HomeMy WebLinkAboutAG RPTS 2008 1119 RDA REG' `j ESTABLISHED
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gii of aV Resolution No. 2008 -204
MOORPARK REDEVELOPMENT AGENCY
REGULAR MEETING AGENDA
WEDNESDAY, NOVEMBER 19, 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 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
(Staff: David Moe)
6. CONSENT CALENDAR: (ROLL CALL VOTE REQUIRED)
A. Consider Minutes of Reaular Meeting of September 17, 2008. Staff
Recommendation: Approve the minutes.
B. Consider Minutes of Regular Meeting of October 1, 2008. Staff
Recommendation: Approve the minutes.
Redevelopment Agency Agenda
November 19, 2008
Page 2
6. CONSENT CALENDAR: (continued)
C. Consider Award of Bid and Project 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. (Staff: David Moe)
D. Consider Authorizing the Acquisition of 780 Walnut Street and Accepting 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. (Staff: David Moe)
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.mooraark.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 for speaker 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
November 19, 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, November 19,
2008, at 7:00 p.m. in the Council Chambers of the Moorpark Community Center, 799
Moorpark Avenue, Moorpark, California, was posted on November 14, 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 14, 2008.
Maureen Benson, Assistant City Clerk
CITY Or
Redevelopment Agency
ACTION,-
UEM S.A.
`m.
MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Agency Board of Directors
FROM: David C. Moe II, Redevelopment Manager
DATE: November 7, 2008 (Agency Meeting of 11/19/08)
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.
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
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
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Honorable Agency Board of Directors
November 19, 2008
Page 2
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.
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
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Honorable Agency Board of Directors
November 19, 2008
Page 3
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
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
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Honorable Agency Board of Directors
November 19, 2008
Page 4
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:
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.
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Honorable Agency Board of Directors
November 19, 2008
Page 5
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
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.
EXHIBIT "A" Aerial
EXHIBIT "B" Site Plan
EXHIBIT "C" Elevation
EXHIBIT "D" Disposition and Development Agreement
EXHIBIT "E" Resolution No. 2008 -
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EXHIBIT B
PHASE t
PHASE 11
DEVELOPMENT SUMMARY
PARKING PROVIDED
PARKING PROVIDED
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PARKING REQUIRED PARKING REQUIRED
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ASZKENAZY DEVELOPMENT, ING
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EXHIBIT C
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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 November 5, 2008
A MOORPARK REDEVELOPMENT PROJECT
00009
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
000010
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.
1 _��UU1l
"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.
"Closing Date" means the date of the Closing, as set forth in Section
202.4 hereof
"Condition of Title" is defined in Section 203 hereof.
"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
2 �L00-
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.
"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
3 A00013
Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of
the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii)
polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous"
or "extremely hazardous" pursuant to Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (ix) designated as "hazardous
substances" pursuant to Section 311 of the Clean Water Act (33 U.S.C. § 1317),
(x) defined as a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901 et seq. (42 U.S.C. §6903) or
(xi) defined as "hazardous substances" pursuant to Section 101 of the
Comprehensive Environmental Response, Compensation, and Liability Act, 42
U.S.C. §9601 et seq.
"Improvements" means the improvements to be constructed by the
Developer either on or off the Site. The improvements include but are not limited
to the construction of 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.
hereof.
"Report" means the preliminary title report, as described in Section 203
4 i 000i4
"Schedule of Performance" means the Schedule of Performance
attached hereto as Attachment No. 4 and incorporated herein, setting out the
dates and /or time periods by which certain obligations set forth in this Agreement
must be accomplished. The Schedule of Performance is: (a) subject to revision
from time to time as mutually agreed upon in writing between the Developer and
the Agency's Executive Director, and the Agency's Executive Director is
authorized to make such revisions as he or she deems reasonably necessary;
and (b) subject to the provisions of Section 602.
"Scope of Development" means the Scope of Development attached
hereto as Attachment No. 5 and incorporated herein, which describes the scope,
amount and quality of development of the Improvements to be constructed by the
Developer pursuant to the terms and conditions of this Agreement.
"Site" 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.
5 ?00015
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. Agency will provide Developer with a First Right of
Refusal to acquire and develop Parcel 1 in an instrument to be recorded in the
Official Records of Ventura County prior to Closing in form reasonably
acceptable to the Developer. 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.
6 f 0001.6
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.
and shall:
202.3 Authority of Escrow Agent. Escrow Agent is authorized to
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.
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.
8 1 9 00018
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 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
9 )OU01.9
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:
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.
10 '0000►
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.
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
11
100 02'L
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
12 )00022
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.
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 parry shall have any further
rights, obligations or liabilities hereunder. The representations and warranties set
forth in this Section 206.1 shall survive the Closing.
206.2 Developer's Representations. Developer represents and
warrants to Agency as follows:
13 i00023
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.
14 t00024
208. Condition of the Site
208.1 Disclosure. Prior to the execution of this Agreement, Agency
has determined there is no visible evidence to indicate the presence of
Hazardous Materials on the Site. The Agency hereby represents and warrants
that it has no Actual Knowledge, and has not received any notice or
communication from any government agency having jurisdiction over the Site,
notifying Agency of, the presence of surface or subsurface zone Hazardous
Materials in, on, or under the Site, or any portion thereof. "Actual knowledge," as
used herein, shall not impose a duty of investigation, and shall be limited to the
actual knowledge of the Agency employees and agents who have participated in
the preparation of this Agreement.
208.2 Investigation of Site. 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
15 > 0 0025
presence of known or unknown seismic faults, or the suitability of the Site for the
development purposes intended hereunder.
208.5 Developer Precautions after Closing. Upon the Closing,
the Developer shall take all necessary precautions to prevent the release into the
environment of any Hazardous Materials which are located in, on or under the
Site. Such precautions shall include compliance with all Governmental
Requirements with respect to Hazardous Materials. In addition, the Developer
shall install and utilize such equipment and implement and adhere to such
procedures as are consistent with commercially reasonable standards as
respects the disclosure, storage, use, removal and disposal of Hazardous
Materials.
208.6 Required Disclosures after Closing. After the Closing, the
Developer shall notify the Agency, and provide to the Agency a copy or copies, of
all environmental permits, disclosures, applications, entitlements or inquiries
relating to the Site, including notices of violation, notices to comply, citations,
inquiries, clean -up or 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
16 )00026
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.
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
17 1 00027
all other applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.)
and under other applicable laws and regulations shall be included by the
Developer in its Design Development Drawings and other required submittals
and shall be completed during the construction of the Improvements.
302.4 Defects in Plans. The Agency and the City shall not be
responsible either to the Developer or to third parties in any way for any defects
in the Design Development Drawings, nor for any structural or other defects in
any work done according to the approved Design Development Drawings, nor for
any delays reasonably caused by the review and approval processes established
by this Section 302.
303. Land Use Approvals. Before commencement of construction of the
Improvements or other works of improvement upon the Site, the Developer shall,
at its own expense, secure or cause to be secured any and all land use and other
entitlements, permits and approvals which may be required for the Improvements
by the City or any other governmental agency affected by such construction or
work, except for those which are the responsibility of the Agency as set forth
herein. The Developer shall, without limitation, apply for and 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.
18 W0028
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 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.
19 A00029
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 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
20 400030
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 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
21 'WO031
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.
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.
22 t0003Z
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 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
23i� X33
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 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.
24 � 00034
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 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.
25 � 100035
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."
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
26 � 100036
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.
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.
27 )00037
500. DEFAULTS AND REMEDIES
501. Default Remedies. Subject to the extensions of time set forth in
Section 602 of this Agreement, failure by either party to perform any action or
covenant required by this Agreement within the time periods provided herein
following notice and failure to cure as described hereafter, constitutes a "Default"
under this Agreement. A party claiming a Default shall give written notice of
Default to the other party specifying the Default complained of. Except as
otherwise expressly provided in this Agreement, the claimant shall not institute
any proceeding against any other party, and the other party shall not be in
Default if such party within thirty (30) days from receipt of such notice
immediately, with due diligence, commences to cure, correct or remedy such
failure or delay and shall complete such cure, correction or remedy with
diligence.
502. Institution of Legal Actions. In addition to any other rights or
remedies, including those set forth in Sections 503 and 504, respectively, and
subject to the restrictions otherwise set forth in this Agreement, either party may
institute an action at law or equity to seek specific performance of the terms of
this Agreement, or to cure, correct or remedy any Default, to recover damages
for any Default, or to obtain any other remedy consistent with the purpose of this
Agreement. Such legal actions must be instituted in the Superior Court of the
County of Ventura, State of California, or if federal jurisdiction exists, in the
District of the United States District Court for the Central District of California.
503. Termination by the Developer. In the event that the Developer is
not in Default under this Agreement and the Agency does not tender title to the
Site pursuant to the Grant Deed in the manner and condition and by the date
provided in this Agreement; or one or more of the Developer's Conditions
Precedent to the Closing is not fulfilled on or before the time set forth in the
Schedule of Performance and such failure is not caused by the Developer; or in
the event of any default of the Agency prior to the Closing which is not cured
within the time set forth in Section 501 hereof, and any such failure is not cured
within the applicable time period after written demand by the Developer, then this
Agreement may, at the option of the Developer, be terminated by written notice
thereof to the Agency. From the date of the written notice of termination of this
Agreement by the Developer to the Agency and thereafter this Agreement shall
be deemed terminated and there shall be no further rights or obligations between
the parties, except that the parties may pursue any other remedies they may
have hereunder.
504. Termination by the Agency. In the event that the Agency is not in
Default under this Agreement and prior to the issuance of the Release of
Construction Covenants: the Developer (or any successor in interest) assigns or
attempts to assign the Agreement or any rights therein or in the Site in violation
of this Agreement; or one or more of the Agency's Conditions Precedent to the
Closing is not fulfilled on or before the time set forth in the Schedule of
28 1100038
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 parry 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
2. Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages or deeds of trust.
29 >00039
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.
30 100040
507. Acceptance of Service of Process. In the event that any legal
action is commenced by the Developer against the Agency, service of process
on the Agency shall be made by personal service upon the Executive Director of
the Agency or in such other manner as may be provided by law. In the event that
any legal action is commenced by the Agency against the Developer, service of
process on the Developer shall be made by personal service upon the President
of the Developer or in such other manner as may be provided by law.
508. Rights and Remedies Are Cumulative. Except as otherwise
expressly stated in this Agreement, the rights and remedies of the parties are
cumulative, and the exercise by either party of one or more of such rights or
remedies shall not preclude the exercise by it, at the same or different times, of
any other rights or remedies for the same default or any other default by the
other party.
509. Inaction Not a Waiver of Default. Any failures or delays by either
party in asserting any of its rights and remedies as to any Default shall not
operate as a waiver of any Default or of any such rights or remedies, or deprive
either such party of its right to institute and maintain any actions or proceedings
which it may deem necessary to protect, assert or enforce any such rights or
remedies.
510. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications between the Parties.
Any approval, disapproval, demand, document or other notice ( "Notice ") which
either party may desire to give to the other party under this Agreement must be in
writing and may be given by any commercially acceptable means to the party to
whom the Notice is directed at the address of the party as set forth below, or at
any other address as that party may later designate by Notice.
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
31 ° f 00041
Any written notice, demand or communication shall be deemed received
immediately if delivered by hand and shall be deemed received on the third day
from the date it is postmarked if delivered by registered or certified mail.
602. Enforced Delay; Extension of Times of Performance. In addition
to specific provisions of this Agreement, performance by either party hereunder
shall not be deemed to be in Default, and all performance and other dates
specified in this Agreement shall be extended, where delays or Defaults are due
to causes beyond the control or without the fault of the party claiming an
extension of time to perform, which may include: war; insurrection; strikes;
lockouts; riots; floods; earthquakes; fires; casualties; acts of God; acts of the
public enemy; epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority; litigation; unusually severe
weather; inability to secure necessary labor, materials or tools; 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.
32 A00042
(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.
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
33 M0043
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 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.
34 100044
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 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
35 l� ��
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.
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
36 100046
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
37 )0004'
IN WITNESS WHEREOF, the Agency and the Developer have signed this
Agreement.
ATTEST:
AGENCY:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic
Patrick Hunter, Chair
Deborah S. Traff enstedt, Agency Secretary
DEVELOPER:
Aszkenazy Development, Inc.
a California corporation
Severyn I. Aszkenazy
38 � oo048
AT
SITE POA"P
, W0049
SITE LEGAL r-)El: CRlPTlfJN
I 'JOOOSO
ATTACHMENT t�0..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 Floe
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 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 ").
� 000051
3. The Site is conveyer in accocdr,nn,(;,2 \ul:r =c: ;.eject to the
Redevelopment Plan which was approved and adopted ay C,, dinance No. 1 10 of
the City Council of the City of Moorpark, and a Dispcsition and Development
Agreement entered into between Agency and Developer dated
200 "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:
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.
100052
Such right to reenter, terminate and revest shall !ircit,�e1 .�y
and shall not defeat, render invalid or limit:
1. Any mortgage or deed of trust permitted by lh.ln I..'D +,; C,
2. Any rights or interests provided in the DOA for t ;e p otec tion, 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 specilled for suGil
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
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
430053
covenants, nts, conditions, restrictions, iimitations and provisions,
owner's title was acquired by forecicsure, deed in lieu of foreclosure,
sale or otherwise:
E. 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 Deveioper 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.
AGENCY:
�000S4
ATTEST:
REDEVELOPMENT AGENCY of the
CiTY OF MOORPARK,
a public body, corporate and politic
By:
Patrick Hunter, Chair
Deborah S. Traffenstedt, Agency Secretary
DEVELOPER:
Aszkenazy Development, Inc.
a California corporation
in
Severyn I. Aszkenazy
X00055
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
t�UOifi
s T AT"E 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)
( U 057
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
100058
ATTACHMENT ACHMENT a` O. 4
SCHEDULE OF PERFORMANCE
1. Submission of Disposition and On or before 12008
Development: Agrreement. 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
a�Y�r�rr��i<T �s +linnv+r.rn�in th`n.� flic�r.ngi +i�r+ n
. N�.11vry v� v�va..l.r N�vrb. vvNv.aivi �
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
Q..A-.. \./\.ItV V Disposition and
Development Agreement
Within 10 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
Within 30 days after receipt of
Community Development
Department Comments
Within 10 days after submittal by
Developer
100059
h- I wvei
reot:,Iv ,, gradir n and ir?g pet- mit .,
Uvr:'r :._ _h l t;i� reviilons necessary to
acrornmr ", c . t a' h : Departments comments
Ets
i iave been rr3ade,
10. Opening of Escrow for rite. The
Agency; shall open Escrow with Escrow
,Agent.
11. Conditions Precedent to Closing.
Developer and Agency shall satisfy
(or waive) ail of their respective Conditions
Precedent to Closing.
14 �.��i � O EsC tivv. r�gCi wy s iaii Convey
Site to the Developer.
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.
Within 30 days after execution of
Agreement.
Not later than 30 days prior to
scheduled date of escrow
closing.
As soon as possible after the
Satisfaction of all Conditions
Precedent to the Closing has
occurred within 30 days
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 by mutual consent of the
parties to the Agreement.
A00060
SCUPIE CAF° DEVELt° Pf -AIENT
Develop =er shall construct impmvements on the Site including one commercial
building at 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
('nmmvr'+i�l Dlnnn�r: linmialomm—n+ Dnrmi� Aln ar�' I permits and
N,,,..,.. , .d all
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.
tOOOGI
A'i3 TACHWENT N°O.6
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Secticna 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
ASZKENAZY DEVELOPMENT, INC.
70-7 AI 7_! - 1G "r"
%JU1 IV. Z- adlai- VlSL
1V1
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 ") is made as
of 200_ by the REDEVELOPMENT AGENCY of the CITY OF
MOORPARK, a public body corporate and politic (the "Agency "), in favor of
ASZKENAZY DEVELOPMENT , INC., a CALIFORNIA CORPORATION (the
"Developer "), as of the date set forth below.
RECITALS
A. The Agency and the Developer have entered into that certain
Disposition and Development Agreement (the "DDA ") dated , 200_,
concerning the redevelopment of certain real property situated in the City of
Moorpark, California as more fully described in Exhibit "A" attached hereto and
made a part hereof.
B. As referenced in Section 310 of the DDA, the Agency is required to
furnish the Developer or its successors with a Release of Construction
Covenants upon completion of construction of the Improvements (as defined in
Section 100 of the DDA), which Release is required to be in such form as to
permit it to be recorded in the Recorder's office of Ventura County. This Release
is conclusive determination of satisfactory completion of the construction and
development required by the DDA.
C. The Agency has conclusively determined that such construction and
development has been satisfactorily completed.
t000cz
w0``.�G�, r !° - -`t'E, -he Agerc;r he by ce;",1f es ?s follows:
'n -,,-- ove-ments to 'r- con3tructed by the Developer have been fully
and completed in conformance with the DDA. Any operating
requirement =.. and all use, maintenance or nondiscrimination covenants contained
in the DDA shall remain in effect and enforceable according to their terms.
2. t +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 3993 of the California Civil Code.
4. This Release of Construction Covenants shall inure to the benefit of
Developer, its successors and assigns.
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
la
Patrick Hunter, Chair
Deborah S. Traffenstedt, Agency Secretary
0000G3
STATE OF CALF ��1 =�N1r,
) ss.
COUNTY OF
On , before me,
(Print Narne 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 PUBLIC AGENCY ACKNOWLEDGMENT)
P00064
[.,It�GAJU TPESCIRIPTIO"N
I X00065
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
property at 192 High Street ( "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.
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 19TH day of November, 2008.
Patrick Hunter, Chair
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
_ i00066
ITEM � • A.
MINUTES OF THE REDEVELOPMENT AGENCY
Moorpark, Ca ifornia September 17, 2008
A Regular Meeting of the Redevelopment Agency of the City of Moorpark was held on
September 17, 2008, in the Community Center of said City located at 799 Moorpark
Avenue, Moorpark, California.
1. CALL TO ORDER:
Vice Chair Parvin called the meeting to order at 7:56 p.m.
2. ROLL CALL:
Present: Agency Members Mikos, Van Dam, and Vice Chair Parvin.
Absent: Agency Member Millhouse and Chair Hunter.
Staff Present: Steven Kueny, Executive Director; Joseph Montes, General
Counsel; 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:
None.
6. CONSENT CALENDAR: (ROLL CALL VOTE REQUIRED)
MOTION: Agency Member Mikos moved and Agency Member Van Dam seconded a
motion to approve the Consent Calendar. The motion carried by roll call vote 3 -0,
Agency Member Millhouse and Chair Hunter absent.
A. Consider Minutes of Special Meeting of June 11, 2008. Staff
Recommendation: Approve the minutes.
B. Consider Minutes of Regular Meeting of September 3, 2008. Staff
Recommendation: Approve the minutes.
0 06'7
Minutes of the Redevelopment Agency
Moorpark California Page 2 September 17, 2008
C. Consider Agreement with Overland Pacific, and Cutler Inc. for On -Call
Relocation Services: Staff Recommendation: 1) Approve Agreement,
subject to final language approval by the Executive Director and Agency
General Counsel; and 2) Authorize the Executive Director to execute the
Agreement on behalf of the Agency.
D. Consider Resolution Amending Fiscal Year 2008/09 Budget to Increase
Appropriations for Fiscal Year 2007/08 Purchases Order Roll - overs. Staff
Recommendation: Adopt Resolution No. 2008 -202. ROLL CALL VOTE
REQUIRED
7. CLOSED SESSION:
None was held.
8. ADJOURNMENT:
MOTION: Agency Member Mikos moved and Agency Member Van Dam seconded a
motion to adjourn the meeting of the Moorpark Redevelopment Agency. The motion
carried by 3 -0, Agency Member Millhouse and Chair Hunter absent. The time was 7:57
p.m.
Patrick Hunter, Chair
ATTEST:
Deborah S. Traffenstedt
Agency Secretary
000068
l . 5. - -
,r.
- - -' MTNUTES OF THE REDEVELOPMENT AGENCY
Moorpark, California October 1, 2008
A Regular Meeting of the Redevelopment Agency of the City of Moorpark was held on
October 1, 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 7:33 p.m.
2. ROLL CALL:
Present: Agency Members Mikos, Millhouse, Parvin, Van Dam, and
Chair Hunter.
Staff Present: Steven Kueny, Executive Director; Joseph Montes, General
Counsel; 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:
CONSENSUS: It was the consensus of the Agency Board to pull Item 7.A. from the
Consent Calendar for individual consideration upon the request of Chair Hunter and
Agency Member Millhouse.
5. PRESENTATION /ACTION /DISCUSSION:
None.
6. CONSENT CALENDAR: (ROLL CALL VOTE REQUIRED)
MOTION: Agency Member Millhouse 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. The motion carried by unanimous roll call vote.
B. Consider Resolution Amending Fiscal_ Year 2008/09 Budget to Authorize
the Sole Source Purchase of Storm Water Pipe for the Relocation and
Underaroundina of the Drainage Channel Located at the Terminus of
West High Street. Staff Recommendation: 1) Authorize sole source
purchase of storm water pipe from Rinker Materials; and 2) Adopt
-t O0069
Minutes of the Redevelopment Agency
Moorpark California Page 2 October 1, 2008
Resolution No. 2008 -203, approving and amendment to Fiscal Year
2008/09 Budget in the amount of $369,000.00. ROLL CALL VOTE
REQUIRED
The following item was pulled for individual consideration.
A. Consider Minutes of Regular Meeting of September 17, 2008. Staff
Recommendation: Approve the minutes.
CONSENSUS: It was the consensus of the Agency Board to pull this item from
the calendar to be reagendized upon the request of Chair Hunter.
7. CLOSED SESSION:
None was held.
8. ADJOURNMENT:
MOTION: Agency Member Parvin moved and Agency Member Van Dam seconded a
motion to adjourn the meeting of the Moorpark Redevelopment Agency. The motion
carried by unanimous voice vote. The time was 7:34 p.m.
Patrick Hunter, Chair
ATTEST:
Deborah S. Traffenstedt
Agency Secretary
5 ) 0 0 07 V
.�'94D0t___
MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Agency Board of Directors
FROM: David C. Moe II, Redevelopment Manager
BY: Jessica Sandifer, Administrative Speciali�
DATE: November 12, 2008 (Agency Meeting of 11119108)
SUBJECT: Consider Award of Bid and Project Approval for the Demolition of
484 Charles Street
BACKGROUND & DISCUSSION
The Agency acquired 484 Charles Street for use as a future affordable housing project.
Both of the structures on the site are now vacant and staff feels that it is appropriate to
demolish the buildings to remove the attractive nuisance they provide.
A notice inviting bids for the demolition of these structures was published on October
21, 2008 and October 26, 2008. A mandatory job walk was held on October 29, 2008
and was attended by 16 contractors. Six bids were received by the due date of
November 6, 2008. The results are:
Adobe Company $17,540.00
Aguilera Brothers, Inc. $17,000.00
All Contractors $20,940.00
Draper Construction $15,800.00
Specialized Environmental $19,700.00
V.A.C. Environmental and Demolition $19,113.00
The proposals were evaluated on their completeness and cost. The responsible low
bidder is Draper Construction. Draper possesses the necessary qualifications,
resources, and experience to perform the work.
ENVIRONMENTAL DOCUMENTATION
As this project involves the demolition and removal of one residence and accessory
structures, and there is no reasonable possibility that it would result in a significant
effect on the environment, either individually or cumulatively in consideration of other
1100011
Honorable Agency Board
November 19, 2008
Page 2
reasonably foreseeable projects, it is the Planning Director's determination that the
project is categorically exempt from environmental review under the California
Environmental Quality Act (CEQA) pursuant to Section 15301(1)(1) & (4) of the CEQA
Guidelines. If this project is approved, a Notice of Exemption will be filed with the
County Clerk.
FISCAL IMPACT
A budget amendment is not needed; however, staff will be transferring funds from
another line item within the MRA Low /Mod Housing fund, to pay for this project.
STAFF RECOMMENDATION
1) Approve the removal of 484 Charles Street; and
2) Award bid to Draper Construction and authorize execution of the Agreement by
the Executive Director, subject to final language approval by the Executive
Director and Agency General Counsel.
Attachment 1 —Agreement
;.)00072
ATTACHMENT 1
AGREEMENT BETWEEN THE REDEVELOPMENT AGENCY OF
THE CITY OF MOORPARK AND DRAPER CONSTRUCTION
FOR DEMOLITION SERVICES
THIS AGREEMENT is made and entered into in the City of Moorpark on this
day of , 2008, by and between the REDEVELOPMENT
AGENCY OF THE CITY OF MOORPARK, a municipal corporation, hereinafter referred
to as "Agency," and Draper Construction hereinafter referred to as "Contractor ".
RECITALS:
WHEREAS, on October 21, 2008, Agency invited bids for the demolition of 484
Charles Street; and
WHEREAS, pursuant to said invitation, Contractor submitted a Proposal which
was accepted by Agency for said project; and
NOW, THEREFORE, in consideration of their mutual promises, obligations and
covenants hereinafter contained, the parties hereto agree as follows:
1. Recitals. The foregoing recitals are true and correct and are a part of this
Contract.
2. Term. The term of this Agreement shall be from the date this Agreement is made
and entered, as first written above, and shall be completed upon final acceptance of the
demolition project by the Agency and expiration of the guarantee period.
3. Incorporation by Reference. All bid documents, Public Contract Code Section
22300, Bidder's Proposal, General Conditions of the Contract for Construction, plans,
drawings, and specifications, required bonds and forms, and all applicable regulations
are hereby incorporated in and made a part of this Contract.
4. Precedence of Contract Documents. If there is a conflict between the Agreement
documents then the document highest in precedence shall control. The precedence
shall be as provided in Section 2 -5.2 of the Greenbook.
5. Agency's Obligations. For furnishing all labor, material and equipment as
specified in this Agreement, and for performing all work as specified in this Agreement,
Agency will pay and Contractor shall receive therefore compensation in a total lump
sum of fifteen thousand eight hundred dollars ($15,800.00). Payments to the Contractor
shall be made pursuant to the following payment provisions and as incorporated herein.
Payments to the Contractor shall be made within thirty (30) days after submittal of an
approved payment request from the Contractor, proof of compliance with this
Agreement, and Agency's acceptance of the work specified, and submittal of required
releases, payroll reports and other documents required by the payment schedule based
000073
on work progress. All payments shall be subject to applicable retention requirements.
6. Obligations of the Contractor. Contractor shall perform as required by this
Contract. Contractor also warrants on behalf of itself and all subcontractors engaged for
the performance of this Agreement that only persons authorized to work in the United
States pursuant to the Immigration Reform and Control Act of 1986 and other applicable
laws shall be employed in the performance of the work hereunder.
7. Audit. Agency shall have the option of inspecting and /or auditing all records and
other written materials used by Contractor in preparing its billings to Agency as a
condition precedent to any payment to Contractor. Contractor will promptly furnish
documents requested by Agency.
8. Indemnification. The Contractor hereby assumes liability for and agrees to
defend (at Indemnitees' option), indemnify, protect and hold harmless Agency and its
Project Consultants, officers, agents, and employees ( "Indemnitees ") from and against
any and all claims, charges, damages, demands, actions, proceedings, losses, stop
notices, costs, suits, expenses (including counsel fees), judgments, civil fines and
penalties, liabilities of any kind or nature whatsoever, which may be sustained or
suffered by or secured against the Indemnitees arising out of or encountered in
connection with this Agreement or the performance of the Work including but not limited
to, death of or bodily or personal injury to persons or damage to property, including
property owned by or under the care and custody of Agency, and for civil fines and
penalties, that may arise from or be caused, in whole or in part, by any negligent or
other act or omission of Contractor, its officers, agents, employees or Subcontractors
including but not limited to, liability arising from:
1. Any dangerous, hazardous, unsafe or defective condition of; in or on the
premises, of any nature whatsoever, which may exist by reason of any act,
omission, neglect, or any use or occupation of the premises by Contractor, its
officers, agents, employees, or subcontractors;
2. Any operation conducted upon or any use or occupation of the premises by
Contractor, its officers, agents, employees, or subcontractors under or pursuant
to the provisions of this contract or otherwise,
3. Any act, omission or negligence of Contractor, its officers, agents, employees,
or Subcontractors;
4. Any failure of Contractor, its officers, agents, employees, or Subcontractors to
comply with any of the terms or conditions of this Contract or any applicable
federal, state, regional, or municipal law, ordinance, rule or regulation; and
5. The conditions, operations, uses, occupations, acts, omissions or negligence
referred to in Sub - sections (1), (2), (3), and (4), existing or conducted upon or
arising from the use or occupation by Contractor on any other premises in the
)000'74
care, custody and control of Agency.
Contractor's obligations under this Section apply regardless of whether or not such
claim, charge, damage, demand, action, proceeding loss, stop notice, cost, suit,
expense, judgment, civil fine or penalty, or liability was caused in part or contributed to
by an Indemnitee. However, without affecting the rights of Agency under any provision
of this Agreement, Contractor shall not be required to indemnify and hold harmless
Agency for liability attributable to the active negligence of Agency, provided such active
negligence is determined by agreement between the parties or by the findings of a court
of competent jurisdiction. In instances where Agency is shown to have been actively
negligent and where Agency's active negligence accounts for only a percentage of the
liability involved, the obligation of Contractor will be for that entire portion or percentage
of liability not attributable to the active negligence of Agency.
Contractor agrees to obtain executed indemnity agreements with provisions identical to
those set forth here in this section from each and every subcontractor or any other
person or entity involved by, for, with or on behalf of Contractor in the performance of
this Agreement. In the event Contractor fails to obtain such indemnity obligations from
others as required here, Contractor agrees to be fully responsible according to the
terms of this section.
Failure of Agency to monitor compliance with these requirements imposes no additional
obligations on Agency and will in no way act as a waiver of any rights hereunder. This
obligation to indemnify and defend Agency as set forth here is binding on the
successors, assigns or heirs of Contractor and shall survive the termination of this
agreement or this section.
This Indemnity shall survive termination of the Agreement or Final Payment hereunder.
This Indemnity is in addition to any other rights or remedies that the Indemnitees may
have under the law or under any other Contract Documents or Agreements. In the event
of any claim or demand made against any party which is entitled to be indemnified
hereunder, Agency may, in its sole discretion, reserve, retain or apply any monies to the
Contractor under this Agreement for the purpose of resolving such claims; provided,
however, Agency may release such funds if the Contractor provides Agency with
reasonable assurance of protection of the Indemnitees' interests. Agency shall, in its
sole discretion, determine whether such assurances are reasonable.
The aforesaid Indemnification and Hold Harmless Agreement shall apply regardless of
whether the insurance policies specified in this Agreement shall have been determined
to be applicable to the claim, liability, loss, damage, cost, suit, or expense.
9. Amendments. Any amendment, modification, or variation from the terms of this
Agreement shall be in writing and shall be effective only upon written approval by
Agency.
10. Anti - Discrimination. In the performance of the terms of this Agreement,
11000,75
Contractor shall not engage in, nor permit subcontractors to engage in discrimination in
employment of persons because of the age, race, color, religious creed, sex, sexual
orientation, national origin ancestry, physical disability, mental disability, medical
condition, or marital status of such persons. Violation of this provision may result in the
imposition of penalties referred to in Labor Code Section 1735.
11. Apprenticeship. Contractor must comply with all provisions of Labor Code
Section 1777.5.
12. Termination. The City may at any time, for any reason, without cause, suspend
or terminate this Agreement, or any portion hereof, by serving upon the Contractor at
least ten (10) days prior written notice. Upon receipt of said notice, the Contractor shall
immediately cease all work under this Agreement, unless the notice provides otherwise.
If the City suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
In the event of termination without cause, the City shall pay to Contractor the actual
value of the work performed up to the time of the termination, provided that the work
performed is of value to the City. Upon termination of the Agreement pursuant to this
Section, the Contractor will submit an invoice to the City pursuant to Section 5, above.
If, during the term of this Agreement, Agency determines that Contractor is not faithfully
abiding by any term or condition contained herein, including the Contractor's refusal or
failure to prosecute the work on any separate part thereof with such diligence as will
ensure it's completion within the time specified or any extension thereof, Agency may
notify Contractor in writing of such defect or failure to perform. The notice must give to
the Contractor a five (5) calendar day period of time thereafter in which to perform said
work or cure the deficiency. This includes, without limitation, increasing the work force
and speeding delivery of materials. If Contractor has not performed the work or cured
said deficiency within the five (5) days specified in the notice, such failure shall
constitute a breach of this Agreement, and Agency may terminate this Agreement
immediately by written notice to Contractor to said effect. Thereafter, neither party shall
have any further duties, obligations, responsibilities, or rights under this Agreement
except, however, any and all obligations of Contractor's surety shall remain in full force
and effect, and shall not be extinguished, reduced, or in any manner waived by the
termination hereof. In said event, Contractor shall be entitled to the reasonable value of
its services performed from the beginning of the period in which the breach occurs up to
the day it received Agency's Notice of Termination, minus any damages, including
liquidated damages if so provided herein, occasioned by such breach.
Agency reserves the right to delay any such payment, if any, until completion or
confirmed abandonment of the project, as may be determined in the Agency's sole
discretion, so as to permit a full and complete accounting of costs. In no event,
however, shall Contractor be entitled to receive in excess of the compensation quoted in
its bid without prior written approval of the Agency.
A00076
13. Insurance. Contractor shall maintain prior to the beginning of and for the duration
of this Agreement insurance coverage as specified in Exhibit A attached to and part of
this Agreement.
14. This Agreement shall constitute the complete agreement between the parties
hereto. No oral agreement, understanding, or representation not reduced to writing and
specifically incorporated herein shall be of any force or effect, nor shall any such oral
agreement, understanding, or representation be binding upon the parties hereto.
15. It is expressly understood between the parties to this Agreement that no
employee /employer relationship is intended; Contractor is an independent contractor.
16. Time of Performance and Liquidated Damages. Time is of the essence in this
Agreement. The demolition project shall be completed no later than 30 calendar days
commencing from the dates shown in the Notice to Proceed to the Contractor. Failure of
the Contractor to complete the work within the time allowed will result in assessment of
liquidated damages as provided by Section 6 -9 of the Greenbook.
17. Conflict of Interest. Neither Contractor nor any employees, officers agents or
subcontractors of Contractor who will be assigned to this project, to the best of
Contractor's knowledge, own any property or interest in properties, business
relationships, or sources of income which may be affected by the performance of this
Agreement'.
Should one party hereto learn of any such interest, income source, or business
relationship, such fact shall immediately be brought to the attention of the other party
hereto. If the parties thereupon cannot mutually agree upon a means to eliminate the
conflict, Agency may terminate the Agreement immediately for non - performance
pursuant to Section 12 herein.
18. Successors and Assigns. The terms hereof shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto; provided, however, that
no party hereto shall assign any of the benefits and burdens hereunder, whether
voluntarily or by operation of law, without the prior written consent of the other party,
and any such assignment without said consent shall be void.
19. Notices. All written notices required by, or related to this Agreement shall be sent
by United States mail, postage prepaid by registered or certified mail addressed as
listed below. Neither party to this Agreement shall refuse to accept such mail; the
parties to this Agreement shall promptly inform the other party of any change of
address. All notices required by this Agreement are effective on the day of receipt,
unless otherwise indicated herein. The mailing address of each party to this Agreement
is as follows:
)00077
AGENCY:
REDEVELOPMENT AGENCY OF THE
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, CA 93021
Agency Contact:
Executive Director
CONTRACTOR:
Ketih Draper
dba Draper Construction
P.O. Box 751
Somis, CA 93066
Contractor Contact:
Keith Draper
20. Governing Law. The Agency and Contractor understand and agree that the laws
of the State of California shall govern the rights, obligations, duties, and liabilities of the
parties to this Agreement and also govern the interpretation of this Agreement.
This Agreement is made, entered into, and executed in Ventura County,
California, and any action filed in any court or for arbitration for the interpretation,
enforcement or other action of the terms, conditions or covenants referred to herein
shall be filed in the applicable court in Ventura County, California.
21. Authority to Execute Contract. Both Agency and Contractor do covenant that
each individual executing this Agreement on behalf of each party is a person duly
authorized and empowered to execute Contracts for such party.
REDEVELOPMENT AGENCY OF CONTRACTOR:
THE CITY OF MOORPARK DRAPER CONSTRUCTION
Steven Kueny
Executive Director
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
Exhibit "A ":
Exhibit "B ":
Keith Draper
President
Insurance Requirements
Bid Documents
►000'78
Exhibit "A"
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the Work, Contractor will
maintain insurance in conformance with the requirements set forth below. Contractor
will use existing coverage to comply with these requirements. If that existing coverage
does not meet the requirements set forth here, it will be amended to do so. Contractor
acknowledges that the insurance coverage and policy limits set forth in this section
constitute the minimum amount of coverage required. Any insurance proceeds available
to Agency in excess of the limits and coverage required in this agreement and which is
applicable to a given loss, will be available to Agency.
Contractor shall provide the following types and amounts of insurance:
1. Commercial General Liability Insurance using Insurance Services Office "Commercial
General Liability" policy form CG 00 01 or the equivalent. Defense costs must be paid in
addition to limits. There shall be no cross liability exclusion for claims or suits by one
insured against another. Limits shall be no less than $1,000,000 per occurrence for all
covered losses and no less than $2,000,000 general aggregate.
Contractor's policy shall contain no endorsements limiting coverage beyond the basic
policy coverage grant for any of the following:
• Explosion, collapse or underground hazard (XCU)
• Products and completed operations
• Pollution liability
• Contractual liability
Coverage shall be applicable to Agency for injury to employees of Contractor's,
subcontractors or others involved in the project Policy shall be endorsed to provide a
separate limit applicable in this project.
2. Worker's Compensation on a state - approved policy form providing statutory benefits
as required by law with employer's liability limits no less than $1,000,000 per accident
for all covered losses. Contractor shall procure and maintain during the life of the
contract, worker's compensation insurance or a valid certificate of consent to self- insure
for all its employees engaged in or at the site of the project; and in case any of the work
is sublet, the Contractor shall require all subcontractors to similarly provide worker's
compensation insurance for all the latter's employees unless such employees are
covered by protection afforded by worker's compensation insurance carried by the
Contractor.
11100079
By submitting a bid pursuant to these specifications, Contractor hereby certifies that it is
aware of the provisions of Section 3700 et seq. of the Labor Code which require every
employer to be insured against liability for Worker's Compensation.
In the event the Worker's Compensation Insurance submitted by the contractor
becomes inoperative any time before the completion of the work, all work shall
immediately cease until a new policy is obtained and any time so lost shall not entitle
the Contractor to any extension of time. Certificates shall unequivocally provide at least
thirty (30) days written noticed by certified mail to the Agency prior to cancellation or
modification.
3. Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92
including symbol 1 (Any Auto) or the exact equivalent. Limits shall be no less than
$1,000,000 per accident, combined single limit. If Contractor owns no vehicles, this
requirement may be satisfied by a non -owned auto endorsement to the general liability
policy described above. If Contractor or Contractor's employees will use personal autos
in any way on this project, Contractor shall provide evidence of personal auto liability
coverage for each such person.
4. Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the underlying
coverages. Any such coverage provided under an umbrella liability policy shall include a
drop down provision providing primary coverage above a maximum $25,000 self -
insured retention for liability not covered by primary but covered by the umbrella.
Coverage shall be provided on a "pay on behalf' basis, with defense costs payable in
addition to policy limits. There shall be no cross liability exclusion precluding coverage
for claims or suits by one insured against another. Coverage shall be applicable to
Agency for injury to employees of Contractor, subcontractors or others involved in the
Work. The scope of coverage provided is subject to approval of Agency following
receipt of proof of insurance as required herein. Limits are subject to review but in no
event less than $1,000,000 per occurrence and aggregate.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the state of California and with an A.M. Best rating of A- or better
and a minimum financial size VII.
Contractor and Agency agree as follows:
1. Contractor agrees to endorse the third party general liability coverage required herein
to include as additional insureds Agency, its officials, employees and agents, using
standard ISO endorsement No. CG 2010 with an edition date of 1985. Contractor also
agrees to require all contractors, subcontractors, and any one else involved in any way
with the project contemplated by this Agreement to do likewise.
2. Any waiver of subrogation express or implied on the part of Agency to any party
involved in this Agreement or related documents applies only to the extent of insurance
A00080
proceeds actually paid. Agency, having required that it be named as an additional
insured to all insurance coverage required herein, expressly retains the right to
subrogate against any party for sums not paid by insurance. For its part, Contractor
agrees to waive subrogation rights against Agency regardless of the applicability of any
insurance proceeds, and to require all contractors, subcontractors or others involved in
any way with the project(s) contemplated by this agreement, to do likewise.
3. All insurance coverage maintained or procured by Contractor or required of others by
Contractor pursuant to this Agreement shall be endorsed to delete the subrogation
condition as to Agency, or to specifically allow Contractor or others providing insurance
herein to waive subrogation prior to a loss. This endorsement shall be obtained
regardless of existing policy wording that may appear to allow such waivers.
4. It is agreed by Contractor and Agency that insurance provided pursuant to these
requirements is not intended by any party to be limited to providing coverage for the
vicarious liability of Agency or to the supervisory role, if any, of Agency. All insurance
coverage provided pursuant to this or any other agreement (express or implied) in any
way relating to Agency is intended to apply to the full extent of the policies involved.
Nothing referred to here or contained in any agreement involving Agency in relation to
the project(s) contemplated by this agreement is intended to be construed to limit the
application of insurance coverage in any way.
5. None of the coverages required herein will be in compliance with these requirements
if they include any limiting endorsement of any kind that has not been first submitted to
Agency and approved of in writing.
6. All coverage types and limits required are subject to approval, modification and
additional requirements by the Agency, as the need arises. Contractor shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or reduction
of discovery period) which may affect Agency's protection without Agency's prior written
consent.
7. Proof of compliance with these insurance requirements, consisting of binders of
coverage, or endorsements, or certificates of insurance, at the option of Agency, shall
be delivered to Agency at or prior to the execution of this Contract. In the event such
proof of any insurance is not delivered as required, or in the event such insurance is
canceled at any time and no replacement coverage is provided, Agency has the right,
but not the duty, to obtain any insurance it deems necessary to protect its interests
under this or any other agreement and to pay the premium. Any premium so paid by
Agency shall be charged to and promptly paid by Contractor or deducted from sums
due Contractor, at Agency option.
8. Contractor agrees to endorse, and to require others to endorse, the insurance
provided pursuant to these requirements, to require 30 days notice to Agency and the
appropriate tender prior to cancellation of such liability coverage and notice of any
material alteration or non - renewal of any such coverage, and to require contractors,
100081
subcontractors, and any other party in any way involved with the project contemplated
by this agreement to do likewise.
9. It is acknowledged by the parties of this Agreement that all insurance coverage
required to be provided by Contractor or any subcontractor, is intended to apply first and
on a primary non - contributing basis in relation to any other insurance or self insurance
available to Agency.
10. Contractor agrees to ensure that subcontractors, and any other party involved with
the project that is brought onto or involved in the project by Contractor, provide the
same minimum insurance coverage required of Contractor. Contractor agrees to
monitor and review all such coverage and assumes all responsibility for ensuring that
such coverage is provided in conformity with the requirements of this section.
Contractor agrees that upon request, all agreements with subcontractors and others
engaged in the project will be submitted to Agency for review.
11. Contractor agrees that all layers of third party liability coverage required herein,
primary, umbrella and excess, will have the same starting and expiration date.
Contractor agrees further that all other third party coverages required herein will
likewise have concurrent starting and ending dates.
12. Contractor agrees not to self- insure or to use any self- insured retentions or
deductibles on any portion of the insurance required herein and further agrees that it will
not allow any contractor, subcontractor, Architect, Engineer or other entity or person in
any way involved in the performance of work on the project contemplated by this
agreement to self- insure its obligations to Agency. If Contractor's existing coverage
includes a deductible or self- insured retention, the deductible or self- insured retention
must be declared to the Agency. At that time the Agency shall review options with the
Contractor, which may include reduction or elimination of the deductible or self- insured
retention, substitution of other coverage, or other solutions.
13. The Agency reserves the right at any time during the term of the contract to change
the amounts and types of insurance required by giving the Contractor ninety (90) days
advance written notice of such change. If such change results in substantial additional
cost to the Contractor, the Agency will negotiate additional compensation proportional to
the increased benefit to Agency.
14. For purposes of applying insurance coverage only, all contracts pertaining to the
project will be deemed to be executed when finalized and any activity commences in
furtherance of performance under this agreement.
15. Contractor acknowledges and agrees that any actual or alleged failure on the part of
Agency to inform Contractor of non - compliance with any insurance requirement in no
way imposes any additional obligations on Agency nor does it waive any rights
hereunder in this or any other regard.
A00082
16. Contractor will renew the required coverage annually as long as Agency, or its
employees or agents face an exposure from operations of any type pursuant to this
agreement. This obligation applies whether or not the agreement is canceled or
terminated for any reason. The insurance shall include but not be limited to products
and completed operations and discontinued operations, where applicable. Termination
of this obligation is not effective until Agency executes a written statement to that effect.
17. Contractor agrees to waive its statutory immunity under any workers' compensation
statute or similar statute, in relation to the Agency, and to require all subcontractors and
any other person or entity involved in the project contemplated by this Agreement to do
likewise.
18. Requirements of specific coverage features are not intended as limitations on other
requirements or as a waiver of any coverage normally provided by any given policy.
Specific reference to a given coverage feature is for purposes of clarification only as it
pertains to a given issue, and is not intended by any party or insured to be all- inclusive.
19. Any provision in any of the construction documents dealing with the insurance
coverage provided pursuant to these requirements is subordinate to and superseded by
the requirements contained herein. These insurance requirements are intended to be
separate and distinct from any other provision in this Agreement and are intended by
the parties here to be interpreted as such.
20. All liability coverage provided according to these requirements must be endorsed to
provide a separate aggregate limit for the project that is the subject of this agreement
and evidencing products and completed operations coverage for not less than two years
after issuance of a final certificate of occupancy by all appropriate government agencies
or acceptance of the completed work by Agency.
21. Contractor agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge Agency or Contractor
for the cost of additional insurance coverage required by this Agreement. Any such
provisions are to be deleted with reference to Agency. It is not the intent of Agency to
reimburse any third party for the cost of complying with these requirements. There shall
be no recourse against Agency for payment of premiums or other amounts with respect
thereto.
000083
EXHIBIT B
REDEVELOPMENT AGENCY OF THE
CITY OF MOORPARK
Project Manual
and
Specifications
Demolition of Structures and
Site Clearing at 484 Charles Street,
Moorpark, California
Bid Due Date and time:
Thursday, November 6, 2008 at 4:30 p.m.
Specification No. RDA -08 -006
00084
TABLE OF CONTENTS
BIDDING, AGREEMENT FORMS AND BONDS:
Notice Inviting Bids
* *Bid Forms:
Bid Proposal
Non - collusion Affidavit
Bid Bond
Compliance with Environmental, Health & Safety Standards
Workers' Compensation Insurance Certificate
Bidder's Statement of Subcontractors
Agreement and Bonds
Contract
Performance and Payment Bonds
Material Suppliers and Laborers
CONDITIONS OF THE CONTRACT:
General Conditions
TECHNICAL SPECIFICATIONS
** FORMS TO BE SUBMITTED WITH BID.
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 2 of 58
100085
Instruction to Bidders
THE CITY OF MOORPARK IS REQUESTING BIDS FOR DEMOLITION OF 484
CHARLES STREET, MOORPARK, CA 93021
There will be a mandatory pre -bid conference and site walk held on Wednesday,
October 29, 2008 at 10:00 a.m. at 484 Charles Street. Potential bidders are required to
attend this meeting. Failure to attend the mandatory pre -bid meeting will result in a
bidder's proposal being rejected as non - responsive.
BID SUBMITTAL: Each bid must be submitted on the Bid Forms provided in the bid
package. All blanks in the Bid Form must be filled in and all prices must be stated in
both words and figures. It is the sole responsibility of the bidder to see that the bid is
delivered to the proper place and received at the proper time. Any bid received after the
scheduled closing time for receipt of bids will be returned to the bidder unopened. All bid
forms must be sealed and delivered before 4:30 p.m. on November 6, 2008, to the
following address (postmarks will not be accepted):
City Clerk's Office
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
NOTE: Please mark the outside of the envelope:
Sealed Bid for
Demolition Project — 484 Charles Street
Moorpark, CA 93021
DO NOT OPEN WITH REGULAR MAIL
Bidders shall submit one complete set of the Bid Forms and all required
attachments. No proposal received after the time specified or at any place other than
the place stated above will be considered. All bids will be opened and declared publicly.
The official bid clock, which will establish the official bid time, will be determined by the
City Clerk's Division of the City of Moorpark. Bidders or their representatives are invited
to be present at the opening of the bids.
No individual or business entity of any kind shall be allowed to make or file, or to be
interested in more than one bid, except an alternative bid when specifically requested.
An individual or business entity which has submitted a sub - proposal to a bidder
submitting a proposal, or who has quoted prices on materials to such bidder, is not
thereby disqualified from submitting a sub - proposal or from quoting prices to other
bidders submitting proposals.
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 3 of 58
000086
Instructions to Bidders (continued)
A bidder may withdraw the proposal, without prejudice prior to the time specified for the
bid opening, by submitting a written request to the Agency for its withdrawal, in which
event the proposal will be returned to the bidder unopened. Changes in or additions to
the Bid Form, recapitulations of the work bid upon, alternative proposals, or any other
modification or deviation of the Bid Form which is not specifically called for in the
Contract Documents may result in the Agency's rejection of the bid as being non-
responsive. Non - substantial deviations may be permitted provided that the bidder
submits a full description and explanation of, and justifications for, the proposed
deviations. Final determination of any proposed deviation will be made solely by the
Agency.
BID FORMS: The bid must be accompanied by certified check, cashier's check or
bidder's bond, made payable to the Redevelopment Agency of the City of Moorpark for
an amount no less than ten percent (10 %) of the total bid amount, as a guarantee that
the bidder, if its bid is accepted, will promptly obtain the required bonds and insurance
and will prepare the required submittal documents and execute the contract. The Bid
Bonds for those bids that were not selected will be returned to the Bidders upon award
of the contract by the Agency Board.
The bidder to whom award is made shall execute a written contract with the Agency
within fourteen (14) calendar days after notice of the award has been sent by mail to the
address given in the proposal. The contract shall be made in the form adopted by the
Agency and incorporated in these specifications. The bidder warrants that he /she
possesses, or has arranged through subcontracts, all capital and other equipment, labor
and materials to carry out and complete the work hereunder in compliance with all
applicable Federal, State, Agency, and Special District laws, ordinances, and
regulations.
If the bidder to whom the award is made fails to enter into the contract, the award will be
annulled; any bid security will be forfeited; and an award may be made to the next
lowest responsible bidder who shall fulfill every term and condition of the bid as if
he /she were party to whom the first award was made.
BIDDER QUESTIONS: If you discover any error, omission, ambiguity, or conflict, in the
plans or specifications or have any questions concerning the bidding documents or
proposal forms contact the Agency's Project Representative:
Jessica Sandifer, Administrative Specialist
City of Moorpark
799 Moorpark Avenue, Moorpark, CA 93021
(805) 517 -6225
Please do not call other staff members or consultants. If a prospective bidder is in doubt
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 4 of 58
3 00081%
Instructions to Bidders (continued)
or has any questions as to the true meaning or intent of any part of the Bid package, or
discovers discrepancies, errors, or conflicts, or omissions, he /she may submit, to the
above Project Representative, a written request for an interpretation or a correction
thereof. Interpretations or corrections shall be made only by addendum duly issued by
the Agency. A copy of such addendum will be mailed, faxed, or delivered to each
person receiving a set of the Contract Documents and such addendum shall be
considered a part of, and incorporated in, the Contract Documents. Questions must be
received in sufficient time for the Agency to evaluate the question(s) and respond at
least 72 hours prior to the bid deadline. If the Agency cannot answer the question in the
72 hour time period, the bid deadline will be extended in order to allow for sufficient time
for other potential bidders to respond to the change in the bid.
All timely requests for information (regarding the bid) submitted in writing will receive a
written response from the Agency. Telephone communications with Agency Staff will
not be permitted. Any oral communication shall not be binding on the Agency.
BIDS QUOTES AND UNIT PRICING: The individual project prices should be bid as
lump sum prices and must be entered in figures in the spaces provided on the Bid
Submission Form(s). The total bid sum shall be stated in figures. The Bid Submission
Form(s) must be totally completed. Unit prices, if applicable, should be added as
Appendix A and are to be used only for changes to the contract.
EVALUATION OF BIDS AND AWARD: The Agency reserves the right to retain all bids
for a period of 90 calendar days for examination and comparison, and to delete or add
any alternates to /from the contract. Bidders shall guarantee the bid prices for said 90
day period to facilitate Agency evaluation of the bids. Each bidder shall meet all of the
specifications and bid terms and conditions. By virtue of the bid submission and
acceptance of the bid award, the bidder acknowledges full understanding of, and
agreement with, and acceptance of all provisions of the plans, specifications and
contract documents. The Agency reserves the right to waive non - substantial
irregularities in any bid, to reject any or all proposals, to reject or delete one part of a
proposal and accept the other, except to the extent that the bids are qualified by specific
limitations given by the Agency, and to make award to the lowest responsible bidder as
the interest of the Agency may require.
In addition to the information required by the bid documents, the Agency may request
evidence from a bidder, whose bid is under consideration for award, reasonable
evidence showing that bidder's financial resources, construction experience, and
organization and plant facilities are sufficient for performance of the contract.
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 5 of 58
1100088
BID PROPOSAL
IN CLERK'S DIVISIG.
^tTV ')P kJOORPARk
TO BE EXECUTED
BY BIDDER AND SUBMITTED WITH BID
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK
MOORPARK, CALIFORNIA
Demolition of Structures and Appurtenances at 484 Charles Street,
Moorpark, California
Bids to Be Received — Thursday, November 6, 2008 by 4:30 p.m.
CONTRACTOR
Name / %
Street Add' ress �I t� /�� x 7 5
City State Zip Code
Telephone Number
_ G
Contractor's License No Class !44f5 ,Expiration Date 11110 U�
The undersigned swears under penalty of perjury that the information regarding the Contractor's
License is true and correct.
Signature of Bidder
BID SCHEDULE:
Title
14 e- /
It is understood that the lump sum bid includes without limitation, all appurtenant expenses,
permits, taxes, royalties, and fees associated with the work described within these bid
documents. THE AGENCY RESERVES THE RIGHT TO INCREASE OR DECREASE THE
CONTRACT.
1. 484 Charles Street Lump Sum Base Bid ($1��Cw
dllars and Cents
Ur�
Number of calendar days for completion: J
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 6 of 58
00089
CALIFORNIA ALL - PURPOSE
CERTIFICATE OF ACKNOWLEDGMENT
State of California
County of V G 1'1J LL C s_
I
On before me,
(Here insert name and title of the
personally appeared 1'_1 Q t-� � -A LC C Can (LC
who proved to me on the basis of satisfactory evidence to be the personS,a'j whose named is/ subscribed to
the within instrument and acknowledged to me that he%#efthoy executed the same in his /#tengh6r authorized
capacity(ies-, and that by his /JofAtheir signature(oon the instrument the person4 , or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph
is true and correct.
Commwbn +f 173663
WITNESS my hand and official seal. Hlokary Public • eattoinla
VWttufo County
�
rLeAec
bon.n.�dlbZ7,�11 j
(Notary Seal)
Signature of Notary Public
ADDITIONAL OPTIONAL INFORMATION
DESCRIPTION OF THE ATTACHED DOCUMENT
kr2'il /Ir,�l �t� rtt,lf
(Title or description of attached document)
(Title orcicscriputi. of attached document continued)
Number of Pages ) Document Date
(Additional information)
CAPACITY CLAIMED BY THE SIGNER
O
Individual (s)
•
Corporate Officer
('title) J
•
Partner(s)
•
Attomey -in -Fact
•
Trustee(s)
❑
Other
2008 Version CAPA vl2 10 07 800- 873.9865 www,NotaryClasses.com
INSTRUCTIONS FOR COMPLETING THIS FORM
Any acknowledgment completed in California must contain verbiage exactly as
appears above in the notary section or a separate acknowledgment form must be
properly completed and attached to that document. The only exception is I a
document is to be recorded outside of California. In such instances, any alternative
acknowledgment verbiage as may be printed on such a document so long as the
verbiage does not require the notary to do something that Is illegal for a notary in
California (i.e, certifying the authorized capacity of the signer). Piease check the
document carefully for proper notarial wording and attach this form if required.
• State and County information must be the State and County where the document
signer(s) personally appeared before the notary public for acknowledgment.
• Date of notarization must be the date that the signer(s) personally appeared which
must also be the same date the acknowledgment is completed.
• The notary public must print his or her name as it appears within his or her
commission followed by a comma and then your title (notary public),
• Print the name(s) of document signer(s) who personally appear at the time of
notarization.
• Indicate the correct singular or plural forms by crossing off incorrect forms (i e.
he/she /they- is /are ) or circling the correct forms. Failure to correctly indicate this
information may lead to rejection of document recording.
• The notary seal impression must be clear and photographically reproducible
Impression must not cover text or lines If seal impression smudges, re -seal if a
sufficient area permits, otherwise complete a different acknowledgment form
• Signature of the notary public must match the signature on file with the ofTce of
the county clerk
f✓ Additional information is not required but could help to ensure this
acknowledgment is not misused or attached to a different document
Indicate title or type of attached document, number of pages and cafe
Indicate the capacity claimed by the signer If the claimed capacity .s a
corporate ofTicer, indicate the title (i e CEO, CFO, Sccretaryi
• Securely attach this document to the signed document
.I00090
BID BOND #70611780
(in lieu of certified or cashier's check)
TO BE EXECUTED
BY BIDDER AND SUBMITTED WITH BID
KNOW ALL PERSONS BY THESE PRESENTS:
That we Keith Draper dba Draper Construction , as Principal, and western Surety Company
as Surety, acknowledge ourselves jointly and severally bound to the Redevelopment
Agency of the City of Moorpark, the obligee, for ten (10) percent of the total bid. to be
paid to said Agency if the Proposal shall be accepted and the Principal shall fail to
execute the contract tendered by the Agency within the applicable time specified in the
Bid Terms and Conditions, or fails to furnish either the required Faithful Performance or
Labor and Material Bonds, or fails to furnish evidence of insurance as required in the
Standard Specifications, then this obligation shall become due and payable, and Surety
shall pay to obligee, in case suit is brought upon this bond in addition to the bond
amount hereof, court costs and a reasonable attorney's fee to be fixed by the court. If
the Principal executes the contract and furnishes the required bonds and evidence of
insurance as provided in the contract documents, this bond shall be extinguished and
released. It is herby agreed that bid errors shall not constitute a defense to forfeiture.
WITNESS our hands this 6th day of November . 20 08
Contractor /,/K h Draper dba Draper Construction
Y
Title kIw -1 2/'
I
Title
Surety Western Surety Comp ny
By
John D. ro , ttorney- In -Fac
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street_ Page 9 of 58
100 091
FORM TO ACCOMPANY BID BOND
TO BE EXECUTED
BY BIDDER AND SUBMITTED WJTH BID
STATE OF PENNSYLVANIA }
COUNTY OF BUCKS ) SS.
CITY OF PIPERSVILLE
On this 6th day of November 2008
before me, the undersigned, a Notary Public in and for said County and State, residing
therein, duly commissioned and sworn, personally appeared John D. Weisbrot
known to be the Attorney -In -Fact of Western Surety Company and the same
person whose name is subscribed to the within instrument as the Attorney -In -Fact of
said Western Surety Company and the said John D. Weisbrot duly
acknowledge to me that he /she subscribed the name of John D. Weisbrot for
Western Surety Company thereto as surety and his /her own as Attorney -In -Fact
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in the certificate first above written.
c
COMMONWEA. r! Of F'E vNSYLVANI otary Public in and for said
ounty and State aforesaid
Patricia A. Tinsman, NLctary Public
Plumstead Twp., Bucus Counry
My Commission Expiras Feb. 12, 2011
If certified or cashier's check is submitted herewith, state number
and amount $
Moorpark Redevelopment Agency Bid Package
Structure Demolition —484 Charles Street. Page 10 of 58
1100092
POWER OF ATTORNEY
Know All Men by These Presents: (irrevocable) No. SP- 43217578
• AL
"that this Ill of Attorney is not valid nr in elTecl unless attached to the hond Which It authorizes e\ceutcd, but may be dclanced by the approvin_
ullicer it desired. That Western Surety Company. :I corporolion. (Ines hereby make, constitute and appoull the toll(minr,
Two authorized individuals
PATRICIA A TINSMAN
;itin the City of_PiPERSViLL€ State of PENNSY1 VANIA _ —_.. ,ilh ;mwn �l �l�w�,l,�,. it, Illy, ,111:1
AnomeNt,) in fac:l with lull p-mcr and authorm hcrchy conferral. to ,ipn. c\ceutc, nckn ... , I¢d ec ❑1111 ilrin rl tin ,11111 in' n, neh.tll 1,'IL11111
the follimirlg described hond
ONE SURETY BOND, UNDERTAKING, OR OTHER OBLIGATORY INSTRUMENT OF A
SIMILAR NATURE IN AMOUNTS NOT EXCEEDING ONE MILLION AND NO /100
DOLLARS (* *1,000,000.00).
*************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
*************************************** * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
The acknowledgment and execution of such bond by the said Attorney in Fact ,hall be as hinding upon this
Company as if such bond had been executed and acknowledged by the regularly elected officers of this Company.
All authority hereby conferred shall expire and terminate, without notice, unless used b0oic midnight of
A11GUST 20I3 . but until such time shall he irrevocable an(] in full force and effect.
WESTERN SURETY CONIPANY lunher ,rn die, that the lollow ing I, a true and exact ropy of Section 7 A the B)-Lu,,, of Wc,lcol Sant\ ('on q':ui). ihll) adopted .Ind nnu
in lone, to wit - section 7..All hoods. podicte,. ,mdcoaking,. Power, of Attorney. or other obhgalmns 111 the curpor,anin .hall he ,-coil in the nirpor a• name nt the ('alnp:ur\
by the 11reMdeut. tirca•n1ry. any A- i,tnni Sel ficawrel or in, V— llw,idrnt. or by u,-h oll— officer, ❑, Ihr aoard of I)neclor, ma) -M-1/t, . Illc I'reaidcul. mvy Vice
I' resident. Secretary. any As,istant Secrclary. 111 the frcasuier m:p appoint Attorneys Ill Fact or Agent, ,vita ,hall h;ivc :mlhonm to —ue I*mJ.. PIllir ir,. IlI and rri.ik ales m Ihr
name Ill the Uontpany The corporal, —d t, not nece„ary 1111 the ,alidily nl .Illy bond,, policies. undenakmr,. Toner, it \nrouc, -i dhrr thli_aiim. ,I the „rpin.nm lhr
dgn:llun• of an) u,n ollie❑ and the corpo ,uc ,cal no he printed by Iue,imile...
The penal amount It the hond herein dC,rrlhed maN' he nicreased d there 1, alta,lil to Ibis Power, wl'ittrn mill 1, .n aulb,,, _ in till Irvin -'I .m c111t it nlnu. I,ur1 1-1
lelcgr;uu ,igncJ h) Ill, I ndrnyrume Manager. I.Tnlcrwmng Comull;nn, L'nderwnung SPrelalisl, IIIIJr 111111M Prrx nlem \ i\ c P1e,u I'll ,,„nr.nu \nr Pir•,Iri Tn,nu n, tics ri.„
Or \— istani Sc4elar) Ill Wes lcrn Surcl) CIllnpa nN ,Plc t heal ly ;n It hnry nil ,:uJ Inc rear
IN WITNI:SS WIILRLOI . Wi lcrn Surely (loop:O ha, L;nl,cd the,. Prcx•Nn Io he exec wed by n, Scninr Vlcr 141v li,In ih .I. 1 -I) -,Ill lit", 11 Ihr, 1 l lh
d:IN of December 2006 WESTERN ti l' R I�: '1' Y (' O �1 P ;� N 1
STATE OF SOUTH DAKOTAI
lJ ,, N>
COUNTY OF MINNEHAHA S,M- \ice I'le,.JCil1
On ill,, _ I Ith d.i) id Decemher _ w Ihr ye.n 20118 hLI nn. .1 Nnl.u\ I'uhly lire ., na,h
app,:ued P.ad T lirullal. \,tin helm• by na• duly iho— Pooal Ill \uunir\ .I, III, "I \\ 1 1111 RN sI'ki I t c 1'x11' \Nl .u0
acknnwlydcal and nwrwncnt In he the vuluniary .111 .md deed Ill ,ald corporation.
D. KRELL
NOTARY PUBLIC
SEAL SOUTH DAKOTA SEAL
Notary Public, South Dakota
My Commission Expires Noverl 00, 2012
I. the undcr,igned ulhce' of We,lem Sorel) ("umpan), a ,lock curporauon of the Slate Ill South D, l:t, do hcrchy cvlll} that Ihr aaanccd Po., rr of \nomry b m hill
Inrce and ,heel ,wJ is irre warble and lurlhennon, than Section 1 ill the by -Laws Ill the contrail) a, set limb in x• Power Ill A(bli ev, i, n(, m little
In IesomnuN „h, real. I h;nc hcrcunlu „•l niy hand and Ihr seal Ill We,l,m Surcl) Cam P;my this - ,I... Ill
0 k-°/n
WESTERN SURETI' COMPANY
F IMPORTANT: This dale must he filled in before it is attac the bond and it must he the same date as the bond. By
Form 749 -12 -2006 .Senior Vice PresidclN
-W0093
WESTERN SURETY COMPANY
Sioux Falls, South Dakota
Statement of Condition and Affairs
December 31, 2007
ASSETS
Bonds
$921,938,370
Stocks
20,250,435
Cash and short -term investments
41,487,866
Uncollected premiums and agents' balances
37,141,595
Amounts recoverable from reinsurers
638,013
Funds held by or deposited with reinsured companies
31,1 19,059
Federal income tax recoverable
1,153,773
Net deferred tax asset
16,092,420
Electronic data processing equipment and software
910,607
Investment income due and accrued
11,862,323
Other assets
1.179,869
Total Assets
$1,083,774,330
LIABILITIESAND SURPLUS
bosses
S244,124.775
Reinsurance payable on paid loss and loss
0
adjustment expenses
Loss adjustment expense
63,019,064
Contingent and other commissions payable
5,024,665
Other expense
19,014,635
Taxes, licenses and fees
3,097,450
Unearned premiums
251,677,091
Retroactive reinsurance reserve assumed
10,283,292
Other liabilities
45,108,485
'Dotal Liabilities
641,549,457
Surplus Account:
Capital paid up $4,000,000
Gross paid in and contributed surplus 176,435,232
Unassigned funds 261,789,641
Surplu
as. regards policyholders $442,224,873
TotaLLiaOifies and Capital $1,083,774,330
1, Philip E. Lundy, Vice President and Treasurer of Western Surety Company hereby certify that the
above is an exact copy of the financial statement of the Company dated December 31, 2007, as filed with
the various Insurance Departments and is a true and correct statement of the condition of Western Surety
Company as of that date.
Western Surety C 'Wham
KATHRYN J. SCHROEDER
ApY Ptl A
sa LL BOYTH OAKOTA seu B V
Vice Presi t- Treasurer
Subscribed and sworn to me this 28th day of February _ 2008.
My commission expires:
KATHRYN J.SCHROEDER P44 4
My Commission Expires 7 -21 -2009 Notary ublic
000094
STATEMENT OF BIDDER'S QUALIFICATIONS AND REFERENCES
TO BE EXECUTED
BY BIDDER AND SUBMITTED WITH BID
The bidder is required to state the bidder's financial ability and a general description of
similar work performed.
Required Qualifications: Bidders must hold a valid State of California Contractor's
License (B or C -21) at the time the bid is submitted to the City, and must have
satisfactorily completed at least three Southern California projects in the last five years
of comparable size to the scope of this project.
Number of years engaged in providing the work included within the scope of the
specifications under the present business name:
List and describe fully the last three contracts performed by your firm which
demonstrate your ability to complete the work included within the scope of the
specifications. Attach additional pages if required. The City reserves the right to
contact each of the references listed for additional information regarding your firm's
qualifications.
Reference No. 1
Customer Name: t�l14�7
Contact Individual : ibsn(dtil Phone No. G L 6 - 7 _/
Address: r �'+°ti
Contract Amount: c >vJ Year: 24xyl
Description of work done:
c. �C i�
Reference No. 2
Customer Name:
Contact Individual,
Address:
Contract Amount:
Description pf wo)" l
Reference No. 3
Customer Name:
Contact Individual:
Address:
Contract Amount:
Description of work
r
oe
Moorpark Redevelopment Agency Bid Package
Structure Demolition - 484 Charles Street. Page 11 of 58
100095
STATEMENT OF BIDDER'S QUALIFICATIONS AND
REFERENCES
(Cont'd)
STATE OF CALIFORNIA, COUNTY OF
I am the W,2 fY-14 �r
1 /
42
Of ���,4 u/' ��A f/''
the bidder herein. I have read the foregoing statement and know the
contents thereof; and I certify that the same is true to my knowledge, except as to those
matters which are therein stated upon my information or belief, and as to those matters I
believe it to be true.
Executed on [ r
(date)
at
(place)
I declare, under penalty of perjury, that the foregoing is true and correct.
Signature of Bidder
bi "rk��
Title
Signature of Bidder
Title
Moorpark Redevelopment Agency
Structure Demolition — 484 Charles Street.
California.
Bid Package
Page 12 of 58
) 00096
COMPLIANCE WITH ENVIRONMENTAL, HEALTH
AND SAFETY STANDARDS
TO BE EXECUTED
BY BIDDER AND SUBMITTED WITH BID
The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) prohibits
employers from knowingly discharging or releasing a chemical known to the State of
California to cause concern, birth defects or other reproductive harm into water or onto
land where such chemical passes or, in all probability, will pass into any source of
drinking water. Notwithstanding any provision in this Act exempting Contractor,
Contractor hereby agrees to comply with all provisions of the Act relating to the
discharge of hazardous chemicals on the job site.
Contractor fully agrees that Contractor, Contractor's employees and subcontractors
shall not discharge such chemicals on the job site which will result in the discharge of
such chemicals, and shall, upon completion of performance of all other duties under this
contract, remove all supplies, materials and waste remaining on the job site which if
exposed, could result in the discharge of such chemicals. Contractor shall be financially
responsible for compliance with Proposition 65.
Contractor shall also comply with state of California anti- smoking laws which, in part,
prohibit smoking in the workplace and enclosed areas.
Should Contractor, Contractor's employees, or subcontractors or their employees fail to
comply, within 24 hours from the time Agency issues and Contractor receives a written
notice of noncompliance or within the time of an abatement period specified by any
government agency, whichever period is shorter, Agency may give notice of default to
Contractor, and at the Agency's option, elect any and all rights or remedies set forth in
this agreement.
Approved by Contractor. �_4�^ �L-7 s ,0
Title J
Date
Moorpark Redevelopment Agency
Structure Demolition — 484 Charles Street.
Bid Package
Page 13 of 58
M0097
WORKERS' COMPENSATION INSURANCE CERTIFICATE
TO BE EXECUTED
BY BIDDER AND SUBMITTED WITH BID
Sections 1860 and 1861 of the California Labor Code require every contractor to whom a public
works contract is awarded to sign and file with the awarding body the following statement:
"I am aware of the Provisions of Section 3700 of the Labor Code which requires every
employer to be insured against liability for Workers' Compensation or to undertake self -
insurance in accordance with the provisions of that code, and I will comply with such
provisions before commencing the performance of the work of this contract."
By
C,�,/1 S
Title: V4t o L e r
Moorpark Redevelopment Agency
Structure Demolition — 484 Charles Street.
Date: /'t Lb / y 1�1 '
Bid Package
Page 14 of 58
, � 00098
BIDDER'S STATEMENT OF SUBCONTRACTORS
AND MATERIAL FABRICATORS
TO BE EXECUTED
BY BIDDER AND SUBMITTED WITH BID
Provide a complete list of all Subcontractor's who will perform more than 1/2% the value
of the total lump sum bid amount. (NOTE: If Contractor does not have a valid DOSH registration number,
then a qualified subcontractor must be selected to provide required asbestos abatement work and must be listed
here. Contractors must also list one of the City's contract waste haulers as a subcontractor to ensure that the City's
contract waste hauler provision is understood. Failure to do either of these will result in bid rejection).
PLEASE PRINT LEGIBLY
Name Under Which Percent
Subcontractor is License Type of work to
Licensed No.& Class Business Address Work be done'
Sys Z,4
�" • i�� �� a-vt s - r�2 ✓..� — 5, . �., y— L171 T IS< <cc�L�_
�o(.urjc�n ► ol.�• �S`1y�'►�c�- t�r�..�j�' �sts�.� -.:�
.Sfwh, Voale
Total Percentage 2 i .
f
Signature(s) of Bidder Date
' Based on contract price
z May not exceed 50% of contract price See Greenbook Section 2 -3 2
Moorpark Redevelopment Agency
Structure Demolition - 484 Charles Street.
Bid Package
Page 15 of 58
)0009`.`
PAGES 16 -26 ARE
CONTRACT DOCUMENTS
AND HAVE BEEN
REMOVED SO AS NOT TO
BE DUPLICITOUS
1 400100
BOND FOR FAITHFUL PERFORMANCE
KNOW ALL PERSONS BY THESE PRESENTS:
That we,
and
firmly bound unto the
hereinafter referred
the United States of Ar
hereinafter referred to as "Contractor" as principal,
hereinafter referred to as "Surety," are held and
Redevelopment Agency of the City of Moorpark, California,
to as "Agency ", or "Obligee" in the sum of
Dollars ($ ), lawful money of
nerica, for the payment of which sum well and truly to be made,
we bind ourselves, jointly and severally, firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS, said Contractor has been awarded and is about to enter into a
Contract with the Redevelopment Agency of the City of Moorpark, California, for
demolition and site clearance at 484 Charles Street, and is required by said Agency to
give this bond in connection with the execution of said Contract.
NOW, THEREFORE, if said Contractor shall well and truly do and perform
all the covenants and obligations of said Contract to be done and performed at the time
and in the manner specified herein, then this obligation shall be null and void one year
after date of recordation of Notice of Completion by City of the completed work and
expiration of the guarantee period, whichever is later; otherwise it shall be and remain in
full force and effect, and Surety shall cause the Contract to be fully performed or to pay
to obligee the cost of performing said Contract in an amount not exceeding the said sum
above specified, and shall also, in case suit is brought upon this bond, pay to obligee
court costs and a reasonable attorney's fee, to be fixed by the court.
IT IS FURTHER PROVIDED, that any alterations in the work to be done or
the material to be furnished shall not in any way release the Contractor or the Surety
thereunder, nor shall any extensions of time granted under the provisions of the
Contract release either the Contractor or the Surety; and notice of such alterations or
extensions of the Contract is hereby waived by the Surety.
WITNESS our hands this day of , 19.
Contractor
Title
Surety
M
In
AA
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 27 of 58
w0101
FORM TO ACCOMPANY
BOND FOR FAITHFUL PERFORMANCE
STATE OF CALIFORNIA )
COUNTY OF ) SS.
CITY OF )
On this day
of
20
before me, the undersigned, a Notary Public in and for said County and State, residing
therein, duly commissioned and sworn, personally appeared
known to be the of and the same
person whose name is subscribed to the within instrument as the
said and the said
acknowledge to me that he /she subscribed the name of
thereto as surety and his /her own as
of
duly
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day and year in the certificate first above written.
Moorpark Redevelopment Agency
Structure Demolition — 484 Charles Street.
Notary Public in and for said
County and State aforesaid
Bid Package
Page 28 of 58
100102
BOND FOR MATERIAL SUPPLIERS AND LABORERS
KNOW ALL PERSONS BY THESE PRESENTS:
That we, hereinafter
referred to as "Contractor" as principal, and
hereinafter referred to as "Surety," are held and firmly bound unto the
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK, CALIFORNIA,
hereinafter referred to as "City" in the sum of
Dollars ($ ), lawful money of the United States of America, for
the payment of which sum well and truly to be made, we bind ourselves, jointly and
severally, firmly by these presents.
The condition of the foregoing obligation is such that:
WHEREAS, said Contractor has been awarded and is about to enter into a
Contract for the demolition and site clearance at 1293 and 1331 Walnut Canyon Road
and is required by Agency to give this bond in connection with the execution of said
Contract.
NOW, THEREFORE, if the said principal as Contractor in said Contract or
subcontractors fails to pay for any subcontractors, materials, provisions, or its other
supplies, or items, used in, upon, for or about the performance of the work contracted to
be done, or for any work or labor thereon of any kind, or for amounts due under the
Unemployment Insurance Code with respect to such work or labor, said Surety will pay
for the same in an amount not exceeding the sum specified above, and also, in case
suit is brought upon this bond, a reasonable attorney's fee to be fixed by the court.
This bond shall inure to the benefit of any and all persons named in Section 3181 of the
Civil Code of the State of California. This bond shall remain in full force and effect
through the term of the Agreement and beyond as set forth herein. The Contractor may
cause the Bond to be exonerated six (6) months after the date of recordation of the
Notice of Completion by the City and only with the City's written permission. However,
Bond shall not be exonerated if claims or stop notices remain outstanding.
IT IS FURTHER PROVIDED, that any alterations in the work to be done or the
material to be furnished, which may be made pursuant to the terms of said
Contract shall not in any way release either the Contractor or the Surety
thereunder, nor shall any extensions of time granted under the provisions of said
Contract release either the Contractor or the Surety; and notice of such
alterations or extensions of the Contract is hereby waived by the Surety.
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 29 of 58
BOND FOR MATERIAL SUPPLIERS AND LABORERS
(continued)
WITNESS our hands this day of
Contractor
z
Title
Title
Surety
19
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 30 of 58
100104
FORM TO ACCOMPANY BOND FOR
MATERIAL SUPPLIERS AND LABORERS
STATE OF CALIFORNIA )
COUNTY OF ) SS.
CITY OF )
On this day of 1 20
undersigned, a Notary Public in and for said County and State
commissioned and sworn, personally appeared,
the of and the said
acknowledged to me that subscribed the name of
hereto as Surety and own as
before me, the
residing herein, duly
known to be
duly
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in the certificate first above written.
Notary Public in and for said
County and State aforesaid
Moorpark Redevelopment Agency
Structure Demolition — 484 Charles Street.
Bid Package
Page 31 of 58
400115
GENERAL CONDITIONS TO THE CONTRACT FOR
CONSTRUCTION
The General Conditions may be supplemented or amended elsewhere in the Contract
Documents and other sections of the Project Manual. All provisions which are not so
amended or supplemented remain in full force and effect.
Except as hereinafter provided, the provisions of the latest edition of the Standard
Specifications for Public Works Construction (SSPWC), and all supplements thereto,
prepared and promulgated by the Greenbook Committee of Public Works Standards
Inc., formerly the Southern California Chapter of the American Public Works Association
and the Associated General Contractors of America, and the following modifications
thereto are established as the Standard Specifications for the City. They will be referred
to in the General Conditions and contract documents as the "Greenbook ". These
specifications will prevail as the basic Standard Specifications for this project except as
otherwise specifically noted in the General Conditions when reference is made to the
State Standard Specifications.
Contractor agrees that if there is a conflict between
repetition, or ambiguity within any of the documents,
person to decide which document or provision shall
Agency.
the documents, or a conflict,
the Agency shall be the sole
govern, to the interest of the
The Agency will make the final decisions based on the recommendations of the
Agency's designated Project Representative. Jessica Sczepan, Administrative
Specialist is the Agency's project representative assigned to this project and will act as
directed by and under the supervision of the Redevelopment Manager.
In the attached, "Agency," and "Owner" shall refer to the Redevelopment Agency of the
City of Moorpark, Moorpark, California.
ARTICLE 1
GENERAL CONDITIONS
1.1 BASIC DEFINITIONS
1.1.1 The Contract represents the entire and integrated Agreement between the parties
hereto and supersedes prior negotiations, representations or agreements, either written
or oral. The Contract shall not be construed to create a contractual relationship of any
kind (1) between the Agency and a Subcontractor or supplier or (2) between any
persons or entities other than the Agency and Contractor.
1.1.2 The term "work" means the construction and services required by the Contract
Moorpark Redevelopment Agency Bid Package
Structure Demolition - 484 Charles Street. Page 32 of 58
001.06
Documents, whether completed or partially completed, and includes all other labor,
materials, equipment and services provided or to be provided by the Contractor to fulfill
the Contractor's obligations. The work may constitute the whole or part of the project.
1.1.3 The "project" is the total construction of the work performed under the Contract
Documents and may be the whole or a part which may include construction by other
Contractors and by the Agency's own forces including persons or entities under
separate contracts not administered by the Agency.
1.1.4 The "drawings" are the graphic and pictorial portions of the Contract, wherever
located and whenever issued, showing the design, location and dimensions of the work,
generally including plans, elevations, sections, details, schedules, and diagrams.
1.1.5 The "specifications" are that portion of the Contract consisting of the written
requirements for materials, equipment, construction systems, standards and
workmanship for the work, and performance of related services.
1.1.6 The Project Manual is the volume assembled for the work which includes without
limitation, the bidding requirements and documents, the proposal, sample forms, the
contract and conditions of the Contract.
1.1.6.1 The drawings, specifications, project manual, contract and all incorporations by
reference comprise the contract documents.
1.2 EXECUTION, CORRELATION AND INTENT
1.2.1 The Contract Documents shall be signed by the Agency and Contractor as
provided in the Contract.
1.2.2 Execution of the Contract by the Contractor is a representation that the Contractor
has visited the site, become familiar with local conditions under which the work is to be
performed and correlated personal observations with requirements of the Contract and
agrees to all terms and conditions of the contract documents.
1.2.3 The intent of the Contract Documents is to include all items necessary for the
proper execution and completion of the work by the Contractor. THE CONTRACT
DOCUMENTS ARE COMPLEMENTARY, AND WHAT IS REQUIRED BY ONE SHALL
BE BINDING AS IF REQUIRED BY ALL.
1.2.4 Organization of the specifications into divisions, sections and articles, and
arrangements of drawings shall not control the Contractor in dividing the work among
Subcontractors or in establishing the extent of work to be performed by any trade.
1.2.5 Unless otherwise stated in the Contract, words which have well -known technical
or construction industry meanings are used in the Contract in accordance with such
recognized meanings.
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 33 of 58
1.3 CAPITALIZATION
1.3.1 Terms capitalized in these General Conditions include those which are (1)
specifically defined and (2) the titles of numbered articles and identified references to
Paragraphs, Sub - paragraphs and Clauses in this document.
1.4 INTERPRETATION
1.4.1 In the interest of brevity the Contract frequently omits modifying words such as
"all" and "any" and articles such as "the" and "an," but the fact that a modifier or an
article is absent from one statement and appears in another is not intended to affect the
interpretation of either statement.
ARTICLE 2
OWNER
2.1 DEFINITION
2.1.1 The Agency is the person or entity identified as such in the Contract and is
referred to throughout the Contract as if singular in number. The terms "Agency" and
"Owner" mean the Redevelopment Agency of the City of Moorpark, and it is the owner.
2.1.2 The Agency upon reasonable written request shall furnish to the Contractor, in
writing, information which is necessary and relevant for the Contractor to evaluate, give
notice or enforce claim rights.
2.2 INFORMATION AND SERVICES REQUIRED BY THE AGENCY
2.2.1 Information or services under the Agency's control shall be furnished by the
Agency with reasonable promptness to avoid delay in orderly progress of the work.
2.2.2 As necessary, the Agency shall forward all communications to the Contractor
through the fax and /or first class mail, personal delivery, or overnight delivery service.
2.3 AGENCY'S RIGHT TO STOP THE WORK
2.3.1 If the Contractor fails to correct work which is not in accordance with the
requirements of the Contract, in the required time frames, or persistently fails to carry
out work in accordance with the Contract, the Agency, by written order signed
personally or by an agent specifically so empowered by the Agency in writing, may
order the Contractor to stop the work, or any portion thereof, until the cause for such
order has been eliminated; however, the right of the Agency to stop the work shall not
give rise to a duty on the part of the Agency to exercise this right for the benefit of the
Contractor or any other person or entity. These remedies are supplemental to remedies
Moorpark Redevelopment Agency Bid Package
Structure Demolition — 484 Charles Street. Page 34 of 58
000108
found elsewhere in the Contract.
2.4 AGENCY'S RIGHT TO CARRY OUT THE WORK
2.4.1 Notwithstanding other remedies available to the Agency, if the Contractor defaults
or neglects to carry out the work in accordance with the Contract and fails within a ten
calendar day period after receipt of written notice from the Agency to commence and
correct such default or neglect with diligence and promptness, the Agency, at its sole
option and without obligation, may, with their own or outside forces, correct such
deficiencies. In such case an appropriate deduction shall be made by the Agency from
payments then, or thereafter, due to the Contractor for the cost of correcting such
deficiencies, including compensation for the Agency's additional services and expenses
made necessary by such default, neglect, or failure. If payments then or thereafter due
the Contractor are not sufficient to cover such amounts, the Contractor shall pay the
difference to the Agency. This remedy is cumulative. The Agency may terminate
pursuant to section 12 of the contract.
ARTICLE 3
CONTRACTOR
3.1 DEFINITION
3.1.1 The Contractor is the person or entity identified as such in the Contract and is
referred to throughout this Contract as if singular in number. The term "Contractor"
means the Contractor or the Contractor's authorized representative.
3.1.2 The plural term "Contractors" refers to persons or entities who perform
construction under conditions of the Contract that are administered by the Agency, and
that are identical or substantially similar to these conditions.
3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY
CONTRACTOR
3.2.1 In addition to other investigations required by the contract documents, the
Contractor shall take field measurements and verify field conditions and shall carefully
compare such field measurements and conditions and other information known to the
Contractor with the Contract before commencing activities. Errors, inconsistencies or
omissions discovered shall be reported to Agency Staff at once.
3.2.2 The Contractor shall perform the work in accordance with the Contract.
3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
3.3.1 The Contractor shall supervise and direct the work, using the Contractor's best
skill and attention. The Contractor shall be solely responsible for and have control over
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construction means, methods, techniques, sequences and procedures, and all safety
requirements for coordinating all portions of work under this Contract, subject to overall
coordination of the Construction, and subject to overall coordination by Agency Staff as
provided in Subparagraphs 4.2.3.
3.3.2 The Contractor shall be responsible to the Agency for acts and omissions of the
Contractor's employees, Subcontractors and their agents and employees, and other
persons performing portions of the work under a contract with the Contractor.
3.3.3 The Contractor shall not be relieved of obligations to perform the work in
accordance with the Contract either by activities or duties of Agency Staff in the
administration of the Contract, or by tests, inspections or approvals required or
performed by persons other than the Contractor.
3.3.4 The Contractor shall inspect portions of the project related to the Contractor's
work in order to determine that such portions are in proper condition to receive
subsequent work.
3.4 LABOR AND MATERIALS
3.4.1 Unless otherwise provided in the Contract, the Contractor shall provide and pay
for labor, materials, equipment, tools, construction equipment and machinery, water,
heat, utilities, transportation and other facilities and services necessary for proper
execution and completion of the work, whether temporary or permanent and whether or
not incorporated or to be incorporated in the work.
3.5 TAXES
3.5.1 The Contractor shall pay sales, consumer, use and similar taxes for the work or
portions thereof provided by the Contractor which are legally enacted when bids are
received or negotiations concluded, whether or not yet effective or merely scheduled to
go into effect.
3.6 PERMITS, FEES AND NOTICES
3.6.1 The Contractor shall secure and pay for all necessary permits required for the
proper execution and completion of the work in this contract, including a City of
Moorpark Business Registration Permit, which can be obtained from the Community
Development Department.
3.6.2 The Contractor shall comply with and give notices required by laws, ordinances,
rules, regulations and lawful orders of public authorities bearing on performance of the
work.
3.6.3 If the Contractor performs work knowing it to be contrary to laws, statutes,
ordinances, building codes, and rules and regulations, the Contractor shall assume full
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responsibility for such work and shall bear the attributable costs to remove, correct
and /or otherwise comply with the law.
3.7 ALLOWANCES
Not used.
3.8 CONTRACTOR'S SUPERVISION /SUPERINTENDENT
3.8.1 The Contractor shall employ a competent superintendent and necessary
assistants who shall be in full time attendance at the project site during performance of
the work. They shall have extensive experience in projects similar to this one. The
superintendent shall represent the Contractor, and communications given to the
superintendent shall be as binding as if given to the Contractor. Important
communications shall be confirmed in writing. Other communications shall be similarly
confirmed on written request in each case. The Contractor shall give efficient
supervision to work, using his /her best skill and attention. He /she shall carefully study
and compare all drawings, specifications and other instructions and shall at once report
to Agency Staff any error, inconsistency or omission which he /she may discover.
3.9 CONTRACTOR'S CONSTRUCTION SCHEDULE
3.9.1 The Contractor, promptly after being awarded the Contract, shall submit
Contractor's construction schedule for the work. Such schedule shall not exceed time
limits current under the Contract, shall be revised at appropriate intervals as required by
the contract documents, conditions of the work and progress. The construction schedule
shall provide for expeditious and practicable execution of the work and shall show
procurement and submittals. See specifications for further requirements regarding
construction schedule.
3.9.2 The Contractor shall cooperate with the Agency in scheduling and performing the
Contractor's work to avoid conflict, delay in, or interference with the work of other
Contractors or the construction or operations of the Agency's own forces.
3.9.3 The Contractor shall prepare and keep current, for Agency staff approval, a
schedule of submittals which is coordinated with the Contractor's construction schedule
and allows for a reasonable time for review. Contractor shall also keep current a
Request for Information (RFI) schedule and reply record.
3.10 USE OF SITE
3.10.1 The Contractor shall confine operations at the site to areas permitted by law,
ordinances, and permits and shall not unreasonably encumber the site with materials or
equipment.
3.10.2 The Contractor shall coordinate their operations with, and secure the approval of,
the Agency before using any portion of the site.
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3.11 ACCESS TO WORK
3.11.1 The Contractor shall provide the Agency access to the work in preparation and
progress wherever located.
3.12 ROYALTIES AND PATENTS
3.12.1 The Contractor shall pay all royalties and license fees, fees for use of patent
rights and shall hold the Agency harmless from the loss on account thereof, but shall
not be responsible for such defense or loss when a particular design, process or
product of a particular manufacturer is required by the Contract.
ARTICLE 4
ADMINISTRATION OF THE CONTRACT
4.1 AGENCY'S REPRESENTATIVES
4.1.1 One or more Representatives employed by the Agency may be assigned to the
work. His /her duties shall be defined by the Agency.
4.1.2 The designated Agency Project Representative or entity is identified as such in the
Contract and is referred to throughout the Contract as if singular in number. The
designated staff person will act as directed by and under the supervision of the
Redevelopment Manager, and will confer with the Redevelopment Manager and Agency
regarding its actions.
4.1.3 The Agency's Project Representative shall have full access to all operations
involving work under this Contract and shall be provided reasonable advance notice of
the time and place of operations which he /she desires to observe.
4.1.4 The Contractor shall furnish Agency reasonable facilities for obtaining such
information as may be necessary to keep them fully informed respecting progress and
manner of work and character of materials. Observation of work shall not relieve the
Contractor from any obligation to fulfill this Contract. The Executive Director shall have
authority to stop work whenever provisions of the Contract are not being complied with
and the Contractor shall instruct his /her employees accordingly.
4.1.5 Duties, responsibilities and limitations of authority of Agency's Representative as
set forth in the Contract shall not be restricted, modified or extended without written
consent of the Agency and Contractor. Consent shall not be unreasonably withheld.
4.1.6 In case of termination of employment of the designated staff person, the Agency
shall appoint a staff person whose status under the Contract shall be that of the former
staff or higher, respectively.
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4.2 ADMINISTRATION OF THE CONTRACT
4.2.1 The Agency's project representative will provide administration of the Contract as
described in the Contract under the direction of the Redevelopment Manager, and will
advise the Agency during construction, until all contractual obligations are completed
and contract performed or terminated. The Representative will advise and consult with
the Agency and will have authority as stated in the Contract, unless otherwise modified
by written instrument in accordance with other provisions of the Contract.
4.2.2 The Agency's Project Representative will determine that the work is being
performed in accordance with the requirements of the Contract, will keep the
Redevelopment Manager informed of the progress of the work, and will endeavor to
guard the Agency against defects, deficiencies in the work and slow progress.
4.2.3 The Agency's Project Representative will provide for coordination of the activities
of other Contractors and of the Agency's own forces with the work of the Contractor,
who shall cooperate with them. The Contractor shall participate with other Contractors
and the Agency in reviewing their construction schedules. The Contractor shall make
any revisions to the construction schedule deemed necessary after a joint review and as
required by the contract documents. The construction schedules, until subsequently
revised, shall constitute the schedules to be used by the Contractor, other Contractors,
and Agency.
4.2.4 The Agency's Project Representative will not have control over or charge of and
will not be responsible for construction means, methods, techniques, sequences or
procedures, or for safety precautions and programs in connection with the work, since
these are solely the Contractor's responsibility as provided in Paragraph 3.3, and
neither will be responsible for the Contractor's failure to carry out the work in
accordance with the Contract. The Agency will not have control over or charge of or be
responsible for acts or omissions of the Contractor, Subcontractors, or their agents or
employees, or of any other persons performing portions of the work.
4.2.5 The Contractor shall communicate directly with the Agency. Communications by
and with Subcontractor's and material suppliers shall be through the Contractor.
Communications by and with other Contractors shall be through the Agency's Project
Representative.
4.2.6 The Project Representative will review and certify the applications for payment by
the Contractor. Agency staff will assemble the Contractor's application for payment into
a project application and request for payment.
4.2.7 Based on the Agency's observations and evaluations of Contractor's applications
for payment, the application will be processed. Final approval for payment rests with the
Executive Director.
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4.3 CLAIMS AND DISPUTES
4.3.1 Definition. A claim is a demand or assertion by one of the parties seeking, as a
matter of right, adjustment or interpretation of Contract terms, payment of money, and
extension of time or other relief with respect to the terms of the Contract. The term
"claim" also includes other disputes and matters in question, between the Agency and
Contractor arising out of or relating to the Contract. Claims must be made by written
notice. The responsibility to substantiate claims shall rest with the party making the
claim. An unresolved claim is an unresolved dispute.
4.3.2 Time Limits on Claims. Claims by either party must be made within 14 calendar
days after occurrence of the event giving rise to such claim or within 14 days after the
claimant first recognizes the condition giving rise to the claim, whichever is later. Claims
must be made by written notice. An additional claim made after the initial claim has
been implemented by Change Order will not be considered unless submitted in a timely
manner.
4.3.3 Continuing Contract Performance. Pending final resolution of a claim, answer on
change order request, or unresolved dispute, unless otherwise agreed in writing, the
Contractor shall proceed diligently with performance of the work and contractual
obligations and the Agency shall continue to make agreed upon payments in
accordance with the Contract. (Also see 4.3.5)
4.3.4 Claims for Additional Cost. If the Contractor wishes to make a claim for an
increase in the contract lump sum, written notice as provided herein shall be given
before proceeding to execute the work as required. Prior notice is not required for
claims relating to an emergency endangering life or property arising under Paragraph
9.3. If the Contractor believes additional cost is involved for reasons including but not
limited to, (1) an order by the Agency to stop the work where the Contractor was not at
fault, (2) a written order for a minor change in the work issued by the Representative,
(3) failure of payment by the Agency, (4) termination of the Contract by the Agency, (5)
or Agency's suspension of work, claims shall be filed in accordance with the procedure
established herein.
4.3.5 Claims for Additional Time.
4.3.5.1 If the Contractor wishes to make a claim for an extension in time to complete the
Contract, written notice to the Agency, shall be given by the Contractor. The
Contractor's claim shall include an estimate of probable effect of delay on progress of
the work. In the case of a continuing delay only one claim is necessary.
4.3.5.2 If adverse weather conditions are the basis for a claim for additional time, such
claim shall be documented in writing substantiating that weather conditions were
abnormal for the period of time and could not have been reasonably anticipated, and
that weather conditions had an adverse effect on the scheduled construction. Payment
for general condition items, overhead, and profit shall not be made for additional time
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granted for adverse weather conditions, vandalism, casualty loss and /or material
availability. Contractor expressly waives any rights to such claims. Contractor must
have provided required erosion control and access protection as a requirement to
making claims for extension of time because of adverse weather conditions.
4.3.5.3 No claims for adverse weather conditions for weekends or holidays will be
granted unless contractor specifically requested (in writing) permission to work and was
granted such permission by the Agency. If rain is predicted when the request to work is
received by the Agency, the request to work will be rejected, unless the work is inside
and protected access is in place.
4.3.5.4 At no time shall the workload of material manufacturers be considered a reason
to claim "inability to obtain materials" for purposes of requesting a time extension.
4.3.6 Injury or Damage to Person or Property. If either party to the Contract suffers
injury or damage to person or property because of an act or omission of the other party,
of any of the other party's employees or agents, or of others for whose acts such party
is legally liable, written notice of such injury or damage, whether or not insured, shall be
given to the other party within a reasonable time not exceeding 2 days after initial
observance or notification. The notice shall provide sufficient detail to enable the other
party to investigate the matter.
4.4 RESOLUTION OF CLAIMS AND DISPUTES
4.4.1 The Agency will review claims and disputes, with the Executive Director, and take
one or more of the following preliminary actions within ten days of receipt of a claim: (1)
request additional supporting data from the claimant, (2) submit a schedule to the
parties indicating when they expect to take action, (3) recommend rejecting the claim in
whole or in part, stating reasons for rejection, (4) recommend approval of the claim by
the other party or (5) suggest a compromise. The Agency may, but is not obligated to,
notify the surety, if any, of the nature and amount of the claim.
4.4.2 If a claim has been resolved, the Agency will notify the parties in writing of the
resolution.
4.4.3 An unresolved claim is an unresolved dispute
4.4.4 If a claim has not been resolved, the party making the claim shall, within ten days
after the Agency's preliminary response, take one or more of the following actions (1)
submit additional supporting data requested, (2) modify the initial claim, (3) notify the
Agency that the initial Claim stands, or (4) withdraw the claim.
4.4.5 Contractor, in the event of any dispute or controversy with the Agency over any
matter whatsoever, shall not cause any delay or cessation in or of work, but shall
proceed with the performance of the work in dispute. This includes disputed time
extension requests and prices for changes.
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4.4.6 The disputed work will be categorized as an "unresolved dispute" and payment, if
any, shall be as later determined by mutual agreement or a court of law. Contractor will
keep accurate, detailed records on all disputed work, claims and other disputed matters
and submit same to Agency. Public Contract Code 20104 et. seq., shall govern the
claim procedure.
4.4.7 In no event will the Contractor be allowed to reserve its rights to assert a claim for
time extension, or any other type of claim, later than as required by paragraph 4.3.2
unless the Agency agrees in writing to allow such reservation.
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor
to perform a portion of the work at the site. The term "Subcontractor' is referred to
throughout the Contract as if singular in number and means a Subcontractor or an
authorized representative of the Subcontractor. The term "Subcontractor" does not
include other Contractors or Subcontractors of other Contractors. A Subcontractor shall
be considered an employee of the Contractor and the Contractor shall be responsible
for his /her work.
5.1.2 A Sub - subcontractor is a person or entity who has a direct or indirect contract with
a Subcontractor to perform a portion of the work at the site. The term "Sub -
subcontractor' is referred to throughout the Contract as if singular in number and means
a Sub - subcontractor or an authorized representative of the Sub - subcontractor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS
OF THE WORK
5.2.1 All contracts between the general Contractor and its subcontractors and suppliers
shall include a provision that the subcontractors and suppliers shall be bound to the
Contractor to the same extent that the Contractor is bound to the Agency by all terms
and provisions of the Contract, and shall incorporate the contract by reference into all
subcontracts. If the Contractor shall subcontract any part of this Contract, the Contractor
shall be as fully responsible to the Agency for acts and omissions of Subcontractor and
of persons either directly or indirectly employed by Subcontractor, as he /she is for acts
and omissions of persons directly employed by himself /herself. Nothing contained in the
Contract shall create any contractual relation between any Subcontractor and the
Agency.
5.2.2 Contractor will comply with the bidding requirements, and shall furnish in writing
for review by the Agency, the names of persons or entities including those who are to
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furnish materials or equipment fabricated to a special design proposed for each
principal portion of the work.
5.2.3 The Agency's consent to or approval of any Subcontractor under this Contract
shall not in any way relieve the Contractor of his /her obligations under this Contract and
no such consent or approval shall be deemed to waive any provision of this Contract.
5.2.4 The Contractor shall not contract with a proposed person or entity to whom the
Agency has made reasonable and timely objection. The Contractor shall not contract to
any unlicensed or uninsured Subcontractor or supplier.
5.2.5 The Contractor shall not change a Subcontractor, person or entity previously
approved if the Agency makes reasonable objection to such change. Substitution or
addition shall be permitted only as authorized in Chapter 2 (commencing at Section
4100) Division 5, Title 1 of California Government Code.
5.3 SUBCONTRACTUAL RELATIONS
5.3.1 Each subcontract agreement shall preserve and protect the rights of the Agency,
under the Contract with respect to the work to be performed by the Subcontractor so
that subcontracting thereof will not prejudice such rights, and shall allow to the
Subcontractor, unless specifically provided otherwise in the subcontract agreement, the
benefit of all rights, remedies and redress against the Contractor that the Contractor, by
this Contract, has against the Agency. Where appropriate, the Contractor shall require
each Subcontractor to enter into similar agreements with Sub - subcontractors. The
Contractor shall make available to each proposed Subcontractor, prior to the execution
of the subcontract agreement, copies of the Contract to which the Subcontractor will be
bound, and, upon written request of the Subcontractor, identify to the Subcontractor
terms and conditions of the proposed subcontract agreement which may be at variance
with the Contract. Subcontractors shall similarly make copies of applicable portions of
such documents available to their respective proposed Sub - subcontractors.
5.4 MUTUAL RESPONSIBILITY
5.4.1 The Contractor shall afford the Agency's own forces and other Contractors
reasonable opportunity for introduction and storage of their materials and equipment
and performance of their activities, and shall connect and coordinate the Contractor's
construction and operations with theirs as required by the Agency.
5.4.2 If part of the Contractor's work depends for proper execution or results upon
construction or operations by the Agency's own forces or other Contractors, the
Contractor shall, prior to proceeding with that portion of the work, promptly report to the
Agency apparent discrepancies or defects in such other construction that would render
it unsuitable for such proper execution and results. Failure of the Contractor to report
these discrepancies and defects shall constitute an acknowledgment that the Agency's
own forces or other Contractors' completed or partially completed construction is fit and
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proper to receive the Contractor's work.
5.4.3 The Contractor shall promptly remedy damage wrongfully caused by the
Contractor to completed or partially completed construction or to property of the Agency
or other Contractors.
5.4.4 Claims and other disputes and matters in question between the Contractor and
other Contractors shall be subject to the provisions of Paragraph 4.4.
5.5 AGENCY'S RIGHT TO CLEAN UP
5.5.1 If a dispute arises among the Contractor, other Contractors and the Agency as to
the responsibility under their respective contracts for maintaining the premises and
surrounding area free from waste materials and rubbish, the Agency may clean up and
allocate the cost among those responsible as the Agency determines to be equitable.
ARTICLE 6
CHANGES IN THE WORK
6.1 CHANGES
6.1.1 Changes in the work may be accomplished after execution of the Contract, and
without invalidating the Contract, by change order, construction change directive or
order for a minor change in the work, subject to the limitations stated in this Article 6
and elsewhere in the Contract.
6.1.2 A change order shall be based upon prior written agreement among the Agency,
and Contractor; a construction change directive requires prior written agreement by the
Agency and may or may not be agreed to by the Contractor; an order for a minor
change in the work may be issued by the Agency. Final approval for all change orders
rests with the Agency. The Agency's Executive Director is the final approving authority.
6.1.3 Changes in the work shall be performed under applicable provisions of the
Contract, and the Contractor shall proceed promptly, unless otherwise provided in the
change order, construction change directive or order for a minor change in the work.
6.1.4 Requests for changes and time extensions may be submitted in letter form with
detailed backup and substantiated reasons attached. All requests submitted without
detailed backup and substantiated reasons and will be returned without action.
6.2 CHANGE ORDERS
6.2.1 A change order is a written instrument prepared by the Agency and signed by the
Agency and Contractor, stating their agreement upon all of the following:
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a subsequent change in the work;
2. the amount of the adjustment in the Contract lump sum, if any; and
3. the extent of the adjustment in the Contract time, if any.
6.3 CONSTRUCTION CHANGE DIRECTIVES
6.3.1 A construction change directive is a written order prepared and signed by the
Agency, directing a change in the work and stating a proposed basis for adjustment, if
any; in the Contract lump sum or Contract time, or both. The Agency may, by
construction change directive, without breaching the contract, order changes in the work
within the general scope of the Contract consisting of additions, deletions or other
revisions, the Contract lump sum and Contract time being adjusted accordingly, in
accordance with provisions of the contract documents.
6.3.2 A construction change directive shall be used in the absence of total agreement
on the terms of a change order or pending change order.
6.3.3 If the construction change directive provides for an adjustment to the Contract
lump sum, the adjustment shall be based on one of the following methods, and in
accordance with provisions of the contract documents:
Mutual acceptance of a lump sum properly itemized and supported by
sufficient substantiating data to permit evaluation;
2. Unit prices stated in the Contract or subsequently agreed upon in writing;
3. Cost to be determined in a manner agreed upon by the parties and a
mutually acceptable fixed or percentage fee; or
4. as provided in Subparagraph 6.3.6.
6.3.4 Upon receipt of a Construction change directive, the Contractor shall promptly
proceed with the change in the work involved and advise the Agency of the Contractor's
agreement or disagreement with the method, if any, provided in the Construction
change directive for determining the proposed adjustment in the Contract lump sum or
Contract time.
6.3.5 A Construction change directive signed by the Contractor indicates the agreement
of the Contractor therewith, including adjustment in Contract lump sum and Contract
time or the method for determining them. Such agreement shall be executed as a
change order.
6.3.6 If the Contractor does not respond promptly or disagrees with the method for
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adjustment in the Contract lump sum, the method and the adjustment shall be
determined by the Agency on the basis of reasonable expenditures and savings of
those performing the work attributable to the change, including, in case of an increase
or decrease in the Contract lump sum, the pre- determined percentage for overhead and
profit. In such case, the Contractor shall keep and present, in such form as the Agency
may prescribe, an itemized account together with appropriate supporting data. Unless
otherwise provided in the Contract, costs for the purposes of this Subparagraph 6.3.6
shall be limited to the following:
Costs of labor, including social security, old age and unemployment
insurance, fringe benefits required by agreement or custom, and workers
compensation insurance;
2. Costs of materials, supplies and equipment, including cost of delivery by
supplier, whether incorporated or consumed;
3. Reasonable, competitive rental costs of equipment over $75 /day,
exclusive of hand tools and contractor owned vehicles, whether rented
from the Contractor or others;
4. Permit fees, and sales, use or similar taxes related to the work, as limited
in the conditions of the Contract.
6.3.7 Pending final determination of cost to the Agency, amounts not in dispute may be
included in applications for payment if a change order, to that effect has been signed by
the parties. The amount of credit to be allowed by the Contractor to the Agency for a
deletion or change which results in a net decrease in the Contract lump sum shall be
actual net cost as confirmed by the Agency. When both additions and credits covering
related work or substitutions are involved in a change, the allowance for overhead and
profit shall be figured on the basis of increase, if any, with respect to that change.
6.3.8 If the Agency and Contractor agree with the determination concerning the
adjustments in the Contract lump sum and Contract time, or otherwise reach agreement
upon the adjustments, such agreement shall be recorded by preparation and execution
of an appropriate change order. Change Orders do not become effective until executed
by all parties.
6.3.9 If the Agency and Contractor do not agree on adjustments to the Contract lump
sum or Contract time, then this shall be considered a dispute and shall be resolved
pursuant to the provisions of Section 4.4 of these General Conditions.
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ARTICLE 7
TIME
7.1 DEFINITIONS
7.1.1 Unless otherwise provided, time for performance is the number of calendar days
and /or hours, including authorized adjustments, allotted in the Contract for substantial
completion of the work.
7.1.2 The date of commencement of the work is the date stated in the Notice to Proceed
issued by the Agency. The date shall not be postponed by the failure to act of the
Contractor or of persons or entities for which the Contractor is responsible.
7.1.3 The date the project is completed is the date so certified by the Agency.
7.1.4 The term "day" as used in the Contract shall mean calendar day unless otherwise
specified.
7.2 PROGRESS AND COMPLETION
7.2.1 Time limits stated in the Contract are of the essence. By submitting the proposal,
the Contractor confirms that the Contract time is a reasonable period for performing the
work.
7.2.2 The Contractor shall not knowingly, except by prior consent or direction of the
Agency in writing, prematurely commence operations on the site or elsewhere prior to
the effective date of insurance required by the Contract to be furnished by the
Contractor. The date of commencement of the work shall not be changed by the
effective date of such insurance. The date of commencement will be established by a
notice to proceed given by the Agency.
7.3 DELAYS AND EXTENSION OF TIME
7.3.1 Subject to provisions of the Project Manual, the Contractor may request a time
extension to the contract. He /she may request an extension listing reasons for the delay
and submitting substantiating evidence. If the Agency determines the request is
reasonable, a change order may be issued for said time extension.
7.3.2 Claims relating to time shall be made in accordance with applicable provisions of
Paragraph 4.3 and other appropriate sections of the contract documents.
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ARTICLE 8
PAYMENTS AND COMPLETION
8.1 CONTRACT LUMP SUM
8.1.1 The Contract lump sum is stated in the Contract and, including authorized
adjustments, is the maximum amount payable by the Agency to the Contractor for
performance of the work under the Contract.
8.2 APPLICATIONS FOR PAYMENT
8.2.1 Contractor shall submit to the Agency an itemized application for payment for work
completed in accordance with the schedule of values. The application will be supported
by such data substantiating the Contractor's right to payment as the Agency may
require.
8.2.2 Amounts billed by subcontractor or supplier are not a measure of work completed.
8.2.3 The Contractor warrants that upon submittal of an application for payment all work
for which recommendation for payment has been requested shall, to the best of the
Contractor's knowledge, information and belief, be free and clear of liens, claims,
security interests or encumbrances in favor of the Contractor, Subcontractors, material
suppliers, or other persons or entities making a claim by reason of having provided
labor, material or equipment relating to the work. Copies of applicable releases should
be submitted with the Contractor's invoice.
8.2.4 Payment shall be made pursuant to payment terms, payment schedule and
requirements of the Contract.
8.2.5 Application for payment shall be submitted using the Contractor's own form of
invoice.
8.2.6 Payment shall be made as a lump sum pursuant to the Contract provisions
8.2.7 Substantial completion does not constitute approval for final payment nor final
acceptance of the work.
8.2.8 Payment requests will be rejected due to lack of, or improper releases or other
improper or incomplete documents required to be submitted with payment requests, as
determined by the Agency.
8.2.9 For all payments made under this contract, there will be no separate "Certificate
for Payment." The owner's issuance of a check constitutes a certificate of payment.
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8.3 RECOMMENDATION FOR PAYMENT
8.3.1 The Contractor will assemble a project invoice by certifying the amounts due and
forwarding them to the Project Representative, along with all required releases and
certified payroll documents.
8.3.2 Within ten working days after receipt of the project application for payment, the
Agency will either issue a recommendation for payment, for such amounts as the
Agency determines is properly due, or notify the Contractor in writing of the reasons for
withholding certification in whole or in part as provided in Subparagraph 8.4.1.
8.3.3 The issuance of a recommendation for payment will constitute representations
made separately to the Agency, based on individual observations at the site and the
data comprising the application for payment submitted by the Contractor, that the work
has been completed and that, to the best of the Agency's knowledge, information and
belief, the quality and quantity of the work conforms to the Contract. The foregoing
representations are subject to an evaluation of the work for conformance with the
Contract upon substantial completion, to results of subsequent tests and inspections, to
minor deviations from the Contract correctable prior to completion and to specific
qualifications expressed by the Agency. The issuance of a recommendation for
payment will further constitute a representation that the Contractor is entitled to
payment in the amount certified. However, the recommendation for payment will not be
a representation that the Agency has (1) made exhaustive or continuous on -site
inspections to check the quality or quantity of the work, (2) reviewed the Contractor's
construction means, methods, techniques, sequences or procedures. (3) reviewed
copies of requisitions received from Subcontractors and material suppliers and other
data requested by the Agency to substantiate the Contractor's right to payment or (4)
made examination to ascertain how or for what purpose the Contractor has used money
previously paid on account of the Contract lump sum.
8.4 DECISIONS TO WITHHOLD CERTIFICATION
8.4.1 The Agency may decide not to certify payment and may withhold a
recommendation for payment in whole or in part, to the extent reasonably necessary to
protect the Agency, if in the Agency's opinion the representations to the Agency
required by Subparagraph 8.3.3 cannot be made. If the Agency's Representative is
unable to certify payment in the amount of the application, the Agency will notify the
Contractor. If the Contractor and Agency cannot agree on a revised amount, the Agency
will promptly issue a recommendation for payment for the amount for which the Agency
is able to make such representations. The Agency may also decide not to certify
payment or, because of subsequently discovered evidence or subsequent observations,
may nullify the whole or a part of a recommendation for payment previously issued, to
such extent as may be necessary to protect the Agency from loss because of, but not
limited to, the following:
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1. Defective work not remedied;
2. Third party claims filed or reasonable evidence indicating probable filing of
such claims;
3. Alleged failure of the Contractor to make payments properly to
Subcontractors or for labor, materials or equipment;
4. Reasonable evidence that the work cannot be completed for the unpaid
balance of the Contract lump sum;
5. Damage to the Agency or another contractor or third party allegedly by
Contractor, his /her agent or employee;
6. Reasonable evidence that the work will not be completed within the
Contract time, and that the unpaid balance would not be adequate to
cover actual or liquidated damages for the anticipated delay,
7. Persistent failure to carry out the work in accordance with the Contract;
8. Re- testing of non - passing tests, reimbursement for inspections, overtime
and minimum times not used;
9. Alleged breach of terms and conditions of Contract Documents;
10. Disputed items and issues;
11. Liquidated damages; or
12. Payments which may be past due and payable for just claims against
Contractor or any Subcontractor for labor or materials furnished in and
about the performance of work on the project under this Contract; and/or
13. Improper, incomplete or unacceptable documents, releases or back up
materials.
8.4.2 When the above reasons for withholding certification are removed to the Agency's
satisfaction, certification will be made for amounts previously withheld.
8.4.3 The Agency may apply such withheld amount or amounts to payment of such
claims or obligations at his /her discretion. In so doing, the Agency shall be deemed the
agent of the Contractor and any payment so made by the Agency shall be considered
as a payment made under Contract by the Agency to the Contractor and the Agency
shall not be liable to the Contractor for such payments made in good faith. Such
payments may be made without prior judicial determination of claim or obligations. The
Agency will render the Contractor a proper accounting of such funds disbursed on
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behalf of the Contractor.
8.5 FINAL COMPLETION AND FINAL RETENTION PAYMENT
8.5.1 Upon completion of the work, as specified in the Contract, the Contractor shall
forward to the Agency a written notice that the work is ready for final inspection and
acceptance and shall also forward to the Agency a Contractor's application for final
retention payment. When the Agency finds the work to be acceptable under the
Contract and the Contract fully performed, the Agency will promptly issue a final
recommendation for retention payment stating that to the best of their knowledge,
information and belief, and on the basis of their observations and inspections, the work
has been completed in accordance with terms and conditions of the Contract and that
the entire balance found to be due the Contractor is due and payable.
8.5.2 No final retention payment shall become due until the Contractor submits to the
Agency (1) an affidavit that payrolls, bills for materials and equipment, and other
indebtedness connected with the work for which the Agency or the Agency's property
might be responsible or encumbered (less amounts withheld by Agency) have been
paid or otherwise satisfied; (2) a certificate evidencing that insurance and bonds
required by the Contract to remain in force after final payment is currently in effect and
will not be canceled or allowed to expire until at least 30 days' prior written notice has
been given to the Agency, and the Agency has given written permission to cancel said
insurance and /or bonds; (3) a written statement that the Contractor knows of no
substantial reason that the insurance will not be renewable to cover the period required
by the Contract; (4) consent of surety, if any, to final payment; (5) a certificate
evidencing that Bonds required by the Contract will remain in full force and effect until
Agency issues written permission to exonerate them; and (6) all documentation required
by the payment schedule and (7) if required by the Agency, other data establishing
payment or satisfaction of obligations, such as receipts, releases and waivers of liens,
claims, security interests or encumbrances arising out of the Contract, to the extent and
in such form as may be designated by the Agency. If such claim remains unsatisfied
after payments are made, the Contractor shall refund to the Agency all money that the
Agency may be compelled to pay in discharging such claim, including all costs and
reasonable attorneys' fees.
ARTICLE 9
PROTECTION OF PERSONS AND PROPERTY
9.1 SAFETY PRECAUTIONS AND PROGRAMS
9.1.1 The Contractor shall be responsible for initiating maintaining and supervising all
safety precautions and programs in connection with the performance of the Contract
including, without limitation, safety, job meetings and training. The Contractor shall
submit the Contractor's safety program to the Agency and coordinate with the safety
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programs of other Contractors. Contractor will furnish minutes of all safety meetings to
the Agency.
9.1.2 In the event the Contractor encounters on the site material reasonably believed to
be asbestos or polychlorinated biphenyl (PCB) which has not been rendered harmless
by Contractor's remediation activities as required by this Contract, the Contractor shall
immediately stop work in the area affected and report the condition to the Agency in
writing. The work in the affected area shall not thereafter be resumed except by written
agreement of the Agency and Contractor if in fact the material is asbestos or
polychlorinated biphenyl (PCB) and has not been rendered harmless. The work in the
affected area shall be resumed in the absence of asbestos or polychlorinated biphenyl
(PCB), or when it has been rendered harmless, by written agreement of the Agency and
Contractor.
9.1.3 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or
death to persons resulting from a material or substance encountered on the site by the
Contractor, the Contractor shall, upon recognizing the condition, immediately stop work
in the affected area and report the condition to the Agency in writing. The Agency shall
then proceed in the same manner described in Subparagraph 9.1.2.
9.2 SAFETY OF PERSONS AND PROPERTY
9.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or loss to:
Employees on the job and other persons who may be affected thereby;
2. The work and materials and equipment to be incorporated therein,
whether in storage on or off the site, under care, custody or control of the
Contractor or the Contractor's Subcontractors or Sub - subcontractors,
3. Other property at the site or adjacent thereto, such as trees, shrubs,
lawns, walks, pavements, roadways, structures and utilities not designated
for removal, relocation or replacement in the course of construction, and
4. Construction or operations by the Agency or other Contractors.
9.2.2 The Contractor shall give notices and comply with applicable laws, ordinances,
rules, regulations and lawful orders of public authorities bearing on safety of persons or
property or their protection from damage, injury or loss.
9.2.3 The Contractor shall erect and maintain, as required by existing conditions and
performance of the Contract, reasonable safeguards for safety and protection, including
posting danger signs and other warnings against hazards, promulgating safety
regulations and notifying owners and users of adjacent sites and utilities.
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9.2.4 When use or storage of explosives or other hazardous materials or equipment or
unusual methods are necessary for execution of the work, the Contractor shall exercise
utmost care and carry on such activities under supervision of properly qualified
personnel.
9.2.5 The Contractor shall promptly remedy damage and loss (whether or not insured
under property insurance required by the Contract) to property referred to in
subparagraph 9.2.1 caused in whole or in part by the Contractor, a Subcontractor, a
Sub - subcontractor, supplier, or anyone directly or indirectly employed by any of them, or
by anyone for whose acts they may be liable and for which the Contractor is responsible
under subparagraph 9.2.1. This includes damage or loss caused by unknown persons
or causes. The foregoing obligations of the Contractor are in addition to the Contractor's
obligations under the indemnity sections of the Contract.
9.2.6 The Contractor shall designate a responsible member of the Contractor's
organization at the site whose duty shall be the prevention of accidents. This person
shall be the Contractor's superintendent unless otherwise designated by the Contractor
in writing to the Agency.
9.2.7 The Contractor shall not load or permit any part of the construction or site to be
loaded so as to endanger safety to persons or property.
9.3 EMERGENCIES
9.3.1 In an emergency affecting safety of persons or property; the Contractor shall act,
at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional
compensation or extension of time claimed by the Contractor on account of an
emergency shall be determined as provided in Paragraph 4.3 and Article 7.
ARTICLE 10
INSURANCE
10.1 CONTRACTOR'S INSURANCE (See Bid Terms and Conditions for
additional insurance requirements)
10.1.1 The Contractor shall purchase from and maintain in a company or companies
"admitted" by the State of California such insurance as specified in the Special Bid
Terms and Conditions for this project as will protect the Contractor from claims which
may arise out of or result from the Contractor's operations under the Contract and for
which the Contractor may be legally liable, whether such operations be by the
Contractor or by a Subcontractor or by anyone directly or indirectly employed by any of
them, or by anyone for whose acts any of them may be liable.
10.1.2 The insurance required by Subparagraph 10.1.1 shall be written for not less than
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limits of liability specified in the Contract Documents or required by law, whichever
coverage is greater. Coverages must be written on an occurrence basis and shall be
maintained without interruption from date of commencement of the work until after
guarantee period expires and Agency has given written permission to cancel insurance.
10.1.3 Certificates of Insurance acceptable to the Agency shall be submitted to the
Agency prior to commencement of the work. Additional certificates evidencing
continuation of coverage after final payment shall be submitted with the final Application
for Payment as required by Subparagraph 10.1.2.
10.1.4 All certificates must be original. An original endorsement, naming the Agency as
additional insured must also be submitted before the Notice to Proceed will be issued.
10.1.5 The Contractor shall obtain all insurance coverage required by this section. Said
insurance coverage is required in addition to all other insurance coverage required by
other provisions of the Contract Documents. Contractor to pay all deductibles.
10.1.6 Before an exposure to loss may occur, the Contractor shall file with the Owner a
copy of each policy that includes insurance coverages required by this Paragraph 10.1.
Each policy shall contain all generally applicable conditions, definitions, exclusions and
endorsements related to this Project. Each policy shall contain a provision that the
policy will not be canceled or allowed to expire until at least 30 days' prior written notice
has been given to the Owner.
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Structure Demolition — 484 Charles Street. Page 54 of 58
Technical Specifications
For the Demolition of Structures and Appurtenances at 484 Charles Street,
Moorpark, California
1. The Agency has obtained the services of a licensed laboratory to verify a
presence or absence of asbestos containing materials (ACM) on the Property. Based on
the licensed laboratories report, the property tested positive for ACM. The pre -
demolition survey reports are attached to this bid document, with estimated square
footage removal amounts, for reference. The Contractor is responsible for coordinating
the hazardous materials remediation, including applicable permits and noticing
requirements with Ventura County Air Pollution Control District (VCAPCD), on the
property prior to commencement of demolition work. All ACM must be removed by a
licensed asbestos abatement contractor using appropriate controls to prevent fiber
emissions during the removal process. All asbestos abatement work must be monitored
by a Certified Asbestos Consultant (CAC) or a Certified Site Surveillance Technician
(CSST) working under the supervision of a CAC. This should include area monitoring
and final air clearance testing upon conclusion of field work to ensure compliance with
the EPA's recommended clearance level. If a Contractor proposes to perform this work
with their own forces, proof of the Contractor's valid DOSH registration number must be
submitted with the bid documents. If the Contractor does not have a valid DOSH
registration number for Asbestos removal, a subcontractor must be listed to perform this
work. Failure to comply with either of these requirements, may lead to the bid being
rejected as non - responsive.
2. Demolish and remove all structures, foundations, concrete, trash, debris,
landscaping, shrubs, organic material, large boulders, bricks, blocks, miscellaneous
abandoned items, inside of the property lines at 484 Charles Street. Trim trees located
within and that extend into the property at the property line as indicated at the pre -bid
conference. Contractor is responsible for procuring all permits for this work
including those needed from the City of Moorpark Planning Department, Building
and Safety Office, City Engineering, and Ventura County Air Pollution Control
District.
3. Although the property has been connected to the public sewer system, there is
an old septic tank on the site that needs to be abandoned per Ventura County
Environmental Health standards. Questions about septic tank abandonment can be
directed to the Building and Safety department at 805- 517 -6200 or Ventura County
Environmental Health at 805 - 654 -2813.
4. The City of Moorpark franchises its solid waste services. As such, all trash
and debris must be lawfully disposed of offsite at an approved landfill using one
of the City's two franchise waste haulers (G.I. Rubbish or Anderson Disposal) to
haul away any and all material destined for the landfill. In order to ensure
compliance with this requirement, bidders are required to submit the franchise
hauler as a subcontractor on the "Bidder's Statement of Subcontractors.... ". Failure
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4 00129
to do so may result in a bid being rejected as non - responsive. Recyclable or
salvageable materials may be self - hauled by the contractor, or a vendor who is paying the
contractor, to a recycle /salvage center. The Agency must not incur any cost with regard to
the hauling of recyclable or salvageable material for the Contractor to bid the self -haul
option. If the Contractor bids with the self -haul option, a permit must be issued by the City
and the total tonnage recycled must be reported. Questions about these requirements can
be directed to Jennifer Mellon, Senior Management Analyst at (805) 517 -6247.
5. Remove all underground electrical conduits, gas lines, waterlines, sewer lines,
irrigation lines, and associated lines and all other underground utilities and cap off same
two (2) feet from the property line. Capped sewer utility should also be brought to grade.
Prior to commencing any demolition work, the Contractor shall contact "Dig
Alert" and all serving utilities and make all arrangements necessary to insure that
all utilities are properly located, removed and capped at the property line, as
required. All necessary fees, permits and requirements of the serving utilities and
authorities having jurisdiction will be secured and paid for by the contractor, contractor
will coordinate all utility disconnections and removals necessary to proceed with the
work in a timely manner. Agency Staff can provide a listing of affected utilities upon
request.
6. Verify that areas to remain unaltered adjacent to areas of demolition, alteration or
cutting are completely secured and properly barricaded to ensure separation of such
operations with anybody other than who is authorized to be in construction area before
beginning such work. Provide barricades and maintenance thereof, in accordance with
applicable Federal, State and local codes and their respective requirements. Install
temporary barricades, enclosures and protections before demolition work is started
7. Perimeter fencing on the north and east sides of the property are to remain.
Contractor is responsible for constructing a permanent 6 foot fence, of new chainlink
material, that is to extend along the west side and south side of the property. New
fencing should tie in to the existing fencing. Fencing on the west and south side of the
property line should be placed as noted at pre -bid conference.
8. Contractor is responsible for provision of water to the site, whether it is through
the use of a water meter on a hydrant, a watering truck, or other method. The City of
Moorpark falls within Ventura County Waterworks District No. 1, (805) 378 -3000 and
water meters can be procured through them.
9. During demolition, take all precautions necessary to mitigate blowing dust and
dirt. Use water sprinkling, temporary enclosures, and other methods to limit dust and dirt
migration. This is particularly important at this site, due to it's proximity to Spring Road
and the potential for blowing dust to limit visibility along this heavily traveled road.
Contractor must comply with governing regulations and County Air Pollution Control
District pertaining to environmental protection. Do not use water when it may create
hazardous or objectionable conditions such as flooding and pollution. Do not allow
demolished material to accumulate on site, have debris hauled off at regular intervals
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using appropriate City franchise waste hauler. (See item 3.)
10. Perform demolition exercising proper care to prevent injury to the public,
workmen and adjoining property. Repair or replace existing work scheduled to remain,
which is damaged by these operations. Return elements of construction and surfaces to
remain to existing condition prior to start of operations. Repair adjacent construction or
surfaces soiled or damaged by demolition work.
11. Limit Demolition operations to the immediate property on which the work is to be
performed, do not infringe upon the adjoining roads or rights -of -way. Keep all access
routes and adjoining roads and rights -of -way clean at all times. The tracking of mud, dirt
or any other debris onto the adjacent and surrounding roads will not be permitted at any
time. If there is debris tracked onto roads, at no time will the use of water be an
acceptable clean -up method.
12. Limit noise to a reasonable level as related to specific items of equipment used
and their hours of use. This does not preclude use of mechanical equipment, i.e. jack
hammers, heavy equipment.
13. No blasting will be permitted and burning of rubbish at the site is not allowed.
14. Site and surrounding areas to be left clean and free of any debris, organics
pavement or other unsuitable materials.
15. Except as otherwise specified, in the event the contractor encounters on the
project site material reasonably believed to be Asbestos, Polychlorinated biphenyl
(PCB) or other hazardous materials which have not been rendered harmless by
Contractors remediation efforts as required by this contract, Contractor shall
immediately stop work in the effected area and report the condition to the Agency's
Representative in writing.
16. Submit schedule for approval by the Agency's Representative indicating
proposed methods and sequence of operations for demolition work. Include
coordination for shutoff, capping and continuation of utility services as required, together
with details for dust and noise control protection. Provide detailed sequence of
demolition and removal operations.
17. Contractor will provide a competent English- speaking Superintendent to oversee
the complete project. The Superintendent shall be present at all times work is being
performed. The Superintendent shall have the authority to bind Contractor through
Superintendents acts. The Superintendent shall represent the Contractor;
communications given to the Superintendent shall be binding on the Contractor.
18. Contractor will be responsible for the security of the site. Contractor shall be
responsible for all damages to persons or property that occur as a result of its fault or
negligence in the performance of this contract and shall be responsible for the
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000i-31.
protection of the project site until final acceptance by the Agency. Contractor shall take
all necessary precautions for the safety of workers on the project and shall comply with
all applicable federal, state, local and other safety laws, standards, orders, rules,
regulations, and building codes to prevent accidents or injury to persons on, about, or
adjacent to the premises where work is being performed and to provide a safe and
healthful place of employment.
19. Contactor will be 'responsible to include appropriate construction site Best
Management Practices to comply with applicable storm water and urban runoff permits,
regulations, codes or laws.
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100132
M '
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MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Agency Board of Directors
FROM: David C. Moe II, Redevelopment Manager
DATE: November 12, 2008 (Agency Meeting of 11/19/08)
SUBJECT: Consider Authorizing the Acquisition of 780 Walnut Street and
Accepting the Grant Deed for Recordation
BACKGROUND AND DISCUSSION
Staff has determined that the acquisition of the 780 Walnut Street property by the
Redevelopment Agency is consistent with the goals and objectives in the Moorpark
Redevelopment Plan. The purpose of the proposed acquisition is to further affordable
housing activities in the City of Moorpark.
The purchase price of the property is $250,000.00 plus half of the escrow expenses.
FISCAL IMPACT
A budget amendment is not needed; however, staff will be transferring funds from
another line item within the MRA Area 1 — Operations fund, to pay for this purchase.
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.
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