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MOORPARK REDEVELOPMENT AGENCY
REGULAR MEETING AGENDA
WEDNESDAY, DECEMBER 3, 2008
7:00 P.M.
Moorpark Community Center 799 Moorpark Avenue
1. CALL TO ORDER:
2. ROLL CALL:
3. PUBLIC COMMENT:
4. REORDERING OF, AND ADDITIONS TO, THE AGENDA:
5. PRESENTATION /ACTION /DISCUSSION:
A. Consider Resolution Approving Disposition and Development Agreement
Between the Redevelopment Agency of the City of Moorpark and Aszkenazv_
Development. Inc. (continued from November 19, 2008) Staff
Recommendation: 1) Adopt Resolution No. 2008- , approving Disposition
and Development Agreement, subject to final language approval by the
Executive Director and Agency General Counsel; and 2) Authorize the Chair
of the Redevelopment Agency to execute all documents necessary for this
transaction. ROLL CALL VOTE REQUIRED (Staff: David Moe)
6. CONSENT CALENDAR: (ROLL CALL VOTE REQUIRED)
A. Consider Minutes of Special Meeting of November 19 2008. Staff
Recommendation: Approve the minutes.
B. Consider Minutes of Regular Meeting of November 19 2008. Staff
Recommendation: Approve the minutes.
Redevelopment Agency Agenda
December 3, 2008
Page 2
6. CONSENT CALENDAR: (continued)
C. Consider Authorization of Recordation of the Notice of Completion for the
Demolition Projects at 1293 and 1331 Walnut Canyon Road. Staff
Recommendation: 1) Authorize the Agency Secretary to file the Notice of
Completion for the project; 2) Release the Performance Bond one (1) year
after recordation of the Notice of Completion in accordance with the bond
provisions; and 3) Release the Payment Bond six (6) months after
recordation of the Notice of Completion in accordance with the bond
provisions; and release the project bonds consistent with the contract
provisions. (Staff: David Moe)
D. Consider Resolution Amending the Fiscal Year 2008/09 Budget to Fund
Asphalt Slurry at 675 Moorpark Avenue. Staff Recommendation: Adopt
Resolution No. 2008- ROLL CALL VOTE REQUIRED (Staff: Yugal
Lall)
7. CLOSED SESSION:
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)
8. ADJOURNMENT:
All writings and documents provided to the majority of the Agency regarding all open- session agenda items are available for
public inspection at the City Hall public counter located at 799 Moorpark Avenue during regular business hours. The agenda
packet for all regular Redevelopment Agency meetings is also available on the City's website at www.ci.mooroark.ca.us.
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 Comment prior to the beginning of the Public
Comments portion of the meeting; for a Presentation/Action /Discussion item, prior to the Chair's call forspeaker cards for each
Presentation /Action/ Discussion agenda item; and for a Public Hearing item, prior to the opening of each Public Hearing, or
beginning of public testimony for a continued 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. Any questions concerning any agenda item may be directed to the City Clerk's office at
517 -6223.
In compliance with the Americans with Disabilities Act, if you need special assistance to review an agenda or participate in this
meeting, including auxiliary aids or services, please contact the City Clerk's Division at (805) 517 -6223. Upon request, the
agenda can be made available in appropriate alternative formats to persons with a disability. Any request for disability- related
modification or accommodation should be made at least 48 hours prior to the scheduled meeting to assist the City staff in
assuring reasonable arrangements can be made to provide accessibility to the meeting (28 CFR 35.102 - 35.104; ADA Title II).
Redevelopment Agency Agenda
December 3, 2008
Page 3
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss
CITY OF MOORPARK )
AFFIDAVIT OF POSTING
I, Maureen Benson, declare as follows:
That I am the Assistant City Clerk of the City of Moorpark and that a notice for a Regular
Meeting of the Moorpark Redevelopment Agency to be held Wednesday, December 3,
2008, at 7:00 p.m. in the Council Chambers of the Moorpark Community Center, 799
Moorpark Avenue, Moorpark, California, was posted on November 26, 2008, 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 November 26, 2008.
Maureen Benson, Assistant City Clerk
ITEM 5.A.
64- `th- ,&AAP-r MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Agency Board of Directors
FROM: David C. Moe II, Redevelopment Manager Q L
DATE: November 20, 2008 (Agency Meeting of 12/3/08)
Subject: Consider Resolution Approving Disposition and Development
Agreement Between the Redevelopment Agency of the City of
Moorpark and Aszkenazy Development, Inc.
BACKGROUND
The Redevelopment Agency of the City of Moorpark ( "Agency ") acquired a 2.34 acre
site, located at 192 High Street ( "Property "), from the Ventura County Transportation
Commission on August 8, 1993, at a cost of $393,451.34. An aerial of the Property is
attached as EXHIBIT A. This Property was part of a 4.77 acre purchase for
$800,000.00. Since the acquisition, the Property has been leased to a variety of
commercial tenants.
On March 1, 2000, the Agency disseminated a Request for Qualifications (RFQ) in a
search to identify a developer that specializes in downtown development. The Agency
received three responses to the RFQ, none of which met the desired qualifications. The
Agency did not enter into negotiations with any of the responders of the RFQ.
On May 7, 2004, the Agency issued a Request for Proposals (RFP) for redeveloping the
Property. Two developers responded to the RFP, but only Aszkenazy Development,
Inc. ( "Developer ") submitted a responsive proposal.
A proposed Disposition and Development Agreement was on the Agency's November
19, 2008 agenda; however, the Agency Board continued the item until December 3,
2008, at the request of staff.
DISCUSSION
The Agency has been working with the proposed Developer to finalize the purchase and
disposition of the Property. After extensive negotiations, the Developer proposes to
purchase the Property to construct two, two story, commercial buildings totaling 71,656
square feet. The proposed project would be built in two phases under separate
0K 001
Honorable Agency Board of Directors
December 3, 2008
Page 2
Disposition and Development Agreements. The proposed site plan and elevation are
attached as EXHIBIT B and EXHIBIT C, respectively.
The first phase of the project would be sold under this Disposition and Development
Agreement (EXHIBIT D) and include the land east of Maria's Restaurant location to the
improved Metrolink parking lot. The Developer would construct a 49,140 square foot
building to include retail and office uses. The Developer is willing to purchase the land
in phase I at a fair market price of $1,121,330.00 to avoid paying prevailing wages on
the project.
The second phase would include Maria's Restaurant and the vacant land east of the
Moorpark Chamber of Commerce. The Agency will sell the land for the second phase
under a second Disposition and Development Agreement after phase I has been 90%
leased ( "Stabilization "). The building in this phase would consist of 22,516 square feet.
The Property is improved with several structures. The Disposition and Development
Agreement obligates the Agency to fund removal of the structures on the Property prior
to close of escrow. The estimated cost to remove all structures, with the exception of
18 High Street (Chamber of Commerce building), is $313,000.00.
Agency assistance is needed in order to make the project financially feasible. A
financial gap of $971,647.00 exists in the beginning of the project. The Developer
would need to defray the gap in the financing until Stabilization has occurred. To make
the project feasible, the Agency will need to make a $971,647.00 loan to the Developer
to assist with the purchase of the land. The Agency loan will be secured by a deed of
trust against the land.
The terms and conditions of the Agency loan are proposed as follows:
1. Developer provides the Agency with a cash payment of One Hundred Forty -
Nine Thousand Six Hundred Eighty -Three Dollars ($149,683.00).
2. Monthly interest will be deferred, but will accrue, until the Project is ninety
percent (90 %) leased. Developer will pay all deferred interest within one year from
receiving a certificate of occupancy from the City of Moorpark. Developer may choose
to make interest payments before the project is 90% leased without any prepayment
penalty.
3. The Agency Loan will be subordinate to the construction loan and permanent
financing for a period of ten (10) years.
4. The term of the loan will be ten (10) years. Upon loan maturity, a balloon
payment for the principal amount will be due to the Agency.
100002
Honorable Agency Board of Directors
December 3, 2008
Page 3
5. The interest rate of the loan will be a fixed rate of 8.25 %. The Loan
Agreement and Deed of Trust are included in the Disposition and Development
Agreement as Attachment 7 and Attachment 8, respectively.
Agency will subdivide the Property into three parcels. Parcel one would be the property
leased by the Chamber of Commerce and is not included in this project. Parcel two is
the second phase of this project. Parcel three is the first phase of the project.
Developer will have a two year option (from commencement of construction) to
purchase parcel two at the fair market price.
The approval and execution of the Disposition and Development Agreement does not
grant the Developer project approval. Under this Disposition and Development
Agreement, the Agency is obligated to sell the land in phase I to the Developer,
provided all terms and conditions in the Disposition and Development Agreement have
been met. The Developer would be responsible for obtaining a commercial planned
development permit, building permit and paying all governmental /utility fees associated
with the project. The Planning Commission would also need to review the project and
make a recommendation to the City Council; the City Council will have the ultimate
project approval. Further, if the Developer fails to secure project approval from the City
Council, the Agency will not sell the land and will begin marketing the Property again for
redevelopment purposes.
FISCAL IMPACT
The Agency would receive a cash payment of $149,683.00 at the close of escrow,
which is $75,000.00 less than the amount mentioned in previous staff reports. The
Developer will in turn utilize the $75,000.00 to comply with the required CEQA
(California Environmental Quality Act) process.
The Agency would make a loan for the balance of the purchase price to the Developer
for $971,647.00 for 10 years. Monthly interest only payments would be an estimated
$6,680.07 or $80,160.87 per year the loan is outstanding. Interest payments may be
deferred until phase I is 90% leased. The Agency would receive $971,647.00 upon
repayment of the loan. If the Developer makes interest only payments for the term of
the loan, the Agency would receive a total of $801,608.77 in interest payments. In
addition, the project is estimated to generate over $500,000.00 in net tax increment for
the Agency over the first ten years and create 50 new jobs.
POTENTIAL RISKS
Every real estate or development transaction has some level of risk. In this transaction
with the Developer, the Agency has a risk exposure of $971,647.00 plus LAIF (Local
100003
Honorable Agency Board of Directors
December 3, 2008
Page 4
Area Investment Fund) interest accrual, which would be an estimated, at the current
rate of 2.77 %, $2,242.88 per month or $26,914.62 per year.
The Agency's financial risk is mitigated by provisions in the Disposition and
Development Agreement, which provide protection to the Agency against transfers of a
developer's interest, lien holder foreclosure, stalls, abandonment, and bankruptcy by
developer.
The Disposition and Development Agreement will be originally executed by the Agency
and Developer (Aszkenazy Development, Inc.). The Developer has informed the
Agency that the Developer's interest in the Disposition and Development Agreement will
be transferred to a Limited Liability Partnership (LLP) prior to closing escrow and
beginning construction. Severyn Aszkenazy and other individuals will be the owners
and managers of the LLP. Any transfer of Developer interest not allowed in the DDA
shall be approved in writing by the Executive Director of the Agency.
The LLP typically only has a sole asset, which in this case would be the project the
Developer is proposing to construct. LLP entities provide greater security for the lender
and developer as the asset is isolated from the developer's portfolio. The lender
benefits because the construction financing is secured by the only asset of the
business, which means it cannot be used as equity for other projects of the parent
company. The developer benefits from the LLP because it shields the parent company
from litigation and any other adverse action against the LLP.
A worst case scenario with the development of the Property would be the LLP walking
away from the project or declaring bankruptcy. In this scenario, the Agency would have
the following two options:
Option one is to allow the lender to foreclose on the Property. The lender
would foreclose on the first deed of trust against the Property and sell the
project to another developer or hire a contractor to finish the project in
accordance with the recorded Disposition and Development Agreement.
Under this option, the Agency would lose its collateral for the Agency loan
and most likely not be able recover the Agency loan.
Option two is to retake control of the Property and repay the first deed of
trust (security for the construction loan). The Agency has the right to
reenter and take possession of the Property, with all improvements, if the
developer walks away, stalls the development or declares bankruptcy.
Such right to reenter, terminate and revest shall be subject to and be
limited by and shall not defeat, render invalid or limit:
s �,)o 04
Honorable Agency Board of Directors
December 3, 2008
Page 5
1. Any mortgage or deed of trust permitted by the Disposition and
Development Agreement; or
2. Any rights or interests provided in the Disposition and Development
Agreement for the protection of the holders of such mortgages or
deeds of trust.
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1. Adopt Resolution No. 2008 —
Agreement subject to final language
Agency General Counsel; and
approving Disposition and Development
approval by the Executive Director and
2. Authorize the Chair of the Redevelopment Agency to execute all documents
necessary for this transaction.
EXHIBIT "A" Aerial
EXHIBIT "B" Site Plan
EXHIBIT "C" Elevation
EXHIBIT "D" Disposition and Development Agreement
EXHIBIT "E" Resolution No. 2008 -
00005
IEXHIBIT
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EXHIBIT B
PHASE I
PHASE!!
OEVELOPMW SUMMARY
PARKING PROVIDED
PARKING PROVIDED
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B0,095 Sf Ste Atea ( 19 acres)
27.0113 si ;te Area (0 C, aC *eal
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EXISTING STANDARD
PROPOSED OPTIONAL STANDARD
49,140 Sf 7;8p1 BG'M n 91
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60 East:At
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21,850 <t 2nd Fbor
12.322 sf 2:4 Fkxx
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0.61 FAR
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PARKING REQUIRED
PARKING REQUIRED
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10200 fl a m m ?, 1,100
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ELEVATION
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EXHIBIT D
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
and When Recorded Mail to:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attn: Steven Kueny
Executive Director
FOR RECORDER'S USE
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
REDEVELOPMENT AGENCY of the CITY OF MOORPARK
and
ASZKENAZY DEVELOPMENT, Inc.
DATED December 3, 2008
A MOORPARK REDEVELOPMENT PROJECT
f -)0009
ATTACHMENTS
Attachment No. 1 Site Map
Attachment No. 2 Site Legal Description
Attachment No. 3 Grant Deed
Attachment No. 4 Schedule of Performance
Attachment No. 5 Scope of Development
Attachment No. 6 Release of Construction Covenants
Attachment No. 7 Loan Agreement
Attachment No. 8 Deed of Trust
0 0010
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement ") is
entered into as of , 2008, by and between the
REDEVELOPMENT AGENCY of the CITY OF MOORPARK, a public body, corporate
and politic (the "Agency "), and ASZKENAZY DEVELOPMENT, INC., a California
corporation (the "Developer ").
RECITALS
The following recitals are a substantive part of this Agreement:
A. In furtherance of the objectives of the California Community Redevelopment Law,
the Agency desires to redevelop a parcel (the "Site ") which is a portion of a larger
parcel comprising approximately 1.84 acres (see Attachment No. 2) located on the
south side of High Street generally between 200 feet east of Moorpark Avenue and
the north Metrolink parking lot in the City of Moorpark, and from five hundred (500)
feet below grade up to thirty -five (35) feet above street level (the "Upper Limit "). The
air space within the exterior boundaries, or footprint of the Site located above the
Upper Limit will be reserved by the Agency and is referred to herein as the "Air
Space ".
B. The Site is currently owned by the Agency and is partially improved.
C. The Agency and the Developer desire by this Agreement for the Agency to agree to
convey the Site to the Developer, and for the Developer to agree to construct one
new commercial building totaling approximately 50,000 square feet of Gross
Leasable Area ( "GLA ") of retail and office space on the Site including supporting
parking, a green space area and other on -site or off -site improvements (collectively,
the "Improvements ") consistent with the adopted City General Plan, zoning and
development standards.
D. The Agency's disposition of the Site to the Developer, and the Developer's
acquisition of the Site and construction of the Improvements pursuant to the terms of
this Agreement, are in the vital and best interest of the Redevelopment Agency of
the City of Moorpark, the City, and the health, safety, morals and welfare of its
residents, and in accord with the public purposes and provisions of applicable state
and local laws and requirements under which the redevelopment of the Project has
been undertaken.
NOW, THEREFORE, the Agency and the Developer hereby agree as follows:
100. DEFINITIONS
"Actual Knowledge" is defined in Section 208.1 hereof
"Agency" means the Redevelopment Agency of the City of Moorpark, a public
body, corporate and politic, exercising governmental functions and powers and
organized and existing under Chapter 2 of the Community Redevelopment Law of the
State of California, and any assignee of or successor to its rights, powers and
responsibilities.
100011
3
"Agency's Conditions Precedent" means the conditions precedent to the
Closing to the benefit of the Agency, as set forth in Section 205.1 hereof.
"Agreement" means this Disposition and Development Agreement between the
Agency and the Developer.
"City" means the City of Moorpark, a California municipal corporation.
"Closing" means the close of Escrow for the conveyance of the Site from the
Agency to the Developer, as set forth in Section 202 hereof.
hereof
"Closing Date" means the date of the Closing, as set forth in Section 202.4
"Condition of Title" is defined in Section 203 hereof.
"Aszkenazy Development" means Aszkenazy Development, Inc., a California
corporation. As of the date of this Agreement, Martha Diaz Aszkenazy and Severyn I.
Aszkenazy are the sole shareholders of Aszkenazy Development.
"Date of Agreement" means the date set forth in the first paragraph hereof.
"Default" means the failure of a party to perform any action or covenant required
by this Agreement within the time periods provided herein following notice and
opportunity to cure, as set forth in Section 501 hereof.
"Design Development Drawings" means those plans and drawings to be
submitted to the City for its approval, pursuant to Section 302 hereof.
"Developer" means solely Aszkenazy Development, Inc., a California
corporation; no development partners are party to this Agreement without the expressed
written approval from the Executive Director of the Agency.
"Development Approval Process" means the process the Developer shall
undertake to secure all necessary entitlements and other City approvals to construct the
Improvements, including without limitation, the approvals listed in the following clauses
a, b and c. The Developer shall apply for and use its reasonable good faith efforts to
secure the following:
a. Commercial Planned Development Permit.
b. All permits required by the City, County of Ventura, and other
governmental agencies with jurisdiction over the Improvements, including the
State General Construction Storm Water Permit's Storm Water Pollution
Prevention Plan requirements and any other requirements therein.
C. Certification or adoption of an environmental impact review document
under the California Environmental Quality Act ( "CEQA ").
The Developer shall pay all costs, charges and fees associated with the
foregoing, except that, if the Project is included with any other projects in the definition
of the project in any environmental impact review document under CEQA, then
Developer shall be responsible only for the costs associated therewith, including costs
for any mitigation measures adopted in connection therewith, that are reasonably
allocable to the Project.
4
"Developer's Conditions Precedent" means the conditions precedent to the
Closing to the benefit of the Developer, as set forth in Section 205.2.
"Environmental Laws" means any federal, state or local law, statute, ordinance
or regulation pertaining to environmental regulation, contamination or cleanup of any
Hazardous Materials, including, without limitation, (i) Sections 25115, 25117, 25122.7 or
25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste Control Law)), (ii) Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter - Presley- Tanner Hazardous Substance Account
Act), (iii) Section 25501 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) Section 25281
of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) Article 9 or Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (vi) Section 311 of the Clean Water Act (33
U.S.C.§ 1317), (vii) Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. §6901 et seq.(42 U.S.C. §6903), (viii) Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq.
"Escrow" is defined in Section 202 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Exceptions" is defined in Section 203 hereof.
"Governmental Requirements" means all laws, ordinances, statutes, codes,
rules, regulations, orders and decrees of the United States, the state, the county, the
City, or any other political subdivision in which the Site is located, and of any other
political subdivision, agency or instrumentality exercising jurisdiction over the Agency,
the Developer or the Site.
"Grant Deed" means the grant deed for the conveyance of the Site from the
Agency to the Developer, in the form of Attachment No. 3 hereto which is incorporated
herein.
"Hazardous Materials" means any substance, material, or waste which is
regulated by any local governmental authority, the State of California, or the United
States Government, including, but not limited to, any material or substance which is (i)
defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous
waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of
the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter - Presley- Tanner
Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Section 25501 of the California Health and
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code,
5 1 030015
Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section
311 of the Clean Water Act (33 U.S.C. § 1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
§6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §9601 et seq.
"Improvements" means the improvements to be constructed by the Developer
either on or off the Site. The improvements include but are not limited to the
construction of one, two story, commercial building constructed with concrete, concrete
block or other material acceptable to the City Planning Department, of approximately
50,000 square feet of GLA and supporting parking, landscaping and off site
improvements all more particularly described herein and in the Scope of Development.
"Lender" is defined in Section 311.2 hereof.
"Notice" shall mean a notice in the form prescribed by Section 601 hereof.
"Outside Date" shall mean the last date the Closing may occur, as set forth in
Section 202.4 hereof.
"Property" means the 1.84 acre parcel owned by the Agency of which the Site is
a portion.
"Project" shall mean the removal of the existing improvements on the Site; the
construction of one, two story, commercial building constructed with concrete, concrete
block or other material acceptable to the City Planning Department, of approximately
50,000 square feet of Gross Leasable Area ( "GLA ") and supporting parking at levels
approved by the City and landscape improvements all more particularly described
herein and in the Scope of Development; and any other improvements required as
conditions of approval under the Development Approval Process.
"Purchase Price" means the price to be paid by the Developer to the Agency in
consideration for the conveyance of fee title to the Site.
"Release of Construction Covenants" means the document which evidences
the Developer's satisfactory completion of the Improvements, as set forth in Section 310
hereof, in the form of Attachment No. 6 hereto which is incorporated herein.
"Report" means the preliminary title report, as described in Section 203 hereof.
"Schedule of Performance" means the Schedule of Performance attached
hereto as Attachment No. 4 and incorporated herein, setting out the dates and /or time
periods by which certain obligations set forth in this Agreement must be accomplished.
The Schedule of Performance is: (a) subject to revision from time to time as mutually
agreed upon in writing between the Developer and the Agency's Executive Director, and
the Agency's Executive Director is authorized to make such revisions as he or she
deems reasonably necessary; and (b) subject to' the provisions of Section 602.
"Scope of Development" means the Scope of Development attached hereto as
Attachment No. 5 and incorporated herein, which describes the scope, amount and
quality of development of the Improvements to be constructed by the Developer
pursuant to the terms and conditions of this Agreement.
00014
"Site" generally is defined in Recital Paragraph A.
"Site Legal Description" means the description of the Site which is attached
hereto as Attachment No. 2 and incorporated herein.
"Site Map" means the map of the Site which is attached hereto as Attachment
No. 1 and incorporated herein.
"Stabilization" means the point in time when the Developer has leased 90% of
the leasable square footage in the Project .
"Title Company" is defined in Section 203 hereof.
"Title Policy" is defined in Section 204 hereof.
200. CONVEYANCE OF THE SITE
201. Purchase and Sale of Site. The Agency has fee title to the entire Site as
defined in Site Legal Description in Section 100 hereof. Subject to all of the terms and
conditions of this Agreement, Agency shall sell the Site to Developer, and Developer
shall purchase the Site from Agency, for the purchase price of One Million One Hundred
Twenty -one Thousand Three Hundred Thirty Dollars ($1,121,330.00) (the "Purchase
Price "), payable in legal tender of the United States of America, unless provisions to the
contrary are provided herein. The Purchase Price has been established as the fair
market value of the Site, based on the appraised value of the Property (of which the Site
is a part) in an unimproved condition, as set forth in an independent MAI appraisal
obtained by the Agency.
The Developer will give the Agency a down payment of One Hundred Forty -Nine
Thousand Six Hundred Eighty -Three Dollars ($149,683.00). If the California
Environmental Quality Act (CEQA) review for the Project is a mitigated negative
declaration or lower level of review, Developer shall provide an addition deposit to. the
Agency in the amount of Twenty -Five Thousand Dollars ($25,000.00) as an additional
down payment. The Agency shall make a loan to the Developer for the remainder of
the Purchase Price ( "Agency Loan "). The terms and conditions of the Agency Loan are
further described in section 312.
Developer agrees that it shall not purchase the Site for speculation in
undeveloped land. Developer further agrees to resell the Site to the Agency at the
Purchase Price plus any interest paid by Developer under the Agency Loan Note if
development does not commence in accordance with the Schedule of Performance
(Attachment 4), subject to force majeure pursuant to Section 602.
Agency will subdivide, under governmental exemption from the California
Subdivision Map Act, the Property into three parcels. The Agency intends to lease
Parcel 1 to the Chamber of Commerce, which lease and use is not included in the
Project. Parcel 3 (sometimes referred to as the "East Lot ") is the Site to be purchased
and developed with the project, consisting of the portion of the Property from Bard
Street to the north Metrolink parking lot. The remaining Parcel 2 is between Parcel 1
and the Site. The Agency will sell Parcel 2 to the Developer under a second Disposition
and Development Agreement after the Project has achieved Stabilization. If
Stabilization has not occurred within two years after commencement of construction of
the Project, then the right hereunder to acquire the Parcel 2 shall expire.
It is understood and agreed that the above - referenced Purchase Price for the
Site is or exceeds the "fair market price" for such parcels, as that term is used in
California Labor Code Section 1720(b)(3), based upon an appraisal completed by a
state - certified appraiser, and accordingly the Project is not subject to the prevailing
wage laws (California Labor Code Section 1720 et seq.) (the "Prevailing Wage Laws ").
Notwithstanding the foregoing, should any portion of the Project be deemed to be
subject to the requirements of California Labor Code Section 1771 and related sections,
the Developer agrees to comply with the requirements therein.
The Developer, for itself and its contractors, hereby expressly agrees that
the Agency has satisfied its obligations under the Prevailing Wage Laws to identify
projects as being subject to the Prevailing Wage Laws and any other obligations
imposed upon the Agency under California Labor Code Sections 1726 and /or 1781 that
are owed to or may be actionable by the Developer and its contractors. The Developer,
for itself and its contractors, hereby expressly waives any right of action against the
Agency created under California Labor Code Sections 1726 and /or 1781, whether
known or unknown, foreseen or unforeseen relating to the Project and /or any public
improvement. Furthermore, the Developer agrees to defend and indemnify the Agency
and the City, and their respective agents, employees and assigns, against any and all
claims, fines, suits or penalties arising out of any failure of the Developer to comply with
the requirements of California Labor Code Section 1771 and related sections or out of
the failure by City or Agency to require compliance by the Developer with such sections,
including, without limitation, suits brought by subcontractors.
Real property taxes and assessments, if any, on the Site, and taxes upon this
Agreement or any rights hereunder levied, assessed, or imposed as to any period prior
to conveyance of title, shall be borne by Agency. All real property taxes and
assessments levied or imposed on the Site as to any period after the transfer of title
shall be paid by Developer.
202. Escrow. Within thirty (30) days after the full execution and delivery of this
Agreement, the parties shall open escrow ( "Escrow ") with Chicago Title Insurance
Company, or another escrow company mutually satisfactory to both parties (the
"Escrow Agent ") for the purchase and sale of the Site.
202.1 Costs of Escrow. Agency and Developer shall pay their respective
portions of the premium for the Title Policy as set forth in Section 204 hereof, the
Agency shall pay for the documentary transfer taxes, if any, due with respect to the
conveyance of the Site, and Developer and Agency each agree to pay one -half of all
other usual fees, charges, and costs which arise from each Escrow.
202.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Agency, and the Escrow Agent to whom these
instructions are delivered is hereby empowered to act under this Agreement. The
parties hereto agree to do all acts reasonably necessary to close this Escrow in the
shortest possible time. Insurance policies for fire or casualty are not to be transferred,
and Agency will cancel coverage of the Site from its own policies upon sale. All funds
received in Escrow shall be deposited with other escrow funds in a general escrow
account(s) and may be transferred to any other such escrow trust account in any State
or National Bank doing business in the State of California. All disbursements shall be
made by check from such account. However, if Escrow does not close within two (2)
business days from deposit of the funds by the Agency and Developer the funds shall
be deposited into an interest bearing account with such interest accruing to the benefit
of each party.
If in the opinion of either party it is necessary or convenient in order to accomplish the
Closing of this transaction, such party may require that the parties sign supplemental
escrow instructions; provided that if there is any inconsistency between this Agreement
and the supplemental escrow instructions, then the provisions of this Agreement shall
control. The parties agree to execute such other and further documents as may be
reasonably necessary, helpful or appropriate to effectuate the provisions of this
Agreement. The Closing shall take place when both the Agency's Conditions Precedent
and the Developer's Conditions Precedent as set forth in Section 205 have been
satisfied. Escrow Agent is instructed to release Agency's escrow closing and
Developer's escrow closing statements to the respective parties.
shall:
202.3 Authority of Escrow Agent. Escrow Agent is authorized to and
a. Pay and charge Agency for the premium of the Title Policy and any
amount necessary to place title in the condition necessary to satisfy
Section 203 of this Agreement.
b. Pay and charge Developer and Agency for their respective shares of any
escrow fees, charges, and costs payable under Section 202.1 of this
Agreement.
c. Pay and charge Developer for any endorsements to the Title Policy which
is requested by the Developer.
d. Disburse funds, and deliver and record the Grant Deed when both the
Developer's Conditions Precedent and the Agency's Conditions Precedent
have been fulfilled or waived by Developer and Agency.
e. Do such other actions as necessary, including obtaining the Title Policy, to
fulfill its obligations under this Agreement.
f. Within the discretion of Escrow Agent, direct Agency and Developer to
execute and deliver any instrument, affidavit, and statement, and to
perform any act reasonably necessary to comply with the provisions of
Foreign Investment Real Property Tax Act (FIRPTA) and any similar state
act and regulation promulgated there under. Agency agrees to execute a
Certificate of Non - Foreign Status by individual transferor and /or a
Certification of Compliance with Real Estate Reporting Requirement of the
1986 Tax Reform Act as may be required by Escrow Agent, on the form to
be supplied by Escrow Agent.
E
0001""
g. Prepare and file with all appropriate governmental or taxing authorities a
uniform settlement statement, closing statement, tax withholding forms
including an IRS 1099 -S form, and be responsible for withholding taxes, if
any such forms are provided for or required by law.
202.4 Closing. This transaction will close within fifteen (15) days of the
parties' satisfaction of all of Agency's and Developer's Conditions Precedent to Closing
as set forth in Section 205 hereof, but in no event later than the later of (a) thirty (30)
days after the certification or adoption by the Agency or City of an environmental impact
review document covering the Project under CEQA, and the expiration of all applicable
appeal periods without appeal or action having been taken or brought, or if appeal or
action is taken or brought, upon the resolution, with prejudice of such appeal or action
upholding the governmental approvals and CEQA document relating to the Project
(collectively, "CEQA Approval "), or (b) December 30, 2009 (the "Outside Date "). The
Closing shall occur at a location within Ventura County at a time and place reasonably
agreed on by the parties. The "Closing" shall mean the Grant Deed is filed for recording
with the Ventura County Recorder. The "Closing Date" shall mean the day on which the
Closing occurs.
202.5 Termination. If (except for deposit of money by Developer, which
shall be made by Developer before the Closing) Escrow is not in condition to close by
the Outside Date, then either party which has fully performed under this Agreement
may, in writing, demand the return of money or property and terminate this Agreement.
If either party makes a written demand for return of documents or properties, this
Agreement shall not terminate until five (5) days after Escrow Agent shall have
delivered copies of such demand to all other parties at the respective addresses shown
in this Agreement. If any objections are raised within said five (5) day period, Escrow
Agent is authorized to hold all papers and documents until instructed by a court of
competent jurisdiction or by mutual written instructions of the parties. Developer,
however, shall have the sole option to withdraw any money deposited by it for the
acquisition of the Site less Developer's share of costs of Escrow. Termination of this
Agreement shall be without prejudice as to whatever legal rights either party may have
against the other arising from this Agreement. If no demands are made, the Escrow
Agent shall proceed with the Closing as soon as possible.
202.6 Closing Procedure. Escrow Agent shall close Escrow for the Site
as follows:
a. Record the Grant Deed with instructions for the Recorder of Ventura
County, California to deliver the Grant Deed to Developer;
b. Instruct the Title Company to deliver the Title Policy to Developer;
c. File any informational reports required by Internal Revenue Code Section
6045(e), as amended, and any other applicable requirements; and
d. Deliver the FIRPTA Certificate, if any, to Developer;
e. Forward to both Developer and Agency a separate accounting of all funds
received and disbursed for each party and copies of all executed and
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recorded or filed documents deposited into Escrow, with such recording
and filing date and information endorsed thereon.
203. Review of Title. The Agency shall cause Chicago Title Insurance
Company, or another title company mutually agreeable to both parties (the "Title
Company "), to deliver to Developer a standard preliminary title report (the "Report") with
respect to the title to the Site, together with legible copies of the documents underlying
the exceptions ( "Exceptions ") set forth in the Report, within thirty (30) days from the
date of this Agreement. The Developer shall have the right to reasonably approve or
disapprove the Exceptions.
Developer shall have thirty (30) days from the date of its receipt of the Report to give
written notice to Agency and Escrow Holder of Developer's approval or disapproval of
any of such Exceptions. Developer's failure to give written disapproval of the Report
within such time limit shall be deemed approval of the Report. If Developer notifies
Agency of its disapproval of any Exceptions in the Report, Agency shall have the right,
but not the obligation to notify Developer within ten (10) business days after receiving
written notice of Developer's disapproval that such Exception(s) will be removed on or
before the Closing. If Agency cannot or does not elect to remove any of the disapproved
Exceptions within that period, Developer shall have ten (10) business days after the
expiration of such ten (10) business day period to either give the Agency written notice
that Developer elects to proceed with the purchase of the Site subject to the
disapproved Exceptions or to give the Agency written notice that the Developer elects to
terminate this Agreement. The Exceptions approved by Developer as provided herein
shall hereinafter be referred to as the "Condition of Title." Developer shall have the right
to approve or disapprove any Exceptions reported by the Title Company after Developer
has approved the Condition of Title for the Site (which are not created by Developer).
Agency shall not voluntarily create any new exceptions to title following the date of this
Agreement.
204. Title Insurance. Concurrently with recordation of the Grant Deed conveying
title to the Site, there shall be issued to Developer an owner's extended coverage policy
of title insurance (the "Title Policy "), which shall be in ALTA form unless the Developer
has failed to deliver to the Title Company any requisite survey, in which case it shall be
in CLTA form, together with such endorsements as are reasonably requested by the
Developer, issued by the Title Company insuring that the title to the Site is vested in
Developer in the condition required by Section 203 of this Agreement. The Title
Company shall provide the Agency with a copy of the Title Policy. The Title Policy shall
be for the amount of the Purchase Price. The Agency agrees to remove on or before the
Closing any deeds of trust or other monetary liens against the Site. The Agency shall
pay that portion of the premium for the Title Policy equal to the cost of a CLTA standard
coverage title policy in the amount of the Purchase Price. Any additional costs, including
the cost of an ALTA policy or any endorsements requested by the Developer, shall be
borne by the Developer.
205. Conditions of Closing. The Closing is conditioned upon the satisfaction of
the following terms and conditions within the times designated below:
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205.1 Agency's Conditions of Closing. Agency's obligation to proceed
with the Closing of the sale of the Site is subject to the fulfillment or waiver by Agency of
each and all of the conditions precedent (a) through (g), inclusive, described below
( "Agency's Conditions Precedent "), which are solely for the benefit of Agency, and
which shall be fulfilled or waived by the time periods provided for herein:
a. No Default. Prior to the Closing, Developer is not in default in any of its
obligations under the terms of this Agreement and all representations and
warranties of Developer contained herein shall be true and correct in all
material respects.
b. Execution of Documents. The Developer shall have executed the Grant
Deed and executed any other documents required hereunder and
delivered such documents into Escrow.
c. Payment of Closing Costs. Prior to the Closing, Developer has paid all
required costs of Closing into Escrow in accordance with Section 202
hereof.
d. Design Approvals. The Developer shall have obtained approval by the
Agency of the Design Development Drawings as set forth in Section 302
hereof.
e. Land Use Approvals. The Developer shall have received all land use
approvals and permits required pursuant to Section 303 hereof, including
CEQA Approval.
f. Insurance. The Developer shall have provided proof of insurance as
required by Section 306 hereof.
g. Financing. The Agency shall have approved financing of the
Improvements as provided in Section 311.1 hereof.
205.2 Developer's Conditions of Closing. Developer's obligation to
proceed with the purchase of the Site is subject to the fulfillment or waiver by Developer
of each and all of the conditions precedent (a) through (k), inclusive, described below
( "Developer's Conditions Precedent "), which are solely for the benefit of Developer, and
which shall be fulfilled or waived by the time periods provided for herein:
a. No Default. Prior to the Closing, Agency is not in default in any of its
obligations under the terms of this Agreement and all representations and
warranties of Agency contained herein shall be true and correct in all
material respects.
b. Execution of Documents. The Agency shall have executed the Grant Deed
and any other documents required hereunder, and delivered such
documents into Escrow.
c. Payment of Closing Costs. Prior to the Closing, Agency shall have paid all
required costs of Closing into Escrow in accordance with Section 202
hereof.
00020,
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d. Review and Approval of Title. Developer shall have reviewed and
approved the condition of title of the Site, as provided in Section 203
hereof.
e. Title Policy. The Title Company shall, upon payment of Title Company's
regularly scheduled premium, have agreed to provide to the Developer the
Title Policy,_including ALTA coverage for the Site upon the Closing, in
accordance with Section 204 hereof.
f. Environmental. The Developer shall have approved the environmental
condition of the Site and shall not have elected to cancel Escrow and
terminate this Agreement pursuant to Section 208 hereof, and the
Remediation (if required pursuant to that Section) shall have been
completed as provided therein.
g. Design Approvals. The Developer shall have obtained approval of the
Design Development Drawings as set forth in Section 302 hereof.
h. Land Use Approvals. The Developer shall have received all land use
approvals and permits required pursuant to Section 303 hereof.
i. Site Condition. Developer shall have determined, in its sole and absolute
discretion, and advised Agency in writing that the Site Condition is
satisfactory as set forth in Section 208 hereof.
j. Parking Easement. The Developer shall secure a 20 foot parking
easement on the south side of the Site from the Ventura County
Transportation Commission ( "VCTC "). The easement shall be recorded
against VCTC's property and shall be in effect for a period no less than
forty (40) years. The terms and conditions of the easement shall be
approved by the City and Agency within thirty (30) days of receipt, and
include a condition allowing the easement to be assigned to the City
and /or Agency if the Site is reconveyed to the Agency. Cost of the parking
easement, if any, shall be borne by the Developer. The amount of the
easement must be acceptable to the developer.
k. First Right of Refusal. The Agency shall execute and submit to escrow, in
the name of the Developer, a First Right of Refusal to purchase and
develop Parcel 1 in a form reasonably acceptable to the Developer.
206. Representations and Warranties.
206.1 Agency Representations. Agency represents and warrants to
Developer as follows:
a. Authority. Agency is a public body, corporate and politic, existing
pursuant to the California Community Redevelopment Law (California
Health and Safety Code Section 33000), which has been authorized to
transact business pursuant to action of the City. Agency has full right,
power and lawful authority to grant, sell and convey the Site as provided
herein and the execution, performance and delivery of this Agreement by
Agency has been fully authorized by all requisite actions on the part of
Agency.
b. FIRPTA. Agency is not a "foreign person" within the parameters FIRPTA
or any similar state statute, or is exempt from the provisions of FIRPTA or
any similar state statute, or that Agency has complied and will comply with
all the requirements under FIRPTA or any similar state statute.
c. No Conflict. To the best of Agency's knowledge, Agency's execution,
delivery and performance of its obligations under this Agreement will not
constitute a default or a breach under any contract, agreement or order to
which Agency is a party or by which it is bound.
d. Lawsuits. There are no claims, actions, suits or proceedings, nor any
order, decree or judgment, in law or in equity in effect against or affecting
the Site.
e. Violations of Law. No outstanding notices of the violation of laws,
ordinances, orders, requirements or regulations of any government
agency related to the Site have been received by the Agency.
f. Leases and Contracts. The Agency will terminate any leases, rental
agreements or similar instruments creating an ownership interest in the
Site and no agreements relating to the upkeep, repair, maintenance and
operation of the Site prior to the Closing.
g. Special Assessments. Agency shall pay all assessments due on the
property on a prorated basis up to Closing.
h. Purchase Rights. No person, firm, corporation or other entity (other than
Developer by reason of this Agreement) has any right or option to acquire
the Site or any portion thereof as of the date of this Agreement.
Until the Closing, Agency shall, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 206.1 not to be
true as of Closing, immediately give written notice of such fact or condition to
Developer. Such exception(s) to a representation shall not be deemed a breach by
Agency hereunder, but shall constitute an exception which Developer shall have a right
to approve or disapprove if such exception would have an effect on the value and /or
operation of the Site. If Developer elects to close Escrow following disclosure of such
information, Agency's representations and warranties contained herein shall be deemed
to have been made as of the Closing, subject to such exception(s). If, following the
disclosure of such information, Developer elects to not close Escrow, then this
Agreement and the Escrow shall automatically terminate, and neither party shall have
any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 206.1 shall survive the Closing.
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00022 2
206.2 Developer's Representations. Developer represents and warrants
to Agency as follows:
a. Authority. Developer is a California corporation organized within and in
good standing under the laws of the State of California. The copies of the
documents evidencing the organization of the Developer which have been
delivered to the Agency are true and complete copies of the originals, as
amended to the date of this Agreement. Developer has full right, power and
lawful authority to purchase and accept the conveyance of the Site and
undertake all obligations as provided herein and the execution, performance
and delivery of this Agreement by Developer has been fully authorized by all
requisite actions on the part of the Developer.
b. No Conflict. To the best of Developer's knowledge, Developer's
execution, delivery and performance of its obligations under this Agreement
will not constitute a default or a breach under any contract, agreement or
order to which the Developer is a party or by which it is bound.
c. No Developer Bankruptcy. Developer is not the subject of a bankruptcy
proceeding.
Until thirty (30) days prior to the Closing of Escrow, Developer shall, upon learning of
any fact or condition which would cause any of the warranties and representations in
this Section 206.2 not to be true as of Closing, immediately give written notice of such
fact or condition to Agency. Such exception(s) to a representation shall not be deemed
a breach by Developer hereunder, but shall constitute an exception which Agency shall
have a right to approve or disapprove if such exception would have an effect on the
value and /or operation of the Site. If Agency elects to close Escrow following disclosure
of such information, Developer's representations and warranties contained herein shall
be deemed to have been made as of the Closing, subject to such exception(s). If,
following the disclosure of such information, Agency elects to not close Escrow, then
this Agreement and the Escrow shall automatically terminate, and neither party shall
have any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 206.2 shall survive the Closing.
207. Studies and Reports. Within thirty (30) days prior to the Closing,
representatives of Developer shall have the right of access to all portions of the Site
owned by the Agency for the purpose of obtaining data and making surveys and tests
necessary to carry out this Agreement, including the investigation of the environmental
condition of the Site pursuant to Section 208 hereof. Any preliminary work undertaken
on the Site by Developer prior to the Closing shall be done at the sole expense of the
Developer, and the Developer's execution of a right of entry agreement to be provided
by the Agency. Any preliminary work shall be undertaken only after securing any
necessary permits from the appropriate governmental agencies. The Site shall be
returned to its original condition after the preliminary work has been completed.
208. Condition of the Site
,;,-)0023
15
208.1 Disclosure. Prior to the execution of this Agreement, Agency has
determined there is no visible evidence to indicate the presence of Hazardous Materials
on the Site. The Agency hereby represents and warrants that it has no Actual
Knowledge, and has not received any notice or communication from any government
agency having jurisdiction over the Site, notifying Agency of, the presence of surface or
subsurface zone Hazardous Materials in, on, or under the Site, or any portion thereof.
"Actual knowledge," as used herein, shall not impose a duty of investigation, and shall
be limited to the actual knowledge of the Agency employees and agents who have
participated in the preparation of this Agreement.
208.2 Investigation of Site. Prior to execution of this Agreement, Agency
shall provide Developer with Phase 1 and Phase 2 (if recommended in Phase 1)
environmental assessments of the Site. The Developer's approval of the environmental
condition of the Site shall be a Developer's Condition Precedent to the Closing, as set
forth in Section 205 hereof. If the Developer, based upon the above environmental
reports, reasonably disapproves the environmental condition of the Site, then the
Developer may terminate this Agreement by written Notice to the Agency.
208.3 Remediation of Site. If the Developer does not elect to terminate
this Agreement pursuant to Section 208.2, based upon the environmental assessments
of the Site, the following provisions shall apply to the remediation of any Hazardous
Materials in, on or under the Site that are discovered in connection with the
environmental assessments of the Site.
If Developer determines that there are hazardous materials in, on, under or about the
Site, including the groundwater, or that the Site is or may be in violation of any
Environmental Law, or that the condition of the Site is otherwise unacceptable to
Developer, then the Developer shall notify the Agency and Escrow within thirty (30)
days of receipt of the Agency's Phase I and Phase 11. Agency and Developer shall
thereafter have thirty (30) days to negotiate an agreement with respect to remediation of
the Site, pursuant to which Agency shall commit to expend up to Fifty Thousand Dollars
($50,000) for Site remediation. If, at the end of such thirty (30) day period, Developer
and Agency have not come to an agreement with respect to remediation of the Site,
Developer shall, within three (3) days thereafter notify Agency of whether it elects to go
forward with the acquisition of the Site and pay all remediation costs in excess of Fifty
Thousand Dollars ($50,000), or whether it elects to terminate this Agreement, in which
event the Developer and Agency shall each be responsible for one -half of any Escrow
cancellation charges.
208.4 No Further Warranties as to Site. Except as otherwise provided
herein, the physical condition, possession or title of the Site is and shall be delivered
from Agency to Developer in an "as -is" condition, with no warranty expressed or implied
by Agency, including without limitation, its geology, the presence of known or unknown
seismic faults, or the suitability of the Site for the development purposes intended
hereunder.
208.5 Developer Precautions after Closing. Upon the Closing, the
Developer shall take all necessary precautions to prevent the release into the
environment of any Hazardous Materials which are located in, on or under the Site.
=oti024
16
Such precautions shall include compliance with all Governmental Requirements with
respect to Hazardous Materials. In addition, the Developer shall install and utilize such
equipment and implement and adhere to such procedures as are consistent with
commercially reasonable standards as respects the disclosure, storage, use, removal
and disposal of Hazardous Materials.
208.6 Required Disclosures after Closing. After the Closing, the
Developer shall notify the Agency, and provide to the Agency a copy or copies, of all
environmental permits, disclosures, applications, entitlements or inquiries relating to the
Site, including notices of violation, notices to comply, citations, inquiries, clean -up or
abatement orders, cease and desist orders, reports filed pursuant to self - reporting
requirements and reports filed or applications made pursuant to any Governmental
Requirement relating to Hazardous Materials and underground tanks. The Developer
shall report to the Agency, as soon as possible after each incident, any unusual or
potentially important incidents with respect to the environmental condition of the Site.
In the event of a release of any Hazardous Materials into the environment after the
Closing, the Developer shall, as soon as possible after the release, furnish to the
Agency a copy of any and all reports relating thereto and copies of all correspondence
with governmental agencies relating to the release. Upon request, the Developer shall
furnish to the Agency a copy or copies of any and all other environmental entitlements
or inquiries relating to or affecting the Site including, but not limited to, all permit
applications, permits and reports including, without limitation, those reports and other
matters which may be characterized as confidential.
208.7 Developer Indemnity. Upon the Closing, Developer agrees to
indemnify, defend and hold Agency harmless from and against any claim, action, suit,
proceeding, loss, cost, damage, liability, deficiency, fine, penalty, punitive damage, or
expense (including, without limitation, reasonable attorneys' fees) (collectively,
"Losses "), resulting from, arising out of, or based upon (i) the presence, release, use,
generation, discharge, storage or disposal of any Hazardous Materials on, under, in or
about, or the transportation of any such Hazardous Materials to or from, the Site after
the Closing, or (ii) the violation, or alleged violation, of any statute, ordinance, order,
rule, regulation, permit, judgment or license relating to the use, generation, release,
discharge, storage, disposal or transportation of Hazardous Materials on, under, in or
about, to or from, the Site after the Closing. This indemnity shall include, without
limitation, any Losses arising from or out of any claim, action, suit or proceeding for
personal injury (including sickness, disease or death), tangible or intangible property
damage, compensation for lost wages, business income, profits or other economic loss,
damage to the natural resource or the environment, nuisance, contamination, leak, spill,
release or other adverse effect on the environment. This indemnity shall exclude (a)
Losses resulting from migration of Hazardous Materials from any property owned by the
City or Agency including Lot 1 or, prior to the conveyance thereof to Developer, the East
Parcel; (b) Losses arising out of any Hazardous Materials existing on the Site prior to
the Closing; and (c) Losses arising out the acts or negligent omissions of the City,
Agency or their respective employees or agents.
17
300. DEVELOPMENT OF THE SITE
301. Scope of Development. The Developer shall develop the Improvements in
accordance with the Scope of Development, all applicable City development standards
and requirements, and the plans, drawings and documents submitted by the Developer
and approved by the Agency as set forth herein. The Improvements shall generally
consist of the construction of one, two story, commercial building constructed with
concrete, concrete block or other material acceptable to the City, of approximately
50,000 square feet of retail and office space, supporting parking, landscape
improvements and any other onsite and offsite improvements as required by the
Development Approval Process. The premises shall be leased for retail and office uses
in accordance with the Scope of Development included as Attachment 5 to this
Agreement.
302. Design Review.
302.1 Developer Submissions. Before commencement of construction of
the Improvements or other works of improvement upon the Site, and at or prior to the
times set forth herein, the Developer shall submit to the City any plans and drawings
(collectively, the "Design Development Drawings ") which may be required by the City
with respect to any entitlements and permits which are required to be obtained to
approve and develop the Improvements, and such plans for the Improvements as
required by the City in order for the Developer to obtain building and grading permits for
the Improvements. Within thirty (30) days after the City's disapproval or conditional
approval of such plans, the Developer shall revise the portions of such plans identified
by the City as requiring revisions and resubmit the revised plans to the City. In the
event that Developer objects to any of the proposed revisions, Developer and the City
shall meet and discuss the revisions. Developer shall complete Improvements within
one year from start of construction, subject to the provisions of Section 602.
302.2 City Review and Approval. The City shall have all rights to review
and approve or disapprove all Design Development Drawings and other required
submittals in accordance with the City Municipal Code, and nothing set forth in this
Agreement shall be construed as the City's approval of any or all of the Design
Development Drawings.
302.3 Revisions. Any and all change orders or revisions required by the
City and its inspectors which are required under the Municipal Code and all other
applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under
other applicable laws and regulations shall be included by the Developer in its Design
Development Drawings and other required submittals and shall be completed during the
construction of the Improvements.
302.4 Defects in Plans. The Agency and the City shall not be responsible
either to the Developer or to third parties in any way for any defects in the Design
Development Drawings, nor for any structural or other defects in any work done
according to the approved Design Development Drawings, nor for any delays
reasonably caused by the review and approval processes established by this Section
302.
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303. Land Use Approvals. Before commencement of construction of the
Improvements or other works of improvement upon the Site, the Developer shall, at its
own expense, secure or cause to be secured any and all land use and other
entitlements, permits and approvals which may be required for the Improvements by the
City or any other governmental agency affected by such construction or work, except for
those which are the responsibility of the Agency as set forth herein. The Developer
shall, without limitation, apply for and use its reasonable good faith efforts to secure the
following:
a. Commercial Planned Development Permit.
b. All permits by the City, County of Ventura, and other governmental
agencies with jurisdiction over the Improvements, including the State
General Construction Storm Water Permit's Storm Water Pollution
Prevention Plan requirements and any other requirements therein.
c. CEQA Approval.
The Developer shall pay all costs, charges and fees associated with the foregoing,
except that, if the Project is included with any other projects in the definition of the
project in any environmental impact review document under CEQA, then Developer
shall be responsible only for the costs associated therewith, including costs for any
mitigation measures adopted in connection therewith, that are reasonably allocable to
the Project. However, the execution of this Agreement does not constitute the granting
of or a commitment to obtain any required land use permits, entitlements or approvals
required by the Agency or the City Planning Department, including CEQA Approval.
304. Schedule of Performance. Subject to the provisions of Section 602, the
Developer shall submit all Design Development Drawings, commence and complete all
construction of the Improvements, and satisfy all other obligations and conditions of this
Agreement within the times established therefore in the Schedule of Performance which
is attached hereto as Attachment No. 4 and incorporated herein.
305. Cost of Construction. Except to the extent otherwise expressly set forth in
this Agreement, all of the cost of planning, designing, developing and constructing all of
the Improvements shall be borne solely by the Developer.
306. Insurance Requirements. The Developer shall take out and maintain until
the issuance of the Release of Construction Covenants pursuant to Section 310 of this
Agreement, a comprehensive general liability policy in the amount of Two Million Dollars
($2,000,000) combined single limit policy, and a comprehensive automobile liability
policy in the amount of One Million Dollars ($1,000,000), combined single limit, or such
other policy limits as the Agency may approve at its discretion, including contractual
liability, as shall protect the Developer, City and Agency from claims for such damages.
Such policy or policies shall be written on an occurrence basis. The Developer shall
also furnish or cause to be furnished to the Agency evidence satisfactory to the Agency
that Developer and any contractor with whom it has contracted for the performance of
work on the Site or otherwise pursuant to this Agreement carries workers' compensation
insurance as required by law. The Developer shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on a form approved by
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the Agency setting forth the general provisions of the insurance coverage. This
countersigned certificate shall name the City and the Agency and their respective
officers, agents, and employees as additionally insured parties under the policy, and the
certificate shall be accompanied by a duly executed endorsement evidencing such
additional insured status. The certificate and endorsement by the insurance carrier shall
contain a statement of obligation on the part of the carrier to notify City and the Agency
of any material change, cancellation or termination of the coverage at least thirty (30)
days in advance of the effective date of any such material change, cancellation or
termination. Coverage provided hereunder by the Developer shall be primary insurance
and not be contributing with any insurance maintained by the Agency or City, and the
policy shall contain such an endorsement. The insurance policy or the endorsement
shall contain a waiver of subrogation for the benefit of the City and the Agency. The
required insurance shall be obtained and the required certificate shall be furnished by
the Developer at the time set forth therefore in the Schedule of Performance.
307. Developer's Indemnity. The Developer shall defend (with counsel
reasonably acceptable to Agency), indemnify, assume all responsibility for, and hold the
Agency and the City, and their representatives, volunteers, officers, employees and
agents, harmless from, all claims, demands, damages, defense costs or liability of any
kind or nature relating to the subject matter of this Agreement or the implementation
hereof or any entitlements for or environmental review of the Improvements and for any
damages to property or injuries to persons, including accidental death (including
attorneys fees and costs) which may be caused by any acts or omissions of the
Developer under this Agreement, whether such activities or performance thereof be by
the Developer or by anyone directly or indirectly employed or contracted with by the
Developer and whether such damage shall accrue or be discovered before or after
termination of this Agreement. The Developer shall not be liable for property damage or
bodily injury occasioned by the negligence of the City, the Agency or their designated
agents or employees.
308. Rights of Access. Prior to the issuance of a Release of Construction
Covenants (as specified in Section 310 of this Agreement), for purposes of assuring
compliance with this Agreement, representatives of the Agency shall have the right of
access to the Site, without charges or fees, at normal construction hours during the
period of construction for the purposes of this Agreement, including but not limited to,
the inspection of the work being performed in constructing the Improvements so long as
Agency representatives comply with all safety rules. Until the Release of Construction
Covenants, Agency shall defend, indemnify, assume all responsibility for and hold the
Developer harmless from and against any and all third party liabilities, suits, actions,
claims, demands, penalties, damages, losses, costs or expenses which result from the
exercise of such entry. The Agency (or its representatives) shall, except in emergency
situations, notify the Developer prior to exercising its rights pursuant to this Section 308.
309. Compliance with Laws. The Developer shall carry out the design and
construction of the Improvements in conformity with all applicable laws, including all
applicable state labor standards, the City zoning and development standards, building,
plumbing, mechanical and electrical codes, and all other provisions of the City of
Moorpark Municipal Code, and all applicable disabled and handicapped access
20 1_ ;OOZ8
requirements, including without limitation the Americans With Disabilities Act, 42 U.S.C.
Section 12101, et seq., Government Code Section 4450, et seq., Government Code
Section 11135, et seq., and the Unruh Civil Rights Act, Civil Code Section 51, et seq.
309.1 Taxes and Assessments. Commencing on the Closing and
continuing throughout Developer's ownership of the Site, the Developer shall pay prior
to delinquency all ad valorem real estate taxes and assessments on the Site, subject to
the Developer's right to contest in good faith any such taxes. The Developer shall
remove or have removed any levy or attachment made on the Site or any part thereof,
or assure the satisfaction thereof within a reasonable time. The Developer shall not
apply for or receive any exemption from the payment of property taxes or assessments
on any interest in or to the Site or the Improvements.
309.2 Liens and Stop Notices. The Developer shall not allow to be
placed on the Site or any part thereof any lien or stop notice which are caused by any
acts or omissions of Developer or anyone directly or indirectly employed by or
contracted with the Developer. If such a claim of a lien or stop notice is given or
recorded affecting the Improvements the Developer shall within thirty (30) days of such
recording or service or within five (5) days of the Agency's demand whichever last
occurs:
a. Pay and discharge the same; or
b. Affect the release thereof by recording and delivering to the Agency a
surety bond in sufficient form and amount, or otherwise; or
c. Provide the Agency with other assurance which the Agency deems, in its
sole discretion, to be satisfactory for the payment of such lien or bonded
stop notice and for the full and continuous protection of Agency from the
effect of such lien or bonded stop notice.
310. Release of Construction Covenants. Promptly after completion of the
Improvements in conformity with this Agreement, the Agency shall furnish the
Developer with a "Release of Construction Covenants," substantially in the form of
Attachment No. 6 hereto which is incorporated herein by reference. The Agency shall
not unreasonably withhold such Release of Construction Covenants. The Release of
Construction Covenants shall be a conclusive determination of satisfactory completion
of the Improvements and the Release of Construction Covenants shall so state. Any
party then owning or thereafter purchasing, leasing or otherwise acquiring any interest
in the Site shall not (because of such ownership, purchase, lease or acquisition) incur
any obligation or liability under this Agreement except for those continuing covenants as
set forth in Section 400 of this Agreement.
If the Agency refuses or fails to furnish the Release of Construction Covenants, after
written request from the Developer, the Agency shall, within thirty (30) days of written
request therefore, provide the Developer with a written statement of the reasons the
Agency refused or failed to furnish the Release of Construction Covenants. The
statement shall also contain the Agency's opinion of the actions the Developer must
take to obtain the Release of Construction Covenants. The Release of Construction
Covenants shall not constitute evidence of compliance with or satisfaction of any
21
obligation of the Developer to any holder of any mortgage, or any insurer of a mortgage
securing money loaned to finance the Improvements, or any part thereof. The Release
of Construction Covenants is not a notice of completion as referred to in Section 3093 of
the California Civil Code.
311. Financing of the Improvements.
311.1 Approval of Financing. As required herein and as an Agency
Condition Precedent to the Closing, Developer shall submit to Agency evidence that
Developer has obtained sufficient equity capital or has obtained firm and binding
commitments for construction financing necessary to undertake the development of the
Site and the construction of the Improvements in accordance with this Agreement.
Agency shall approve or disapprove such evidence of financing commitments within
fifteen (15) business days of receipt of a complete submission. Approval shall not be
unreasonably withheld or conditioned. If Agency approves such financing plan, it shall
execute commercially reasonable subordination documentation evidencing the
subordination of the Agency loan Note and Deed of trust to the lien of any construction
loan deed of trust. If Agency shall disapprove any such evidence of financing, Agency
shall do so by Notice to Developer stating the reasons for such disapproval and
Developer shall promptly obtain and submit to Agency new evidence of financing.
Agency shall approve or disapprove such new evidence of financing in the same
manner and within the same times established in this Section 311.1 for the approval or
disapproval of the evidence of financing as initially submitted to Agency. Developer shall
close the approved financing concurrently with the Closing.
Such evidence of financing shall include the following: (a) a copy of a legally binding,
firm and enforceable loan commitment(s) obtained by Developer from unrelated
financial institutions for the mortgage loan or loans for financing to fund the purchase,
construction, completion, operation and maintenance of the Improvements, subject to
such lenders' reasonable, customary and normal conditions and terms, and /or (b) a
certification from the chief financial officer or chief executive officer of Developer that
Developer has sufficient funds for such purchase, construction, completion, operation
and maintenance of the Improvements, and that such funds have been committed to
such purchase, construction, completion, operation and maintenance of the
Improvements, and /or other documentation reasonably satisfactory to the Agency as
evidence of other sources of capital sufficient to demonstrate that Developer has
adequate funds to cover the difference between the total cost of the acquisition of the
Site, and construction and completion of the Improvements, less financing authorized by
those loans set forth in subparagraph (a) above.
Following completion of construction, within 30 days after written request by Developer,
the Agency shall execute commercially reasonable subordination documentation
evidencing the subordination of the Agency Loan Note and Deed of Trust to the lien of
any deed of trust securing a permanent loan provided that such loan is being obtained
from unrelated financial institutions to fund the completion, operation and /or
maintenance of the Site and Improvements and the Developer delivers the certificate
required under clause (b) in the preceding paragraph.
{ 100300
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311.2 No Encumbrances Except Mortgages, Deeds of Trust, or Sale
and Lease -Back for Development. Mortgages, deeds of trust and sales and leases -
back are to be permitted before completion of the construction of the Improvements with
the Agency's prior written approval, which shall not be unreasonably withheld or
delayed, but only for the purpose of securing loans of funds to be used for financing the
acquisition of the Site, construction of the Improvements (including architecture,
engineering, legal, and related direct costs as well as indirect costs) on or in connection
with the Site, permanent financing, and any other purposes necessary and appropriate
in connection with development under this Agreement. The Developer shall notify the
Agency in advance of any mortgage, deed of trust or sale and lease -back financing, if
the Developer proposes to enter into the same before completion of the construction of
the Improvements. The words "mortgage" and "trust deed" as used hereinafter shall
include sale and lease -back. The Developer shall not enter into any such conveyance
for financing without the prior written approval of the Agency, which approval Agency
agrees to give if any such conveyance for financing is given to a responsible financial
lending institution or person or entity ( "Lender "). The Agency will subordinate to the
Developer's construction and /or permanent financing provided that the Agency's Deed
of Trust is secured by the Site pursuant to a commercially reasonable form of
subordination agreement.
311.3 Holder Not Obligated to Construct Improvements. The holder of
any mortgage or deed of trust authorized by this Agreement shall not be obligated by
the provisions of this Agreement to construct or complete the Improvements or any
portion thereof, or to guarantee such construction or completion; nor shall any covenant
or any other provision in this Agreement be construed so to obligate such holder.
Nothing in this Agreement shall be deemed to construe, permit or authorize any such
holder to devote the Site to any uses or to construct any improvements thereon, other
than those uses or improvements provided for or authorized by this Agreement.
311.4 Notice of Default to Mortgagee or Deed of Trust Holders; Right
to Cure. With respect to any mortgage or deed of trust granted by Developer as
provided herein, whenever the Agency may deliver any notice or demand to Developer
with respect to any breach or default by the Developer in completion of construction of
the Improvements, the Agency shall at the same time deliver to each holder of record of
any mortgage or deed of trust authorized by this Agreement a copy of such notice or
demand. Each such holder shall (insofar as the rights granted by the Agency are
concerned) have the right, at its option, within thirty (30) days after the receipt of the
notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with
due diligence the cure or remedy of any such default and to add the cost thereof to the
mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall
be deemed to permit or authorize such holder to undertake or continue the construction
or completion of the Improvements, or any portion thereof (beyond the extent necessary
to conserve or protect the improvements or construction already made) without first
having expressly assumed the Developer's obligations to the Agency by written
agreement reasonably satisfactory to the Agency. The holder, in that event, must agree
to complete, in the manner provided in this Agreement, the Improvements to which the
lien or title of such holder relates. Any such holder properly completing such
improvement shall be entitled, upon compliance with the requirements of Section 310 of
.,o0031
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this Agreement, to a Release of Construction Covenants. It is understood that a holder
shall be deemed to have satisfied the thirty (30) day time limit set forth above for
commencing to cure or remedy a Developer default which requires title and /or
possession of the Site (or portion thereof) if and to the extent any such holder has within
such thirty (30) day period commenced proceedings to obtain title and /or possession
and thereafter the holder diligently pursues such proceedings to completion and cures
or remedies the default.
311.5 Failure of Holder to Complete Improvements. In any case where,
thirty (30) days after the holder of any mortgage or deed of trust creating a lien or
encumbrance upon the Site or any part thereof receives a notice from Agency of a
default by the Developer in completion of construction of any of the Improvements
under this Agreement, and such holder has not exercised the option to construct as set
forth in Section 311, or if it has exercised the option but has defaulted hereunder and
failed to timely cure such default, the Agency may purchase the mortgage or deed of
trust by payment to the holder of the amount of the unpaid mortgage or deed of trust
debt, including principal and interest and all other sums secured by the mortgage or
deed of trust. If the ownership of the Site or any part thereof has vested in the holder,
the Agency, if it so desires, shall be entitled to a conveyance from the holder to the
Agency upon payment to the holder of an amount equal to the sum of the following:
a. The unpaid mortgage or deed of trust debt at the time title became vested
in the holder (less all appropriate credits, including those resulting from
collection and application of rentals and other income received during
foreclosure proceedings);
b. All expenses with respect to foreclosure including reasonable attorneys'
fees;
c. The net expense, if any (exclusive of general overhead), incurred by the
holder as a direct result of the subsequent management of the Site or part
thereof;
d. The costs of any improvements made by such holder;
e. An amount equivalent to the interest that would have accrued on the
aggregate of such amounts had all such amounts become part of the
mortgage or deed of trust debt and such debt had continued in existence
to the date of payment by the Agency; and
f. Any customary prepayment charges imposed by the lender pursuant to its
loan documents and agreed to by the Developer.
311.6 Right of the Agency to Cure Mortgage or Deed of Trust Default.
In the event of a mortgage or deed of trust default or breach by the Developer prior to
the completion of the construction of any of the Improvements or any part thereof,
Developer shall immediately deliver to Agency a copy of any mortgage holder's notice
of default. If the holder of any mortgage or deed of trust has not exercised its option to
construct, the Agency shall have the right but no obligation to cure the default. In such
event, the Agency shall be entitled to reimbursement from the Developer of all costs
and expenses incurred by the Agency in curing such default. The Agency shall also be
24
entitled to a lien upon the Site to the extent of such costs and disbursements. Any such
lien shall be junior and subordinate to the mortgages or deeds of trust pursuant to this
Section 311.
312. Agency Loan to Developer. The Agency will make a loan to the
Developer to assist with the purchase of the Site. The terms and conditions of the
Agency Loan are as follows:
1. Developer provides the Agency with a cash payment of One Hundred Fourty-
Nine Thousand Six Hundred Eighty -Three Dollars ($149,683.00).
2. Monthly interest will be deferred, but will accrue, until Stabilization. Developer
may choose to make interest payments before Stabilization without any prepayment
penalty; after Stabilization monthly interest only payments will be required.
3. The Agency Loan will be subordinate to the construction loan and permanent
financing for a period of ten (10) years.
4. The term of the loan will be ten (10) years. Upon loan maturity, a balloon
payment for the principal amount and all accrued interest will be due to the Agency.
5. The interest rate of the loan will be a fixed rate of 8.25 %. The Loan
Agreement and Deed of Trust are included as Attachment 7 and Attachment 8,
respectively.
6. Agency shall subordinate the Agency Loan and Deed of Trust as provided in
Section 3.11 above.
400. COVENANTS AND RESTRICTIONS
401. Business Improvement District Covenant. Developer agrees to support
the formation of a Business Improvement District ( "BID ") and agrees to explore the
feasibility of one or more assessments, for the maintenance of parkway and median
landscaping, and street lighting, including but not limited to all water and electricity
costs, and if requested by the City Council, parks for the provision of special benefits
conferred by same upon properties within the Project. Developer may only protest the
formation of the BID based on the assessment levied against the property owned by the
Developer.
In addition to any fees specifically mentioned in this Agreement, Developer agrees to
pay all City capital improvement, development, and processing fees at the rate and
amount in effect at the time the fee is required to be paid that are related to and or
required of said Project. Said fees include but are not limited to Library Facilities Fees,
Fire Facilities Fees, drainage, entitlement processing fees, and plan check and permit
fees for buildings and public improvements. Developer further agrees that unless
specifically exempted by this Agreement, it is subject to all fees imposed by City at the
operative date of this Agreement and such future fees imposed as determined by City in
its sole discretion so long as said fee is imposed on similarly situated properties.
Developer agrees that any fees and payments pursuant to the Agreement shall be
made without reservation, and Developer expressly waives the right to payment of any
such fees under protest pursuant to California Government Code Section 66020 and
25
statutes amendatory or supplementary thereto.
402. Use and Operation Covenants. Subject to the provisions of Section 602,
the Developer hereby covenants and agrees that the Improvements shall be used and
operated as described in Section 301 or for such other use as then permitted in the C-
OT zone under the City's zoning ordinance with the prior approval of the Executive
Director of the Agency, which approval shall not be unreasonably withheld or delayed
provided all applicable City requirements have been met. Developer further covenants
and agrees that the Improvements shall not be used by any bail bond, pawn shops or
adult businesses for perpetuity.
403. Maintenance Covenants. The Developer shall maintain the Site and all
improvements thereon, including all landscaping, in compliance with all applicable
provisions of the City of Moorpark Municipal Code and all conditions of approval of the
Project. If a default under this Section is not fully cured by Developer as provided in
Section 501, Agency shall have the right to enter the Site at all reasonable times,
complete the maintenance or repair, and invoice Developer for the direct costs and
expenses of said work plus fifteen percent (15 %) of said costs and expenses for
administration. Developer shall pay the invoice in full within fifteen (15) days after
receipt thereof.
404. Nondiscrimination Covenants. The Developer covenants by and for itself
and any successors in interest that there shall be no discrimination against or
segregation of any person or group of persons on account of race, color, creed, religion,
sex, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Site, nor shall the Developer itself or any person
claiming under or through it establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees of the Site. The
foregoing covenants shall run with the land.
The Developer shall refrain from restricting the rental, sale or lease of the Site on the
basis of race, color, religion, sex, marital status, ancestry or national origin of any
person. All such deeds, leases or contracts shall contain or be subject to substantially
the following nondiscrimination or nonsegregation clauses:
a. In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons
claiming under or through them, that there shall be no discrimination
against or segregation of, any person or group of persons on account of
race, color, creed, religion, sex, marital status, national origin or ancestry
in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment
of the land herein conveyed, nor shall the grantee or any person claiming
under or through him or her, establish or permit any such practice or
practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants,
sublessees or vendees in the land herein conveyed. The foregoing
covenants shall run with the land."
o0034
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b. In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted
upon and subject to the following conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons, on account of race, color, creed, religion, sex, marital
status, national origin, or ancestry in the leasing, subleasing, transferring,
use, occupancy, tenure, or enjoyment of the premises herein leased nor
shall the lessee himself or herself, or any person claiming under or
through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use, or occupancy of tenants, lessees, sublessees, subtenants,
or vendees in the premises herein leased."
C. In contracts: "There shall be no discrimination against or segregation of,
any person, or group of persons on account of race, color, creed, religion,
sex, marital status, national origin, or ancestry, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises,
nor shall the transferee himself or herself or any person claiming under or
through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location,
number, use or occupancy of tenants, lessees, subtenants, sublessees or
vendees of the premises."
405. Effect of Violation of the Terms and Provisions of this Agreement after
Completion of Construction. The Agency is deemed the beneficiary of the terms and
provisions of this Agreement and of the covenants running with the land, for and in its
own right and for the purposes of protecting the interests of the community and other
parties, public or private, in whose favor and for whose benefit this Agreement and the
covenants running with the land have been provided, without regard to whether the
Agency has been, remains or is an owner of any land or interest therein in the Site or in
the Project. The Agency shall have the right, if the Agreement or covenants are
breached, to exercise all rights and remedies, and to maintain any actions or suits at
law or in equity or other proper proceedings to enforce the curing of such breaches to
which it or any other beneficiaries of this Agreement and covenants may be entitled.
The covenants contained in this Agreement shall remain in effect until the issuance of
the Release of Construction Covenants for the completion of the Improvements, except
for the following:
a. The environmental covenants set forth in Sections 208.5, 208.6 and 208.7
shall remain in effect in perpetuity.
b. Intentionally deleted.
c. The covenants pertaining to the use and operation of the Site set forth in
Section 402 shall remain in effect for the term of the Agency Loan.
: 0003S
27
d. The covenants pertaining to maintenance of the Site and all improvements
thereon, as set forth in Section 403, shall remain in effect for the term of
the Agency Loan.
e. The covenants against discrimination, as set forth in Section 404, shall
remain in effect in perpetuity.
500. DEFAULTS AND REMEDIES
501. Default Remedies. Subject to the extensions of time set forth in Section
602 of this Agreement, failure by either party to perform any action or covenant required
by this Agreement within the time periods provided herein following notice and failure to
cure as described hereafter, constitutes a "Default" under this Agreement. A party
claiming a Default shall give written notice of Default to the other party specifying the
Default complained of. Except as otherwise expressly provided in this Agreement, the
claimant shall not institute any proceeding against any other party, and the other party
shall not be in Default if such party within thirty (30) days from receipt of such notice
immediately, with due diligence, commences to cure, correct or remedy such failure or
delay and shall complete such cure, correction or remedy with diligence.
502. Institution of Legal Actions. In addition to any other rights or remedies,
including those set forth in Sections 503 and 504, respectively, and subject to the
restrictions otherwise set forth in this Agreement, either party may institute an action at
law or equity to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default, to recover damages for any Default, or to obtain any
other remedy consistent with the purpose of this Agreement. Such legal actions must be
instituted in the Superior Court of the County of Ventura, State of California, or if federal
jurisdiction exists, in the District of the United States District Court for the Central District
of California.
503. Termination by the Developer. In the event that the Developer is not in
Default under this Agreement and the Agency does not tender title to the Site pursuant
to the Grant Deed in the manner and condition and by the date provided in this
Agreement; or one or more of the Developer's Conditions Precedent to the Closing is
not fulfilled on or before the time set forth in the Schedule of Performance and such
failure is not caused by the Developer; or in the event of any default of the Agency prior
to the Closing which is not cured within the time set forth in Section 501 hereof, and any
such failure is not cured within the applicable time period after written demand by the
Developer, then this Agreement may, at the option of the Developer, be terminated by
written notice thereof to the Agency. From the date of the written notice of termination of
this Agreement by the Developer to the Agency and thereafter this Agreement shall be
deemed terminated and there shall be no further rights or obligations between the
parties, except that the parties may pursue any other remedies they may have
hereunder.
504. Termination by the Agency. In the event that the Agency is not in Default
under this Agreement and prior to the issuance of the Release of Construction
28
Covenants: the Developer (or any successor in interest) assigns or attempts to assign
the Agreement or any rights therein or in the Site in violation of this Agreement; or one
or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before
the time set forth in the Schedule of Performance and such failure is not caused by the
Agency or City Planning Department; or the Developer is otherwise in default of this
Agreement and fails to cure such default within the time set forth in Section 501 hereof,
then this Agreement and any rights of the Developer or any assignee or transferee with
respect to or arising out of the Agreement or the Site, shall, at the option of the Agency,
be terminated by the Agency by written notice thereof to the Developer. From the date
of the written notice of termination of this Agreement by the Agency to the Developer
and thereafter this Agreement shall be deemed terminated and there shall be no further
rights or obligations between the parties, except that the parties may pursue any and all
other remedies they may have hereunder, including, but not limited to rights to revesting
of title.
505. Termination Prior to Conveyance. If, prior to the Closing on the Site, a
default under this Agreement is not fully cured by the defaulting party as provided in
Section 501 hereof, Claimant shall have the right thereafter, but not before, to terminate
this Agreement by giving written notice thereof to the defaulting party. The termination
shall be effective immediately upon receipt of the notice, and thereafter neither party
shall have any further rights of obligation with respect to the Site. Upon the termination
(i) all documents and all monies deposited by either party into escrow shall be returned
to the party that made the deposit, and (ii) any escrow cancellation fee shall be paid by
the defaulting party.
506. Reentry and Revesting of Title in the Agency After the Closing and
Prior to Completion of Construction. The Agency has the right, at its election, to seek
and obtain a judicial order on an expedited basis authorizing it to reenter and take
possession of the Site, with all improvements thereon, and terminate and revest in the
Agency the estate conveyed to the Developer if after the Closing and prior to the
issuance of the Release of Construction Covenants, the Developer (or its successors in
interest) shall:
a. Fail to start the construction of the Improvements and to complete
Improvements within one year as required by this Agreement and for a
period of thirty (30) days after written notice thereof from the Agency,
subject to the provisions of Section 602; or
b. Abandon or substantially suspend construction of the Improvements
required by this Agreement for a period of thirty (30) days after written
notice thereof from the Agency subject to the provisions of Section 602; or
c. Contrary to the provisions of Section 603 transfer or suffer any involuntary
transfer of the Site or any part thereof in violation of this Agreement.
Such right to reenter, terminate and revest shall be subject to and be limited by and
shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by this Agreement; or
29
2. Any rights or interests provided in this Agreement for the protection of the holders of
such mortgages or deeds of trust.
The Grant Deed shall contain appropriate reference and provision to give effect
to the Agency's right as set forth in this Section 506, under specified circumstances
prior to recordation of the Release of Construction Covenants, to reenter and take
possession of. the Site, with all Improvements thereon, and to terminate and revest in
the Agency the estate conveyed to the Developer. Upon the revesting in the Agency of
title to the Site as provided in this Section 506, the Agency shall, pursuant to its
responsibilities under state law, use its reasonable efforts to resell the Site as soon and
in such manner as the Agency shall find feasible and consistent with the objectives of
such law, as it exists or may be amended, to a qualified and responsible party or parties
(as determined by the Agency) who will assume the obligation of making or completing
the Improvements, or such improvements in their stead as shall be satisfactory to the
Agency and in accordance with the uses specified for such Site or part thereof in the C-
OT zone in the City's zoning ordinance or Commercial Planned Development (CPD).
Upon such resale of the Site, the net proceeds thereof after repayment of any mortgage
or deed of trust encumbering the Site which is permitted by this Agreement, shall be
applied to reimburse the Agency, on its own behalf or on behalf of the City, all costs and
expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Site or part thereof (but
less any income derived by the Agency from the Site or part thereof in connection with
such management); all taxes, assessments and water or sewer charges with respect to
the Site or part thereof which the Developer has not paid (or, in the event that Site is
exempt from taxation or assessment of such charges during the period of ownership
thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or
charges as would have been payable if the Site were not so exempt); any payments
made or necessary to be made to discharge any encumbrances or liens existing on the
Site or part thereof at the time or revesting of title thereto in the Agency, or to discharge
or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees; any
expenditures made or obligations incurred by the Agency with respect to the making or
completion of the Improvements or any part thereof on the Site, or part thereof; and any
amounts otherwise owing the Agency, and in the event additional proceeds are
thereafter available, then
Any balance remaining after such reimbursements shall be retained by the Agency as
its property. The rights established in this Section 506 are not intended to be exclusive
of any other right, power or remedy, but each and every such right, power, and remedy
shall be cumulative and concurrent and shall be in addition to any other right, power and
remedy authorized herein or now or hereafter existing at law or in equity. These rights
are to be interpreted in light of the fact that the Agency will have conveyed the Site to
the Developer for redevelopment purposes, particularly for development of a
commercial /retail facility, and not for speculation in undeveloped land.
507. Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against the Agency, service of process on the Agency
0038
30
shall be made by personal service upon the Executive Director of the Agency or in such
other manner as may be provided by law. In the event that any legal action is
commenced by the Agency against the Developer, service of process on the Developer
shall be made by personal service upon the President of the Developer or in such other
manner as may be provided by law.
508. Rights and Remedies Are Cumulative. Except as otherwise expressly
stated in this Agreement, the rights and remedies of the parties are cumulative, and the
exercise by either party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
509. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver
of any Default or of any such rights or remedies, or deprive either such party of its right
to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
510. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications between the Parties. Any
approval, disapproval, demand, document or other notice ( "Notice ") which either party
may desire to give to the other party under this Agreement must be in writing and may
be given by any commercially acceptable means to the party to whom the Notice is
directed at the address of the party as set forth below, or at any other address as that
party may later designate by Notice.
To Agency: Moorpark Redevelopment Agency
799 Moorpark Avenue
Moorpark, California 93021
Attention: Executive Director
To Developer: Aszkenazy Development, Inc
601 South Brand Boulevard, 3rd Floor
San Fernando, CA 91340
Attention: Severyn I. Aszkenazy, President
Any written notice, demand or communication shall be deemed received immediately if
delivered by hand and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
602. Enforced Delay; Extension of Times of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not
039
31
be deemed to be in Default, and all performance and other dates specified in this
Agreement shall be extended, where delays or Defaults are due to causes beyond the
control or without the fault of the party claiming an extension of time to perform, which
may include: war; insurrection; strikes; lockouts; riots; floods; earthquakes; fires;
casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions;
freight embargoes; lack of transportation; governmental restrictions or priority; litigation;
unusually severe weather; inability to secure necessary labor, materials or tools; acts or
omissions of the other party; acts or failures to act of the City or any other public or
governmental agency or entity (other than the acts or failures to act of the Agency which
shall not excuse performance by the Agency). Notwithstanding anything to the contrary
in this Agreement, an extension of time for any such cause shall be for the period of the
enforced delay and shall commence to run from the time of the commencement of the
cause, if notice by the party claiming such extension is sent to the other party within
thirty (30) days of the commencement of the cause. Times of performance under this
Agreement may also be extended in writing by the mutual agreement of Executive
Director of the Agency and Developer. Notwithstanding any provision of this Agreement
to the contrary, the lack of funding to complete the Improvements shall not constitute
grounds of enforced delay pursuant to this Section 602.
603. Transfers of Interest in Site or Agreement.
603.1 Prohibition. The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those qualifications and identity that
the Agency has entered into this Agreement with the Developer. For the period
commencing upon the date of this Agreement and until the expiration of the Agency
Loan, no voluntary or involuntary successor in interest of the Developer shall acquire
any rights or powers under this Agreement, nor shall the Developer make any total or
partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the
whole or any part of the Site or the Improvements thereon without prior written approval
of the Agency, except as expressly set forth herein.
603.2 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, Agency approval of an assignment of this Agreement or
conveyance of the Site or Improvements, or any part thereof, shall not be required in
connection with any of the following:
(a) Any transfers to an entity or entities in which either Marta Diaz Aszkenazy
or Severyn I. Aszkenazy retains management and control of the transferee
entity or entities.
(b) The conveyance or dedication of any portion of the Site to the City or other
appropriate governmental agency, or the granting of easements or permits
to facilitate construction of the Improvements (as defined herein).
(c) Any requested. assignment for financing purposes (subject to any
approvals by the Agency that are necessary for any construction financing
pursuant to Section 311 herein), including the grant of a deed of trust to
secure the funds necessary for land acquisition, construction and
permanent financing or re- financing of the Improvements.
32
In the event of an assignment by Developer under subparagraphs (a) through (c),
inclusive, above not requiring the Agency's prior approval, Developer nevertheless
agrees that at least thirty (30) days prior to such assignment it shall give written notice
to Agency of such assignment and satisfactory evidence that the assignee has
assumed jointly with Developer the obligations of this Agreement.
603.3 Agency Consideration of Requested Transfer. The Agency
Board will not unreasonably withhold approval of a request made pursuant to this
Section 603.3, provided the Developer delivers written notice to the Agency requesting
such approval. Such notice shall be accompanied by sufficient evidence regarding the
proposed assignee's or purchaser's development (in the event that the Improvements
have not been completed) and /or operational qualifications and experience, and its
financial commitments and resources, in sufficient detail to enable the Agency to
evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this
Section 603.3 and as reasonably determined by the Agency. The Agency shall evaluate
each proposed transferee or assignee on the basis of its development (in the event that
the Improvements have not been completed) and /or qualifications and experience in the
operation of facilities similar to the Improvements, and its financial commitments and
resources, and may reasonably disapprove any proposed transferee or assignee,
during the term of the Agency Loan, which the Agency determines does not possess
qualifications satisfactory for performing the obligations of Developer. An assignment
and assumption agreement in form satisfactory to the Agency's legal counsel shall also
be required for all proposed assignments for which Agency consent is required
hereunder. Within thirty (30) days after the receipt of the Developer's written notice
requesting Agency approval of an assignment or transfer pursuant to this Section 603.3,
the Agency shall either approve or disapprove such proposed assignment or shall
respond in writing by stating what further information, if any, the Agency reasonably
requires in order to determine the request complete and determine whether or not to
grant the requested approval. Upon receipt of such a response, the Developer shall
promptly furnish to the Agency such further information as may be reasonably
requested. Developer shall pay all Agency out -of- pocket costs plus 15% for review of
assumption agreement including, but limited to, legal and financial reviews. Developer
shall provide a deposit of $2,500 upon submittal of request for transfer.
603.4 Successors and Assigns. All of the terms, covenants and
conditions of this Agreement shall be binding upon the Developer and its permitted
successors and assigns. Whenever the term "Developer" is used in this Agreement,
such term shall include any other permitted successors and assigns as herein provided.
603.5 Assignment by Agency. The Agency may assign or transfer any of
its rights or obligations under this Agreement with the approval of the Developer, which
approval shall not be unreasonably withheld; provided, however, that the Agency may
assign or transfer any of its interests hereunder to the City at any time without the
consent of the Developer.
604. Non - Liability of Officials and Employees of the Agency and the
Developer. No member, official or employee of the Agency or the City shall be
personally liable to the Developer, or any successor in interest, in the event of any
Default or breach by the Agency (or the City) or for any amount which may become due
33 } X141
to the Developer or its successors, or on any obligations under the terms of this
Agreement.
605. Relationship Between Agency and Developer. It is hereby acknowledged
that the relationship between the Agency and the Developer is not that of a partnership
or joint venture and that the Agency and the Developer shall not be deemed or
construed for any purpose to be the agent of the other. Accordingly, except as expressly
provided herein or in the Attachments hereto, the Agency shall have no rights, powers,
duties or obligations with respect to the development, operation, maintenance or
management of the Improvements.
606. Agency Approvals and Actions. The Agency shall maintain authority of
this Agreement and the authority to implement this Agreement through the Agency
Executive Director (or his duly authorized representative). The Agency Executive
Director shall have the authority to make approvals, issue interpretations, waive
provisions, and /or enter into amendments of this Agreement on behalf of the Agency so
long as such actions do not materially or substantially change the uses or development
permitted on the Site, or materially or substantially add to the costs incurred or to be
incurred by the Agency as specified herein, and such approvals, interpretations, waivers
and /or amendments may include extensions of time to perform as specified in the
Schedule of Performance. All other material and /or substantial interpretations, waivers,
or amendments shall require the consideration, action and written consent of the
Agency Board.
607. Counterparts. This Agreement may be signed in multiple counterparts
which, when signed by all parties, shall constitute a binding agreement. This Agreement
is executed in three (3) originals, each of which is deemed to be an original.
608. Integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement. All prior or
contemporaneous agreements, understandings, representations and statements, oral or
written, are merged in this Agreement and shall be of no further force or effect. Each
party is entering this Agreement based solely upon the representations set forth herein
and upon each party's own independent investigation of any and all facts such party
deems material. This Agreement includes pages 1 through 32 and Attachment Nos. 1
through 8, which constitute the entire understanding and agreement of the parties,
notwithstanding any previous negotiations or agreements between the parties or their
predecessors in interest with respect to all or any part of the subject matter hereof.
609. Real Estate Brokerage Commission. The Agency and the Developer each
represent and warrant to the other that no broker or finder is entitled to any commission
or finder's fee in connection with the Developer's acquisition of the Site from the
Agency. The parties agree to defend and hold harmless the other party from any claim
to any such commission or fee from any broker, agent or finder with respect to this
Agreement which is payable by such party.
610. Attorneys' Fees. In any action between the parties to interpret, enforce,
reform, modify, rescind, or otherwise in connection with any of the terms or provisions of
this Agreement, the prevailing party in the action shall be entitled, in addition to
damages, injunctive relief, or any other relief to which it might be entitled, reasonable
34 10042
costs and expenses including, without limitation, litigation costs and reasonable
attorneys' fees.
611. Titles and Captions. Titles and captions are for convenience of reference
only and do not define, describe or limit the scope or the intent of this Agreement or of
any of its terms. Reference to section numbers is to sections in this Agreement, unless
expressly stated otherwise.
612. Interpretation. As used in this Agreement, masculine, feminine or neuter
gender and the singular or plural number shall each be deemed to include the others
where and when the context so dictates. The word "including" shall be construed as if
followed by the words "without limitation." This Agreement shall be interpreted as
though prepared jointly by both parties.
613. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall
not be construed as a waiver of any succeeding breach of the same or other covenants,
agreements, restrictions or conditions of this Agreement.
614. Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
signed on behalf of each party.
615. Severability. If any term, provision, condition or covenant of this Agreement
or its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term,
provision, condition or covenant to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected, and shall be
valid and enforceable to the fullest extent permitted by law.
616. Calendar of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and
including the last day, unless the last day is a holiday or Saturday or Sunday, and then
that day is also excluded. The term "holiday" shall mean all holidays as specified in
Section 6700 and 6701 of the California Government Code. If any act is to be done by a
particular time during a day, that time shall be Pacific Time Zone time.
617. Legal Advice. Each party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matters set forth
in this Agreement, or have knowingly chosen not to consult legal counsel as to the
matters set forth in this Agreement; and, they have freely signed this Agreement without
any reliance upon any agreement, promise, statement or representation by or on behalf
of the other party, or their respective agents, employees, or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion, whether
economic or otherwise.
618. Time of Essence. Time is expressly made of the essence with respect to
the performance by the Agency, the Developer of each and every obligation and
condition of this Agreement.
loO43
35
619. Cooperation. Each party agrees to cooperate with the other in this
transaction and, in that regard, to sign any and all documents which may be reasonably
necessary, helpful, or appropriate to carry out the purposes and intent of this Agreement
including, but not limited to, releases or additional agreements.
620. Inspection of Books and Records. Agency shall have the right to
inspect, during normal business hours, the books and records of Developer pertaining
to the performance of this Agreement, upon not less than twenty -four (24) hours prior
notice, which notice may be given orally notwithstanding any other provision of this
Agreement to the contrary.
621. Conflicts of Interest. No member, official or employee of the Agency shall
have any personal interest, direct or indirect, in this Agreement, nor shall any such
member, official or employee participate in any decision relating to the Agreement which
affects his personal interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested.
622. Time for Acceptance of Agreement by Agency. This Agreement, when
executed by the Developer and delivered to the Agency, must be authorized, executed
and delivered by the Agency on or before forty -five (45) days after signing and delivery
of this Agreement by the Developer or this Agreement shall be void, except to the extent
that the Developer shall consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement.
623. Date of Agreement. The date of this Agreement shall be the date set forth
in the first paragraph hereof.
Signatures Blocks on next page
36 -loo044
IN WITNESS WHEREOF, the Agency and the Developer have signed this Agreement.
ATTEST:
am
AGENCY:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic
Janice S. Parvin, Chair
Deborah S. Traffenstedt, Agency Secretary
DEVELOPER:
Aszkenazy Development, Inc.
a California corporation
in
Severyn I. Aszkenazy
37
ATTACHMENT NO. 1
SITE MAP
38 _ 04046
ATTACHMENT NO. 2
SITE LEGAL DESCRIPTION
00
39
ATTACHMENT NO.3
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
ASZKENAZY DEVELOPMENT, INC.
601 South Brand Boulevard, 3`d Floor
San Fernando, CA 93021
Attn: Severyn I. Aszkenazy
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
Documentary Transfer Tax: $
Based on full value of property conveyed
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged,
The REDEVELOPMENT AGENCY of the CITY OF MOORPARK, a public body,
corporate and politic (the "Agency "), acting to carry out the Redevelopment Plan
( "Redevelopment Plan ") for the Moorpark Redevelopment Project (the "Project "), under
the Community Redevelopment Law of California, as of
200 , hereby grants to , a
( "Developer "), the real property hereinafter referred to as the "Site ", described in Exhibit
A attached hereto and incorporated herein, subject to the existing easements,
restrictions and covenants of record described there.
1. Agency excepts and reserves from the conveyance herein described all
interest of the Agency in oil, gas, hydrocarbon substances and minerals of every kind
and character lying more than five hundred (500) feet below the surface, together with
the right to drill into, through, and to use and occupy all parts of the Site lying more than
five hundred (500) feet below the surface thereof for any and all purposes incidental to
the exploration for and production of oil, gas, hydrocarbon substances or minerals from
said Site or other lands, but without, however, any right to use either the surface of the
r AtoO48
i'
Site or any portion thereof within five hundred (500) feet of the surface for any purpose
or purposes whatsoever, or to use the Site in such a manner as to create a disturbance
to the use or enjoyment of the Site.
2. Agency excepts and reserves from the conveyance herein described all
interest of the Agency in air space above Thirty -Five (35) above the surface (the "Air
Space ").
3. The Site is conveyed in accordance with and subject to the Redevelopment
Plan which was approved and adopted by Ordinance No. 110 of the City Council of the
City of Moorpark, and a Disposition and Development Agreement entered into between
Agency and Developer dated 200 (the "DDA "), a copy of which is
on file with the Agency at its offices as a public record and which is incorporated herein
by reference. The DDA generally requires the Developer to construct improvements on
the Site including one commercial building of approximately 40,000 square feet of Gross
Leasable Area of retail and office space, supporting parking and landscape
improvements, and other requirements as set forth therein or required by Project
Conditions of Approval (the "Improvements "). All terms used herein shall have the
same meaning as those used in the DDA.
4. The Developer covenants and agrees for itself, its successors, its assigns, and
every successor in interest to the Site or any part thereof, that upon the date of this
Grant Deed and during construction and thereafter, the Developer shall devote the Site
to the uses specified in the Commercial Planned Development Permit No. and
the DDA for the periods of time specified therein. All uses conducted on the Site,
including, without limitation, all activities undertaken by the Developer pursuant to this
Agreement, shall conform to the Commercial Planned Development Permit No.
, the DDA and all applicable provisions of the Moorpark Municipal Code. The foregoing
covenants shall run with the land.
5. The Developer herein covenants by and for himself or herself, his or her heirs,
executors, administrators and assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the land herein conveyed, nor shall the Developer himself or herself or any person
claiming under or through him or her, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein
conveyed. The foregoing covenants shall run with the land.
6. The Agency has the right, at its election, to reenter and take possession of the
Site, with all improvements thereon, and terminate and revest in the Agency the estate
conveyed to the Developer if after the Closing and prior to the issuance of the Release
of Construction Covenants, if the Developer (or its successors in interest) shall:
41
=00045*
a. abandon or substantially suspend construction of the Improvements
required by the DDA for a period of thirty (30) days after written notice
thereof from the Agency subject to the provisions of Section 602; or
b. contrary to the provisions of Section 603 of the DDA transfer or suffer any
involuntary transfer of the Site or any part thereof in violation of the DDA.
Such right to reenter, terminate and revest shall be subject to and be limited by and
shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by the DDA; or
2. Any rights or interests provided in the DDA for the protection of the holders of such
mortgages or deeds of trust.
Upon the revesting in the Agency of title to the Site as provided in this Section
506, the Agency shall, pursuant to its responsibilities under state law, use its reasonable
efforts to resell the Site as soon and in such manner as the Agency shall find feasible
and consistent with the objectives of such law, as it exists or may be amended, to a
qualified and responsible party or parties (as determined by the Agency) who will
assume the obligation of making or completing the Improvements, or such
improvements in their stead as shall be satisfactory to the Agency and in accordance
with the uses specified for such Site as provided in the City's zoning ordinance. Upon
such resale of the Site, the net proceeds thereof after repayment of any mortgage or
deed of trust encumbering the Site which is permitted by this Agreement shall be
applied to reimburse the Agency, on its own behalf or on behalf of the City, all costs and
expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Site or part thereof (but
less any income derived by the Agency from the Site or part thereof in connection with
such management); all taxes, assessments and water or sewer charges with respect to
the Site or part thereof which the Developer has not paid (or, in the event that Site is
exempt from taxation or assessment of such charges during the period of ownership
thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or
charges as would have been payable if the Site were not so exempt); any payments
made or necessary to be made to discharge any encumbrances or liens existing on the
Site or part thereof at the time or revesting of title thereto in the Agency, or to discharge
or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees; any
expenditures made or obligations incurred with respect to the making or completion of
the improvements or any part thereof on the Site, or part thereof; and any amounts
otherwise owing the Agency, and in the event additional proceeds are thereafter
available, then any balance remaining after such reimbursements shall be retained by
the Agency as its property. The rights established in this Section 6 are not intended to
be exclusive of any other right, power or remedy, but each and every such right, power,
and remedy shall be cumulative and concurrent and shall be in addition to any other
right, power and remedy authorized herein or now or hereafter existing at law or in
equity. These rights are to be interpreted in light of the fact that the Agency will have
conveyed the Site to the Developer for redevelopment purposes, particularly for
42 "._ o050
development of the Improvements, and not for speculation in undeveloped land.
7. No violation or breach of the covenants, conditions, restrictions, provisions or
limitations contained in this Grant Deed shall defeat or render invalid or in any way
impair the lien or charge of any mortgage or deed of trust or security interest permitted
by paragraph 5 of this Grant Deed; provided, however, that any subsequent owner of
the Site shall be bound by such remaining covenants, conditions, restrictions, limitations
and provisions, whether such owner's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
8. All covenants contained in this Grant Deed shall be covenants running with the
land for the periods set forth therefore in the DDA. Every covenant contained in this
Grant Deed against discrimination contained in paragraph 5 of this Grant Deed shall
remain in effect in perpetuity.
9. All covenants without regard to technical classification or designation shall be
binding for the benefit of the Agency, and such covenants shall run in favor of the
Agency for the entire period during which such covenants shall be in force and effect,
without regard to whether the Agency is or remains an owner of any land or interest
therein to which such covenants relate. The Agency, in the event of any breach of any
such covenants, shall have the right to exercise all the rights and remedies and to
maintain any actions at law or suits in equity or other proper proceedings to enforce the
curing of such breach.
10. Both Agency, its successors and assigns, and Developer and the successors
and assigns of Developer in and to all or any part of the fee title to the Site shall have
the right with the mutual consent of the Agency to consent and agree to changes in, or
to eliminate in whole or in part, any of the covenants, easements or restrictions
contained in this Grant Deed without the consent of any tenant, lessee, easement
holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other
person or entity having any interest less than a fee in the Site. However, Developer and
Agency are obligated to give written notice to and obtain the consent of any first
mortgagee prior to consent or agreement between the parties concerning such changes
to this Grant Deed. The covenants contained in this Grant Deed, without regard to
technical classification, shall not benefit or be enforceable by any owner of any other
real property, or any person or entity having any interest in any other such realty. Any
amendment to the Moorpark Municipal Code which proposes to change the uses or
development permitted on the Site, or otherwise proposes a change of any of the
restrictions or controls that apply to the Site, shall require the written consent of the first
mortgagee and the Developer or the successors and assigns of Developer in and to all
or any part of the fee title to the Site, but any such amendment which proposes a
change affecting the Site shall not require the consent of any tenant, lessee, easement
holder, licensee, mortgagee (other than the first mortgagee), trustee, beneficiary under
a deed of trust or any other person or entity having any interest less than a fee in the
Site.
t_11005J.
43
ATTEST:
AGENCY:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic
Janice S. Parvin, Chair
Deborah S. Traffenstedt, Agency Secretary
DEVELOPER:
Aszkenazy Development, Inc.
a California corporation
Severyn I. Aszkenazy
44
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
45 q M0, 5
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
-or
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed
the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
{4_ o054
46
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
-or
, Notary Public,
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed
the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature Of Notary
(REPLACE WITH STANDARD AGENCY ATTEST FORMAT)
=_0055
47
48
ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
1. Submission of Disposition and On or before , 2008
Development Agreement. Developer
shall submit to the Agency a copy of the
Disposition and Development Agreement
duly executed by the Developer.
2. Agency Approval of Disposition and
Development Agreement. Agency shall
approve or disapprove the Disposition and
Development Agreement.
3. Submission of Required Development
Application. Developer shall submit the
Design Development Application to the City
Within 30 days after Developer's
submission to the Agency of an
executed Disposition and
Development Agreement
Within 60 days of Agency
approval of DDA.
4. Developer and City Response. Developer Developer will respond to any
shall respond to all requests by the City for request within 30 days. City will
additional information and /or revisions to respond to any submission within
plans. 30 days
5. City Council Hearing on Design Within 60 days of a
Development Drawings. The City Council determination by City Community
will consider the proposed Design Development Department of a
Development Application. Complete application.
6. Submission of Construction Drawings Within 120 days after City
for Improvements. Developer shall submit to Council approval of the proposed
the City complete Construction Drawings for Design Development Application.
the Improvements.
7. Development Services Review of Within 30 days after submittal.
Construction Drawings. The City
Community Development Department shall
review the Construction Drawings for the
improvements.
8. Revisions of Construction Drawings By
Developer. Developer shall prepare revised
Drawings for the Construction Improvements
as necessary, and resubmit them to the
Community Development Department for
review.
9. Final Review of Complete Construction
Drawings. The City Community Development
Department shall approve or disapprove the
revisions submitted by Developer for the
Improvements, and the Developer shall be
ready to obtain grading and building permits,
provided that the revisions necessary to
49
Within 30 days after receipt of
Community Development
Department Comments
Within 10 days after submittal by
Developer
accommodate the Department's comments
have been made.
10. Opening of Escrow for Site. The
Agency shall open Escrow with Escrow
Agent.
11. Conditions Precedent to Closing.
Developer and Agency shall satisfy
(or waive) all of their respective Conditions
Precedent to Closing.
Within 30 days after execution of
Agreement.
Not later than 30 days prior to
scheduled date of escrow
closing.
12. Close of Escrow. Agency shall convey As soon as possible after the
Site to the Developer. Satisfaction of all Conditions
Precedent to the Closing has
occurred within 30 days
13. Commencement of Construction
of Improvements. Developer shall
commence grading of the Site and
construction of the Improvements.
14. Completion of Construction of
Improvements. Developer shall
complete construction of the
Improvements.
thereafter), not later than later of
(a) 30 days after CEQA Approval
or (b) , 2009.
Within 30 days following the
Closing.
Within 12 months following
commencement of construction
of the Improvements.
NOTE: All days are calendar days in this Schedule of Performance. All
days falling on a weekend or day on which the City offices are not open
shall be extended to the next day on which City offices are open. This
Schedule of Performance may be amended written by mutual consent of
the parties to the Agreement.
50
X00058
ATTACHMENT NO. 5
SCOPE OF DEVELOPMENT
Developer shall construct improvements on the Site including one commercial building
of approximately 50,000 square feet of Gross Leasable Area of retail and office space,
supporting parking as required by the City of Moorpark's Parking Ordinance and
landscape improvements, and other requirements as set forth therein or required by
Project Conditions of Approval (the" Improvements "). All terms used herein shall have
the same meaning as those used in the DDA.
All development shall be in accordance with approved City of Moorpark Commercial
Planned Development Permit No. and all permits and fees required by the
City, County of Ventura and other governmental agencies with jurisdiction over the
Improvements, including the State General Construction Storm Water Permit's Storm
Water Pollution Prevention Plan requirements and any other requirements therein.
51 1)0059
ATTACHMENT NO.6
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
ASZKENAZY DEVELOPMENT, INC.
387 N. Zachary St., Ste 101
Moorpark, California 93021
Attn: Steve Hull
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
RELEASE OF CONSTRUCTION COVENANTS
THIS RELEASE OF CONSTRUCTION COVENANTS (the "Release ")
MOORPARK,
ASZKENAZY
"Developer "),
RECITALS
200_ by the REDEVELOPMENT AGENCY of
is made as of
the CITY OF
a public body corporate and politic (the "Agency "), in favor of
DEVELOPMENT , INC., a CALIFORNIA CORPORATION (the
as of the date set forth below.
A. The Agency and the Developer have entered into that certain Disposition and
Development Agreement (the "DDA ") dated , 200_, concerning the
redevelopment of certain real property situated in the City of Moorpark, California as
more fully described in Exhibit "A" attached hereto and made a part hereof.
B. As referenced in Section 310 of the DDA, the Agency is required to furnish the
Developer or its successors with a Release of Construction Covenants upon completion
of construction of the Improvements (as defined in Section 100 of the DDA), which
Release is required to be in such form as to permit it to be recorded in the Recorder's
office of Ventura County. This Release is conclusive determination of satisfactory
52 K'10060
completion of the construction and development required by the DDA.
C. The Agency has conclusively determined that such construction and
development has been satisfactorily completed.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The Improvements to be constructed by the Developer have been fully and
satisfactorily completed in conformance with the DDA. Any operating requirements and
all use, maintenance or nondiscrimination covenants contained in the DDA shall remain
in effect and enforceable according to their terms.
2. Nothing contained in this instrument shall modify in any other way any other
provisions of the DDA.
3. This Release of Construction Covenants is not a notice of completion as
referred to in Section 3093 of the California Civil Code.
4. This Release of Construction Covenants shall inure to the benefit of
Developer, its successors and assigns.
53
IN WITNESS WHEREOF, the Agency has executed this Release as of the date set
forth above.
ATTEST:
AGENCY:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic
Janice S. Parvin, Chair
Deborah S. Traffenstedt, Agency Secretary
54
o o O62
EXHIBIT "A"
LEGAL DESCRIPTION
qW063
55
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
-or
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed
the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
(REPLACE WITH STANDARD PUBLIC AGENCY ACKNOWLEDGMENT)
56 qw064
Attachment No. 7
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement ") is entered into as of
, 2008, by and between the REDEVELOPMENT AGENCY OF
THE CITY OF MOORPARK, a public body, corporate and politic (hereinafter the
"Agency "), and ,
(hereinafter the "Developer "), with reference to the following facts:
RECITALS:
A. The Agency and the Developer are parties to that certain Disposition and
Development Agreement (the "DDA "), dated as of , 2008, under
which the Agency has agreed to convey to the Developer certain partially improved real
property (the "Property ") consisting of approximately 1.51 acres located on the south
side of High Street generally between Moorpark Avenue and the north Metrolink parking
lot in the City of Moorpark;
B. Pursuant to the DDA, the Agency has agreed to make a loan to the
Developer to assist the Developer in the acquisition of the Property; and
C. The Agency and the Developer are entering into this Agreement for the
purpose of setting forth the terms and conditions on which the Agency will make the
loan to the Developer.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, representations
and provisions contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Loan. The Agency agrees to make the loan to the Developer on and
subject to the terms and conditions set forth in this Agreement.
A. Amount of the Loan. The loan will be in the principal amount of
$ (the "Loan "), and, subject to the terms and conditions set forth in
this Agreement and the DDA, will be made on , 2008 or such
earlier of later date as shall be mutually agreed upon by the parties (the "Closing Date ").
B. Terms of Loan. The Loan will be for a term of ten (10) years and
will be evidenced by a Promissory Note Secured by Deed of Trust (the "Note ") in the
form attached to this Agreement as Exhibit "A ", will bear interest at the rate of
percent (_%) per annum, and will be subject to prepayment, in whole or
in part, at any time without any penalty or additional fees, and shall have the other terms
and provisions, all as more particularly set forth in the Note.
57 1 i.l0 065
2. Loan Documents. The Loan will be secured by a Deed of Trust With
Assignment of Rents encumbering the Property (the "Deed of Trust ") in a form
acceptable to the Agency in its sole discretion. This Agreement, the Note and the Deed
of Trust are collectively referred to as the "Loan Documents ".
3. Closing Conditions. The funding and release of the Loan proceeds to the
Developer shall, unless waived by the Agency, be subject to the satisfaction by the
Developer of each of the following conditions:
3.1 Performance of Agreements. On the Closing Date, Developer shall
not be in default under this Agreement or the DDA and shall have performed all of its
obligations theretofore to be performed under this Agreement and the DDA.
3.2 Accuracy of Representations. The representations and warranties
of the Developer contained in this Agreement and in the DDA shall be true and correct
in all material respects as of the Closing Date.
3.3 Proceedings Satisfactory. All proceedings to be taken in
connection with the transactions contemplated by this Agreement and the DDA and all
documents incident to this Agreement and the DDA shall be satisfactory in form and
substance to the Agency.
3.4 Execution and Delivery. The original of the Note, duly executed by
the Developer, shall have been delivered to the escrow holder, Chicago Title Insurance
Company (the "Escrow Holder "), under the escrow (the "Escrow ") established pursuant
to the DDA for the purchase of the Property by Developer, and the original Deed of
Trust, duly executed and notarized, shall have been delivered to the Escrow Holder for
recording in the Official Records of Ventura County, California on the closing of the
purchase of the Property by Developer and pursuant to authority given to the Escrow
Holder in separate, written escrow instructions from the Agency.
3.5 Title Insurance. Chicago Title Company issues a CLTA Standard
Coverage Policy in the full amount of the Loan, with coverage and in form and
substance acceptable to the Agency in all respects, insuring the Agency's interest under
the Deed of Trust.
4. Representations and Warranties. Developer represents and warrants to
the Agency that:
4.1 Organization and Authority. Developer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, and has all requisite right, power and authority to execute and deliver the
Loan Documents and to perform all of its obligations under the Loan Documents.
4.2 Due Execution; Enforceability. This Agreement has been duly
58
authorized, executed and delivered by Developer and constitutes the legal, valid and
binding obligation of Developer enforceable against it in accordance with its terms; and,
on the Closing Date, the Note and the Deed of Trust will each have been duly
authorized, executed and delivered by of Developer and will each constitute the legal,
valid and binding obligation of Developer enforceable against it in accordance with its
terms.
4.3 No Conflict. Neither the execution and delivery of the Loan
Documents, nor the performance by it of its obligations thereunder, will conflict with or
result in a breach of or a default under its articles of incorporation or bylaws or any law,
rule, regulation, judgment, order or decree or any mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it or its
properties are bound.
4.4 Pending Litigation. There are no actions, suits, investigations or
proceedings pending or, to the knowledge of Developer, threatened against Developer,
or its business or properties, before or by any court or governmental board or body
which if determined adversely to Developer would have a material and adverse effect
upon its business or properties or its ability to perform its obligations under any of the
Loan Documents.
4.5 Accuracy of Information. All financial and other information
supplied by or on behalf of Developer to the Agency is accurate in all material respects
and does not omit to state any facts necessary to make the information contained
therein not materially misleading.
5. Use of Loan Proceeds. Developer agrees that the Loan proceeds are to
be used solely to defray costs and expenses in connection with its acquisition of the
Property.
6. Events of Default. An "Event of Default" shall exist if any one or more of
the following occurs:
6.1 Failure to Pay. The Developer fails to pay the principal of or interest on the Note,
or any other amount payable by the Developer under the Note, as and when the same
is due and payable.
6.2 Failure to Perform. The Developer fails to fully perform and discharge any of its
obligations under any of the Loan Documents (other than as provided in Section 6.1),
and such failure continues for a period of ten (10) days after receipt of written notice
from the Agency to cure such failure; provided, that if the nature of the failure is such
that more than ten (10) days are reasonably required for its cure, then no Event of
Default will be deemed to have occurred so long as the Developer commences to cure
such failure within such ten (10) day period and thereafter diligently pursues such cure
to completion.
!� 00 06 i
59
6.3 Breach of Representation or Warranty. Any representation or warranty by
Developer contained in any of the Loan Documents or in any document furnished by it
in compliance with or in reference to any of such Loan Documents shall be false or
misleading in a material respect at the time made.
6.4 Insolvency; Attachments. Developer is or becomes bankrupt or
insolvent, makes an assignment for the benefit of creditors, or commences or has
commenced against it a proceeding under the Federal Bankruptcy Code; or, a writ of
attachment or execution is levied on the Property; or, in any proceeding or action to
which the Developer is a party, a receiver is appointed with authority to take possession
of the Property.
6.5 Other Obligations. Developer is in default (beyond any applicable
cure period) under any other indebtedness or obligation owing to the Agency whether
now existing or hereafter created or incurred, including, without limitation, the DDA.
6.6 Other Secured Indebtedness. The holder of any indebtedness of
the Developer which is secured by a mortgage or deed of trust on the Property, which
mortgage or deed of trust is senior in priority to the Deed of Trust, declares a default by
the Developer with respect to such indebtedness and accelerates the maturity of such
indebtedness.
7. Remedies. If an Event of Default occurs, then the Agency may proceed to
protect and enforce its rights either by suit in equity and /or by action at law, or by any
other appropriate proceedings, whether for the specific performance of any covenant or
agreement contained in this Agreement or any of the other Loan Documents, or in aid of
the exercise of any power granted in this Agreement or in any of the other Loan
Documents, or may proceed to enforce the payment of the Note or to enforce any other
legal or equitable right it may have as holder of the Note. In particular, without limiting
the generality of the foregoing, the Agency shall have the right, at its option, to declare
the entire principal of, and all interest accrued on, the Loan then outstanding to be, and
such Loan and the Note evidencing the Loan shall thereupon become, forthwith due
and payable, without any presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by Developer. All rights and remedies of the
Agency under this Agreement, the other Loan Documents, the DDA and at law and in
equity are cumulative and not alternative.
8. Waiver. No delay or omission by the Agency in exercising its rights under
any of the Loan Documents shall constitute a waiver of such rights.
9. Notices. All notices, requests, demands and other communications
required or permitted to be given under the terms of this Agreement or the Note by one
'1AJ0 68
.�
party to the other shall be in writing addressed to the recipient party's Notice Address
set forth below and shall be deemed to have been duly given or made (a) if delivered
personally (including by commercial courier or delivery service) to the party's Notice
Address, then as of the date delivered (or if delivery is refused, on presentation), or (b)
if mailed by certified mail to the party's Notice Address, postage prepaid and return
receipt requested, then at the time received at the party's Notice Address as evidenced
by the return receipt, or (c) if mailed by first class mail to the party's Notice address,
postage prepaid, then on the third (3rd) day following deposit in the United States Mail.
Any party may change its Notice Address by a notice given in the foregoing form and
manner. The Notice Addresses of the parties are:
If to Agency: Redevelopment Agency of the City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn.: Executive Director
If to Developer: Aszkenazy Development, Inc.
601 South Brand Boulevard, 3rd Floor
San Fernando, California 91340
Attn.: Severyn I. Aszkenazy, President
10. Full Payment and Reconveyance. Upon receipt of all sums owing and
outstanding under the Note, Lender shall issue a full reconveyance of the Deed of
Trust encumbering the Property.
11. Transfer of Interest In or Other Encumbrances Against the Property. The
Developer may not sell, convey, lease, transfer, or dispose of all or any part of the
Property or any interest of the Developer therein, nor further hypothecate or encumber
the Property or any part thereof, or enter into any agreement to do any of the foregoing,
except as expressly permitted under the terms of the DDA.
12. Relationship of Parties. The relationship of the Developer and the Agency
under the Loan Documents is, and shall at all times remain, solely that of borrower and
lender, and the Agency neither undertakes nor assumes any responsibility or duty to the
Developer or to any third party with respect to the Property, except as expressly
provided in this Agreement and the other Loan Documents.
'00069
61
13. Applicable Law; Venue. This Agreement shall be governed by and
interpreted under the laws of the State of California. This Agreement is made, entered
into, and executed in Ventura County, California, and any action filed in any court for the
interpretation, enforcement or other action arising from any term, covenant or condition
herein shall be filed in Ventura County, California.
14. Attorneys' Fees. Should it become necessary for either party to
commence legal action to enforce the provisions of this Agreement, then the prevailing
party in such action shall be entitled to recover all such costs and attorneys' fees as a
court may adjudge reasonable.
15. Time. Time is of the essence of this Agreement.
16. Entire Agreements; Amendments. This Agreement and the other Loan
Documents are the entire agreement of the parties hereto with respect to the subject
matter hereof and supersede all prior negotiations or agreements, written or oral, with
respect to that subject matter. To be enforceable, any amendment, alteration, waiver,
extension or modification of this Agreement or the other Loan Documents must be in
writing signed by the party to be bound.
17. Counterparts. This Agreement may be executed in counterparts, each of
which is an original but all of which together constitute but one and the same
instrument. Any signature page of this Agreement may be detached from any
counterpart and re- attached to any other counterpart of this Agreement which is
identical in form hereto but having attached to it one or more additional signature pages.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
ASZKENAZY DEVELOPMENT, INC
REDEVELOPMENT AGENCY OF THE
CITY OF MOORPARK, a public body
corporate and politic
At
Severyn I. Aszkenazy, President Janice S. Parvin, Chair
(Print Name)
ATTEST:
By:
Secretary Deborah S. Traffenstedt
Agency Secretary
62 �o0070
EXHIBIT "A"
PROMISSORY NOTE SECURED BY DEED OF TRUST
MOORPARK, California
, 2008
For value received, , (the
"Developer "), does hereby covenant and promise to pay to the
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK (the "Agency "), or
order, the principal sum of $ , together with interest thereon at the
rate of percent ( %) per annum. Principal and interest are payable
in lawful money of the United States of America without setoff, deduction or
counterclaim and shall be paid to the Agency, as provided in Section 2 below, at
799 Moorpark Avenue, Moorpark, California, or at such other place as the
Agency may from time to time designate by written notice to the Developer,
1. Loan Agreement. This Promissory Note (the "Note ") is issued
pursuant to, and subject to, that certain Loan Agreement dated ,
2008, by and between the Developer and the Agency (the "Agreement "), to which
Agreement reference is made for a more complete statement of the Agency's
rights. Capitalized terms not defined in this Note shall have the same meanings
which are given to them in the Agreement. The indebtedness evidenced by this
Note is secured by a Deed of Trust as described in the Agreement.
2. Terms of the Loan.
(a) Subject to the following sentence, interest only shall be payable in
monthly installments, commencing on , 2008, and continuing
thereafter on the same date of each succeeding month until ,
2017 (the "Maturity Date "), at which time all outstanding principal, together with
all accrued interest thereon, shall be fully due and payable. Notwithstanding the
preceding sentence to the contrary, the Developer may, at its option, choose not
to pay one or more or all of the monthly installments of interest coming due prior
to the date when the Project (as defined below) is first 90% leased, and any such
installments of interest not paid by Developer shall be added to the principal
amount of this Note and thereupon bear interest as provided in this Note. As
used in this Note, the term "Project" has the meaning given to it in that certain
Disposition and Development Agreement, dated as of , 2008,
by and between the Agency and the Developer.
(b) To the extent that the Developer makes any payment or the Agency
receives any payment or proceeds for the Developer's benefit, which are
subsequently invalidated, declared to be fraudulent or preferential, or are
required to be set aside or to be repaid to a trustee, debtor -in- possession,
63 100071
receiver, custodian or any other party under any bankruptcy law, common law or
equitable cause, then, to such extent, the obligations of the Developer hereunder
intended to be satisfied shall be revived and continue as if such payment or
proceeds had not been received by the Agency.
(c) In addition to any interest which may be charged hereunder, the
Developer shall pay to the Agency a charge ( "Late Charge ") for the collection of
late payments in an amount equal to five percent (5 %) of any payment required
hereunder which is not paid within ten (10) days after the date such payment is
due, as liquidated damages and not as a penalty. Without limiting the foregoing,
the Developer agrees that the Late Charge shall be due and payable upon the
entire unpaid principal amount if not paid when due upon the Maturity Date. The
Developer recognizes that its default in making any payment as provided herein
or in any other Loan Document as agreed to be paid when due, or the
occurrence of any other Event of Default hereunder or under any other Loan
Document, will require the Agency to incur additional expense in servicing and
administering the Loan, will result in loss to the Agency of the use of the money
due and in frustration to the Agency in meeting its other financial and loan
commitments and that the damages caused thereby would be extremely difficult
and impractical to ascertain. Nothing in this Note shall be construed as an
obligation on the part of the Agency to accept, at any time, less than the full
amount then due hereunder or as a waiver or limitation of the Agency's right to
compel prompt performance.
(d) All payments on this Note will be applied first to the payment of any
costs, fees, Late Charges, or other charges incurred in connection with the
indebtedness evidenced by this Note; next, to the payment of accrued interest;
then to the reduction of the principal balance. The Developer may prepay this
Note, in whole or in part, at any time without any penalty or additional fees.
(e) The Deed of Trust which secures the indebtedness evidence by
this Note provides as follows:
"In the event of any Transfer (as defined below) of said property,
Beneficiary shall have the absolute right at its option, without prior demand
or notice, to declare all sums secured hereby immediately due and
payable. As used herein, 'Transfer' means any sale, conveyance, lease,
transfer or disposition of all or any part of said property or any interest of
Trustor therein, or the further hypothecation or encumbering of said
property or any part thereof or any interest of Trustor therein, or the entry
into any agreement to do any of the foregoing; provided, however, that
`Transfer' shall not mean any of the foregoing which are approved by the
Beneficiary in accordance with the terms of the Disposition and
Development Agreement (the "DDA "), dated as of , 2008,
by and between the Beneficiary and the Trustor or are otherwise expressly
permitted under the terms of the DDA without the approval of Beneficiary."
64 1 00 072
(f) The parties hereto intend to conform strictly to the applicable usury
laws. In no event shall the Agency be entitled to interest exceeding the
maximum rate permitted by law. If fulfillment of any provision of this Note, or of
any other document pertaining to the indebtedness evidenced hereby, at the time
performance of such provisions shall be due, would involve exceeding the
maximum rate of interest prescribed by law, then the obligation to be fulfilled
shall be reduced automatically so as to equal such maximum rate. If the Agency
shall ever receive anything of value deemed interest under applicable law which
would exceed interest at the highest lawful rate, an amount equal to any amount
which would have been excessive interest shall be applied to the reduction of
principal payable with respect to this Note and not to the payment of interest, or if
such amount which would have been excessive interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to Developer. All
sums paid or agreed to be paid to the Agency for the use, forbearance or
detention of the indebtedness of the Developer to the Agency hereunder shall, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of such indebtedness so that the amount
of interest on account of such indebtedness does not exceed the maximum
permitted by applicable law.
3. Acceleration on Default. If the Developer fails to pay the principal
of or interest on this Note, or any other amount payable by the Developer under
this Note, as and when the same is due and payable, or if an Event of Default
occurs under the Agreement, then, in addition to all rights and remedies of the
Agency under the Agreement, the Deed of Trust, applicable law or otherwise, all
such rights and remedies being cumulative, the Agency may, at its option,
declare all amounts owing under this Note to be due and payable, whereupon the
then unpaid principal balance hereof together with all interest accrued thereon
shall forthwith become due and payable.
4. Cost of Collection. The Developer agrees to pay the following
costs, expenses and attorneys' fees paid or incurred by the Agency: (i) costs and
expenses of collection or enforcement of, and attorneys' fees paid or incurred in
connection with the collection or enforcement of, this Note, whether or not suit is
filed; and (ii) costs of suit and such sum as the Court may adjudge as attorneys'
fees in an action to enforce payment of this Note or any part of it.
5. Forbearance Not a Waiver. No delay or omission on the part of the
Agency in exercising any rights under this Note, the Agreement or the Deed of
Trust on breach or default by the Developer shall operate as a waiver of such
right or any other right under this Note or the Deed of Trust for the same breach
or default or any other breach or default.
6. Assignment. The Agency shall have the right to sell, assign or
otherwise transfer, in whole or in part, this Note, the Deed of Trust, and any other
65i���i3
instrument evidencing or securing the indebtedness of this Note without the
consent of the Developer. The Developer shall not sell, assign or otherwise
transfer this Note, in whole or in part, without the prior written consent of the
Agency which consent the Agency is under no obligation to give.
7. No Oral Modifications. Neither this Note nor any of the terms or
provisions hereof can be altered, modified, amended, waived, extended,
changed, discharged or terminated orally or by a course of conduct, but only by
an agreement in writing signed by the party against whom enforcement of any
alteration, modification, amendment, waiver, extension, change, discharge or
termination is sought.
8. Time is of the Essence. Time is of the essence for each and every
obligation under this Note.
ASZKENAZY DEVELOPMENT, INC.
Severyn I. Aszkenazy, Authorized Signatory
An
Secretary
(Print Name)
66 ) 1 0074
Attachment No. 8
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Redevelopment Agency of the
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn.: Executive Director
Space Above This Line For Recorder's Use
DEED OF TRUST
WITH ASSIGNMENT OF RENTS AS ADDITIONAL SECURITY
This DEED OF TRUST, made as of , 2008, between
, herein called TRUSTOR, whose
address is 601 South Brand Boulevard, 3rd Floor, San Fernando, California
91340, CHICAGO TITLE COMPANY, a California corporation, herein called
TRUSTEE, and the REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK, a public body, corporate and politic, herein called BENEFICIARY.
Trustor irrevocably grants, transfers and assigns to Trustee in trust, with power of
sale, that property in the County of Ventura, State of California, described as:
See Attached Exhibit A
Together with the rents, issues and profits thereof, subject, however, to the right,
power and authority hereinafter given to and conferred upon Beneficiary to
collect and apply such rents, issues and profits.
For the purpose of securing (1) payment of the sum of $ with
interest thereon according to the terms of a promissory note of even date
herewith made by Trustor, payable to the order of Beneficiary, and extensions or
renewals thereof; (2) the performance of each agreement of Trustor incorporated
by reference or contained herein or reciting it is so secured; (3) payment of
additional sums and interest thereon which may hereafter be loaned to Trustor,
or it successors or assigns, when evidenced by a promissory note or notes
reciting that they are secured by this Deed of Trust.
A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep said property in good condition and repair; not to remove or
3
67 too 75
demolish any building 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; not to commit or
permit waste thereof; not to commit, suffer, or permit any act upon said property
in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other
acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory
to and with loss payable to Beneficiary. The amount collected under any fire or
other insurance policy may be applied by Beneficiary upon any indebtedness
secured hereby and in such order as Beneficiary may determine, or at option of
Beneficiary the entire amount so collected or any part thereof may be released to
Trustor. Such application or release shall not cure or waive any default or notice
of default hereunder or invalidate any act done pursuant to such notice. Without
limiting the foregoing, said insurance shall consist of a policy or policies of fire
and extended coverage insurance in the amount of the full replacement cost of
all buildings and other improvements on said property and with such deductibles
and having such endorsements as are satisfactory to Beneficiary, including,
without limitation, endorsements for vandalism, malicious mischief, earthquake
and flood coverages.
(3) 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 attorney's fees in a
reasonable sum, in any action or proceeding in which Beneficiary or Trustee may
appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust.
(4) To pay: at least ten days before delinquency all taxes and assessments
affecting said property, including assessments on appurtenant water stock; when
due, all encumbrances, charges and liens, with interest, on said property or any
part thereof, which appear to be prior or superior hereto; all costs, fees and
expenses of this Trust.
68 0)00'76
Should Trustor fail to make any payment or to 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, Beneficiary or
Trustee being authorized to enter upon said property for such purposes; appear
in and defend any action or proceeding purporting to affect the security hereof or
the rights or powers of Beneficiary or Trustee; 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, pay
necessary expenses, employ counsel and pay his or her reasonable fees.
(5) To pay immediately and without demand all sums so expanded by
Beneficiary or Trustee, with interest from date of expenditure at the amount
allowed by law in effect at the date hereof, and to pay for any statement provided
for by law in effect at the date hereof regarding the obligation secured hereby,
any amount demanded by the Beneficiary not to exceed the maximum allowed
by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for
public use of or injury to said property or any part thereof is hereby assigned and
shall be paid to Beneficiary who may apply or release such moneys received by
him or her in the same manner and with the same effect as provided above in
paragraph A(2) regarding disposition of proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive his or her right either to require prompt payment
when due of all other sums so secured or to declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor and without
notice, upon written request of Beneficiary and presentation of this Deed of Trust
and said note for endorsement, and without affecting the personal liability of any
person for payment of the indebtedness secured hereby, Trustee may: reconvey
any part of said property; consent to the making of any map or plat thereof; join in
granting any easement thereon; or join in any extension agreement or any
agreement subordinating the lien or charge hereof.
69
(4) That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed of Trust and said note
to Trustee for cancellation and retention or other disposition as Trustee in its sole
discretion may choose and upon payment of its fees, Trustee shall reconvey,
without warranty, the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The Grantee in such reconveyance may be described as "the person or
persons legally entitled thereto."
(5) That as additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said property, reserving unto
Trustor the right, prior to any default by Trustor in payment of any indebtedness
secured hereby or in performance of any agreement hereunder, to collect and
retain such rents, issues and profits as they become due and payable. Upon any
such default, Beneficiary may at any time without notice, either in person, by
agent, or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of said property or any part thereof, in his or her own name sue
for or otherwise collect such rents, issues, and profits, including those past due
and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any indebtedness secured
hereby, and in such order as Beneficiary may determine. The entering upon and
taking possession of said property , the collection of such rents, issues and
profits and the application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such
notice.
(6) That upon default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, 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 to be sold said property, which notice Trustee shall
cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed
of Trust, said note and all documents evidencing expenditures secured hereby.
70 � 0078
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 such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by the
preceding postponement. Trustee shall deliver to such purchaser its deed
conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sale, Trustee shall apply the
proceeds of sale to payment of: all sums expended under the terms hereof, not
then repaid, with accrued interest at the amount allowed by law in effect at the
date hereof; all other sums then secured hereby; and the remainder, if any, to the
person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may from time to time, by instrument in writing, substitute a successor or
successors to any Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in the office of
the recorder of the county or counties where said property is situated, shall be
conclusive proof of proper substitution of such successor Trustee or Trustees,
who shall, without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. Said instrument must contain the name of
the original Trustor, Trustee and Beneficiary hereunder, the book and page
where this Deed of Trust is recorded and the name and address of the new
Trustee.
(8) That 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 mean the owner and
holder, including pledgees of the note secured hereby, whether or not named as
Beneficiary herein. In this Deed of Trust, whenever the context so requires, the
masculine gender includes the feminine and /or the neuter, and the singular
number includes the plural.
71 j00079
(9) The Trustee accepts this Trust when this Deed of Trust, duty executed
and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall
be a party unless brought by Trustee.
(10) In the event of any Transfer (as defined below) of said property,
Beneficiary shall have the absolute right at its option, without prior demand or
notice, to declare all sums secured hereby immediately due and payable. As
used herein, `Transfer' means any sale, conveyance, lease, transfer or
disposition of all or any part of said property or any interest of Trustor therein, or
the further hypothecation or encumbering of said property or any part thereof or
any interest of Trustor therein, or the entry into any agreement to do any of the
foregoing; provided, however, that `Transfer' shall not mean any of the foregoing
which are approved by the Beneficiary in accordance with the terms of the
Disposition and Development Agreement (the "DDA "), dated as of
, 2008, by and between the Beneficiary and the Trustor or are
otherwise expressly permitted under the terms of the DDA without the approval
of Beneficiary.
Beneficiary may charge for a statement regarding the obligation secured
hereby, provided the charge thereof does not exceed the maximum allowed by
laws.
(11) Beneficiary has agreed to subordinate this Deed of Trust to other deeds of
trust upon the terms set forth in Section 3.11 of the DDA.
The undersigned Trustor, requests that a copy of any notice of default and
any notice of sale hereunder be mailed to him at his address hereinbefore set
forth.
a
LIZA
Severyn I. Aszkenazy
Authorized Signatory
72
ALL - PURPOSE ACKNOWLEDGMENT
State of California )
)ss
County of Ventura )
On , 2008, before me,
personally appeared
[ ] personally known to me -OR-
[ ] proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
CAPACITY CLAIMED
[ ] INDIVIDUAL(S)
[ ] OFFICER(S) (TITLE[S]):
[ ] PARTNER(S)
[ ] ATTORNEY -IN -FACT
[ ] TRUSTEE(S)
BY SIGNER(S)
73 tk")0 X81_
[ ] SUBSCRIBING WITNESS
[ ] GUARDIAN /CONSERVATOR
[ ] CHAIRPERSON /MAYOR
[ ] OTHER:
SIGNER(S) IS /ARE REPRESENTING:
Aszkenazy Development, Inc.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO CHICAGO TITLE COMPANY
The undersigned is the legal owner and holder of the note or notes and of all
other indebtedness secured by the foregoing Deed of Trust. Said note or notes,
together with all other indebtedness secured by said Deed of Trust, have been
fully paid and satisfied; and you are hereby requested and directed, on payment
to you of any sums owing to you under the terms of said Deed of Trust, to cancel
said note or notes above mentioned, and all other evidence of indebtedness
secured by said Deed of Trust delivered to you herewith, together with the said
Deed of Trust, and to reconvey, without warranty, to the parties designated by
the terms of said Deed of Trust, all the estate now held by you under the same.
Dated:
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destroy this Dead of Trust OR THE NOTE which it secures. Both
must be delivered to the Trustee for cancellation before reconveyance will be
made.
74 , �00082
EXHIBIT E
RESOLUTION NO. 2008-
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF
THE CITY OF MOORPARK, CALIFORNIA, APPROVING
THE DISPOSITION AND DEVELOPMENT AGREEMENT
BETWEEN THE MOORPARK REDEVELOPMENT
AGENCY AND ASZKENAZY DEVELOPMENT, INC.
WHEREAS, the City Council of the City of Moorpark, adopted the
Redevelopment Plan for the Moorpark Redevelopment Project ( "Plan ") on July 5, 1989,
by Ordinance No. 110, in accordance with the California Community Redevelopment
Law (Health and Safety Code Section 33000 et seq.); and
WHEREAS, the Moorpark Redevelopment Agency ( "Agency ") purchased the
east 800 feet of APN 512 -0- 090 -100 ( "Property ") for redevelopment purposes; and
WHEREAS, the Agency negotiated a Disposition and Development Agreement
with Aszkenazy Development, Inc. ( "Developer ") to construct one commercial building in
accordance with the Plan; and
WHEREAS, a proposed Disposition and Development Agreement was on the
Agency's November 19, 2008 agenda; however, the Agency Board continued the item
until December 3, 2008, at the request of staff; and
WHEREAS, the Agency considered the proposed Disposition and Development
Agreement at their meeting of December 3, 2008.
NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Agency enters into the Disposition and Development
Agreement with Aszkenazy Development, Inc., subject to final language approval by the
Executive Director and Agency General Counsel.
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 3rd day of December, 2008.
Janice S. Parvin, Chair
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
'000 34
filTaf�ui
to . A .
MINUTES OF THE REDEVELOPMENT AGENCY
Moorpark, California November 19, 2008
A Special Meeting of the Redevelopment Agency of the City of Moorpark was held on
November 19, 2008 in the Community Center of said City located at 799 Moorpark
Avenue, Moorpark, California.
1. CALL TO ORDER:
Chair Hunter called the meeting to order at 6:31 p.m.
2. ROLL CALL:
Present: Agency Members Mikos, Millhouse, Parvin, Van Dam, and
Chair Hunter.
Staff Present: Steven Kueny, Executive Director; Hugh Riley, Assistant
Executive Director; Barry Hogan, Deputy City Manager;
David Bobardt, Planning Director; and Deborah Traffenstedt,
Agency Secretary.
3. PUBLIC COMMENT:
None.
4. REORDERING OF, AND ADDITIONS TO, THE AGENDA:
None.
5. CLOSED SESSION:
Mr. Kueny requested the Agency go into closed session for discussion of Item
S.C. on the agenda.
MOTION: Agency Member Mikos moved and Agency Member Parvin seconded a
motion to adjourn to closed session for discussion of Item 5.C. on the agenda. The
motion carried by unanimous voice vote.
C. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
(Pursuant to Government Code Section 54956.8)
Property: 192 High Street (APN 512 -0- 090 -100)
Agency Negotiator: Redevelopment Agency of the City of Moorpark -
Steven Kueny, Executive Director
Negotiating Parties: Aszkenazy Development, Inc.
Under Negotiation: Price and terms of sale
Minutes of the Redevelopment Agency
Moorpark, California Page 2 November 19, 2008
Present in closed session were Agency Members Mikos, Millhouse, Parvin, Van
Dam, and Chair Hunter; Steven Kueny, Executive Director; Hugh Riley, Assistant
Executive Director; Barry Hogan, Deputy City Manager; David Bobardt, Planning
Director; and Deborah Traffenstedt, Administrative Services Director /City Clerk.
The Agency reconvened into open session at 6:45 p.m. Mr. Kueny stated Item
5.C. was discussed and there was no action to report.
6. ADJOURNMENT:
Chair Hunter adjourned the meeting at 6:45 p.m.
Janice S. Parvin, Chair
ATTEST:
Deborah S. Traffenstedt
Agency Secretary
MINUTES OF THE REDEVELOPMENT AGENCY
Moorpark, California November 19, 2008
A Regular Meeting of the Redevelopment Agency of the City of Moorpark was held on
November 19, 2008, in the Community Center of said City located at 799 Moorpark
Avenue, Moorpark, California.
CALL TO ORDER:
Chair Hunter called the meeting to order at 7:26 p.m.
2. ROLL CALL:
Present: Agency Members Mikos, Millhouse, Parvin, Van Dam, and
Chair Hunter.
Staff Present: Steven Kueny, Executive Director; Hugh Riley, Assistant
Executive Director; David Moe, Redevelopment Manager;
and Deborah Traffenstedt, Agency Secretary.
3. PUBLIC COMMENT:
None.
4. REORDERING OF, AND ADDITIONS TO, THE AGENDA:
None.
5. PRESENTATION /ACTION /DISCUSSION:
A. Consider Resolution Approving Disposition and Development Aareement
Between the Redevelopment Agency of the City of Moorpark and
Aszkenazy Development, Inc. Staff Recommendation: 1) Adopt
Resolution No. 2008- , approving Disposition and Development
Agreement, subject to final language approval by the Executive Director
and Agency General Counsel; and 2) Authorize the Chair of the
Redevelopment Agency to execute all documents necessary for this
transaction. ROLL CALL VOTE REQUIRED
Mr. Moe requested this item be continued to December 3, 2008.
In response to Chair Hunter, Ms. Traffenstedt stated there were no
speakers.
0 )4)08 s
Minutes of the Redevelopment Agency
Moorpark, California Page 2 November 19, 2008
MOTION: Agency Member Mikos moved and Agency Member Parvin seconded
a motion to continue this item to December 3, 2008. The motion carried by
unanimous voice vote.
6. CONSENT CALENDAR: (ROLL CALL VOTE REQUIRED)
MOTION: Agency Member Mikos moved and Agency Member Parvin seconded a
motion to approve the Consent Calendar with the exception of Item 6.A. which was
pulled for individual consideration upon the request of Chair Hunter. The motion carried
by unanimous roll call vote.
B. Consider Minutes of Regular Meeting of October 1, 2008. Staff
Recommendation: Approve the minutes.
C. Consider Award of Bid and Proiect Approval for the Demolition of 484
Charles Street. Staff Recommendation: 1) Approve the removal of 484
Charles Street; and 2) Award bid to Draper Construction and authorize
execution of the Agreement, subject to final language approval by the
Executive Director and Agency General Counsel.
D. Consider Authorizina the Acauisition of 780 Walnut Street and Acceptina
the Grant Deed for Recordation. Staff Recommendation: 1) Authorize the
Executive Director to execute all documents necessary to this transaction;
and 2) Authorize the Agency Secretary to accept and consent to the
recordation of any deed.
The following item was pulled for individual consideration.
A. Consider Minutes of Regular Meeting of September 17, 2008. Staff
Recommendation: Approve the minutes.
Chair Hunter stated he would abstain from voting on this item as he was
absent on September 17, 2008.
MOTION: Agency Member Mikos moved and Agency Member Van Dam
seconded a motion to approve the minutes of the Regular Meeting of September
17, 2008. The motion carried by voice vote 4 -0, Chair Hunter abstaining.
7. CLOSED SESSION:
None was held.
4 0088
Minutes of the Redevelopment Agency
Moorpark, California Page 3 November 19, 2008
8. ADJOURNMENT:
MOTION: Agency Member Parvin moved and Agency Member Mikos seconded a
motion to adjourn the meeting of the Moorpark Redevelopment Agency. The motion
carried by unanimous voice vote. The time was 7:28 p.m.
Janice S. Parvin, Chair
ATTEST:
Deborah S. Traffenstedt
Agency Secretary
10Q(P89
IT
MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Agency Board
FROM: David C. Moe II, Redevelopment Manager
BY: Jessica Sandifer, Administrative Specia
DATE: November 24, 2008 (Agency Meeting of 12/3/08)
SUBJECT: Consider Authorization of Recordation of the Notice of Completion for
the Demolition Projects at 1293 and 1331 Walnut Canyon Road
BACKGROUND
On June 18, 2008, the Agency Board awarded the demolition contract for 1293 and 1331
Walnut Canyon Road to Ventura Asbestos Control, Inc. (VAC) for $21,073 plus a 10%
contingency for an overall budget of $23,180.00.
DISCUSSION
The work began August 27, 2008 and was completed on October 3, 2008. The project was
completed within budget and no project contingency was used. Staff is requesting that the
Agency Board authorize the recordation of the Notice of Completion.
FISCAL IMPACT
None.
STAFF RECOMMENDATION
1. Authorize the Agency Secretary to file the Notice of Completion for the project.
2. Release the Performance Bond one (1) year after Recordation of the Notice of
Completion in accordance with the bond provisions.
3. Release the Payment Bond six (6) months after Recordation of the Notice of
Completion in accordance with the bond provisions.
Attachment 1: Notice of Completion
ATTACHMENT 1
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO
r NAME Redevelopment Agency
STREET
799 Moorpark Avenue
ADDRESS
CITY
Moorpark, CA 93021
STATE
ZIP
Attn: Agency Secretary
L
No Fee Required (Govt Code Sec 6103 & 27383;
NOTICE OF COMPLETION
Notice pursuant to Civil Code Section 3093, must be filed within 10 days after completion. (See reverse side for complete requirements.)
Notice is hereby given that:
1. The undersigned is owner or corporate officer of the owner of the interest or estate stated below in the property hereinafter described:
2. The full name of the owner is Redevelopment Aaencv of the City of Moorpark
3. The full address of the owner is 799 Moorpark Ave
4. The nature of the interest or estate of the owner is: In fee.
(if other than Fee, strike 'In fee' and insert, for example, 'purchaser under contract of purchase,' or 'Lessee')
5. The full names and full addresses of all persons, if any, who hold title with the undersigned as joint tenants or as tenants in common are:
NAMES ADDRESSES
6. The full names and full addresses of the predecessors in interest of the undersigned, if the property was transferred subsequent to the
commencement of the work or improvements herein referred to:
NAMES ADDRESSES
7. A work of improvement on the property hereinafter described was completed on October 3, 2008 The work done was:
Demolition of two residential structures
8. The names of the contractor, if any, for such work of improvement was Ventura Asbestos Control, Inc.
August 4 2008
(if no contractor for work of improvement as a whole, insert 'None -) (Date of Contract)
9. The property on which said work of improvement was completed is in the City of Moorpark
County of Ventura State of CA , and is described as follows: 511 -0- 040 -140 & 511 -0- 040 -120
10. The street address of said property is 1293 Walnut Canyon Road and 1331 Walnut Canyon Road
'If no street address has been officially assigned, insert 'none'.'
Dated
'Signature of Owner or corporate officer of Owner named in paragraph 2, or his agent)
Jteven mueny, txecuuve LJIFectul
VERIFICATION
I, the undersigned, say: I am the 2R ive Director the declarant of the foregoing Notice of Completion;
'President of, aneger o , artner of, owner of, etc.l
I have read said Notice of Completion and know the contents thereof; the same is true to my own knowledge. I declare under penalty of
perjury that the foregoing is true and correct.
Executed on , 2008 at Moorpark California
of the
contents
Before you use this forth, fill in all blanks, and make whatever changes are
appropriate and necessary to your particular transaction. Consult a lawyer �Ilf�ll I�Illll�llu
WOLCOTTS FORM 1114 - (Price class 3B) if you doubt the form's fitness for your purpose and use. Wolcotts makes
NOTICE OF COMPLETION - Rev. 7 -99 no representation or warranty, express or implied, with respect to the
01999 WOLCOTTS FORMS, INC. merchantability or fitness of this form for an intended use or purpose. 67775 39114 s
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MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Agency Board of Directors
FROM: Yugal K. Lail, City Engineer /Public Works Director
DATE: November 20, 2008 (Agency Meeting of 12/03/08)
SUBJECT: Consider Resolution Amending the Fiscal Year 2008/09 Budget to
Fund Asphalt Slurry at 675 Moorpark Avenue
BACKGROUND & DISCUSSION
The Agency Board is being asked to consider amending the FY 2008/09 Budget in the
amount of $3,000 for Capital Improvement Program (CIP) 7506 "Community Center
Paving Repair" to fund an asphalt slurry at the former Public Works Corporate Yard,
located at 675 Moorpark Avenue. As the Agency recalls, the building was demolished
in December 2007. The demolished site left an asphalt area that can be refurbished
and staff proposes installing a temporary half -court basketball court and auxiliary
parking to be used by the new after school teen program at the Community Center
(Teen Hot Spot) as well as the general public. The fence to the westerly side will be
removed. The City currently does not have this item budgeted. A Budget Amendment
in the amount of $3,000 is necessary. This project is expected to be constructed in
conjunction with the City Hall parking lot asphalt repair project.
FISCAL IMPACT
A Budget Amendment will increase CIP 7506 $3,000, for 675 Moorpark Avenue.
Sufficient funds are available.
STAFF RECOMMENDATION (ROLL CALL VOTE)
1. Adopt Resolution No 2008-
Attachment
1. Resolution
"00912
Attachment 1
RESOLUTION NO. 2008 -
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF
THE CITY OF MOORPARK ( "AGENCY "), CALIFORNIA,
AMENDING THE FISCAL YEAR 2008/2009 BUDGET BY
APPROPRIATING $3,000 FROM THE MRA - AREA 1 -
OPERATIONS (2902) FUND FOR ASPHALT WORK AT 675
MOORPARK AVENUE
WHEREAS, on July 2, 2008, the Board of Directors adopted the Agency budget
for Fiscal Year 2008/2009; and
WHEREAS, a staff report has been presented to the Board of Directors requesting
a budget adjustment in the aggregate amount of $3,000; and
WHEREAS, Exhibit "A ", attached hereto and made a part hereof, describes said
budget amendment and its resultant impact to the budget line item.
NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. A budget amendment in the amount of $3,000 from the MRA -
Area 1 - Operations Fund, as more particularly 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 3rd day of December, 2008.
Janice Parvin, Chair
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
Attachment
Exhibit W- Appropriation and Budget Detail
00C93
am—ne R[me, ►rewiIsum
EXHIBIT "A"
BUDGET AMENDMENT FOR
MRA AREA 1 OPERATIONS
FOR COMMUNITY CENTER PAVING REPAIR
FISCAL YEAR 2008/09
FUND ALLOCATION FROM:
Fund
Account Number
Amount
General Fund
2902 -5500
$ 3,000
$ 3,000
$ 3,000
Total
$ -
$ 3,000
DISTRIBUTION OF APPROPRIATION TO EXPENSE ACCOUNTS:
Account Number
Current Budget
Revision
Amended Budget
2902.7620.7506.9613
$ -
$ 3,000
$ 3,000
Total
$ -
$ 3,000
$ 3,000
Approved as to Form:
`.+fit
SAPublic Works \Everyone \Reports \Staff Reports\2008 \December \12 -3 -2008 (Basketball Court)