 -01
STATE OF CALIFORNIA
ss.
COUNTY OF VENTURA
On before me, , personally
appeared personally known
to me (or proved to me on the basis of satisfactory evidence) to
be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA
ss.
COUNTY OF VENTURA
On before me, , personally
appeared personally known
to me (or proved to me on the basis of satisfactory evidence) to
be the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
l..
Exhibit "A"
Legal Description
[Behind this Page]
EXHIBIT "C"
FORM OF AGREEMENT CONTAINING COVENANTS
AFFECTING REAL PROPERTY
[BEHIND THIS PAGE]
Jvkjx, ,T
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
THE REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
AGREEMENT CONTAINING COVENANTS
AFFECTING REAL PROPERTY
THIS AGREEMENT is entered into by and between the
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK, a pu lic body
corporate and politic (herein referred to as "Agency") and
CABRILLO ECONOMIC DEVELOPMENT CORPORATION, a California nonprofit
public benefit corporation (hereinafter referred to as
"Developer ").
A. Concurrently herewith, Agency is conveying to Developer
fee title to the real property (the "Site ") sometimes referred to
as "Gisler Field," which is located in the City of Moorpark,
County of Ventura, State of California, and legally described in
the "Legal Description" attached hereto and incorporated herein as
Exhibit A.
B. Developer intends to construct single family ouses on
the Site in accordance with the terms of that certain Disposition
and Development Agreement by and between the Grantor and the
Grantee, dated July 8, 1998, amended February 17, 1999 and May 2,
2001 (the "DDA ").
C. This Agreement Containing Covenants Affecting Real
Property is entered into and recorded in accordance with the DDA
and under the Community Redevelopment Law of the State of
California, California Health and Safety Code Section 33000 et
seq. (the "CRL ").
NOW, THEREFORE, AGENCY AND DEVELOPER AGREE AS FOLLOgS:
1. Development of the Site. Developer shall de�elop the
Site in conformance with the DDA, including the Scope of
moor \mv \cov6
4 -26 -01
Page 1 of 6
Development attached thereto. In accordance with the DDA, the Site
shall be developed with fifty -nine (59) single family detached
residential housing units, with accompanying public and private
streets in accordance with and within the limitations contained in
the Scope of Development, and in accordance with plans approved by
the Agency and the City of Moorpark ( "City ").
2. Affordable Housing. Fifteen (15) residential units
developed on the Site shall be made available and sold exclusively
to households of Low or Very Low Income, at an Affordable Housing
Cost, as follows: eleven (11) units shall be made available and
sold at an Affordable Housing Cost exclusively to Low Income
households (the "Low Income Units "), and four (4) units shall be
made available and sold at an Affordable Housing Cost exclusively
to Very Low Income households (the "Very Low Income Units" and,
together with the Low Income Units, the "Affordable Units ").
a. Prior to the recordation of the final map for the
Site, Developer shall identify in the final map the 15 lots to be
developed with the Affordable Units.
b. Developer, its successors and assigns shall not
sell any of the 15 designated lots or Affordable Units, and no
such sale shall be final, until the Agency Executive Director has
approved the eligibility of the proposed Low Income or Very Low
Income purchaser and has approved the deed restriction to be made
part of the deed, and recorded against title to such lot, in order
to restrict its sale and occupancy to Low Income or Very Low
Income households, as required by the DDA and this Agreement. The
Agency Executive Director shall approve or disapprove the deed
restriction and the eligibility of Low Income or Very Low Income
purchasers within three (3) weeks of receipt of a complete
submittal to the Agency Executive Director, and shall not
unreasonably withhold or delay approval.
C. The parties agree that the Site shall be developed
in three phases, as follows:
(1) The first phase shall consist of the
development of a total of twenty -six (26) units,
including nineteen (19) unrestricted (market rate)
units and seven (7) Affordable Units. These
Affordable Units shall be allocated as follows:
five (5) shall be restricted to Low Income
households and two (2) shall be restricted to Very
Low Income households;
(2) The subsequent two phases shall consist of
the development of a total of thirty -three (33)
units, including twenty -five (25) unrestricted
moor \mv \cov6
4 -26 -01 Page 2 of 6
L J ll� �i ,K, r �•
(market rate) units and eight (8) Affordable
Units. These Affordable Units shall be allocated
as follows:
(a) Second Phase: two (2) shall be
restricted to Low Income Households and
one (1) shall be restricted to Very Low
Income Households; and
(b) Third Phase: four (4) shall be
restricted to Low Income Households and
one (1) shall be restricted to Very Low
Income Households.
d. For purposes of this Agreement, "Very Low Income"
shall mean a household income that does not exceed 500 of the area
median income, and "Low Income" shall mean a household income that
does not exceed 800 of the area median income.
e. The maximum gross income of Very Low Income and
Low Income households shall be determined on the basis of the area
median income for Ventura County, published approximately annually
by the United States Department of Housing and Urban Development.
The terms "gross income" and "housing cost" shall have the meaning
set forth in Title 25, California Code of Regulations, section
6910 et seq.
f. Affordable housing cost with respect to Very Low
Income households shall mean a housing cost that does not exceed
30 percent times 50 percent of the area median income, adjusted
for family size appropriate for the unit.
g. Affordable housing cost with respect to Low Income
households whose gross incomes exceed the maximum income for Very
Low Income households shall mean a housing cost that does not
exceed the product of 30 percent times 70 percent of the area
median income, adjusted for family size appropriate for the unit;
except that for any Low Income household whose gross income equals
or exceeds 70 percent of the area median income, affordable
housing cost shall not exceed 30 percent of the gross income of
the household.
h. Otherwise qualified Low and Very Low Income
residents of the City of Moorpark shall have preference over other
Low and Very Low Income households in the sale of the Affordable
Units (the "Residential Preference "). For purposes of this
Agreement, a resident of the City of Moorpark shall be a person or
household having a Moorpark address.
moor \mv \cov6
4_26_01 Page 3 of 6
i. The eligibility and affordability restrictions
contained in this Agreement Containing Covenants shall remain in
effect until December 31, 2032 or 30 years after the date of
recordation of this Agreement, whichever is longer.
3. Numbering of Lots. Concurrently with conveyance of
title, Developer shall record a Final Tract Map for Phase One with
the County of Ventura indicating thereon all property to be deeded
to the City for public infrastructure, and all lots, individually
numbered, to be developed pursuant to the DDA.
4. Restriction of Sale of Lots. Each lot shall bear a
restriction thereon that the initial sale of said lot by Developer
or its successors shall not be final until: (a) Developer has paid
all land costs and all associated development fees and costs to
Agency and City concurrently with the close of escrow; (b) the
Agency Executive Director or his designee has provided written
approval of the initial sale of said lot; (c) Agency has issued a
Parcel Certificate of Completion pursuant to the DDA; and (d)
Developer has initiated an assessment district by executing a
"petition and waiver" to enable an assessment district to be
established.
5. Completion of Public Improvements. Developer shall
construct the public street extending from Poindexter Avenue to
the southerly entry to Poindexter Park during Phase One, as
indicated on the Final Map for Phase One and shall complete this
construction prior to the issuance of any building permits for
Phase Two or Phase Three.
6. Not Used as Collateral. The Site shall not be used as
collateral for any purpose whatsoever except for the purpose of
obtaining financing for the development of the Site pursuant Ec
the DDA.
7. Transfer of Public Right -of -Way. Within thirty (30)
calendar days after completion of public right -of -way improvements
on the Site, and approval and acceptance of said improvements by
Agency, Developer at its sole cost, shall transfer ownership of
said public right -of -way and improvements to the City in fee
simple.
8. Prohibition Against Transfer. Prior to the recordation
of a Certificate of Completion, Developer shall not make any total
or partial sale, transfer, conveyance or assignment of the whole
or any part of the Site or the improvements thereon, except for
sale of individual homes to home buyers, without the prior written
approval of the Agency Executive Director, as required in the DDA.
moor \mv \cov6
4 -26 -01 Page 4 of 6
9. No Discrimination. Developer herein covenants by and
for itself, its heirs, executors, administrators and assigns, and
all persons claiming under or through them, and this Agreement is
made and accepted upon and subject to the following conditions:
that there shall be no discrimination against or segregation of
any person or group of persons on account of race, color, creed,
religion, sex, sexual orientation, marital status, national origin
or ancestry in the leasing, subleasing, renting, transferring,
use, occupancy, tenure or enjoyment of the Site, nor shall
Developer itself, or any person claiming under or through it,
establish or permit such practice or practices of discrimination
or segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, sublessee, subtenants, or
vendees in the Site.
10. Covenants Run With the Land. All conditions, covenants
and restrictions contained in this Agreement shall be covenants
running with the land, and shall, in any event, and without regard
to technical classification or designation, legal or otherwise,
be, to the fullest extent permitted by law and equity, binding for
the benefit and in favor of, and enforceable by Agency, its
successors and assigns, and the City of Moorpark and its
successors and assigns, against Developer, its successors and as-
signs, to or of the Site or any portion thereof or any interest
therein, and any party in possession or occupancy of said Site or
portion thereof. Agency and the City shall be deemed the
beneficiaries of the covenants, conditions and restrictions of
this Agreement both for and in their own rights and for the
purposes of protecting the interests of the community. The
covenants, conditions, and restrictions shall run in favor of the
Agency and the City, without regard to whether the Agency or City
has been, remains, or is an owner of the Site or any interest
therein. Except as provided in the preceding sentence, the cove-
nants, conditions and restrictions contained in this Agreement
shall not benefit nor be enforceable by any other person.
11. Remedies. Agency shall have the right, in the event of
any breach of any such agreement or covenant, to exercise all the
rights and remedies, and to maintain any actions at law or suit in
equity or other proper proceedings to enforce the curing of such
breach of agreement or covenant.
12. Rights of Mortgagee. No violation or breach of the
covenants, conditions, restrictions, provisions or limitations
contained in this Agreement shall defeat or render invalid or in
any way impair the lien or charge of any permitted deed of trust
recorded on the Site, provided, however, that any subsequent owner
of the Site shall be bound by the covenants, conditions, restric-
tions, limitations and provisions of this Agreement.
moor \mv \cov6
4-26 -01 Page 5 of 6
L .� if fi.•, ° �i
13. Partial Invalidity. If any term or provision of this
Agreement shall be held by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Agreement shall
not be affected thereby and each other term and provision of this
Agreement shall be valid and enforceable to the fullest extent
permitted by law. It is the intention of the parties hereto that
in lieu of each clause or provision of this Agreement that is
illegal, invalid, or unenforceable, there be added as a part of
this Agreement an enforceable clause or provision as similar in
terms to such illegal, invalid, or unenforceable clause or
provision as may be possible.
14. Duration. The covenants against discrimination set
forth in Section 9 of this Agreement shall remain in effect in
perpetuity. Every other covenant and condition and restriction
contained in this Agreement shall remain in effect until December
31, 2032 or 30 years after the date of recordation of this
Agreement, whichever is longer.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of , 2001.
moor \mv \cov6
4 -26 -01
REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK, a public body corporate and
politic
Name:
Its:
CABRILLO ECONOMIC DEVELOPMENT
CORPORATION, a California nonprofit
public benefit corporation
Name:
Its:
Page 6 of 6
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On before me, , personally
appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
STATE OF CALIFORNIA )
ss.
COUNTY OF VENTURA )
On before me, , personally
appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
Exhibit "A"
Legal Description
[Behind this Page]
EXHIBIT "D"
FORM OF PROMISSORY NOTE
[BEHIND THIS PAGE]
,1
PURCHASE MONEY
PROMISSORY NOTE
$1,475,000
Moorpark, California
FOR VALUE RECEIVED, the undersigned, Cabrillo Economic
Development Corporation, a California nonprofit public benefit
corporation (the "Borrower "), hereby promises to pay to the
Redevelopment Agency of the City of Moorpark (the "Holder ") , the
principal amount of One Million Four Hundred Seventy Five Thousand
Dollars ($1,475,000), plus interest thereon pursuant to Section 2
below.
1. Borrower's Obligation. This promissory note (the
"Note ") evidences the Borrower's obligation to pay the Holder for
the purchase price of the Property pursuant to the Disposition and
Development Agreement between the Borrower and the Holder dated as
of July 8, 1998, as amended by that certain Amendment No. 1,
dated February 17, 1999, and Amendment No. 2, dated as of May 2,
2001 (referred to collectively as the "DDA ") . All capitalized
terms not otherwise defined in this Note shall have the meanings
set forth in the DDA.
2. Interest. The principal balance of this Note shall
bear simple interest from April 1, 2000 until repaid in full, at
the quarterly interest rate announced by the Local Agency
Investment Fund ( "LAIF ") most recently prior to the date interest
begins to accrue on this Note. The interest rate shall be
adjusted at the beginning of each calendar year quarter (January
1st, April lst, July lst, and October lst) to the most recent
quarterly interest rate report by the LAIF. Borrower shall
commence paying any interest accrued pursuant to this Section 2 on
the day thirty (30) calendar days following the close of the
construction loan for the development on the Property. The Holder
shall submit an invoice to Borrower for the initial payment of
interest and, monthly thereafter, for each subsequent monthly
payment of interest due, which invoice shall include a calculation
of the interest to be paid, and Borrower shall pay such invoice
within fifteen (15) calendar days of receipt of the invoice.
3. Pavments and Partial Reconvevances of the Deed of
Trust.
Pursuant to the DDA, the Borrower shall construct forty -four (44)
market rate homes and fifteen (15) affordable homes. Upon the
sale of each designated market rate home, the Borrower shall pay
to Holder Thirty Three Thousand Five Hundred Twenty Three Dollars
($33,523.00) (which is equal to one /forty- fourth (1 /44th) of the
total principal due under this Note), which shall be disbursed to
the Holder through the sales escrow. Holder shall instruct the
moor \mv \note6
4 -25 -01 Page 1 of 6
i
escrow holder to partially release the Deed of Trust (as defined
in Section 5) for the home being sold upon delivery of funds to
pay such payment into escrow.
4. Term. The term of this Note (the "Term ") shall
commence with the date of this Note and shall expire on the date
when the final payment is due under this Note pursuant to Sections
2 and 3 above (the "Due Date ").
5. Security. This Note is secured
Security Agreement (the "Deed of Trust "),
wherein the Borrower is the Trustor a
Beneficiary, covering the Property, which
subordinate to certain other interests, as
herein.
6. Terms of Payment.
by a Deed of Trust and
of even date herewith,
nd the Holder is the
deed of trust shall be
set forth in Section 10
a. All payments due under this Note shall be paid in
currency of the United States of America, which at the time of
payment is lawful for the payment of public and private debts.
b. All payments on this Note shall be paid to Holder
at the Moorpark City Hall, 799 Moorpark Avenue, Moorpark, CA
93021, Attention: Executive Director or to such other place as the
Holder of this Note may from time to time designate.
C. All payments on this Note shall be without expense
to the Holder, and the Borrower agrees to pay all costs and
expenses, including reconveyance fees and reasonable attorneys'
fees of the Holder, incurred in connection with the payment of
this Note and the release of any security hereof.
d. Notwithstanding any other provision of this Note,
or any instrument securing the obligations of the Borrower under
this Note, if, for any reason whatsoever, the payment of any sums
by the Borrower pursuant to the terms of this Note would result in
the payment of interest which would exceed the amount that the
Holder may legally charge under the laws of the State of
California, then the amount by which payments exceed the lawful
interest rate shall automatically be deducted from the principal
balance owing on this Note, so that in no event shall the Borrower
be obligated under the terms of this Note to pay any interest
which would exceed the lawful rate.
e. Subject to the provisions and limitations of this
Section 6.e., the obligation to repay the Agency Loan is a
nonrecourse obligation of the Borrower. Borrower shall not have
any personal liability for repayment of the loan, except as
provided in this Section 6.e. The sole recourse of the Agency
moor \mv \note6
4-25 -01 Page 2 of 6
shall be the exercise of its rights against the Property and any
related security for the Agency Loan. Provided, however, that the
foregoing shall not (i) constitute a waiver of any obligation
evidenced by this Note or the Deed of Trust; (ii) limit the right
of the Agency to name Borrower as a party defendant in any action
or suit for judicial foreclosure and sale under this Note and the
Deed of Trust or any action or proceeding hereunder so long as no
judgment in the nature of a deficiency judgment shall be asked for
or taken against Borrower; (iii) release or impair this Note or
the Deed of Trust; (iv) prevent or in any way hinder Agency from
exercising, or constitute a defense, an affirmative defense, a
counterclaim, or other basis for relief in respect of the exercise
of, any other remedy against the mortgaged Property or any other
instrument securing the Note or as prescribed by law or in equity
in case of default; (v) prevent or in any way hinder Agency from
exercising, or constitute a defense, an affirmative defense, a
counterclaim, or other basis for relief in respect of the exercise
of, its remedies in respect of any deposits, insurance proceeds,
condemnation awards or other monies or other collateral or letters
of credit securing this Note; or (vi) relieve Borrower of any of
its obligations under any indemnity delivered by Borrower to
Agency. The foregoing provisions of this paragraph are limited by
the provision that in the event of the occurrence of a default,
Borrower and its successors and assigns shall have personal
liability hereunder for any deficiency judgment, but only if and
to the extent Borrower, its principals, shareholders, partners or
its successors and assigns received rentals, other revenues, or
other payments or proceeds in respect of the mortgaged Property,
which rentals, other revenues, or other payments or proceeds have
not been used for the payment of ordinary and reasonable operating
expenses of the mortgaged Property, ordinary and reasonable
capital improvements to the mortgaged Property, debt service, real
estate taxes in respect of the mortgaged Property and basic
management fees, but not incentive fees, payable to an entity or
person unaffiliated with Borrower in connection with the operation
of the mortgaged Property, which are then due and payable.
Notwithstanding the first sentence of this paragraph, Agency may
recover directly from Borrower or from any other party:
(1) any damages, costs and expenses incurred by Agency as a
result of fraud or any criminal act or acts of Borrower or
any partner, shareholder, officer, director or employee of
Borrower, or of any member or general or limited partner of
Borrower, or of any general or limited partner of such member
or general or limited partner;
moor \mv \note6
4-25 -01 Page 3 of 6
(2) any damages, costs and expenses incurred by Agency as a
result of any misappropriation of funds provided for the
construction of the Project as described in the DDA, rents
and revenues from the operation of the Project, or proceeds
of insurance policies or condemnation proceeds;
(3) any and all amounts owing by Borrower pursuant to any
indemnification regarding Hazardous Substances pursuant to
the DDA, and
(4) all court costs and attorneys' fees reasonably incurred
in enforcing or collecting upon any of the foregoing
exceptions (provided that Agency shall pay Borrower's
reasonable court costs and attorneys' fees if Borrower is the
prevailing party in any such enforcement or collection
action).
7. Default.
a. Upon the occurrence of an event of default under
this Note, the entire unpaid principal balance, together with all
interest thereon, and together with all other sums due under this
Note and the Deed of Trust shall at the option of the Holder
become immediately due and payable upon written notice by the
Holder to the Borrower without further demand.
b. The failure to exercise the remedy set forth in
Subsection 7(a) above or any other remedy provided by law upon the
occurrence of one or more events of default shall not constitute a
waiver of the right to exercise any remedy at any subsequent time
in respect to the same or any other default. The acceptance by
Holder hereof of any payment which is less than the total of all
amounts due and payable at the time of such payment shall not
constitute a waiver of the right to exercise any of the foregoing
remedies or options at that time or at any subsequent time, or
nullify any prior exercise of any such remedy or option, without
the express consent of the Holder, except as and to the extent
otherwise provided by law.
8. Waivers.
a. The Borrower hereby waives diligence, presentment,
protest and demand, and notice of protest, notice of demand,
notice of dishonor and notice of non - payment of this Note. The
Borrower expressly agrees that this Note or any payment hereunder
may be extended from time to time, and that the Holder may accept
further security or release any security for this Note, all
without in any way affecting the liability of the Borrower.
moor \mv \note6
4 -25 -01 Page 4 of 6
b. No extension of time for payment of this Note or
any installment hereof made by agreement by the Holder with any
person now or hereafter liable for payment of this Note shall
operate to release, discharge, modify, change or affect the
original liability of the Borrower under this Note.
C. The obligations of the Borrower under this Note
shall be absolute and the Borrower waives any and all rights to
offset, deduct or withhold any payments or charges due under this
Note for any reason whatsoever.
9. Miscellaneous Provisions.
a. All notices to the Holder or the Borrower shall be
given in the manner and at the addresses set forth in the DDA, or
to such addresses as the Holder and the Borrower may hereinafter
designate.
b. The Borrower promises to pay all costs and
expenses, including reasonable attorney's fees, incurred by the
Holder in the enforcement of the provisions of this Note,
regardless of whether suit is filed to seek enforcement.
C. This Note may not be changed orally, but only by
an agreement in writing signed by the party against whom
enforcement of any waiver, change, modification or discharge is
sought.
d. This Note shall be governed by and construed in
accordance with the laws of the State of California.
e. The times for the performance of any obligations
hereunder shall be strictly construed, time being of the essence.
f. This document, together with the DDA, including
all exhibits thereto, and the Deed of Trust, contains the entire
agreement between the parties as to the Property. It may not be
modified except upon written consent of the parties.
10. Subordination.
a. The indebtedness evidenced by this Note and the
Deed of Trust securing this Note are and shall be subordinate to
certain interests as provided in that certain Subordination and
Agreement, dated on or about the date of this Note, executed by
Borrower, Holder and Wells Fargo Bank, National Association and
recorded in the Official Records of Ventura County concurrently
with the Deed of Trust.
moor \mv \note6
4-25 -01 Page 5 of 6
l_to �
b. Borrower agrees to give to Holder, immediately
upon receipt by Borrower, copies of all notices of default under
any Senior Loan to which the indebtedness evidenced hereby is
subordinate.
Executed at California, this day of
200
moor \mv \note6
4 -25 -01
BORROWER:
CABRILLO ECONOMIC DEVELOPMENT
CORPORATION, a California nonprofit
public benefit corporation
Name:
Its.
Page 6 of 6
is .�
EXHIBIT "E"
FORM OF DEED OF TRUST
[BEHIND THIS PAGE]
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
THE REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
., AC5c ABOVE THIS :JNE FOR RECORDER'S USE
SUBORDINATE DEED OF TRUST,
SECURITY AGREEMENT AND FIXTURE FILING
(WITH ASSIGNMENT OF RENTS)
This Deed of Trust, Security Agreement and Fixture Filing
(With Assignment of Rents) is made as of , by
CABRILLO ECONOMIC DEVELOPMENT CORPORATION, a California nonprofit
public benefit corporation (hereinafter referred to as "Trustor "),
whose address is 11011 Azahar Street, Saticoy, California 93004,
to FIRST AMERICAN TITLE COMPANY, a California corporation
(hereinafter called "Trustee "), for the benefit of the
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK, a public body
corporate and politic (hereinafter called "Beneficiary "), whose
address is 799 Moorpark Avenue, Moorpark, California 93021.
Witnesseth: That Trustor IRREVOCABLY GRANTS, TRANSFERS AND
ASSIGNS to Trustee, its successors and assigns, in Trust, with
POWER OF SALE TOGETHER WITH RIGHT OF ENTRY AND POSSESSION the
following property (the "Trust Estate "):
(a) that certain real property in the City of
Moorpark, County of Ventura, State of California more particularly
described in Exhibit "A" attached hereto and by this reference
made a part hereof (the "Subject Property ");
(b) all buildings, structures and other
improvements now or in the future located or to be constructed on
the Subject Property (the "Improvements ");
(c) all tenements, hereditaments, appurtenances,
privileges, franchises and other rights and interests now or in
the future benefiting or otherwise relating to the Subject
Property or the Improvements, including easements, rights -of -way
moor \mv \dot4 Deed of Trust
4 -25-01 Page 1 of 14
and development rights (the "Appurtenances "). (The Appurtenances,
together with the Subject Property and the Improvements, are
hereafter referred to as the "Real Property ");
(e) subject to the assignment to Beneficiary set
forth in Paragraph 4 below, all rents, issues, income, revenues,
royalties and profits now or in the future payable with respect to
or otherwise derived from the Trust Estate or the ownership, use,
management, operation leasing or occupancy of the Trust Estate,
including those past due and unpaid (the "Rents ");
(f) all present and future right, title and
interest of Trustor in and to all inventory, equipment, fixtures
and other goods (as those terms are defined in Division 9 of the
California Uniform Commercial Code (the "UCC "), and whether
existing now or in the future) now or in the future located at,
upon or about, or affixed or attached to or installed in, the Real
Property, or used or to be used in connection with or otherwise
relating to the Real Property or the ownership, use, development,
construction, maintenance, management, operation, marketing,
leasing or occupancy of the Real Property, including furniture,
furnishings, machinery, appliances, building materials and
supplies, generators, boilers, furnaces, water tanks, heating
ventilating and air conditioning equipment and all other types of
tangible personal property of any kind or nature, and all
accessories, additions, attachments, parts, proceeds, products,
repairs, replacements and substitutions of or to any of such
property (the "Goods," and together with the Real Property, the
"Property "); and
(g) all present and future right, title and
interest of Trustor in and to all accounts, general intangibles,
chattel paper, deposit accounts, money, instruments and documents
(as those terms are defined in the UCC) and all other agreements,
obligations, rights and written material (in each case whether
existing now or in the future) now or in the future relating to or
otherwise arising in connection with or derived from the Property
or any other part of the Trust Estate or the ownership, use,
development, construction, maintenance, management, operation,
marketing, leasing, occupancy, sale or financing of the property
or any other part of the Trust Estate, including (to the extent
applicable to the Property or any other portion of the Trust
Estate) (i) permits, approvals and other governmental
authorizations, (ii) improvement plans and specifications and
architectural drawings, (iii) agreements with contractors,
subcontractors, suppliers, project managers, supervisors,
designers, architects, engineers, sales agents, leasing agents,
consultants and property managers, (iv) takeout, refinancing and
permanent loan commitments, (v) warranties, guaranties,
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 2 of 14
1 V
indemnities and insurance policies, together with insurance
payments and unearned insurance premiums, (vi) claims, demands,
awards, settlements, and other payments arising or resulting from
or otherwise relating to any insurance or any loss or destruction
of, injury or damage to, trespass on or taking, condemnation (or
conveyance in lieu of condemnation) or public use of any of the
Property, (vii) license agreements, service and maintenance
agreements, purchase and sale agreements and purchase options,
together with advance payments, security deposits and other
amounts paid to or deposited with Trustor under any such
agreements, (viii) reserves, deposits, bonds, deferred payments,
refunds, rebates, discounts, cost savings, escrow proceeds, sale
proceeds and other rights to the payment of money, trade names,
trademarks, goodwill and all other types on intangible personal
property of any kind or nature, and (ix) all supplements,
modifications, amendments, renewals, extensions, proceeds,
replacements and substitutions of or to any of such property (the
"Intangibles ").
Trustor further grants to Trustee and Beneficiary, pursuant
to the UCC, a security interest in all present and future right,
title and interest of Trustor in and to all Goods and Intangibles
and all of the Trust Estates described above in which a security
interest may be created under the UCC (collectively, the "Personal
Property "). This Deed of Trust constitutes a security agreement
under the UCC, conveying a security interest in the Personal
Property to Trustee and Beneficiary. Trustee and Beneficiary
shall have, in addition to all rights and remedies provided
herein, all the rights and remedies of a "secured party" under the
UCC and other applicable California law. Trustor covenants and
agrees that this Deed of Trust constitutes a fixture filing under
Section 9313 and 9402(6) of the UCC.
FOR THE PURPOSE OF SECURING, in such order of priority as
Beneficiary may elect, the following: (1) due, prompt and complete
observance, performance and discharge of each and every condition,
obligation, covenant and agreement contained herein or contained
in a promissory note executed by Trustor ( "Borrower" therein) of
even date herewith (the "Note ") and the Disposition and
Development Agreement, dated July 8, 1998, amended February 17,
1999 and May 2, 2001, including all exhibits attached thereto (the
"DDA ") between Trustor ( "Developer" therein) and Beneficiary
( "Beneficiary" therein); and (2) payment of indebtedness of the
Trustor to the Beneficiary in the principal sum of ONE MILLION
FOUR HUNDRED SEVENTY -FIVE THOUSAND DOLLARS and No /100 cents
($1,475,000), evidenced by the Note, with interest, according to
the terms of the Note. Said Note and DDA (collectively "Secured
Obligations ") and all of their terms are incorporated herein by
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 3 of 14
reference and this conveyance shall secure any and all extensions,
amendments, modifications or renewals thereof however evidenced,
and additional advances evidenced by any note reciting that it is
secured hereby.
AND TO PROTECT THE SECURITY OF THIS DEED OF TRUST, TRUSTOR
COVENANTS AND AGREES:
1. That Trustor shall pay the Note at the time and in the
manner provided therein, and perform the obligations of the
Developer as set forth in the DDA at the time and in the manner
respectively provided therein;
2. That Trustor shall not permit or suffer the use of any
of the Property for any purpose other than the use for which the
same was intended at the time this Deed of Trust was executed;
3. That the Secured Obligations are incorporated in and
made a part of the Deed of Trust. Upon default of a Secured
Obligation, and after the giving of notice and the expiration of
any applicable cure period, the Beneficiary, at its option, may
declare the whole of the indebtedness secured hereby to be due and
payable.
4. That all rents, profits and income from the Property
covered by this Deed of Trust are hereby assigned to the
Beneficiary for the purpose of discharging the debt hereby
secured. Permission is hereby given to Trustor so long as no
default exists hereunder after the giving of notice and the
expiration of any applicable cure period, to collect such rents,
profits and income for use in accordance with the provisions of
the DDA.
5. That upon default hereunder or under the aforementioned
agreements, and after the giving of notice and the expiration of
any applicable cure period, Beneficiary shall be entitled to the
appointment of a receiver by any court having jurisdiction,
without notice, to take possession and protect the Property
described herein and operate same and collect the rents, profits
and income therefrom;
6. That Trustor will keep the improvements now existing or
hereafter erected on the Property insured against loss by fire and
such other hazards, casualties, and contingencies as may
reasonably be required in writing from time to time by the
Beneficiary, and all such insurance shall be evidenced by standard
fire and extended coverage insurance policy or policies. In no
event shall the amounts of coverage be less than 100 percent of
the insurable value of the Property. Such policies shall be
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 4 of 14
endorsed with standard mortgage clause with loss payable to the
Beneficiary and certificates thereof together with copies of
original policies shall be deposited with the Beneficiary;
7. To pay, at least 10 days before delinquency, any taxes
and assessments affecting said Property; to pay, when due, all
encumbrances, charges and liens, with interest, on said Property
or any part thereof which appear to be prior or superior hereto;
and to pay all costs, fees, and expenses of this Trust.
Notwithstanding anything to the contrary contained in this Deed of
Trust, Trustor shall not be required to pay and discharge any such
tax, assessment, charge or levy so long as Trustor is contesting
the legality thereof in good faith and by appropriate proceedings,
and Trustor has adequate funds to pay any liabilities contested
pursuant to this Section 7.
8. To keep said Property in good condition and repair,
subject to ordinary wear and tear, casualty and condemnation, not
to remove or demolish any buildings thereon; to complete or
restore promptly and in good and workmanlike manner any building
which may be constructed, damaged, or destroyed thereon and to pay
when due all claims for labor performed and materials furnished
therefor; to comply with all laws affecting said Property or
requiring any alterations or improvements to be made thereon
(subject to Trustor's right to contest the validity or
applicability of laws or regulations) ; not to commit or permit
waste thereof; not to commit, suffer or permit any act upon said
Property in violation of law and /or covenants, conditions and /or
restrictions affecting said Property; not to permit or suffer any
material alteration of or addition to the buildings or
improvements hereafter constructed in or upon said Property
without the consent of the Beneficiary;
9. To appear in and defend any action or proceeding
purporting to affect the security hereof or the rights or powers
of Beneficiary or Trustee, and to pay all costs and expenses,
including cost of evidence of title and reasonable attorney's fees
in a reasonable sum, in any such action or proceeding in which
Beneficiary or Trustee may appear;
10. Should Trustor fail, after the giving of notice and the
expiration of any applicable cure period, to make any payment or
do any act as herein provided, then Beneficiary or Trustee, but
without obligation so to do and without notice to or demand upon
Trustor and without releasing Trustor from any obligation hereof,
may make or do the same in such manner and to such extent as
either may deem necessary to protect the security hereof.
Following default, after the giving of notice and the expiration
of any applicable cure period, Beneficiary or Trustee being
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 5 of 14
j u,
authorized to enter upon said Property for such purposes, may
commence, appear in and /or defend any action or proceeding
purporting to affect the security hereof or the rights or powers
of Beneficiary or Trustee; may pay, purchase, contest, or
compromise any encumbrance, charge, or lien which in the judgment
of either appears to be prior or superior hereto; and, in
exercising any such powers, may pay necessary expenses, employ
counsel, and pay his reasonable fees;
11. Beneficiary shall have the right to pay fire and other
Property insurance premiums when due should Trustor fail to make
any required premium payments. All such payments made by the
Beneficiary shall be added to the principal sum secured hereby;
12. To pay immediately and without demand all sums so
expended by Beneficiary or Trustee, under permission given under
this Deed of Trust, with interest from date of expenditure at the
rate specified in the Note;
13. That the real property, the acquisition of which is
being financed with the loan secured by this Deed of Trust, is to
be developed in accordance with the DDA; and upon the failure of
Trustor, after the giving of notice and the expiration of any
applicable cure period, to keep and perform all the covenants,
conditions, and agreements of said DDA, the principal sum and all
arrears of interest, and other charges provided for in the Note
shall at the option of the Beneficiary of this Deed of Trust
become due and payable, anything contained herein to the contrary
notwithstanding;
14. Trustor further covenants that it will not voluntarily
create, suffer, or permit to be created against the Property
subject to this Deed of Trust any lien or liens except as
authorized by Beneficiary and further that they will keep and
maintain the Property free from the claims of all persons
supplying labor or materials which will enter into the
construction of any and all buildings now being erected or to be
erected on said premises. Notwithstanding anything to the
contrary contained in this Deed of Trust, Trustor shall not be
obligated to pay any claims for labor, materials or services which
Trustor in good faith disputes and is diligently contesting,
provided that Trustor shall, at Beneficiary's written request,
within thirty (30) days after the filing of any claim or lien (but
in any event, and without any requirement that Beneficiary must
first provide a written request, prior to foreclosure) record in
the Office of the Recorder of Ventura County, a surety bond in an
amount one - and - one -half (11-�) times the amount of such claim item
to protect against a claim of lien, or provide such other security
reasonably satisfactory to Beneficiary;
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 6 of 14
15. That any and all improvements made or about to be made
upon the premises covered by this Deed of Trust, and all plans and
specifications, comply with all applicable municipal ordinances
and regulations and all other applicable regulations made or
promulgated, now or hereafter, by lawful authority, and that the
same will upon completion comply with all such municipal
ordinances and regulations and with the rules of the applicable
fire rating or inspection organization, bureau, association or
office;
16. Trustor herein agrees to pay to Beneficiary or to the
authorized loan servicing representative of the Beneficiary a
reasonable charge for providing a statement regarding the
obligation secured by this Deed of Trust as provided by Section
2954, Article 2, Chapter 2 Title 14, Division 3, of the California
Civil Code.
IT IS MUTUALLY AGREED THAT:
17. Should the Property or any part thereof be taken or
damaged by reason of any public improvement or condemnation
proceeding, or damaged by fire, or earthquake, or in any other
manner, Beneficiary shall be entitled to all compensation, awards,
and other payments or relief therefor which are not used to
reconstruct, restore or otherwise improve the Property or part
thereof that was taken or damaged, and shall be entitled at its
option to commence, appear in and prosecute in its own name, any
action or proceedings, or to make any compromise or settlement, in
connection with such taking or damage. All such compensation,
awards, damages, rights of action and proceeds which are not used
to reconstruct, restore or otherwise improve the Property or part
thereof that was taken or damaged, including the proceeds of any
policies of fire and other insurance affecting said Property, are
hereby assigned to Beneficiary. After deducting therefrom all its
expenses, including attorney's fees, the balance of the proceeds
which are not used to reconstruct, restore or otherwise improve
the Property or part thereof that was taken or damaged, shall be
applied to the amount due under the Note secured hereby. No
amount applied to the reduction of the principal shall relieve the
trustor from making regular payments as required by the Note;
18. Upon default by Trustor in making any payments provided
for herein or upon default by Trustor in making any payment
required in the Note secured hereby, or if Trustor shall fail to
perform any other covenant or agreement in this Deed of Trust
within 30 days after written demand therefor by Beneficiary (or,
in the event that more than 30 days is reasonably required to cure
such default, should Trustor fail to promptly commence such cure,
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 7 of 14
and diligently prosecute same to completion), after the giving of
notice and the expiration of any applicable cure period,
Beneficiary may declare all sums secured hereby immediately due
and payable by delivery to Trustee of written declaration of
default and demand for sale, and of written notice of default and
of election to cause the Property to be sold, which notice Trustee
shall cause to be duly filed for record and Beneficiary may
foreclose this Deed of Trust. Beneficiary shall also deposit with
Trustee this Deed of Trust, the Note and all documents evidencing
expenditures secured hereby;
19. After the lapse of such time as may then be required by
law following the recordation of said notice of default, and
notice of sale having been given as then required by law, Trustee,
without demand on Trustor, shall sell said Property at the time
and place fixed by it in said notice of sale, either as a whole or
in separate parcels, and in such order as it may determine at
public auction to the highest bidder for cash in lawful money of
the United States, payable at time of sale. Trustee may postpone
sale of all or any portion of said Property by public announcement
at the time and place of sale, and from time to time thereafter
may postpone the sale by public announcement at the time and place
of sale, and from time to time thereafter may postpone the sale by
public announcement at the time fixed by the preceding
postponement. Trustee shall deliver to the purchaser its Deed
conveying the Property so sold, but without any covenant or
warranty, express or implied. The recitals in the Deed of any
matters or facts shall be conclusive proof of the truthfulness
thereof. Any person, including Trustor, Trustee or Beneficiary,
may purchase at the sale. The Trustee shall apply the proceeds of
sale to payment of (1) the expenses of such sale, together with
the reasonable expenses of this trust including therein reasonable
Trustee's fees or attorney's fees for conducting the sale, and the
actual cost of publishing, recording, mailing and posting notice
of the sale; (2) the cost of any search and/or other evidence of
title procured in connection with such sale and revenue stamps on
Trustee's Deed; (3) all sums expended under the terms hereof, not
then repaid, with accrued interest at the rate specified in the
Note; (4) all other sums then secured hereby; and (5) the
remainder, if any, to the person or persons legally entitled
thereto;
20. Beneficiary may from time to time substitute a
successor or successors to any Trustee named herein or acting
hereunder to execute this Trust. Upon such appointment, and
without conveyance to the successor trustee, the latter shall be
vested with all title, powers, and duties conferred upon any
Trustee herein named or acting hereunder. Each such appointment
and substitution shall be made by written instrument executed by
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 8 of 14
Beneficiary, containing reference to this Deed of Trust and its
place of record, which, when duly recorded in the proper office of
the county or counties in which the Property is situated, shall be
conclusive proof of proper appointment of the successor trustee;
21. The pleading of any statute of limitations as a defense
to any and all obligations secured by this Deed of Trust is hereby
waived to the full extent permissible by law;
22. This Deed of Trust shall be released in forty -four (44)
increments, as "market- rate" residential units are sold, with a
partial release of this Deed of Trust to be recorded at the time
of sale of each such market rate residential unit. A full release
of this Deed of Trust shall be recorded at the time the Note is
paid in full. All releases of this Deed of Trust shall be
recorded in the County Recorder's office;
23. The trust created hereby is irrevocable by Trustor;
24. This Deed of Trust applies to, inures to the benefit
of, and binds all parties hereto, their heirs, legatees, devisees,
administrators, executors, successors, and assigns. The term
"Beneficiary" shall include not only the original Beneficiary
hereunder but also any future owner and holder including pledgees,
of the Note secured hereby. In this Deed of Trust, whenever the
context so requires, the masculine gender includes the feminine
and /or neuter, and the singular number includes the plural. All
obligations of Trustor hereunder are joint and several;
25. Trustee accepts this Trust when this Deed of Trust,
duly executed and acknowledged, is made public record as provided
by law. Except as otherwise provided by law the Trustee is not
obligated to notify any party hereto of pending sale under this
Deed of Trust or of any action of proceeding in which Trustor,
Beneficiary, or Trustee shall be a party unless brought by
Trustee;
26. The undersigned Trustor requests that a copy of any
notice of default and of any notice of sale hereunder be mailed to
the following:
Cabrillo Economic Development Corporation
11011 Azahar Street
Saticoy, California 93004
27. Trustor agrees at any time and from time to time, but
not more often than annually, upon receipt of a written request
from Beneficiary, to furnish to Beneficiary detailed statements in
writing of income, rents, profits, and operating expenses of the
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 9 of 14
premises, and the names of the occupants and tenants in
possession, together with the expiration dates of their leases and
full information regarding all rental and occupancy agreements,
and the rents provided for by such leases and rental and occupancy
agreements, and such other information regarding the premises and
their use as may be requested by Beneficiary. To the extent
permitted by applicable law, Beneficiary shall maintain the
confidentiality of such information.
28. Trustor agrees that, except as otherwise provided in
the Note, upon sale or refinancing of the Property, the entire
principal balance of the debt secured by this Deed of Trust shall
at the option of Beneficiary be immediately due and payable.
29. Notwithstanding specific provisions of this Deed of
Trust, non - monetary performance hereunder shall not be deemed to
be in default where delays or defaults are due to any of the
following "Force Majeure Events" provided that they actually delay
and interfere with the timely performance of the matter to which
it would apply and despite the exercise of diligence and good
business practices are or would be beyond the reasonable control
of the party claiming such interference: War; insurrection;
strikes; lock -outs; riots; floods; earthquakes; fires; casualties;
acts of God; acts of the public enemy; epidemics; quarantine
restrictions; freight embargoes; lack of transportation;
governmental restrictions or priority; litigation including
litigation challenging the validity of this transaction or any
element thereof; unusually severe weather; inability to secure
necessary labor, materials or tools; delays of any contractor,
subcontractor, or suppliers (other than the general contractor);
acts of the other party; acts or failure to act of the City of
Moorpark or other Governmental Authority (except that acts or the
failure to act by the Beneficiary shall not excuse performance by
the Beneficiary); the imposition of any applicable moratorium by a
Governmental Authority; or any other causes which despite the
exercise of diligence and good business practices are or would be
beyond the reasonable control of the party claiming such delay and
interference. Notwithstanding the foregoing, none of the
foregoing events shall constitute a Force Majeure Event unless and
until the party claiming such delay and interference delivers to
the other parties written notice describing the event, its cause,
when and how such party obtained knowledge, the date the event
commenced, and the estimated delay resulting therefrom. Any party
claiming a Force Majeure Delay shall deliver such written notice
within fifteen (15) days after it obtains actual knowledge of the
event.
moor \mv \dot4 Deed of Trust
4 -25-01 Page 10 of 14
30. If the rights and liens created by this Deed of Trust
shall be held by a court of competent jurisdiction to be invalid
or unenforceable as to any part of the obligations described
herein, the unsecured portion of such obligations shall be
completely performed and paid prior to the performance and payment
of the remaining and secured portion of the obligations, and all
performance and payments made by Trustor shall be considered to
have been performed and paid on and applied first to the complete
payment of the unsecured portion of the obligations.
31. (a) Subject to the extensions of time set forth in
Section 29, and subject to the further provisions of this Section
31, failure or delay by Trustor to perform any term or provision
respectively required to be performed under the Note, the DDA,
this Deed of Trust or any of the following constitutes a default
under this Deed of Trust:
(1) Trustor shall have failed to make any payment
when and as required by the Note;
(2) Trustor shall have failed to perform or shall
be in breach of any obligation under the Note, this Deed of Trust,
the DDA or the Agreement Containing Covenants Affecting Real
Property (recorded concurrently with this Deed of Trust);
(3) Trustor shall have used the Property for any
purpose other than as provided for in the DDA;
(4) Trustor shall have made or suffered to be
made any Transfer, except as permitted under the DDA and the
Agreement Containing Covenants Affecting Real Property ;
(5) Trustor shall have committed or suffered to
be committed any permissive or voluntary waste of the Property or
any part thereof;
(6) Trustor shall have engaged in any financing
or entered into any other transaction creating any mortgage on the
Property, or placing thereon any lien or other encumbrance or
suffering any levy or attachment to be made thereon, except as
provided in Section 32 hereof or otherwise approved in writing by
Beneficiary;
(7) Trustor shall have voluntarily filed or shall
have had voluntarily filed against it any petition under any
bankruptcy or insolvency act or law or be adjudicated a bankrupt,
or make a general assignment for the benefit of creditors;
(8) Trustor shall have failed to cure any default
under any senior encumbrance, at least thirty (30) days prior to
the last date Trustor may cure such default before the Senior
Lender has the right to foreclose on its security;
moor \mv \dot4 Deed of Trust
4-25-01 Page 11 of 14
(9) Trustor shall have abandoned or surrendered
possession of the Property;
(10) Trustor shall have failed to continuously use
the Property for the purposes and in the manner required by the
Agreement Containing Covenants Affecting Real Property;
(11) Trustor shall have failed to continuously
manage, or cause to be managed, the Property in a prudent and
businesslike manner; or
(12) Trustor shall have failed to comply with
federal, state or local environmental laws or regulations, or
orders of any governmental authority respecting Hazardous
Substances.
(b) Beneficiary shall give written notice of default
to Trustor, specifying the default complained of by the
Beneficiary. Delay in giving such notice shall not constitute a
waiver of any default nor shall it change the time of default.
(c) Any failures or delays by Beneficiary in asserting
any of its rights and remedies as to any default shall not operate
as a waiver of any default or of any such rights or remedies.
Delays by Beneficiary in asserting any of its rights and remedies
shall not deprive Beneficiary of its right to institute and
maintain any actions or proceedings which it may deem necessary to
protect, assert, or enforce any such rights or remedies.
moor \mv \dot4 Deed of Trust
4 -25 -01 Page 12 of 14
(d) Upon any default or breach of this Deed of Trust
by Trustor, Beneficiary shall deliver written notice to Trustor
( "Notice of Default "), which notice shall specify the nature of
the default or breach. If the default is not cured within ten
(10) days after receipt of the Notice of Default (if an obligation
to pay money), or within thirty (30) days after receipt of the
Notice of Default otherwise, or if such default (other than the
payment of money) is of a type which is not capable of being cured
within thirty (30) days, then if the default is not commenced to
be cured within thirty (30) days after receipt of the Notice of
Default and is not cured promptly in a continuous and diligent
manner within a reasonable period of time after commencement,
Beneficiary shall be entitled to exercise any and all rights or
remedies which may be available at law or in equity, including
foreclosure of this Deed of Trust. Any and all rights or remedies
available to Beneficiary shall be cumulative, and not alternative.
Notwithstanding any provision to the contrary contained herein,
if any default which cannot be cured by the payment of money is
not reasonably curable within thirty (30) days, then Beneficiary
shall allow a reasonable period to cure the default as long as
Trustor commences the cure within the thirty ( 30 ) day period and
thereafter diligently proceeds to completion of the cure without
delay of any kind, and as long as Beneficiary's rights with
respect to the Property are not prejudiced by so doing.
32. a. This Deed of Trust is and shall be subordinate to
certain interests as provided in that certain Subordination and
Agreement, dated on or about the date of this Deed of Trust,
executed by Borrower, Holder and Wells Fargo Bank, National
Association and recorded in the Official Records of Ventura County
concurrently with this Deed of Trust. The Executive Director of
the Beneficiary or his designee shall execute such instruments as
may be necessary to subordinate the lien of this Deed of Trust to
the deed of trust securing any senior loan ( "Senior Loan ") to
which this Deed of Trust is subordinate. In the event of a default
or breach by Trustor of any security instrument securing a Senior
Loan described in this Section 32, Beneficiary shall have the
right to cure the default prior to completion of any foreclosure.
In such event, Beneficiary shall be entitled to reimbursement by
Trustor of all costs and expenses incurred by Beneficiary in
curing the default. The amount of any such disbursements shall be
a lien against the Subject Property and added to the obligation
secured by this Deed of Trust until repaid, with interest at the
highest rate permitted by law.
b. Trustor agrees to give to Beneficiary, immediately upon
receipt by Trustor, copies of all notices of default under any
Senior Loan to which this Deed of Trust is subordinate.
moor \mv \dot4 Deed of Trust � . E3:
4 -25 -01 Page 13 of 14
IN WITNESS WHEREOF Trustor has executed this Deed of Trust as
of the day and year set forth above.
Signature of Trustor
CABRILLO ECONOMIC DEVELOPMENT CORPORATION,
a California nonprofit public benefit
corporation
Name:
Its:
[Add Acknowledgement and Legal Description]
moor \mv \dot4 Deed of Trust
4 -25-01 Page 14 of 14
EXHIBIT "F"
FORM OF FINAL CERTIFICATE OF COMPLETION
[BEHIND THIS PAGE]
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
THE REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
FOR RECORDER'S USE
FINAL CERTIFICATE OF COMPLETION
This Final Certificate of Completion (hereinafter referred to as
the "Certificate ") is being executed by the Redevelopment Agency
of the City of Moorpark ( "Agency ") , a public body, corporate and
politic, with reference to the following:
A. The Agency entered into a Disposition and Development
Agreement with Cabrillo Economic Development Corporation
( "Developer ") dated July 8, 1998, amended February 17, 1999 and
May 2, 2001 (collectively referred to as the "DDA "), providing for
the sale by the Agency of certain real property described in the
DDA as the Site.
B. Section 8.01 of the DDA provides that promptly after
completion of all construction and development to be completed by
Developer upon the Site, the Agency shall furnish the Developer
with a Final Certificate of Completion with respect to the Site,
and that the Certificate shall be, and shall so state, conclusive
determination of satisfactory completion of the construction on
the Site required by the DDA, and of full compliance with the
terms of the DDA with respect to the Site.
C. Developer has completed all of the construction on the
Site required by the DDA, and has complied with the requirements
of the DDA and the conditions of approval of Tentative Tract Map
No. 5161 and Residential Planned Development No. 98 -7.
D. The Developer has requested the Agency to issue this
Certificate with respect to the Site.
moor \mv \fincomp3 Final Certificate of Completion
4-26 -01 Page 1 of 2
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The construction on the Site has been completed by Developer
to the satisfaction of the Agency, in accordance with the terms
and conditions of the DDA and the conditions of approval of
Tentative Tract Map No. 5161 and Residential Planned Development
No. 98 -7.
2. Effective as of the date of recordation of this Final
Certificate, the respective rights and obligations of the
Developer and the Agency with reference to the construction on the
Site shall be limited to those set forth in instruments recorded
against title to the Site.
3. This Certificate covers business of the Agency within the
meaning of Section 6103 of the California Government Code.
4. Recordation of this Certificate is authorized by California
Health and Safety Code Sections 33438 and 33439.
IN WITNESS WHEREOF, the Agency has executed this Certificate as of
the date set forth below.
Dated:
REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
moor \mv \fincomp3 Final Certificate of Completion
4 -26 -01 Page 2 of 2
STATE OF CALIFORNIA
ss.
COUNTY OF VENTURA
On before me, , personally
appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
Exhibit "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
EXHIBIT "G"
FORM OF PARCEL CERTIFICATE OF COMPLETION
[BEHIND THIS PAGE]
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
THE REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
PARCEL CERTIFICATE OF COMPLETION
This Parcel Certificate of Completion (hereinafter referred to as
the "Certificate ") is being executed by the Redevelopment Agency
of the City of Moorpark ( "Agency "), a public body, corporate and
politic, with reference to the following:
A. The Agency entered into a Disposition and Development
Agreement with Cabrillo Economic Development Corporation
( "Developer ") dated July 8, 1998, amended February 17, 1999 and
May 2, 2001 (collectively referred to as the "DDA "), providing for
the sale by the Agency of certain real property described in the
DDA as the Site.
B. As contemplated by the DDA, the Developer has
subdivided the Site into numerous parcels of property (each
referred to as a "Parcel ") for the construction and sale of single
family residences on the Parcels.
C. Section 8.01 of the DDA provides that promptly after
completion of all construction and development to be completed by
Developer upon the Site the Agency shall furnish the Developer
with a Final Certificate of Completion with respect to the Site,
and the Agency may also furnish the Developer with a Parcel
Certificate of Completion with respect to each Parcel upon
completion of all construction and development required on such
Parcel by the DDA, and that the Certificate shall be, and shale so
state, conclusive determination of satisfactory completion of the
construction on such Parcel required by the DDA, and of full
compliance with the terms of the DDA with respect to the
applicable Parcel.
moor \mv \parcomp3 Parcel Certificate of Completion
4 -26 -01 Page 1 of 2
D. With respect to the Parcel described in Exhibit "A"
attached hereto (the "Subject Parcel "), Developer has completed
all of the construction required by the DDA, and has complied with
the requirements of the DDA and the conditions of approval of
Tentative Tract Map No. 5161 and Residential Planned Development
No. 98 -7.
E. The Developer has requested the Agency to issue this
Certificate with respect to the Subject Parcel.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The construction on the Subject Parcel has been completed by
Developer to the satisfaction of the Agency, in accordance with
the terms and conditions of the DDA and the conditions of approval
of Tentative Tract Map No. 5161 and Residential Planned
Development No. 98 -7.
2. Effective as of the date of recordation of this Parcel
Certificate, the respective rights and obligations of the
Developer and the Agency with reference to the construction on the
Subject Parcel shall be limited to those set forth in instruments
recorded against title to the Subject Parcel.
3. This Certificate covers business of the Agency within the
meaning of Section 6103 of the California Government Code.
4. Recordation of this Certificate is authorized by California
Health and Safety Code Sections 33438 and 33439.
IN WITNESS WHEREOF, the Agency has executed this Certificate as of
the date set forth below.
Dated:
REDEVELOPMENT AGENCY
OF THE CITY OF MOORPARK
moor \mv \parcomp3 Parcel Certificate of Completion
4-26 -01 Page 2 of 2
IUf.f�
STATE OF CALIFORNIA
ss.
COUNTY OF VENTURA
On before me, , personally
appeared personally known to
me (or proved to me on the basis of satisfactory evidence) to be
the person(s) whose name(s) is /are subscribed to the within
instrument and acknowledged to me that he /she /they executed the
same in his /her /their authorized capacity(ies), and that by
his /her /their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal.
Signature
Exhibit "A"
LEGAL DESCRIPTION
THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF
CALIFORNIA, COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
EXHIBIT "H"
FORM OF SUBORDINATION AND AGREEMENT
[BEHIND THIS PAGE]
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
Real Estate Group (AU #07652)
Community Lending, MAC 2818 -181
707 Wilshire Boulevard, 18th Floor
Los Angeles, CA 90017
Attn: Shermayne Shepherd
Loan No.: 27850K
SUBORDINATION AND AGREEMENT
DRAFT NO. TWO THREE
April 4, 2001
NOTICE: THIS SUBORDINATION AND AGREEMENT RESULTS IN YOUR INTEREST IN THE
PROPERTY AND CERTAIN RESTRICTIONS BECOMING SUBJECT TO AND OF LOWER PRIORITY
THAN THE LIEN OF LENDER'S DEED OF TRUST (DEFINED BELOW).
THIS SUBORDINATION AND AGREEMENT ( "Agreement ") is made , 2001, by
CABRILLO ECONOMIC DEVELOPMENT CORPORATION, a California nonprofit public benefit
corporation, owner of the real property hereinafter described ( "Owner "), THE CITY OF MOORPARK
REDEVELOPMENT AGENCY, a public body, corporate and politic ( "Agency "), and WELLS FARGO
BANK, NATIONAL ASSOCIATION ( "Lender ").
RECITALS
A. Owner is or will be the fee simple owner of that certain real property described in
Exhibit A attached hereto ( "Property "). Owner proposes to construct 59 single - family detached
residential units on the Property ( "Improvements ") in three (3) phases.
B. Owner and Agency have entered into that certain Disposition and Development
Agreement for the Gisler Field Project, dated June 8, 1998, as amended by that certain Amendment
No. 1 Disposition and Development Agreement for the Gisler Field Project, dated February 17,
1999, and Amendment No. 2 Disposition and Development Agreement for Gisler Field Project, dated
2001 (as amended, "DDA "), for the development of the Improvements and
financing of the purchase of the Property ( "Agency Loan ").
C. The DDA imposes certain restrictions and obligations on the Owner regarding the
Property.
D. In addition to the restrictions and obligations in the DDA, the Grant Deed ( "Grant
Deed ") and the Agreement Containing Covenants Affecting Real Property ( "Regulatory Agreement ")
for the Property contain certain obligations, rights and restrictions in connection with the
development and transfer of he Property and Improvements. (Collectively, the restrictions and
obligations in the Grant Deed, the Regulatory Agreement and the DDA are referred to herein as the
"Restrictions. ")
E. The Agency Loan is evidenced by that certain promissory note dated
2001, in the principal amount of the Agency Loan ( "Agency Note ") and secured by a Subordinate
Deed of Trust, Security Agreement and Fixture Filing ( "Agency Deed of Trust ") encumbering the
Page 1 of 12 12197964.3
12197964.RED
DRAFT NO. THREE
Loan No. 2785OK
Property. The Agency Note and the Agency Deed of Trust and any and all other documents
evidencing the Agency Loan are collectively referred to herein as the "Agency Loan Documents."
F. Pursuant to a Building Loan Agreement ( "Loan Agreement ") dated
2001, Lender will make a loan ( "Loan ") in the original principal amount of FOUR MILLION AND
NO /100THS DOLLARS ($4,000,000.00) for the first phase of construction. Owner has executed a
Promissory Note Secured by Deed of Trust in favor of Lender dated , 2001, in the
principal amount of the Loan ( "Note "), which Note is secured by that certain Construction Deed of
Trust with Absolute Assignment of Leases and Rents, Security Agreement and Fixture Filing dated
2001, encumbering the Property and Improvements and to be recorded concurrently
herewith in the Official Records of Ventura County (the "Deed of Trust "). The Loan Agreement, the
Note, the Deed of Trust, and all other documents executed by Owner in connection with the Loan
are hereafter referred to collectively as the "Lender Loan Documents."
G. As a condition to Lender making the Loan secured by the Deed of Trust, Lender
requires that the Deed of Trust, the repayment of the Loan, and the other Lender Loan Documents
unconditionally and at all times remain a lien or charge upon the Property and Improvements, prior
and superior to all the rights of Agency under the Agency Loan Documents, repayment of the
Agency Loan and Agency's rights under the other Agency Loan Documents, and that Agency
specifically and unconditionally subordinates the Agency Loan Documents, the repayment of the
Agency Loan and Agency's rights thereunder, to the lien or charge of Lender's Deed of Trust, the
repayment of the Loan and the other Lender Loan Documents.
H. As an additional condition to Lender making the Loan secured by the Deed of Trust,
Lender requires that the rights and obligations of Lender in connection with the DDA, the Regulatory
Agreement and the Restrictions be clarified by this Agreement.
Agency and Owner agree to the subordination in favor of Lender.
NOW THEREFORE, for valuable consideration and to induce Lender to make the Loan, Owner and
Agency hereby agree for the benefit of Lender as follows:
1. Lender's Deed of Trust securing the Note, and any replacements,
consolidations, modifications, renewals or extensions thereof, together with Lender's right to
repayment of the Loan and Lender's rights under any other Lender Loan Documents shall
unconditionally be and at all times remain a lien or charge on the Property and Improvements prior
and superior to the Agency Loan Documents, and all obligations secured thereby, the repayment of
the Agency Loan and Agency's rights under the Agency Loan Documents.
2. Lender would not make the Loan without this Agreement.
3. This Agreement of even date herewith shall be the whole agreement with
regard to the subordination of the Agency Loan Documents, repayment of the Agency Loan and
Agency's rights under any of the other Agency Loan Documents to the lien or charge of Lender's
Deed of Trust together with Lender's right to repayment of the Loan and Lender's rights under any
other Lender Loan Documents and shall supersede and cancel, but only insofar as would affect the
priority of Lender's Deed of Trust, any prior agreements as to such subordination, including, without
limitation, those provisions, if any, contained in the Agency Loan Documents which provide for the
subordination of the Agency Loan Documents to a deed or deeds of trust or to a mortgage or
mortgages.
4. As of the date hereof, the only interest Agency has in the Property is set
forth in the DDA, the Grant Deed, the Regulatory Agreement and the Agency Loan Documents.
Agency and its successors and assigns, shall not acquire by subrogation, contract or otherwise any
Page 2 of 12 12197964.3
12197964.RED
Milt � j
DRAFT NO. THREE
Loan No. 27850K
lien upon any other estate, right or interest in the Property (including, without limitation, any which
may arise in respect to real estate taxes, assessments or other governmental charges) which is or
may be prior in right to the Deed of Trust or the other Lender Loan Documents, or any replacement,
extension, consolidation, modification or renewal thereto. Agency has not assigned, transferred or
otherwise alienated its interests under the DDA, the Regulatory Agreement or the Agency Loan
Documents, and will not assign, transfer or otherwise alienate its interests under the DDA, the
Regulatory Agreement, the Restrictions or the Agency Loan Documents to any person or entity
other than the City of Moorpark without the prior written consent of Lender.
5. Agency, its successors or assigns or any other legal holder of the Agency
Loan Documents hereby assign and release to the legal holder of the Lender Loan Documents:
(a) All of their right, title, interest or claim, if any, in and to the proceeds
of all policies of insurance covering the Property for application upon the indebtedness secured by,
or other disposition thereof in accordance with the provisions of, the Deed of Trust and the other
Lender Loan Documents; and
(b) All of their right, title, interest or claim, if any, in and to all awards or
other compensation made for any taking of any part of the Property to be applied upon the
indebtedness secured by, or disposed of in accordance with the provisions of, the Deed of Trust and
the other Lender Loan Documents.
In the event that, following any such application and disposition of the
insurance proceeds, condemnation award or other compensation, resulting in full repayment of all
indebtedness secured by the Deed of Trust and the other Lender Loan Documents, any balance
remains, and Lender has no further obligation to disburse any portion of the Loan, then such excess
shall be made payable jointly to Owner and the then holder of the Agency Loan Documents.
6. If the legal holder of the Lender Loan Documents shall at any time release to
Owner any such insurance proceeds or condemnation award for the purpose of restoration of the
Property, such releases shall not be deemed to be an additional advance under the Lender Loan
Documents nor shall they otherwise be deemed to be in violation of any restriction upon any amount
permitted to be secured by the Deed of Trust.
7. Agency further declares, agrees and acknowledges for the benefit of Lender,
that:
(a) Lender, in making disbursements pursuant to any such agreement, is
under no obligation or duty to, nor has Lender represented that it will, see to the application of such
proceeds by the person or persons to whom Lender disburses such proceeds, and any application or
use of such proceeds for purposes other than those provided for in such agreement or agreements
shall not defeat the subordination herein made in whole or in part;
(b) Agency represents and warrants that as of the date of this
Agreement (i) there is no breach or event of default (or conditions or events which, with notice or
the passage of time or both, would constitute a breach or default) under the DDA, the Restrictions
or the Agency Loan Documents or Agency is hereby deemed to have waived any such breach or
event of default; and (ii) the DDA, the Restrictions and the Agency Loan Documents are in full force
and effect.
(c) Agency intentionally and unconditionally waives and relinquishes the
priority of the Agency Loan Documents, and subordinates all of Agency's right, title and interest in
and to the Property and Improvements under the Agency Loan Documents to the lien or charge of
Page 3 of 12 12197964.3
12197964;REDd + `
DRAFT NO. THREE
Loan No. 27850K
Lender's Deed of Trust upon the Property and Improvements, the repayment of the Loan and the
other Lender Loan Documents;
(d) Agency understands that in reliance upon, and in consideration of,
the waiver, relinquishment and subordination, specific loans and advances are being and will be
made by Lender and, as part and parcel thereof, specific monetary and other obligations are being
and will be entered into which would not be made or entered into but for said reliance upon this
waiver, relinquishment and subordination; and
(e) Agency understands and agrees that in the event of a foreclosure
under the Deed of Trust, or transfer of the Property and Improvements by an assignment or deed in
lieu of foreclosure, or otherwise to Lender or any transferee in connection with a default by
Borrower, or any subsequent transfer, that Lender or such transferee shall take title to the Property
free and clear of the Agency Loan Documents, and the Agency's rights thereunder, and Lender or
such transferee may complete construction of the Improvements and sell such Improvements free
and clear of the (i) Agency Loan Documents and (ii) the right to payment of Agency to receive land
sale payments under Section 4 of the Regulatory Agreement and Section 3.05(2) of the DDA, but
shall still remain liable for the deferred fees described in Section 4.12 the DDA. Agency and
Owner agree that upon a foreclosure, to execute any documents or quitclaim as may be required by
a title company to insure title to the Property and Improvements free and clear of the Agency Loan
Documents and such rights to payment, including, without limitation, any Parcel Certificate of
Completion or the Certificate of Completion without further requirement of payment.
(f) Agency has approved the plans and specifications referenced in the
DDA for the development of the Property, including, but not limited to, those items referenced in
Sections 4.02 through 4.05 of the DDA, the Final Tract Map referred to in Section 3.03 of the DDA
and all other documents relating to the Improvements and the Property that Agency is entitled to
approve under the DDA, the Regulatory Agreement, the Grant Deed, or otherwise, and all such
items are in compliance with the requirements of the DDA. Agency has approved construction of
the Improvements on the Property in accordance with the plans and specifications described in the
Loan Agreement. Such plans and specifications are in full compliance with the DDA, including, but
not limited to, the Scope of Development set forth in Attachment No. 7 to the DDA and the
description of the development and use of the Property in the Grant Deed. Agency has approved
the architect and general contractor for the development of the Property, as such parties are
described in the Loan Agreement, as required by the DDA.
(g) The zoning of the Property and the Redevelopment Plan for the
Property permit development of the Improvements and the use, operation and maintenance of such
Improvements, as contemplated under the DDA and the Loan Agreement.
(h) Owner is in full compliance with the Schedule of Performance
attached to the DDA as Exhibit A and all of the matters referenced in items through of the
Schedule of Performance will, upon the conveyance of the Property to Owner, have been fully
satisfied or waived.
(i) Owner's submission of evidence of financing pursuant to the
requirements of Section 3.14 of the DDA has been approved by Agency. All requirements of
Section 3.14 of the DDA have been satisfied or waived by Owner and Agency.
(i) All notification obligations of Owner regarding the Loan, Lender and
the Loan Documents pursuant to Section 3.18 3.14 of the DDA or otherwise have been satisfied or
waived by Owner and Agency.
Page 4 of 12 12197964.3
12197964.RED
DRAFT NO. THREE
Loan No. 27850K
(k) This Agreement executed or to be executed by Lender, Agency and
Owner in connection with the Deed of Trust and the Agency Deed of Trust and certain related
documents described therein is in compliance with the subordination provisions set forth in the
DDA, the Agency Note and the Agency Deed of Trust and shall be effective throughout the term of
the Loan.
8. Notwithstanding_ any transfer a.s se-t. forth in S�tion 7(0. above-, Lender or
any transf.e-ree agrees to_provid.e the Affordable . Units, generdy as provided in Section 4.01, as
amended, and Att.a.G.hm.ent_No. 7 to the DDA, and such obligation shall be a covenant running with
the land and bind Lender and any transferee. At the request of Agency,. Lender or transferee agrees
to enter into an agreement yvith.AgerCy tQ.. provide ..for such Affordable Units generally as provided
in Section 4.01,. as amended, and Attachment No. 7 to the DDA.
9. Agency hereby approves and consents to the matters set forth below:
(a) Lender is approved as lender for the Property under the DDA. This
Agreement constitutes, and satisfies the requirement of, Agency's prior written approval of Lender
for the Property pursuant to Section 7.01 of the DDA.
(b) The Loan is approved, and the terms of the Note, the Deed of Trust,
the Loan Agreement and the other Loan Documents, copies of which have been provided to Agency
and which Agency has reviewed, are approved. Agency consents to the immediate recordation of
the Deed of Trust to encumber in first priority, the Property and Improvements, to secure Owner's
obligations under the Note, the Loan Agreement and all the other Loan Documents.
(c) All Loan advances or advances by Lender of Borrower's Funds (as
constitute "financing the acquisition of the Site, the construction of improvements on the Site, and
any other expenditures necessary and appropriate to develop the Site under [the DDA]" as that
phrase is used in Section 7.01 of the DDA. This Agreement constitutes and satisfies the
requirement of Agency's written approval of such financing pursuant to Section 7.01 of the DDA.
(d) Lender is approved as being a responsible financial institution as
required by Section 7.01 of the DDA, and no further approval by Agency is required for Lender.
Upon any default by Owner under the Loan Documents, Lender has the right to exercise any or all
of its rights thereunder without further consent or approval by Agency, including the right to appoint
a receiver for the Property or to foreclose upon the Property and /or to complete construction of the
Improvements (however, Lender's right to complete construction is subject to the requirement that
Lender assume certain obligations of Owner, as provided in Section 7.03 of the DDA, as interpreted
by Section 9(g) below).
9 1.0. To clarify certain provisions of the DDA, the Regulatory Agreement and the
Grant Deed, Agency agrees that certain provisions of the DDA, the Regulatory Agreement and the ,
Grant Deed shall be conclusively interpreted as set forth below.
(a) With respect to the reference to approval by Agency of changes in
plans and submissions under Section 4.05 of the DDA, Agency acknowledges and agrees that
Lender also has certain rights to review and approve changes to such documents pursuant to the
Loan Agreement.
(b) Agency has received and approved Owner's insurance required under
Section 4.09 of the DDA.
(c) Owner is currently in full compliance with the provisions of Section
6.01 of the DDA and has obtained all approvals of Agency required with respect to the composition
Page 5 of 12 12197964.3
12197964.RED
DRAFT NO. THREE
Loan No. 27850K
of its entity. The restrictions on transfers set forth in Sections —1,04 2.03 and 6.01 of the DDA,
Section 4 of the Grant Deed and Section 8 of the Regulatory Agreement shall not apply to Lender or
to the exercise by Lender of any remedies of judicial or non - judicial foreclosure or deed in lieu of
foreclosure or to a sale by Lender after Lender's acquisition of title to the Property or any part
thereof by foreclosure, deed in lieu of foreclosure or otherwise.
(d) With respect to the provisions of Section 3.14 of the DDA, the Loan
is in full compliance with the provisions thereof and no further financing approvals shall be required
during the term of the Loan.
(e) Pursuant to Section 7.02 of the DDA, Lender, upon acquiring the
Property by foreclosure, or otherwise, shall have no obligation to complete or continue construction
of the Improvements or to assume the obligations of Developer under the DDA; provided, however,
that nothing in the DDA or this Agreement authorizes Lender to devote the Property to any uses, or
to construct any improvements thereon, other than those uses or improvements provided for or
authorized in the DDA.
(f) Lender's rights to cure defaults of Owner pursuant to Section 7.03
of the DDA or otherwise do not require Lender to commence a cure, continue a cure, complete a
cure, seek to obtain possession, or take any other action whatsoever during any period when Lender
is stayed, enjoined or otherwise prevented from doing so (or from taking actions necessary to do so)
by law. During any such period, all rights to cure remain open, and the time periods for taking
action are tolled. Lender is not required to cure any default not curable by Lender. In the event
Lender acquires title to the Property, by foreclosure, deed in lieu of foreclosure, or otherwise, any
defaults not curable by Lender shall be deemed waived, and any remedy of Agency otherwise
available as a consequence of such defaults shall be deemed waived with respect to those defaults
only, including, but not limited to, any requirement to make any payment or to cure any lien or
charge junior in priority to the Deed of Trust, or pay any amount owed under an indemnity of
Developer to Agency or City which is based on an event which occurred prior to Lender acquiring
title to the Property, any right to purchase the Note and Deed of Trust under Section 7.04 of the
DDA and any right of re -entry under Section 12.01 of the DDA and Section 9 of the Grant Deed.
(g) Lender's rights to cure defaults of the Owner pursuant to Section
7.03 of the DDA or otherwise, do not require Lender (or its successor in title to the Property) to
assume any obligation of Owner to Agency except that, if Lender (or its successor in title to the
Property) elects to construct the Improvements, Lender (or its successor in title to the Property)
shall first assume and shall thereafter comply with the performance obligations of Owner to Agency
under the DDA (provided, however, that Lender (or its successor in title to the Property) shall not be
required to assume any liability of Owner to Agency), and all of Agency's rights and remedies as
provided in the DDA shall apply thereto (subject, however, to all extensions of time provided to
Lender by the DDA, as interpreted by this Agreement), but in any event Lender's liability to Agency
shall be limited as set forth in Section 9(r) below.
(h) The first clause of Section 7.04 of the DDA means that Lender (or its
successor in title to the Property) must exercise its option to elect to construct and to assume the
DDA as provided in Section 9(g) above prior to the date which is six (6) months after the completion
date applicable to Owner under the Agreement, subject, however, to the provisions of Section 9(f)
above.
(i) Sections 10.01, 10.04, 10.05 and 11.01 of the DDA and other
default provisions under the DDA or the other agreements with Agency, including the Regulatory
Agreement, are subject to the other provisions of the DDA and this Agreement relating to Lender's
rights to cure.
Page 6 of 12 12197964.3
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(j) Agency's right to purchase the Note and Deed of Trust from Lender
pursuant to the first sentence of Section 7.04 of the DDA applies only prior to such time as Lender
may foreclose under the Deed of Trust, and the existence of such right does not in any way
preclude or delay Lender from proceeding with foreclosure or exercising any other remedy.
(k) The purchase price of the Note and Deed of Trust from Lender
pursuant to the first sentence of Section 7.04 of the DDA shall be the total of all outstanding
amounts owed by Owner under the Lender Loan Documents, of any kind whatsoever.
(1) Section 7.04 of the DDA, which specifies the circumstances under
which Agency has the right to purchase the Note and the Deed of Trust from Lender pursuant to the
first sentence of Section 7.04, also specifies the circumstances under which Agency has the right
to purchase the Property from Lender pursuant to the second sentence of Section 7.04. Agency's
rights under the first and second sentences of Section 7.04 of the DDA apply only during such time
as there is an uncured default of Owner under the DDA, the default is of a type curable by Lender,
Agency has provided Lender with notice of such default as provided hereunder and Lender's time
period for the cure of such default has expired without such cure having been effected. Such rights
are terminated by issuance of a Certificate of Completion by Agency.
(m) If Lender acquires title to the Property, Lender's entry into a contract
of sale of the Property in which the purchaser agrees, upon closing, to elect to commence or
continue and complete construction and to assume Owner's obligations as described in Section 9(g)
above, shall terminate Agency's right to purchase the Property under Section 7.04 of the DDA from
Lender, so long as a sale to the purchaser under such contract does occur within ninety (90) days of
the date of the contract and upon closing the purchaser does so elect and assume. If such
conditions are not satisfied with respect to such a sale, then such rights of Agency shall be
reinstated. Nothing herein shall be construed to limit the application of Section 7.04 of the DDA to
any holder of a mortgage, deed of trust or other security interest imposed on the Property by the
purchaser in accordance with the DDA.
(n) With respect to the purchase price of the Property from Lender
pursuant to the second sentence of Section 7.04 of the DDA, Section 7.04(1) includes all
outstanding amounts owed by Owner under the Loan Documents, of any kind whatsoever, and
Section 7.04(3) includes all of Lender's expenses incurred in connection with obtaining, owning,
developing, improving, managing, marketing and sale of the Property or any part thereof, including
salaries of personnel engaged in such action (but excluding Lender's general overhead expense) (but
less any income derived by Lender from the Property, or any part thereof, in connection with such
management); all taxes, assessments and water and sewer charges with respect to the Property or
any part thereof; any payments made or necessary to be made to discharge or prevent from
attaching or being made any subsequent encumbrances or liens due to obligations, defaults, or acts
of Owner its successors or transferees; any expenditures made or obligations incurred with respect
to the making or completion of the Improvements or any part thereof on the Property or any part
thereof.
(o) Agency's right to cure Owner's defaults under the Loan pursuant to
Section 7.05 of the DDA is a right to cure only on Owner's behalf, and Agency shall have no right
to be substituted for Owner under the Loan Documents or to receive disbursements or other
performance from Lender thereunder. The cure right provided herein will not affect the right of
Lender to initiate the foreclosure process or obtain a receiver and such cure period shall run
concurrently with any time period provided by statute for foreclosure. In the event that Agency
cures such default and pays for all costs to rescind any notice of default or to dismiss the receiver
(including, without limitation, Lender's attorney's fees and court costs), the default will be deemed
cured and Lender will not accelerate the Loan. Any amounts advanced by Agency to cure a default
Page 7 of 12 12197964.3
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DRAFT NO. THREE
Loan No. 2785OK
shall be advanced under the Agency Loan and shall be secured by the Agency Deed of Trust, and, in
accordance with this Agreement, shall have the same priority as the Agency Deed of Trust.
(p) Agency's rights under Section 12.01 of the DDA and Section 9 of
the Grant Deed to reenter the Property apply only during such time as there is an uncured default of
Owner under the DDA or the Grant Deed of the type specified in such Sections, the default is of a
type curable by Lender, Agency has provided Lender with notice of such default as provided
hereunder and Lender's time period for cure of such default has expired without such cure having
been effected, and such rights are also subject to the interpretive provisions of Section 9(q) below.
Such rights are terminated by issuance of a Certificate of Completion by Agency.
(q) Agency's rights of re -entry under Section 12.01 of the DDA and
Section 9 of the Grant Deed are subject to all of Lender's rights under the DDA. Accordingly:
(1) If Lender acquires title to the Property and exercises its right
to elect not to commence or complete construction, Agency shall not be entitled to exercise the
right of re -entry (but Agency shall be entitled to exercise the right of purchase of the Property
pursuant to and under the circumstances provided in Section 7.04 of the DDA, as interpreted by
this Agreement) within sixty (60) days after such election by Lender.
(2) If Agency acquires title to the Property (or any portion
thereof) pursuant to its right of re -entry prior to acquisition of the Property by Lender, the Property
shall nonetheless remain subject to the Deed of Trust and Lender's rights of foreclosure thereunder.
Lender shall not be required to let Agency or any other party assume the Loan. Upon any such
foreclosure and Lender's acquisition of title to the Property, if Lender exercises its right to elect not
to commence or complete construction, Agency shall not be entitled to exercise the right of re -entry
(but Agency shall be entitled to exercise the right of purchase of the Property pursuant to and under
the circumstances provided in Section 7.04 of the DDA, as interpreted by this Agreement) within
sixty (60) days after such election by Lender.
(3) If Lender acquires title to the Property and does elect to
commence or continue and complete construction, then Agency shall be entitled to exercise the
right of re -entry upon the occurrence of any of the events set forth in Sections 12.01 (1), (2) and (3)
on page 32 of the DDA and Section 9 of the Grant Deed (as applied to Lender rather than Owner),
subject to all extensions of time provided to Lender by the DDA, as interpreted by this Agreement.
In the event that the right of reentry is so exercised, the amount which thereafter becomes payable
to Lender pursuant to Section 12.01 on page 33 of the DDA shall be equal to the amount specified
in the second sentence of Section 7.04 of the DDA (provisions (1) through (5)) as interpreted by
Section 9(n) above.
(4) If Lender acquires title to the Property and thereafter
transfers such title, or if Lender forecloses under the Deed of Trust and a third party acquires title at
the foreclosure sale, Lender's successors in title, or such foreclosure purchaser and its successors in
title, shall have the same rights as Lender, subject to all of the same limitations as are applicable to
Lender and subject to all of the same rights of Agency with respect to Lender and subject further to
the reinstatement of Agency's right to reenter the Property upon a default by such successor.
(r) In the event that Lender acquires title to the Property, Lender's
liability to Agency shall be limited to Lender's interest in the Property, all improvements thereon, and
all tangible and intangible personal property located thereon or intended for use in connection
therewith (the "Assets "), and Agency shall have no recourse whatsoever to any other asset of
Lender other than its interest in the Assets, and Lender shall not be liable for any offsets, claims or
defenses that Agency may have against Owner.
Page 8 of 12 12197964.3
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DRAFT NO. THREE
Loan No. 27850K
4-0 11. No voluntary cancellation, rescission, revocation, voiding or other voluntary
termination of the DDA, the Regulatory Agreement, the Grant Deed or the Agency Loan Documents,
or any surrender, supplement, modification, amendment or alteration of the DDA, the Grant Deed,
the Regulatory Agreement or the Agency Loan Documents shall be effective without the prior
written consent of Lender, except for the termination of the DDA that automatically occurs upon the
filing of a Certificate of Completion by Agency or upon the expiration of the term set forth in
Section (9) of the Grant Deed.
1 1.2. Agency and Borrower confirm that none of the DDA, the Restrictions or the
Agency Loan Documents has been amended, modified or supplemented in any way and agree not to
amend, modify or supplement the DDA, the Restrictions or the Agency Loan Documents without the
prior written consent of Lender, which consent may be withheld in Lender's sole discretion. Agency
and Borrower further agree not to terminate the DDA, the Regulatory Agreement or the Agency
Loan Documents without the prior written consent of Lender, except for the termination of the DDA
that automatically occurs upon the filing of the Certificate of Completion by Agency or upon
expiration of the term set forth in Section 9 of the Grant Deed. Any such amendment, modification,
supplement or termination made without Lender's consent shall be void and of no force and effect.
4-2 13. Lender may, without affecting the subordination provided herein: (a) release
or compromise any obligation of any nature with respect to the Lender Loan Documents; (b) release
its security interest in, or surrender, release or permit any substitution or exchange of all or any part
of any properties securing the Note; or (c) retain or obtain a security interest in any property to
secure payment of the Note.
4-3 14. All notices of any kind which any party hereto may be required or may desire
to serve on the other shall be deemed served upon personal delivery, or, if mailed, upon the first to
occur of receipt or the expiration of 72 hours after deposit in United States Postal Service, certified
mail, return receipt requested, postage prepaid, and addressed as follows:
If to Agency: THE CITY OF MOORPARK REDEVELOPMENT AGENCY
799 Moorpark Avenue
Moorpark, CA 93021
Attn:
If to Lender: WELLS FARGO BANK, N.A.
Real Estate Group (AU #07652)
Community Lending, MAC 2818 -181
707 Wilshire Boulevard, 18th Floor
Los Angeles, CA 90017
Attn: Shermayne Shepherd
Reference Loan No. 27850K
If to Owner: CABRILLO ECONOMIC DEVELOPMENT CORPORATION
11011 Azahar Street
Saticoy, CA 93004
Attn:
4-4 15. Anything in the Agency Loan Documents or the DDA to the contrary
notwithstanding, the indebtedness created under, and evidenced by, the Agency Loan Documents
or the DDA, including principal, interest and other amounts due thereunder, shall be subordinate and
junior to all principal, interest and other amounts due under the Lender Loan Documents, and no
holder of the Agency Loan Documents or the DDA shall be entitled to receive or retain any payment
Page 9 of 12 12197964.3
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DRAFT NO. THREE
Loan No. 2785OK
from any source on, or in respect of, the DDA or the Agency Loan Documents except as permitted
by, and in accordance with the limitations contained in, this Agreement. Until Lender has given
Owner notice of the existence under the Lender Loan Documents of an Event of Default (as defined
in the Lender Loan Documents), Agency shall be entitled to receive and retain regularly scheduled
payments of principal and interest under the DDA or the Agency Loan Documents. Upon notice
from Lender to Owner of the occurrence of an Event of Default and so long as such default
continues, whether or not Lender has elected to exercise any remedies against Owner, no payment
shall be made under the Agency Loan Documents or the DDA, and Agency shall not be entitled to
receive or retain any payment from any source, on or in respect of the Agency Loan Documents or
the DDA.
4-6 16. In the event of any judicial or nonjudicial sale of the Property or any of the
collateral securing the Loan, or any portion thereof, pursuant to the Lender Loan Documents, or of
any liquidation or dissolution of Owner, or of any execution sale, receivership, insolvency,
bankruptcy, liquidation, readjustment, reorganization, or similar proceeding relating to Owner or any
portion of its property, all amounts due under the Lender Loan Documents shall first be paid in full
before any payment is made upon or in respect of the obligations under the DDA or the Agency
Loan Documents. If Agency has not made and presented appropriate proofs of claim in connection
with any reorganization, liquidation, dissolution, bankruptcy or similar proceeding with respect to
Owner within thirty (30) days following demand by Lender, then Lender shall hereby be authorized
and empowered (but with no obligation) to make and present such proofs of claim against Owner on
account of the Agency Loan or the DDA as Lender may deem advisable. In any such event, any
payment or distribution of any kind, whether in cash, property or securities, shall be paid over to
Lender for application in payment of the obligations created under, or evidenced by, the Lender Loan
Documents, in such order as Lender shall determine in its sole discretion, until all such obligations
have been paid in full.
4-6 17. Any payment of, or on account of, any obligation under the Agency Loan
Documents or the DDA that shall be received by Agency or any other party on behalf of Agency at
a time when such payment is not permitted to be made or retained under the terms of this
Agreement shall not constitute property of Agency or such recipient, but shall be received and held
in trust by such recipient for the benefit of Lender and promptly paid over to Lender; provided,
however, that such payment may be commingled with other assets of Agency until paid over to
Lender.
4-7 1$. The provisions of Sections 12, 13 1.5 16 and 44 17 above are solely for the
purpose of defining the relative rights of the holder of the Lender Loan Documents on the one hand,
and the Agency Loan Documents on the other hand, against the Owner and its property and nothing
herein shall impair, as between the Owner and holder of the Lender Loan Documents or the Owner
and the holder of the Agency Loan Documents, the obligations of the Owner under such documents.
4-5 19. Agency agrees to give to Lender at the same time as provided to Owner
copies of all notices of default under the DDA, the Restrictions or the Agency Loan Documents.
Lender shall have the right (but not the obligation) to cure any or all defaults specified in such notice
in the time provided under the DDA. Any amounts advanced by Lender to cure a default under the
DDA, the Restrictions or the Agency Loan Documents shall be an advance under the Loan and
secured by the Deed of Trust, and in accordance with this Agreement, prior and superior to the
rights of the Agency under the DDA, the Restrictions and the Agency Loan Documents.
In the event that a default is not cured and Agency reenters and repossess the Property prior to a
foreclosure or transfer in lieu of foreclosure under the Deed of Trust, Agency will take title to the
Property subject to the Deed of Trust and Lender's rights under the Lender Loan Documents.
Notwithstanding anything to the contrary in the DDA or the Restrictions, nothing therein or herein
shall preclude Lender from thereafter foreclosing or transferring the Property by a deed in lieu of
Page 10 of 12 12197964.3
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DRAFT NO. THREE
Loan No. 27850K
foreclosure under the Deed of Trust or the other Lender Loan Documents.
4-9 20• This Agreement shall be binding on and inure to the benefit of the legal
representatives, heirs, successors and assigns of the parties and the Lender.
20 21. This Agreement shall be governed and construed in accordance with the law
of the State of California.
24 22. The individual or individuals executing this Agreement on behalf of each
party represents and warrants that (i) it has been duly and validly authorized to do so on behalf of
such party with the full right and authority to execute this Agreement and to bind such party with
respect to all of its obligations hereunder, and (ii) this Agreement is a valid, binding and enforceable
obligation of such party.
22 2 ,3. If any provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, that portion shall be deemed severed
from the Loan Documents and the remaining parts shall remain in full force as though the invalid,
illegal, or unenforceable portion had never been part of this Agreement.
23 24. In the event any legal action is commenced by any party hereto concerning
this Agreement or the rights and duties hereunder of any party hereto, whether such action be an
action for damages, equitable or declaratory relief, the prevailing party in such litigation shall be
entitled to, in addition to all other relief as may be granted by the court, reasonable sums as and for
attorneys' fees in an amount set by the court.
24 25. In the event of a conflict between the terms and conditions of this
Agreement and the DDA, the Restrictions or the Agency Loan Documents, the terms and conditions
of this Agreement shall prevail.
26 25. This Agreement is one of the Loan Documents as that term is defined in the
Loan Agreement.
26 27. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall constitute and be construed as one
and the same instrument.
Exhibit A is attached hereto and incorporated herein by this reference.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH MAY ALLOW
THE PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN A
PORTION OF WHICH MAY BE EXPENDED FOR PURPOSES OTHER THAN IMPROVEMENT
OF THE PROPERTY.
Page 11 of 12 12197964.3
12197964.RED
DRAFT NO. THREE
Loan No. 27850K
IT IS RECOMMENDED THAT, PRIOR TO THE EXECUTION OF THIS AGREEMENT, THE PARTIES
CONSULT WITH THEIR ATTORNEYS WITH RESPECT HERETO.
AGENCY: OWNER:
THE CITY OF MOORPARK REDEVELOPMENT CABRILLO ECONOMIC DEVELOPMENT
AGENCY, a public body, corporate and politic CORPORATION, a California nonprofit public
benefit corporation
Bv:
Its:
ATTEST:
Approved as to form:
By:
Its:
ATTEST:
Agency Counsel By:
Its:
LENDER:
WELLS FARGO BANK,
NATIONAL ASSOCIATION
By:
Its:
(ALL SIGNATURES MUST BE ACKNOWLEDGED)
Page 12 of 12 12197964.3
12197964.RED
�. �0�,'!,
DRAFT NO. THREE
Loan No. 2785OK
EXHIBIT A
Description of Property
Exhibit A to Subordination and Agreement executed by CABRILLO ECONOMIC DEVELOPMENT
CORPORATION, a California nonprofit public benefit corporation, as "Owner," and THE CITY OF
MOORPARK REDEVELOPMENT AGENCY, a public body, corporate and politic, as "Agency," in favor
of WELLS FARGO BANK, NATIONAL ASSOCIATION, as "Lender," dated as of
2001.
All that certain real property located in the City of Moorpark, County of Ventura, State of California,
described as follows:
APN:
12197964.3
12197964.RED
I JOU /
STATE OF CALIFORNIA
COUNTY OF SS.
On this day of
2001, before me,
DRAFT NO. THREE
Loan No. 27850K
a Notary Public in and for the State of California, personally appeared
personally known to me (or proved on the basis of satisfactory evidence) to be the person(s) whose
name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal
Signature
My commission expires
12197964.3
12197964.RED
DRAFT NO. THREE
Loan No. 27850K
STATE OF CALIFORNIA
COUNTY OF SS.
On this day of , 2001, before me,
a Notary Public in and for the State of California, personally appeared
personally known to me (or proved on the basis of satisfactory evidence) to be the person(s) whose
name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal
Signature
My commission expires
12197964.3
12197964.RED
DRAFT NO. THREE
Loan No. 27850K
STATE OF CALIFORNIA
COUNTY OF ss.
On this day of , 2001, before me,
a Notary Public in and for the State of California, personally appeared
personally known to me (or proved on the basis of satisfactory evidence) to be the person(s) whose
name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they
executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on
the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the
instrument.
WITNESS my hand and official seal
Signature
My commission expires
12197964.3
12197964.RED
i. JlY`yC it
MOORPARK REDEVELOPMENT
AGENDA REPORT
ITEM 4• C- -
CITN' OF MOORPARK, CALIFORNIA
Redevelopment Agency Meeting
of 5-a-0 I
ACTION: APPROUJ� O _'SMF�
REZ01-i HEN DAr -n0W •
AGENCY _ _ ��
TO: Honorable Agency Board of Directors
FROM: Julie C.T. Hernandez, Senior Management Analys
DATE: April 24, 2001 (CC Meeting of 5/2/01)
SUBJECT: Notification to Foster Enterprises to Modify or
Terminate Existing Lease at 192 High Street.
BACKGROUND
On September 1, 1993, the Moorpark Redevelopment Agency entered
into a Lease Agreement with Foster Enterprises for property
located at 192 High Street. Foster Enterprises operates a feed
mill on the premises, and pays rent of $17,325.60 per year.
The term of the lease is year -to -year, with a 90 -day
notification requirement by May 31st in the event that the lease
is to be terminated at the end of the contract year, which would
be August 31st of each year. The Agency has the right not to
renew the lease at the end of any one year term (September 1st -
August 31st) for any reason except to replace Foster Enterprises
with another feed mill operator.
DISCUSSION
After receiving several promising leads for the conversion of
this property in the last six months, staff became aware of the
constraints of the terms of the lease regarding termination.
For example, if a development proposal were to become finalized
in June, the proposal could not go forward until September 1st
(fifteen months later because the noticing period of prior to
May 31st would have passed) . This is not an acceptable timeframe
for development. Therefore, staff would like to gain approval
from the Agency Directors to negotiate an amendment to the
current lease to a month -to -month lease, with a 90 -day
notification requirement. This would give staff the flexibility
needed if a development proposal were moving quickly.
Honorable Agency Board of Directors
April 20, 2001
Page 2
In the event that Foster Enterprises is not willing to amend the
terms of the lease, staff would like to gain approval from the
Agency Directors to issue a termination notice no later than May
31,2001, with the lease terminating as of September 1, 2001.
Up to that date, Foster Enterprises may remove all personal
property, equipment and fixtures from the premises, but
surrenders to the Agency the premises with facades, building
structures and fences in substantially the same condition they
were in at the time the lease was executed. If any of Foster
Enterprises personal property, equipment or fixtures remain on
the premises after the termination of the lease, Agency may, at
its option, use, dispose of, and /or sell any of the property,
equipment and fixtures without compensation to Foster
Enterprises.
FINANCIAL IMPACT
If the lease with Foster Enterprises were terminated, the Agency
would lose the annual lease payment of $17,325.60 ($1,443.83 per
month). In addition, the Agency would then be responsible for
the costs of ongoing maintenance. Finally, if Foster
Enterprises were not in default of any provision of the lease at
the time of termination, the Agency would be required to return
a Security Deposit of $1,443.83.
STAFF RECOMMENDATION
That the Agency Directors:
1. Authorize staff to enter into negotiations with Foster
Enterprises to negotiate an amendment to the current lease to
a month -to -month lease, with a 90 -day notification
requirement; and
2. In the event that Foster Enterprises is not willing to amend
the terms of the lease as described above, authorize staff to
issue a termination notice no later than May 31, 2001, with
the lease terminating as of September 1, 2001.