HomeMy WebLinkAboutAG RPTS 2009 1216 RDA REGESTABLISHED
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Resolution No. 2009 -221
OF
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK
REGULAR MEETING AGENDA
WEDNESDAY, DECEMBER 16, 2009
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. PUBLIC HEARING:
A. Consider Resolutions Approving Mitigated Negative Declaration and
Mitigation Monitoring and Reporting Program, and Disposition and
Development Agreement Between the Redevelopment Agency of the City of
Moorpark and Aszkenazy Development, Inc. Staff Recommendation: 1)
Adopt Resolution No. 2009- , approving Mitigated Negative Declaration;
2) Adopt Resolution No. 2009- , approving Disposition and Development
Agreement, subject to approval of sale by City Council and final language
approval by the Executive Director and Agency Counsel; and 3) Authorize
the Chair to execute all documents necessary for this transaction. ROLL
CALL VOTE REQUIRED (Staff: David Moe)
All writings and documents provided to the majority of the Agency regarding all open - session agenda items are available for
public inspection at the City Hall public counter located at 799 Moorpark Avenue during regular business hours. The agenda
packet for all regular Redevelopment Agency meetings is also available on the City's website at www.ci.mooroark.ca.us.
Any member of the public may address the Agency during the Public Comments portion of the Agenda, unless it is a Public
Hearing or a Presentation /Action/ Discussion item. Speakers who wish to address the Agency concerning a Public Hearing or
Presentations /Action /Discussion item must do so during the Public Hearing or Presentations /Action/ Discussion portion of the
Agenda for that item. Speaker cards must be received by the City Clerk for Public Comment prior to the beginning of the Public
Comments portion of the meeting; for a Presentation/Action /Discussion item, prior to the Chair's call 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 testimonyfor 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.
Redevelopment Agency Agenda
December 16, 2009
Page 2
6. PRESENTATION /ACTION /DISCUSSION:
A. Consider Approving an Agreement with Urban Futures, Inc. for Professional
Consulting Services to Analyze the Feasibility of Adding Area to the
Redevelopment Project Area. Staff Recommendation: Authorize the
Executive Director to execute the Professional Services Agreement for this
transaction, subject to final language approval by the Executive Director and
Agency Counsel. (Staff: David Moe)
7. CONSENT CALENDAR: (ROLL CALL VOTE REQUIRED)
A. Consider Minutes of Special Meeting of November 4. 2009. (continued
from adjourned meeting of December 2, 2009) Staff Recommendation:
Approve the minutes.
B. Consider California Redevelopment Association (CRA) Reguest for Financial
Support for Legal Services. (continued from adjourned meeting of
December 2, 2009) Staff Recommendation: Provide financial support in the
amount of $335.00 to the CRA to assist with the suit against the State of
California. (Staff: Hugh Riley)
C. Consider Authorizing the Executive Director to Send a Letter to the County -
Auditor Regarding Payment into the Supplemental Education Revenue
Augmentation Fund ( SERAF) for Fiscal Year 2009/10. Staff
Recommendation: Authorize the Executive Director to send a letter to the
Ventura County- Auditor advising them of the Agency's intention to pay
SERAF with redevelopment tax increment funds. (Staff: Ron Ahlers)
D. Consider the Annual Financial Report for the Fiscal Year Ended June 30,
2009 for the Moorpark Redevelopment Agency. Staff Recommendation:
Accept the Annual Financial Report of the Moorpark Redevelopment Agency
and receive and file. ROLL CALL VOTE REQUIRED (Staff: Ron Ahlers)
8. 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)
Redevelopment Agency Agenda
December 16, 2009
Page 3
9. ADJOURNMENT:
In compliance with the Americans with Disabilities Act, if you need special assistance to review an agenda or
participate in this meeting, including auxiliary aids or services, please contact the City Clerk's Division at (805)
517 -6223. Upon request, the agenda can be made available in appropriate alternative formats to persons with a
disability. Any request for disability-related modification or accommodation should be made at least 48 hours
prior to the scheduled meeting to assist the City staff in assuring reasonable arrangements can be made to
provide accessibility to the meeting (28 CFR 35.102 - 35.104; ADA Title II).
Redevelopment Agency Agenda
December 16, 2009
Page 4
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss
CITY OF MOORPARK )
AFFIDAVIT OF POSTING
I, Blanca Garza, declare as follows:
That I am the Deputy City Clerk of the City of Moorpark and that a notice for a Regular
Meeting of the Redevelopment Agency of the City of Moorpark to be held Wednesday,
December 16, 2009, at 7:00 p.m. in the Council Chambers of the Moorpark Community
Center, 799 Moorpark Avenue, Moorpark, California, was posted on December 11, 2009, 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 December 11, 2009.
Blanca Garza, Deputy City Clerk
61V 60 M(MAPARK, CAUFORNIA ITEM 5.A.
Redevelopment Agency Meeting
of i'
ACTION: / ..
l
AGENDA REPORT
TO: Honorable Agency Board of Directors
FROM: David C. Moe ll, Redevelopment Manager s ��
DATE: December 3, 2009 (Agency Meeting of 12/16/09)
SUBJECT: Consider Resolutions Approving Mitigated Negative Declaration and
Mitigation Monitoring and Reporting Program, and Disposition and
Development Agreement Between the Redevelopment Agency of the
City of Moorpark and Aszkenazy Development, Inc.
BACKGROUND
The Redevelopment Agency of the City of Moorpark ( "Agency ") acquired a 2.34 acre
site, located at 192 High Street ( "Property "), from the Ventura County Transportation
Commission on August 8, 1993, at a cost of $393,451.34. An aerial of the Property is
attached as EXHIBIT A. This Property was part of a 4.77 acre purchase for
$800,000.00. Since the acquisition, the Property has been leased to a variety of
commercial tenants.
On March 1, 2000, the Agency disseminated a Request for Qualifications (RFQ) in a
search to identify a developer that specializes in downtown development. The Agency
received three responses to the RFQ, none of which met the desired qualifications. The
Agency did not enter into negotiations with any of the responders of the RFQ.
On May 7, 2004, the Agency issued a Request for Proposals (RFP) for redeveloping the
Property. Two developers responded to the RFP, but only Aszkenazy Development,
Inc. ( "Developer ") submitted a responsive proposal.
A proposed Disposition and Development Agreement was on the Agency's November
19, 2008 agenda; however, the Agency Board continued the item until December 3,
2008, at the request of staff. At the December 3, 2008, Agency Meeting, this item was
removed from calendar.
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
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Honorable Agency Board of Directors
December 16, 2009
Page 2
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
improved Metrolink parking lot. The Developer would construct a 49,140 square foot
commercial building to include retail and office uses ( "Project "). The Developer is willing
to purchase the land in phase I at a fair market value of $881,045.00 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
to the Developer under the following conditions:
1. Within two years of the commencement of construction (grading of the
property) and 90% leased on the first phase of the Project.
2. Appraisal will be conducted by the Agency after Developer has provided
satisfactory evidence that phase one has been 90% leased to third parties.
3. The Agency and Developer have successfully negotiated a second
Disposition and Development Agreement consisting of a building of a commercial
building of approximately 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 $656,362.00 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 $656,362.00 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.
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Honorable Agency Board of Directors
December 16, 2009
Page 3
The terms and conditions of the Agency loan are proposed as follows:
1. Developer provides the Agency with a cash payment of Two Hundred Twenty -
Four Thousand Six Hundred Eighty -Three Dollars ($224,683.00).
2. Monthly interest will be deferred, but will accrue, until the Project is ninety
percent (90 %) leased or within one year from receiving the first certificate of occupancy
from the City of Moorpark, whichever occurs first. Developer will pay all deferred
interest within one year from receiving the first certificate of occupancy from the City of
Moorpark or upon fully executing a second Disposition and Development Agreement
with the Agency for the purchase of the land needed for the second phase of the
project. 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
the second phase of this project. Parcel three is the first phase of the project.
Developer may purchase parcel two within two years from the commencement of
construction (grading of phase 1) and the Project is 90% leased at an acceptable sale
price not less than the future fair market value established by an Agency appraisal.
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.
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Honorable Agency Board of Directors
December 16, 2009
Page 4
FISCAL IMPACT
The Agency would receive a cash payment of $224,683.00 at the close of escrow. The
Agency would make a loan for the balance of the purchase price to the Developer for
$656,362.00 for 10 years. Monthly interest only payments would be an estimated
$4,512.49 or $54,149.87 per year the loan is outstanding. Interest payments may be
deferred until phase I is 90% leased or one year from receiving the first certificate of
occupancy from the City of Moorpark, whichever occurs first. The Agency would
receive $656,362.00 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 $541,498.65 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 after the Release of
Construction Covenants 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 $656,362.00 for the Agency loan
to the Developer and approximately $313,000.00 to demolish the existing structures, for
a total of $969,362.00. This money invested in LAIF (Local Area Investment Fund)
would generate approximately, calculated at an estimated future interest rate of 2.77 %,
$2,237.61 per month or $26,851.33 per year, which would increase the risk each year
until resolution.
The Agency's financial risk is mitigated by provisions in the Disposition and
Development Agreement, which provide protection to the Agency against transfers of a
developer's interest, lien holder foreclosure, stalls, abandonment, and bankruptcy by
developer.
The Disposition and Development Agreement will be originally executed by the Agency
and Developer (Aszkenazy Development, Inc.). The Developer has informed the
Agency that the Developer's interest in the Disposition and Development Agreement will
be transferred to a Limited Liability Partnership (LLP) prior to closing escrow and
beginning construction. Severyn Aszkenazy and other individuals will be the owners
and managers of the LLP. Any transfer of Developer interest not allowed in the DDA
shall be approved in writing by the Executive Director of the Agency.
The LLP typically only has a sole asset, which in this case would be the project the
Developer is proposing to construct. LLP entities provide security for the Agency,
lender and Developer as the asset is isolated from the Developer's portfolio. The
Agency and lender benefit from having the construction financing and Agency loan
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Honorable Agency Board of Directors
December 16, 2009
Page 5
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.
ENVIRONMENTAL DETERMINATION
In accordance with the Agency's environmental review procedures adopted by
resolution, the Community Development Director ( "Director ") determines the level of
review necessary for a project to comply with the California Environmental Quality Act
(CEQA). Some projects may be exempt from review based upon a specific category
listed in CEQA. Other projects may be exempt under a general rule that environmental
review is not necessary where it can be determined that there would be no possibility of
significant effect upon the environment. A project which does not qualify for an
exemption requires the preparation of an Initial Study to assess the level of potential
environmental impacts.
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Honorable Agency Board of Directors
December 16, 2009
Page 6
Based upon the results of an Initial Study, the Director may determine that a project will
not have a significant effect upon the environment. In such a case, a Notice of Intent to
Adopt a Negative Declaration or a Mitigated Negative Declaration is prepared. For
many projects, a Negative Declaration or Mitigated Negative Declaration will prove to be
sufficient environmental documentation. If the Director determines that a project has
the potential for significant adverse impacts and adequate mitigation can not be readily
identified, an Environmental Impact Report (EIR) is prepared.
The Director has prepared or supervised the preparation of an Initial Study to assess
the potential significant impacts of this project. Based upon the Initial Study, the
Director has determined that there is no substantial evidence that the project or any of
its aspects may cause a significant effect on the environment and has prepared a
Mitigated Negative Declaration (EXHIBIT E) for Agency Board to review and consider.
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1. Adopt Resolution No. 2009 — approving Mitigated Negative Declaration;
and
2. Adopt Resolution No. 2009 — approving Disposition and Development
Agreement subject to approval of sale by City Council and final language
approval by the Executive Director and Agency General Counsel; and
3. Authorize the Chair of the Redevelopment Agency to execute all documents
necessary for this transaction.
Attachments:
EXHIBIT "A"
Aerial
EXHIBIT "B"
Site Plan
EXHIBIT "C"
Elevation
EXHIBIT "D"
Disposition and Development Agreement
EXHIBIT "E"
Resolution No. 2009 -
EXHIBIT "F"
Resolution No. 2009 -
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EXHIBIT B
PHASE I
PHASE II
DEVELOPMENT SUMMARY
PARKING PROVIDED
PARKING PROVIDED
60.095 at Site Area 11.6 acres)
27.043 sl Site Area (0.6 acres)
106.026 sl Site Area
EXISTING STANDARD
PROPOSED OPTIONAL STANDARD
49,140 sl Total Building 1
22.516 sl Total Building II
49,140s] Tolol Building I
60 East Lot
23,290 at let Floor
10,194 al 1N Floor
22,516 st Total BUtkling II
133 Cenlrat Lot
133 Central Lot
25,650 it( 2nd Film
12,322 at 2nd Floor
0.61 FAA
0.83 EAR
0.66 FA .R
114 Awn Lot
307 Total Provided
133 Total Providod
PARKING REQUIRED
PARKING REQUIRED
61,456 RelaIV011ice W 1/300
61,456 RetaA1011ice @ 1/600
10,200 Restorurmt V>I MOO
10,200 Restanaanl @ 1/600
307 Total Required
119 Taal Required
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OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
and When Recorded Mail to:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attn: Steven Kueny
Executive Director
FOR RECORDER'S USE
DISPOSITION AND DEVELOPMENT AGREEMENT
By and Between the
REDEVELOPMENT AGENCY of the CITY OF MOORPARK
and
ASZKENAZY DEVELOPMENT, Inc.
DATED December 16, 2009
A MOORPARK REDEVELOPMENT PROJECT
10
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
11
DISPOSITION AND DEVELOPMENT AGREEMENT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT (this "Agreement ") is
entered into as of , 200_, 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 1.838 acre portion (the "Site ") of a larger parcel
2.45 acre (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.
"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.
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"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.
"Commencement of Construction" means the point in time when the
Developer begins the rough grading of the Property.
"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 and b. 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.
The Developer shall pay all costs, charges and fees associated with the foregoing 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
4 13
Waste Control Law)), (ii) Section 25316 of the California Health and Safety Code,
Division 20, Chapter 6.8 (Carpenter - Presley- Tanner Hazardous Substance Account
Act), (iii) Section 25501 of the California Health and Safety Code, Division 20, Chapter
6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) Section 25281
of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) Article 9 or Article 11 of Title 22 of the California
Administrative Code, Division 4, Chapter 20, (vi) Section 311 of the Clean Water Act (33
U.S.C.§ 1317), (vii) Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. §6901 et seq.(42 U.S.C. §6903), (viii) Section 101 of the Comprehensive
Environmental Response, Compensation and Liability Act, 42 U.S.C. §9601 et seq.
"Escrow" is defined in Section 202 hereof.
"Escrow Agent" is defined in Section 202 hereof.
"Exceptions" is defined in Section 203 hereof.
"Governmental Requirements" means all laws, ordinances, statutes, codes,
rules, regulations, orders and decrees of the United States, the state, the county, the
City, or any other political subdivision in which the Site is located, and of any other
political subdivision, agency or instrumentality exercising jurisdiction over the Agency,
the Developer or the Site.
"Grant Deed" means the grant deed for the conveyance of the Site from the
Agency to the Developer, in the form of Attachment No. 3 hereto which is incorporated
herein.
"Hazardous Materials" means any substance, material, or waste which is
regulated by any local governmental authority, the State of California, or the United
States Government, including, but not limited to, any material or substance which is (i)
defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous
waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of
the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter - Presley- Tanner
Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Section 25501 of the California Health and
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code,
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
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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 a 1.838 acre portion of a 2.45 acre parcel owned by the
Agency.
"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 Community Development Department, of
approximately 50,000 square feet of Gross Leasable Area ( "GLA ") and supporting
parking at levels approved by the City and landscape improvements all more particularly
described herein and in the Scope of Development; and any other improvements
required as conditions of approval under the Development Approval Process.
"Purchase Price" means the price to be paid by the Developer to the Agency in
consideration for the conveyance of fee title to the Site.
"Release of Construction Covenants" means the document which evidences
the Developer's satisfactory completion of the Improvements, as set forth in Section 310
hereof, in the form of Attachment No. 6 hereto which is incorporated herein.
"Report" means the preliminary title report, as described in Section 203 hereof.
"Schedule of Performance" means the Schedule of Performance attached
hereto as Attachment No. 4 and incorporated herein, setting out the dates and /or time
periods by which certain obligations set forth in this Agreement must be accomplished.
The Schedule of Performance is: (a) subject to revision from time to time as mutually
agreed upon in writing between the Developer and the Agency's Executive Director, and
the Agency's Executive Director is authorized to make such revisions as he or she
deems reasonably necessary; and (b) subject to the provisions of Section 602.
"Scope of Development" means the Scope of Development attached hereto as
Attachment No. 5 and incorporated herein, which describes the scope, amount and
quality of development of the Improvements to be constructed by the Developer
pursuant to the terms and conditions of this Agreement.
"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.
6 15
"Stabilization" means the two year time period after the Commencement of
Construction the Developer has to 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 Eight Hundred Eighty
One Thousand and Forty Five dollars ($881,045.00) 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 Two Hundred Twenty Four
Thousand Six Hundred and Eighty Three dollars ($224,683.00). The Agency shall make
a loan to the Developer for the remainder of the Purchase Price ( "Agency Loan "). The
terms and conditions of the Agency Loan are further described in Section 312.
Developer agrees that it shall not purchase the Site for speculation in undeveloped land.
Developer further agrees to resell the Site to the Agency at the Purchase Price plus any
interest paid by Developer under the Agency Loan Note if development does not
commence in accordance with the Schedule of Performance (Attachment 4), subject to
force majeure pursuant to Section 602.
Agency will subdivide, under governmental exemption from the California Subdivision
Map Act, the Property into three parcels. The Agency intends to lease Parcel 1 to the
Chamber of Commerce, which lease and use is not included in the Project. Parcel 3
(sometimes referred to as the "East Lot ") is the Site to be purchased and developed
with the project, consisting of the portion of the Property from Bard Street to the north
Metrolink parking lot. The remaining Parcel 2 is between Parcel 1 and the Site. The
Agency will sell Parcel 2 to the Developer at a sale price no less than future fair market
value determined by an Agency appraisal, which will be initiated after the Developer has
submitted satisfactory evidence that the Project (Phase 1) has been 90% leased to third
parties. The sale of Parcel 2 to the Developer will be conducted under a second
Disposition and Development Agreement after the Project has achieved Stabilization. If
Stabilization has not occurred, 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
7 16
subject to the requirements of California Labor Code Section 1771 and related sections,
the Developer agrees to comply with the requirements therein.
The Developer, for itself and its contractors, hereby expressly agrees that the Agency
has satisfied its obligations under the Prevailing Wage Laws to identify projects as being
subject to the Prevailing Wage Laws and any other obligations imposed upon the
Agency under California Labor Code Sections 1726 and /or 1781 that are owed to or
may be actionable by the Developer and its contractors. The Developer, for itself and
its contractors, hereby expressly waives any right of action against the Agency created
under California Labor Code Sections 1726 and /or 1781, whether known or unknown,
foreseen or unforeseen relating to the Project and /or any public improvement.
Furthermore, the Developer agrees to defend and indemnify the Agency and the City,
and their respective agents, employees and assigns, against any and all claims, fines,
suits or penalties arising out of any failure of the Developer to comply with the
requirements of California Labor Code Section 1771 and related sections or out of the
failure by City or Agency to require compliance by the Developer with such sections,
including, without limitation, suits brought by subcontractors.
Real property taxes and assessments, if any, on the Site, and taxes upon this
Agreement or any rights hereunder levied, assessed, or imposed as to any period prior
to conveyance of title, shall be borne by Agency. All real property taxes and
assessments levied or imposed on the Site as to any period after the transfer of title
shall be paid by Developer.
202. Escrow. Within thirty (30) days after the full execution and delivery of this
Agreement, the parties shall open escrow ( "Escrow ") with Chicago Title Insurance
Company, or another escrow company mutually satisfactory to both parties (the
"Escrow Agent ") for the purchase and sale of the Site.
202.1 Costs of Escrow. Agency and Developer shall pay their respective
portions of the premium for the Title Policy as set forth in Section 204 hereof, the
Agency shall pay for the documentary transfer taxes, if any, due with respect to the
conveyance of the Site, and Developer and Agency each agree to pay one -half of all
other usual fees, charges, and costs which arise from each Escrow.
202.2 Escrow Instructions. This Agreement constitutes the joint escrow
instructions of Developer and Agency, and the Escrow Agent to whom these
instructions are delivered is hereby empowered to act under this Agreement. The
parties hereto agree to do all acts reasonably necessary to close this Escrow in the
shortest possible time. Insurance policies for fire or casualty are not to be transferred,
and Agency will cancel coverage of the Site from its own policies upon sale. All funds
received in Escrow shall be deposited with other escrow funds in a general escrow
account(s) and may be transferred to any other such escrow trust account in any State
or National Bank doing business in the State of California. All disbursements shall be
made by check from such account. However, if Escrow does not close within two (2)
business days from deposit of the funds by the Agency and Developer, the funds shall
be deposited into an interest bearing account with such interest accruing to the benefit
of each party.
8 17
If in the opinion of either party it is necessary or convenient in order to accomplish the
Closing of this transaction, such party may require that the parties sign supplemental
escrow instructions; provided that if there is any inconsistency between this Agreement
and the supplemental escrow instructions, then the provisions of this Agreement shall
control. The parties agree to execute such other and further documents as may be
reasonably necessary, helpful or appropriate to effectuate the provisions of this
Agreement. The Closing shall take place when both the Agency's Conditions Precedent
and the Developer's Conditions Precedent as set forth in Section 205 have been
satisfied. Escrow Agent is instructed to release Agency's escrow closing and
Developer's escrow closing statements to the respective parties.
shall:
202.3 Authority of Escrow Agent. Escrow Agent is authorized to and
a. Pay and charge Agency for the premium of the Title Policy and any
amount necessary to place title in the condition necessary to satisfy
Section 203 of this Agreement.
b. Pay and charge Developer and Agency for their respective shares of any
escrow fees, charges, and costs payable under Section 202.1 of this
Agreement.
c. Pay and charge Developer for any endorsements to the Title Policy which
are 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 December 30, 2010 (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
9 18
Deed is filed for recording with the Ventura County Recorder. The "Closing Date" shall
mean the day on which the Closing occurs.
202.5 Termination. If (except for deposit of money by Developer, which
shall be made by Developer before the Closing) Escrow is not in condition to close by
the Outside Date, then either party which has fully performed under this Agreement
may, in writing, demand the return of money or property and terminate this Agreement.
If either party makes a written demand for return of documents or properties, this
Agreement shall not terminate until five (5) days after Escrow Agent shall have
delivered copies of such demand to all other parties at the respective addresses shown
in this Agreement. If any objections are raised within said five (5) day period, Escrow
Agent is authorized to hold all papers and documents until instructed by a court of
competent jurisdiction or by mutual written instructions of the parties. Developer,
however, shall have the sole option to withdraw any money deposited by it for the
acquisition of the Site less Developer's share of costs of Escrow. Termination of this
Agreement shall be without prejudice as to whatever legal rights either party may have
against the other arising from this Agreement. If no demands are made, the Escrow
Agent shall proceed with the Closing as soon as possible.
202.6 Closing Procedure. Escrow Agent shall close Escrow for the Site
as follows:
a. Record the Grant Deed with instructions for the Recorder of Ventura
County, California to deliver the Grant Deed to Developer;
b. Instruct the Title Company to deliver the Title Policy to Developer;
c. File any informational reports required by Internal Revenue Code Section
6045(e), as amended, and any other applicable requirements;
d. Deliver the FIRPTA Certificate, if any, to Developer; and
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 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
10 19
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.
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.
11 20
e. Land Use Approvals. The Developer shall have received all land use
approvals and permits required pursuant to Section 303 hereof.
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 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.
Parking Easement. The Developer shall secure a 20 foot parking
easement on the south side of the Site from the Ventura County
12 21
Transportation Commission ( "VCTC "). The easement shall be recorded
against VCTC's property and shall be in effect for a period no less than
forty (40) years. The terms and conditions of the easement shall be
approved by the City and Agency within thirty (30) days of receipt, and
include a condition allowing the easement to be assigned to the City
and /or Agency if the Site is reconveyed to the Agency. Cost of the parking
easement, if any, shall be borne by the Developer. The amount of the
easement must be acceptable to the developer.
k. First Right of Refusal. The Agency shall execute and submit to escrow, in
the name of the Developer, a First Right of Refusal to purchase and
develop Parcel 1 in a form reasonably acceptable to the Developer.
206. Representations and Warranties.
206.1 Agency Representations. Agency represents and warrants to
Developer as follows:
a. Authority. Agency is a public body, corporate and politic, existing
pursuant to the California Community Redevelopment Law (California
Health and Safety Code Section 33000), which has been authorized to
transact business pursuant to action of the City. Agency has full right,
power and lawful authority to grant, sell and convey the Site as provided
herein and the execution, performance and delivery of this Agreement by
Agency has been fully authorized by all requisite actions on the part of
Agency.
b. FIRPTA. Agency is not a "foreign person" within the parameters FIRPTA
or any similar state statute, or is exempt from the provisions of FIRPTA or
any similar state statute, or that Agency has complied and will comply with
all the requirements under FIRPTA or any similar state statute.
c. No Conflict. To the best of Agency's knowledge, Agency's execution,
delivery and performance of its obligations under this Agreement will not
constitute a default or a breach under any contract, agreement or order to
which Agency is a party or by which it is bound.
d. Lawsuits. There are no claims, actions, suits or proceedings, nor any
order, decree or judgment, in law or in equity in effect against or affecting
the Site.
e. Violations of Law. No outstanding notices of the violation of laws,
ordinances, orders, requirements or regulations of any government
agency related to the Site have been received by the Agency.
f. Leases and Contracts. The Agency will terminate any leases, rental
agreements or similar instruments creating an ownership interest in the
Site and no agreements relating to the upkeep, repair, maintenance and
operation of the Site prior to the Closing.
g. Special Assessments. Agency shall pay all assessments due on the
property on a prorated basis up to Closing.
13 22
h. Purchase Rights. No person, firm, corporation or other entity (other than
Developer by reason of this Agreement) has any right or option to acquire
the Site or any portion thereof as of the date of this Agreement.
Until the Closing, Agency shall, upon learning of any fact or condition which
would cause any of the warranties and representations in this Section 206.1 not to be
true as of Closing, immediately give written notice of such fact or condition to
Developer. Such exception(s) to a representation shall not be deemed a breach by
Agency hereunder, but shall constitute an exception which Developer shall have a right
to approve or disapprove if such exception would have an effect on the value and /or
operation of the Site. If Developer elects to close Escrow following disclosure of such
information, Agency's representations and warranties contained herein shall be deemed
to have been made as of the Closing, subject to such exception(s). If, following the
disclosure of such information, Developer elects to not close Escrow, then this
Agreement and the Escrow shall automatically terminate, and neither party shall have
any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 206.1 shall survive the Closing.
206.2 Developer's Representations. Developer represents and warrants
to Agency as follows:
a. Authority. Developer is a California corporation organized within and in
good standing under the laws of the State of California. The copies of the
documents evidencing the organization of the Developer which have been
delivered to the Agency are true and complete copies of the originals, as
amended to the date of this Agreement. Developer has full right, power
and lawful authority to purchase and accept the conveyance of the Site
and undertake all obligations as provided herein and the execution,
performance and delivery of this Agreement by Developer has been fully
authorized by all requisite actions on the part of the Developer.
b. No Conflict. To the best of Developer's knowledge, Developer's
execution, delivery and performance of its obligations under this
Agreement will not constitute a default or a breach under any contract,
agreement or order to which the Developer is a party or by which it is
bound.
c. No Developer Bankruptcy. Developer is not the subject of a bankruptcy
proceeding.
Until thirty (30) days prior to the Closing of Escrow, Developer shall, upon learning of
any fact or condition which would cause any of the warranties and representations in
this Section 206.2 not to be true as of Closing, immediately give written notice of such
fact or condition to Agency. Such exception(s) to a representation shall not be deemed
a breach by Developer hereunder, but shall constitute an exception which Agency shall
have a right to approve or disapprove if such exception would have an effect on the
value and /or operation of the Site. If Agency elects to close Escrow following disclosure
of such information, Developer's representations and warranties contained herein shall
be deemed to have been made as of the Closing, subject to such exception(s). If,
14 23
following the disclosure of such information, Agency elects to not close Escrow, then
this Agreement and the Escrow shall automatically terminate, and neither party shall
have any further rights, obligations or liabilities hereunder. The representations and
warranties set forth in this Section 206.2 shall survive the Closing.
207. Studies and Reports. Within thirty (30) days prior to the Closing,
representatives of Developer shall have the right of access to all portions of the Site
owned by the Agency for the purpose of obtaining data and making surveys and tests
necessary to carry out this Agreement, including the investigation of the environmental
condition of the Site pursuant to Section 208 hereof. Any preliminary work undertaken
on the Site by Developer prior to the Closing shall be done at the sole expense of the
Developer, and the Developer's execution of a right of entry agreement to be provided
by the Agency. Any preliminary work shall be undertaken only after securing any
necessary permits from the appropriate governmental agencies. The Site shall be
returned to its original condition after the preliminary work has been completed.
208. Condition of the Site
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. Agency shall
also provide Developer with all copies of environmental documents (including traffic
studies), soil studies and surveys for this site.
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 II. 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
15 24
($50,000) for Site remediation. If, at the end of such thirty (30) day period, Developer
and Agency have not come to an agreement with respect to remediation of the Site,
Developer shall, within three (3) days thereafter notify Agency of whether it elects to go
forward with the acquisition of the Site and pay all remediation costs in excess of Fifty
Thousand Dollars ($50,000), or whether it elects to terminate this Agreement, in which
event the Developer and Agency shall each be responsible for one -half of any Escrow
cancellation charges.
208.4 No Further Warranties as to Site. Except as otherwise provided
herein, the physical condition, possession or title of the Site is and shall be delivered
from Agency to Developer in an "as -is" condition, with no warranty expressed or implied
by Agency, including without limitation, its geology, the presence of known or unknown
seismic faults, or the suitability of the Site for the development purposes intended
hereunder.
208.5 Developer Precautions after Closing. Upon the Closing, the
Developer shall take all necessary precautions to prevent the release into the
environment of any Hazardous Materials which are located in, on or under the Site.
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,
16 25
rule, regulation, permit, judgment or license relating to the use, generation, release,
discharge, storage, disposal or transportation of Hazardous Materials on, under, in or
about, to or from, the Site after the Closing. This indemnity shall include, without
limitation, any Losses arising from or out of any claim, action, suit or proceeding for
personal injury (including sickness, disease or death), tangible or intangible property
damage, compensation for lost wages, business income, profits or other economic loss,
damage to the natural resource or the environment, nuisance, contamination, leak, spill,
release or other adverse effect on the environment. This indemnity shall exclude (a)
Losses resulting from migration of Hazardous Materials from any property owned by the
City or Agency including Lot 1 or, prior to the conveyance thereof to Developer, the East
Parcel; (b) Losses arising out of any Hazardous Materials existing on the Site prior to
the Closing; and (c) Losses arising out the acts or negligent omissions of the City,
Agency or their respective employees or agents.
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.
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302.3 Revisions. Any and all change orders or revisions required by the
City and its inspectors which are required under the Municipal Code and all other
applicable Uniform Codes (e.g. Building, Plumbing, Fire, Electrical, etc.) and under
other applicable laws and regulations shall be included by the Developer in its Design
Development Drawings and other required submittals and shall be completed during the
construction of the Improvements.
302.4 Defects in Plans. The Agency and the City shall not be responsible
either to the Developer or to third parties in any way for any defects in the Design
Development Drawings, nor for any structural or other defects in any work done
according to the approved Design Development Drawings, nor for any delays
reasonably caused by the review and approval processes established by this Section
302.
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.
The Developer shall pay all costs, charges and fees associated with the foregoing 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 Community Development
Department.
304. Schedule of Performance. Subject to the provisions of Section 602, the
Developer shall submit all Design Development Drawings, commence and complete all
construction of the Improvements, and satisfy all other obligations and conditions of this
Agreement within the times established therefore in the Schedule of Performance which
is attached hereto as Attachment No. 4 and incorporated herein.
305. Cost of Construction. Except to the extent otherwise expressly set forth in
this Agreement, all of the cost of planning, designing, developing and constructing all of
the Improvements shall be borne solely by the Developer.
306. Insurance Requirements. The Developer shall take out and maintain until
the issuance of the Release of Construction Covenants pursuant to Section 310 of this
Agreement, a comprehensive general liability policy in the amount of Two Million Dollars
($2,000,000) combined single limit policy, and a comprehensive automobile liability
policy in the amount of One Million Dollars ($1,000,000), combined single limit, or such
other policy limits as the Agency may approve at its discretion, including contractual
18 27
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.
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.
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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 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
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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 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.
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311.2 No Encumbrances Except Mortgages, Deeds of Trust, or Sale
and Lease -Back for Development. Mortgages, deeds of trust and sales and leases -
back are to be permitted before completion of the construction of the Improvements with
the Agency's prior written approval, which shall not be unreasonably withheld or
delayed, but only for the purpose of securing loans of funds to be used for financing the
acquisition of the Site, construction of the Improvements (including architecture,
engineering, legal, and related direct costs as well as indirect costs) on or in connection
with the Site, permanent financing, and any other purposes necessary and appropriate
in connection with development under this Agreement. The Developer shall notify the
Agency in advance of any mortgage, deed of trust or sale and lease -back financing, if
the Developer proposes to enter into the same before completion of the construction of
the Improvements. The words "mortgage" and "trust deed" as used hereinafter shall
include sale and lease -back. The Developer shall not enter into any such conveyance
for financing without the prior written approval of the Agency, which approval Agency
agrees to give if any such conveyance for financing is given to a responsible financial
lending institution or person or entity ( "Lender "). The Agency will subordinate to the
Developer's construction and /or permanent financing provided that the Agency's Deed
of Trust is secured by the Site pursuant to a commercially reasonable form of
subordination agreement.
311.3 Holder Not Obligated to Construct Improvements. The holder of
any mortgage or deed of trust authorized by this Agreement shall not be obligated by
the provisions of this Agreement to construct or complete the Improvements or any
portion thereof, or to guarantee such construction or completion; nor shall any covenant
or any other provision in this Agreement be construed so to obligate such holder.
Nothing in this Agreement shall be deemed to construe, permit or authorize any such
holder to devote the Site to any uses or to construct any improvements thereon, other
than those uses or improvements provided for or authorized by this Agreement.
311.4 Notice of Default to Mortgagee or Deed of Trust Holders; Right
to Cure. With respect to any mortgage or deed of trust granted by Developer as
provided herein, whenever the Agency may deliver any notice or demand to Developer
with respect to any breach or default by the Developer in completion of construction of
the Improvements, the Agency shall at the same time deliver to each holder of record of
any mortgage or deed of trust authorized by this Agreement a copy of such notice or
demand. Each such holder shall (insofar as the rights granted by the Agency are
concerned) have the right, at its option, within thirty (30) days after the receipt of the
notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with
due diligence the cure or remedy of any such default and to add the cost thereof to the
mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall
be deemed to permit or authorize such holder to undertake or continue the construction
or completion of the Improvements, or any portion thereof (beyond the extent necessary
to conserve or protect the improvements or construction already made) without first
having expressly assumed the Developer's obligations to the Agency by written
agreement reasonably satisfactory to the Agency. The holder, in that event, must agree
to complete, in the manner provided in this Agreement, the Improvements to which the
lien or title of such holder relates. Any such holder properly completing such
improvement shall be entitled, upon compliance with the requirements of Section 310 of
this Agreement, to a Release of Construction Covenants. It is understood that a holder
22 31
shall be deemed to have satisfied the thirty (30) day time limit set forth above for
commencing to cure or remedy a Developer default which requires title and /or
possession of the Site (or portion thereof) if and to the extent any such holder has within
such thirty (30) day period commenced proceedings to obtain title and /or possession
and thereafter the holder diligently pursues such proceedings to completion and cures
or remedies the default.
311.5 Failure of Holder to Complete Improvements. In any case where,
thirty (30) days after the holder of any mortgage or deed of trust creating a lien or
encumbrance upon the Site or any part thereof receives a notice from Agency of a
default by the Developer in completion of construction of any of the Improvements
under this Agreement, and such holder has not exercised the option to construct as set
forth in Section 311, or if it has exercised the option but has defaulted hereunder and
failed to timely cure such default, the Agency may purchase the mortgage or deed of
trust by payment to the holder of the amount of the unpaid mortgage or deed of trust
debt, including principal and interest and all other sums secured by the mortgage or
deed of trust. If the ownership of the Site or any part thereof has vested in the holder,
the Agency, if it so desires, shall be entitled to a conveyance from the holder to the
Agency upon payment to the holder of an amount equal to the sum of the following:
a. The unpaid mortgage or deed of trust debt at the time title became vested
in the holder (less all appropriate credits, including those resulting from
collection and application of rentals and other income received during
foreclosure proceedings),
b. All expenses with respect to foreclosure including reasonable attorneys'
fees;
c. The net expense, if any (exclusive of general overhead), incurred by the
holder as a direct result of the subsequent management of the Site or part
thereof,
d. The costs of any improvements made by such holder;
e. An amount equivalent to the interest that would have accrued on the
aggregate of such amounts had all such amounts become part of the
mortgage or deed of trust debt and such debt had continued in existence
to the date of payment by the Agency; and
f. Any customary prepayment charges imposed by the lender pursuant to its
loan documents and agreed to by the Developer.
311.6 Right of the Agency to Cure Mortgage or Deed of Trust Default.
In the event of a mortgage or deed of trust default or breach by the Developer prior to
the completion of the construction of any of the Improvements or any part thereof,
Developer shall immediately deliver to Agency a copy of any mortgage holder's notice
of default. If the holder of any mortgage or deed of trust has not exercised its option to
construct, the Agency shall have the right but no obligation to cure the default. In such
event, the Agency shall be entitled to reimbursement from the Developer of all costs
and expenses incurred by the Agency in curing such default. The Agency shall also be
entitled to a lien upon the Site to the extent of such costs and disbursements. Any such
23 32
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:
a. Developer provides the Agency with a cash payment of Two Hundred
Twenty Four Thousand Six Hundred and Eighty Three dollars
($224,683.00).
b. Monthly interest will be deferred, but will accrue, until the Project is ninety
percent (90 %) leased or within one year from receiving the first certificate
of occupancy from the City of Moorpark, whichever occurs first. Developer
will pay all deferred interest within one year from receiving the first
certificate of occupancy from the City of Moorpark or upon fully executing a
second Disposition and Development Agreement with the Agency for the
purchase of the land needed for the second phase of the project.
Developer may choose to make interest payments before the project is
90% leased without any prepayment penalty.
c. The Agency Loan will be subordinate to the construction loan and
permanent financing for a period of ten (10) years.
d. 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.
e. 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.
f. 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 exploration of the feasibility of the formation of a Business Improvement
District ( "BID ") and to explore 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, a park for the provision
of special benefits conferred by same upon properties within the Project.
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.
24 33
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.
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,
25 34
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 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.
26 35
d. The covenants pertaining to maintenance of the Site and all improvements
thereon, as set forth in Section 403, shall remain in effect for the term of
the Agency Loan.
e. The covenants against discrimination, as set forth in Section 404, shall
remain in effect in perpetuity.
500. DEFAULTS AND REMEDIES
501. Default Remedies. Subject to the extensions of time set forth in Section
602 of this Agreement, failure by either party to perform any action or covenant required
by this Agreement within the time periods provided herein following notice and failure to
cure as described hereafter, constitutes a "Default" under this Agreement. A party
claiming a Default shall give written notice of Default to the other party specifying the
Default complained of. Except as otherwise expressly provided in this Agreement, the
claimant shall not institute any proceeding against any other party, and the other party
shall not be in Default if such party within thirty (30) days from receipt of such notice
immediately, with due diligence, commences to cure, correct or remedy such failure or
delay and shall complete such cure, correction or remedy with diligence.
502. Institution of Legal Actions. In addition to any other rights or remedies,
including those set forth in Sections 503 and 504, respectively, and subject to the
restrictions otherwise set forth in this Agreement, either party may institute an action at
law or equity to seek specific performance of the terms of this Agreement, or to cure,
correct or remedy any Default, to recover damages for any Default, or to obtain any
other remedy consistent with the purpose of this Agreement. Such legal actions must be
instituted in the Superior Court of the County of Ventura, State of California, or if federal
jurisdiction exists, in the District of the United States District Court for the Central District
of California.
503. Termination by the Developer. In the event that the Developer is not in
Default under this Agreement and the Agency does not tender title to the Site pursuant
to the Grant Deed in the manner and condition and by the date provided in this
Agreement; or one or more of the Developer's Conditions Precedent to the Closing is
not fulfilled on or before the time set forth in the Schedule of Performance and such
failure is not caused by the Developer; or in the event of any default of the Agency prior
to the Closing which is not cured within the time set forth in Section 501 hereof, and any
such failure is not cured within the applicable time period after written demand by the
Developer, then this Agreement may, at the option of the Developer, be terminated by
written notice thereof to the Agency. From the date of the written notice of termination of
this Agreement by the Developer to the Agency and thereafter this Agreement shall be
deemed terminated and there shall be no further rights or obligations between the
parties, except that the parties may pursue any other remedies they may have
hereunder.
504. Termination by the Agency. In the event that the Agency is not in Default
under this Agreement and prior to the issuance of the Release of Construction
Covenants: the Developer (or any successor in interest) assigns or attempts to assign
the Agreement or any rights therein or in the Site in violation of this Agreement; or one
or more of the Agency's Conditions Precedent to the Closing is not fulfilled on or before
the time set forth in the Schedule of Performance and such failure is not caused by the
27 36
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. Three days
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 three days after the date on the notice, and thereafter neither party
shall have any further rights of obligation with respect to the Site. Upon the termination
(i) all documents and all monies deposited by either party into escrow shall be returned
to the party that made the deposit, and (ii) any escrow cancellation fee shall be paid by
the defaulting party.
506. Reentry and Revesting of Title in the Agency After the Closing and
Prior to Completion of Construction. The Agency has the right, at its election, to seek
and obtain a judicial order on an expedited basis authorizing it to reenter and take
possession of the Site, with all improvements thereon, and terminate and revest in the
Agency the estate conveyed to the Developer if after the Closing and prior to the
issuance of the Release of Construction Covenants, the Developer (or its successors in
interest) shall:
a. Fail to start the construction of the Improvements and to complete
Improvements within one year as required by this Agreement and for a
period of thirty (30) days after written notice thereof from the Agency,
subject to the provisions of Section 602, or
b. Abandon or substantially suspend construction of the Improvements
required by this Agreement for a period of thirty (30) days after written
notice thereof from the Agency subject to the provisions of Section 602; or
c. Contrary to the provisions of Section 603 transfer or suffer any involuntary
transfer of the Site or any part thereof in violation of this Agreement.
Such right to reenter, terminate and revest shall be subject to and be limited by and
shall not defeat, render invalid or limit:
a. Any mortgage or deed of trust permitted by this Agreement; or
b. Any rights or interests provided in this Agreement for the protection of the
holders of such mortgages or deeds of trust.
The Grant Deed shall contain appropriate reference and provision to give effect
to the Agency's right as set forth in this Section 506, under specified circumstances
prior to recordation of the Release of Construction Covenants, to reenter and take
possession of the Site, with all Improvements thereon, and to terminate and revest in
28 37
the Agency the estate conveyed to the Developer. Upon the revesting in the Agency of
title to the Site as provided in this Section 506, the Agency shall, pursuant to its
responsibilities under state law, use its reasonable efforts to resell the Site as soon and
in such manner as the Agency shall find feasible and consistent with the objectives of
such law, as it exists or may be amended, to a qualified and responsible party or parties
(as determined by the Agency) who will assume the obligation of making or completing
the Improvements, or such improvements in their stead as shall be satisfactory to the
Agency and in accordance with the uses specified for such Site or part thereof in the C-
OT zone in the City's zoning ordinance or Commercial Planned Development (CPD).
Upon such resale of the Site, the net proceeds thereof after repayment of any mortgage
or deed of trust encumbering the Site which is permitted by this Agreement, shall be
applied to reimburse the Agency, on its own behalf or on behalf of the City, all costs and
expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Site or part thereof (but
less any income derived by the Agency from the Site or part thereof in connection with
such management); all taxes, assessments and water or sewer charges with respect to
the Site or part thereof which the Developer has not paid (or, in the event that Site is
exempt from taxation or assessment of such charges during the period of ownership
thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or
charges as would have been payable if the Site were not so exempt); any payments
made or necessary to be made to discharge any encumbrances or liens existing on the
Site or part thereof at the time or revesting of title thereto in the Agency, or to discharge
or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees; any
expenditures made or obligations incurred by the Agency with respect to the making or
completion of the Improvements or any part thereof on the Site, or part thereof; and any
amounts otherwise owing the Agency, and in the event additional proceeds are
thereafter available, then
Any balance remaining after such reimbursements shall be retained by the Agency as
its property. The rights established in this Section 506 are not intended to be exclusive
of any other right, power or remedy, but each and every such right, power, and remedy
shall be cumulative and concurrent and shall be in addition to any other right, power and
remedy authorized herein or now or hereafter existing at law or in equity. These rights
are to be interpreted in light of the fact that the Agency will have conveyed the Site to
the Developer for redevelopment purposes, particularly for development of a
commercial /retail facility, and not for speculation in undeveloped land.
507. Acceptance of Service of Process. In the event that any legal action is
commenced by the Developer against the Agency, service of process on the Agency
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
29 38
exercise by either party of one or more of such rights or remedies shall not preclude the
exercise by it, at the same or different times, of any other rights or remedies for the
same default or any other default by the other party.
509. Inaction Not a Waiver of Default. Any failures or delays by either party in
asserting any of its rights and remedies as to any Default shall not operate as a waiver
of any Default or of any such rights or remedies, or deprive either such party of its right
to institute and maintain any actions or proceedings which it may deem necessary to
protect, assert or enforce any such rights or remedies.
510. Applicable Law. The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
600. GENERAL PROVISIONS
601. Notices, Demands and Communications between the Parties. Any
approval, disapproval, demand, document or other notice ( "Notice ") which either party
may desire to give to the other party under this Agreement must be in writing and may
be given by any commercially acceptable means to the party to whom the Notice is
directed at the address of the party as set forth below, or at any other address as that
party may later designate by Notice.
To Agency: Moorpark Redevelopment Agency
799 Moorpark Avenue
Moorpark, California 93021
Attention: Executive Director
To Developer: Aszkenazy Development, Inc
601 South Brand Boulevard, 3rd Floor
San Fernando, CA 91340
Attention: Severyn I. Aszkenazy, President
Any written notice, demand or communication shall be deemed received immediately if
delivered by hand and shall be deemed received on the third day from the date it is
postmarked if delivered by registered or certified mail.
602. Enforced Delay; Extension of Times of Performance. In addition to
specific provisions of this Agreement, performance by either party hereunder shall not
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
30 39
shall not excuse performance by the Agency). Notwithstanding anything to the contrary
in this Agreement, an extension of time for any such cause shall be for the period of the
enforced delay and shall commence to run from the time of the commencement of the
cause, if notice by the party claiming such extension is sent to the other party within
thirty (30) days of the commencement of the cause. Times of performance under this
Agreement may also be extended in writing by the mutual agreement of Executive
Director of the Agency and Developer. Notwithstanding any provision of this Agreement
to the contrary, the lack of funding to complete the Improvements shall not constitute
grounds of enforced delay pursuant to this Section 602.
603. Transfers of Interest in Site or Agreement.
603.1 Prohibition. The qualifications and identity of the Developer are of
particular concern to the Agency. It is because of those qualifications and identity that
the Agency has entered into this Agreement with the Developer. For the period
commencing upon the date of this Agreement and until the expiration of the Agency
Loan, no voluntary or involuntary successor in interest of the Developer shall acquire
any rights or powers under this Agreement, nor shall the Developer make any total or
partial sale, transfer, conveyance, assignment, subdivision, refinancing or lease of the
whole or any part of the Site or the Improvements thereon without prior written approval
of the Agency, except as expressly set forth herein.
603.2 Permitted Transfers. Notwithstanding any other provision of this
Agreement to the contrary, Agency approval of an assignment of this Agreement or
conveyance of the Site or Improvements, or any part thereof, shall not be required in
connection with any of the following:
a. Any transfers to an entity or entities in which either Marta Diaz Aszkenazy
or Severyn I. Aszkenazy retains management and control of the transferee
entity or entities.
b. The conveyance or dedication of any portion of the Site to the City or other
appropriate governmental agency, or the granting of easements or permits
to facilitate construction of the Improvements (as defined herein).
c. Any requested assignment for financing purposes (subject to any
approvals by the Agency that are necessary for any construction financing
pursuant to Section 311 herein), including the grant of a deed of trust to
secure the funds necessary for land acquisition, construction and
permanent financing or re- financing of the Improvements.
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
31 40
have not been completed) and /or operational qualifications and experience, and its
financial commitments and resources, in sufficient detail to enable the Agency to
evaluate the proposed assignee or purchaser pursuant to the criteria set forth in this
Section 603.3 and as reasonably determined by the Agency. The Agency shall evaluate
each proposed transferee or assignee on the basis of its development (in the event that
the Improvements have not been completed) and /or qualifications and experience in the
operation of facilities similar to the Improvements, and its financial commitments and
resources, and may reasonably disapprove any proposed transferee or assignee,
during the term of the Agency Loan, which the Agency determines does not possess
qualifications satisfactory for performing the obligations of Developer. An assignment
and assumption agreement in form satisfactory to the Agency's legal counsel shall also
be required for all proposed assignments for which Agency consent is required
hereunder. Within thirty (30) days after the receipt of the Developer's written notice
requesting Agency approval of an assignment or transfer pursuant to this Section 603.3,
the Agency shall either approve or disapprove such proposed assignment or shall
respond in writing by stating what further information, if any, the Agency reasonably
requires in order to determine the request complete and determine whether or not to
grant the requested approval. Upon receipt of such a response, the Developer shall
promptly furnish to the Agency such further information as may be reasonably
requested. Developer shall pay all Agency out -of- pocket costs plus 15% for review of
assumption agreement including, but limited to, legal and financial reviews. Developer
shall provide a deposit of $2,500 upon submittal of request for transfer.
603.4 Successors and Assigns. All of the terms, covenants and
conditions of this Agreement shall be binding upon the Developer and its permitted
successors and assigns. Whenever the term "Developer" is used in this Agreement,
such term shall include any other permitted successors and assigns as herein provided.
603.5 Assignment by Agency. The Agency may assign or transfer any of
its rights or obligations under this Agreement with the approval of the Developer, which
approval shall not be unreasonably withheld; provided, however, that the Agency may
assign or transfer any of its interests hereunder to the City at any time without the
consent of the Developer.
604. Non - Liability of Officials and Employees of the Agency and the
Developer. No member, official or employee of the Agency or the City shall be
personally liable to the Developer, or any successor in interest, in the event of any
Default or breach by the Agency (or the City) or for any amount which may become due
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
32 41
Executive Director (or his duly authorized representative). The Agency Executive
Director shall have the authority to make approvals, issue interpretations, waive
provisions, and /or enter into amendments of this Agreement on behalf of the Agency so
long as such actions do not materially or substantially change the uses or development
permitted on the Site, or materially or substantially add to the costs incurred or to be
incurred by the Agency as specified herein, and such approvals, interpretations, waivers
and /or amendments may include extensions of time to perform as specified in the
Schedule of Performance. All other material and /or substantial interpretations, waivers,
or amendments shall require the consideration, action and written consent of the
Agency Board.
607. Counterparts. This Agreement may be signed in multiple counterparts
which, when signed by all parties, shall constitute a binding agreement. This Agreement
is executed in three (3) originals, each of which is deemed to be an original.
608. Integration. This Agreement contains the entire understanding between the
parties relating to the transaction contemplated by this Agreement. All prior or
contemporaneous agreements, understandings, representations and statements, oral or
written, are merged in this Agreement and shall be of no further force or effect. Each
party is entering this Agreement based solely upon the representations set forth herein
and upon each party's own independent investigation of any and all facts such party
deems material. This Agreement includes pages 1 through 32 and Attachment Nos. 1
through 8, which constitute the entire understanding and agreement of the parties,
notwithstanding any previous negotiations or agreements between the parties or their
predecessors in interest with respect to all or any part of the subject matter hereof.
609. Real Estate Brokerage Commission. The Agency and the Developer each
represent and warrant to the other that no broker or finder is entitled to any commission
or finder's fee in connection with the Developer's acquisition of the Site from the
Agency. The parties agree to defend and hold harmless the other party from any claim
to any such commission or fee from any broker, agent or finder with respect to this
Agreement which is payable by such party.
610. Attorneys' Fees. In any action between the parties to interpret, enforce,
reform, modify, rescind, or otherwise in connection with any of the terms or provisions of
this Agreement, the prevailing party in the action shall be entitled, in addition to
damages, injunctive relief, or any other relief to which it might be entitled, reasonable
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.
33 42
613. No Waiver. A waiver by either party of a breach of any of the covenants,
conditions or agreements under this Agreement to be performed by the other party shall
not be construed as a waiver of any succeeding breach of the same or other covenants,
agreements, restrictions or conditions of this Agreement.
614. Modifications. Any alteration, change or modification of or to this
Agreement, in order to become effective, shall be made in writing and in each instance
signed on behalf of each party.
615. Severability. If any term, provision, condition or covenant of this Agreement
or its application to any party or circumstances shall be held, to any extent, invalid or
unenforceable, the remainder of this Agreement, or the application of the term,
provision, condition or covenant to persons or circumstances other than those as to
whom or which it is held invalid or unenforceable, shall not be affected, and shall be
valid and enforceable to the fullest extent permitted by law.
616. Calendar of Time. The time in which any act is to be done under this
Agreement is computed by excluding the first day (such as the day escrow opens), and
including the last day, unless the last day is a holiday or Saturday or Sunday, and then
that day is also excluded. The term "holiday" shall mean all holidays as specified in
Section 6700 and 6701 of the California Government Code. If any act is to be done by a
particular time during a day, that time shall be Pacific Time Zone time.
617. Legal Advice. Each party represents and warrants to the other the
following: they have carefully read this Agreement, and in signing this Agreement, they
do so with full knowledge of any right which they may have; they have received
independent legal advice from their respective legal counsel as to the matters set forth
in this Agreement, or have knowingly chosen not to consult legal counsel as to the
matters set forth in this Agreement; and, they have freely signed this Agreement without
any reliance upon any agreement, promise, statement or representation by or on behalf
of the other party, or their respective agents, employees, or attorneys, except as
specifically set forth in this Agreement, and without duress or coercion, whether
economic or otherwise.
618. Time of Essence. Time is expressly made of the essence with respect to
the performance by the Agency, the Developer of each and every obligation and
condition of this Agreement.
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
34 43
affects his personal interests or the interests of any corporation, partnership or
association in which he is directly or indirectly interested.
622. Time for Acceptance of Agreement by Agency. This Agreement, when
executed by the Developer and delivered to the Agency, must be authorized, executed
and delivered by the Agency on or before forty -five (45) days after signing and delivery
of this Agreement by the Developer or this Agreement shall be void, except to the extent
that the Developer shall consent in writing to a further extension of time for the
authorization, execution and delivery of this Agreement.
623. Date of Agreement. The date of this Agreement shall be the date set forth
in the first paragraph hereof.
Signatures Blocks on next page
35 44
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
la
Janice S. Parvin, Chair
Deborah S. Traffenstedt, Agency Secretary
DEVELOPER:
Aszkenazy Development, Inc.
a California corporation
Severyn I. Aszkenazy
36 45
STATE OF CALIFORNIA
) ss.
COUNTY OF
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
-or
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed
the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
37 46
ATTACHMENT NO. 1
SITE MAP
38 47
ATTACHMENT NO. 2
SITE LEGAL DESCRIPTION
39 48
ATTACHMENT NO.3
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
ASZKENAZY DEVELOPMENT, INC.
601 South Brand Boulevard, 3`d Floor
San Fernando, CA 93021
Attn: Severyn I. Aszkenazy
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
Documentary Transfer Tax: $
Based on full value of property conveyed
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged,
The REDEVELOPMENT AGENCY of the CITY OF MOORPARK, a public body,
corporate and politic (the "Agency "), acting to carry out the Redevelopment Plan
( "Redevelopment Plan ") for the Moorpark Redevelopment Project (the "Project "), under
the Community Redevelopment Law of California, as of ,
200 , hereby grants to , a
( "Developer "), the real property hereinafter referred to as the "Site ", described in Exhibit
A attached hereto and incorporated herein, subject to the existing easements,
restrictions and covenants of record described there.
1. Agency excepts and reserves from the conveyance herein described all
interest of the Agency in oil, gas, hydrocarbon substances and minerals of every kind
and character lying more than five hundred (500) feet below the surface, together with
the right to drill into, through, and to use and occupy all parts of the Site lying more than
five hundred (500) feet below the surface thereof for any and all purposes incidental to
the exploration for and production of oil, gas, hydrocarbon substances or minerals from
said Site or other lands, but without, however, any right to use either the surface of the
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) feet above the surface (the
"Air Space ").
3. The Site is conveyed in accordance with and subject to the Redevelopment
Plan which was approved and adopted by Ordinance No. 110 of the City Council of the
City of Moorpark, and a Disposition and Development Agreement entered into between
40 49
Agency and Developer dated 200 (the "DDA "), a copy of which is
on file with the Agency at its offices as a public record and which is incorporated herein
by reference. The DDA generally requires the Developer to construct improvements on
the Site including one commercial building of approximately 40,000 square feet of Gross
Leasable Area of retail and office space, supporting parking and landscape
improvements, and other requirements as set forth therein or required by Project
Conditions of Approval (the "Improvements "). All terms used herein shall have the
same meaning as those used in the DDA.
4. The Developer covenants and agrees for itself, its successors, its assigns, and
every successor in interest to the Site or any part thereof, that upon the date of this
Grant Deed and during construction and thereafter, the Developer shall devote the Site
to the uses specified in the Commercial Planned Development Permit No. and
the DDA for the periods of time specified therein. All uses conducted on the Site,
including, without limitation, all activities undertaken by the Developer pursuant to this
Agreement, shall conform to the Commercial Planned Development Permit No. ,
the DDA and all applicable provisions of the Moorpark Municipal Code. The foregoing
covenants shall run with the land.
5. The Developer herein covenants by and for himself or herself, his or her heirs,
executors, administrators and assigns, and all persons claiming under or through them,
that there shall be no discrimination against or segregation of, any person or group of
persons on account of race, color, creed, religion, sex, marital status, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the land herein conveyed, nor shall the Developer himself or herself or any person
claiming under or through him or her, establish or permit any such practice or practices
of discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein
conveyed. The foregoing covenants shall run with the land.
6. The Agency has the right, at its election, to reenter and take possession of the
Site, with all improvements thereon, and terminate and revest in the Agency the estate
conveyed to the Developer if after the Closing and prior to the issuance of the Release
of Construction Covenants, if the Developer (or its successors in interest) shall:
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 of the
DDA; or
b. contrary to the provisions of Section 603 of the DDA transfer or suffer any
involuntary transfer of the Site or any part thereof in violation of the DDA.
Such right to reenter, terminate and revest shall be subject to and be limited by and
shall not defeat, render invalid or limit:
a. Any mortgage or deed of trust permitted by the DDA; or
b. Any rights or interests provided in the DDA for the protection of the
holders of such mortgages or deeds of trust.
Upon the revesting in the Agency of title to the Site as provided in Section 506 of
the DDA, the Agency shall, pursuant to its responsibilities under state law, use its
41 50
reasonable efforts to resell the Site as soon and in such manner as the Agency shall
find feasible and consistent with the objectives of such law, as it exists or may be
amended, to a qualified and responsible party or parties (as determined by the Agency)
who will assume the obligation of making or completing the Improvements, or such
improvements in their stead as shall be satisfactory to the Agency and in accordance
with the uses specified for such Site as provided in the City's zoning ordinance. Upon
such resale of the Site, the net proceeds thereof after repayment of any mortgage or
deed of trust encumbering the Site which is permitted by this Agreement shall be
applied to reimburse the Agency, on its own behalf or on behalf of the City, all costs and
expenses incurred by the Agency, excluding City and Agency staff costs, but
specifically, including, but not limited to, any expenditures by the Agency or the City in
connection with the recapture, management and resale of the Site or part thereof (but
less any income derived by the Agency from the Site or part thereof in connection with
such management); all taxes, assessments and water or sewer charges with respect to
the Site or part thereof which the Developer has not paid (or, in the event that Site is
exempt from taxation or assessment of such charges during the period of ownership
thereof by the Agency, an amount, if paid, equal to such taxes, assessments, or
charges as would have been payable if the Site were not so exempt); any payments
made or necessary to be made to discharge any encumbrances or liens existing on the
Site or part thereof at the time or revesting of title thereto in the Agency, or to discharge
or prevent from attaching or being made any subsequent encumbrances or liens due to
obligations, defaults or acts of the Developer, its successors or transferees; any
expenditures made or obligations incurred with respect to the making or completion of
the improvements or any part thereof on the Site, or part thereof; and any amounts
otherwise owing the Agency, and in the event additional proceeds are thereafter
available, then any balance remaining after such reimbursements shall be retained by
the Agency as its property. The rights established in this Paragraph 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 covenants, conditions, restrictions, limitations
and provisions, whether such owner's title was acquired by foreclosure, deed in lieu of
foreclosure, trustee's sale or otherwise.
8. All covenants contained in this Grant Deed shall be covenants running with the
land for the periods set forth therefore in the DDA. Every covenant contained in this
Grant Deed against discrimination contained in paragraph 5 of this Grant Deed shall
remain in effect in perpetuity.
9. All covenants without regard to technical classification or designation shall be
binding for the benefit of the Agency, and such covenants shall run in favor of the
42 51
Agency for the entire period during which such covenants shall be in force and effect,
without regard to whether the Agency is or remains an owner of any land or interest
therein to which such covenants relate. The Agency, in the event of any breach of any
such covenants, shall have the right to exercise all the rights and remedies and to
maintain any actions at law or suits in equity or other proper proceedings to enforce the
curing of such breach.
10. Both Agency, its successors and assigns, and Developer and the successors
and assigns of Developer in and to all or any part of the fee title to the Site shall have
the right with the mutual consent of the Agency to consent and agree to changes in, or
to eliminate in whole or in part, any of the covenants, easements or restrictions
contained in this Grant Deed without the consent of any tenant, lessee, easement
holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other
person or entity having any interest less than a fee in the Site. However, Developer and
Agency are obligated to give written notice to and obtain the consent of any first
mortgagee prior to consent or agreement between the parties concerning such changes
to this Grant Deed. The covenants contained in this Grant Deed, without regard to
technical classification, shall not benefit or be enforceable by any owner of any other
real property, or any person or entity having any interest in any other such realty. Any
amendment to the Moorpark Municipal Code which proposes to change the uses or
development permitted on the Site, or otherwise proposes a change of any of the
restrictions or controls that apply to the Site, shall require the written consent of the first
mortgagee and the Developer or the successors and assigns of Developer in and to all
or any part of the fee title to the Site, but any such amendment which proposes a
change affecting the Site shall not require the consent of any tenant, lessee, easement
holder, licensee, mortgagee (other than the first mortgagee), trustee, beneficiary under
a deed of trust or any other person or entity having any interest less than a fee in the
Site.
ATTEST:
AGENCY:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic
Janice S. Parvin, Chair
Deborah S. Traffenstedt, Agency Secretary
43 52
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
ATTACHMENT NO. 4
44 53
SCHEDULE OF PERFORMANCE
1. Submission of Disposition and On or before 20_
Development Agreement. Developer
shall submit to the Agency a copy of the
Disposition and Development Agreement
duly executed by the Developer.
2. Agency Approval of Disposition and
Development Agreement. Agency shall
approve or disapprove the Disposition and
Development Agreement.
3. Submission of Required
Development Application. Developer
shall submit the Design Development
Application to the City.
4. Developer and City Response.
Developer shall respond to all requests by
the City for additional information and /or
revisions to plans.
5. City Council Hearing on Design
Development Drawings. The City
Council will consider the proposed Design
Development Application.
6. Submission of Construction
Drawings for Improvements. Developer
shall submit to the City complete
Construction Drawings for the
Improvements.
7. Development Services Review of
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
Within 30 days after Developer's
submission to the Agency of an executed
Disposition and Development Agreement.
Within 90 days of Agency Approval of
DDA.
Developer will respond to any request
within 30 days. City will respond to any
submission within 30 days.
Within 60 days of a determination by City
Community Development Department of a
complete application.
Within 120 days after City Council
approval of the proposed Design
Development Application.
Within 30 days after submittal.
Within 30 days after receipt of Community
Development Department comments.
Within 10 days after submittal by
Developer.
45
54
Community Development Department
shall approve or disapprove the revisions
submitted by Developer for the
improvements, and the Developer shall be
ready to obtain grading and building
permits, provided that the revisions
necessary to accommodate the
Department's comments have been made.
10. Opening of Escrow for Site. The
Agency shall open Escrow with Escrow
Agent.
11. Conditions Precedent to Closing.
Developer and Agency shall satisfy (or
waive) all of their respective Conditions
Precedent to Closing.
12. Close of Escrow. Agency shall
convey Site to the Developer.
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 December 30, 20 .
13. Commencement of Construction of Within 30 days following Closing.
Improvements. Developer shall
commence grading of the Site and
construction of the Improvements.
14. Completion of Construction of Within 12 months following
Improvements. Developer shall complete commencement of construction of the
construction of the Improvements. Improvements.
NOTE: All days are calendar days in this Schedule of Performance. All days
falling on a weekend or day on which the City offices are not open shall be
extended to the next day on which City offices are open. This Schedule of
Performance may be amended written by mutual consent of the parties to the
Agreement.
46 55
ATTACHMENT NO. 5
SCOPE OF DEVELOPMENT
Developer shall construct improvements on the Site including one commercial building
of approximately 50,000 square feet of Gross Leasable Area of retail and office space,
supporting parking as required by the City of Moorpark's Parking Ordinance and
landscape improvements, and other requirements as set forth therein or required by
Project Conditions of Approval (the" Improvements "). All terms used herein shall have
the same meaning as those used in the DDA.
All development shall be in accordance with approved City of Moorpark Commercial
Planned Development Permit No. and all permits and fees required by the
City, County of Ventura and other governmental agencies with jurisdiction over the
Improvements, including the State General Construction Storm Water Permit's Storm
Water Pollution Prevention Plan requirements and any other requirements therein.
47 56
ATTACHMENT NO.6
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
ASZKENAZY DEVELOPMENT, INC.
387 N. Zachary St., Ste 101
Moorpark, California 93021
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.
NOW, THEREFORE, the Agency hereby certifies as follows:
1. The Improvements to be constructed by the Developer have been fully and
satisfactorily completed in conformance with the DDA. Any operating requirements and
48 57
all use, maintenance or nondiscrimination covenants contained in the DDA shall remain
in effect and enforceable according to their terms.
2. Nothing contained in this instrument shall modify in any other way any
other provisions of the DDA.
3. This Release of Construction Covenants is not a notice of completion as
referred to in Section 3093 of the California Civil Code.
4. This Release of Construction Covenants shall inure to the benefit of
Developer, its successors and assigns.
IN WITNESS WHEREOF, the Agency has executed this Release as of the date set
forth above.
ATTEST:
M
AGENCY:
REDEVELOPMENT AGENCY of the
CITY OF MOORPARK,
a public body, corporate and politic
Janice S. Parvin, Chair
Deborah S. Traffenstedt, Agency Secretary
49 58
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , before me, , Notary Public,
(Print Name of Notary Public)
personally appeared
❑ personally known to me
-or
❑ proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is /are
subscribed to the within instrument and acknowledged to me that he /she /they executed
the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s)
on the instrument the person(s), or the entity upon behalf of which the person(s) acted,
executed the instrument.
WITNESS my hand and official seal.
Signature of Notary
(REPLACE WITH STANDARD PUBLIC AGENCY ACKNOWLEDGMENT)
50 59
EXHIBIT "A"
LEGAL DESCRIPTION
51 60
Attachment No. 7
LOAN AGREEMENT
THIS LOAN AGREEMENT (the "Agreement ") is entered into as of
, 20 , by and between the REDEVELOPMENT AGENCY OF
THE CITY OF MOORPARK, a public body, corporate and politic (hereinafter the
"Agency "), and ,
(hereinafter the "Developer "), with reference to the following facts:
RECITALS:
A. The Agency and the Developer are parties to that certain Disposition and
Development Agreement (the "DDA "), dated as of , 20 , under
which the Agency has agreed to convey to the Developer certain partially improved real
property (the "Property ") consisting of approximately 1.84 acres located on the south
side of High Street generally between Moorpark Avenue and the north Metrolink parking
lot in the City of Moorpark;
B. Pursuant to the DDA, the Agency has agreed to make a loan to the
Developer to assist the Developer in the acquisition of the Property; and
C. The Agency and the Developer are entering into this Agreement for the
purpose of setting forth the terms and conditions on which the Agency will make the
loan to the Developer.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants, representations
and provisions contained herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. Loan. The Agency agrees to make the loan to the Developer on and
subject to the terms and conditions set forth in this Agreement.
A. Amount of the Loan. The loan will be in the principal amount of
$ (the "Loan "), and, subject to the terms and conditions set forth in
this Agreement and the DDA, will be made on , 20 or such
earlier of later date as shall be mutually agreed upon by the parties (the "Closing Date ").
B. Terms of Loan. The Loan will be for a term of ten (10) years and
will be evidenced by a Promissory Note Secured by Deed of Trust (the "Note ") in the
form attached to this Agreement as Exhibit "A ", will bear interest at the rate of
percent (— %) per annum, and will be subject to prepayment, in whole or
in part, at any time without any penalty or additional fees, and shall have the other terms
and provisions, all as more particularly set forth in the Note.
52 61
2. Loan Documents. The Loan will be secured by a Deed of Trust With
Assignment of Rents encumbering the Property (the "Deed of Trust ") in a form
acceptable to the Agency in its sole discretion. This Agreement, the Note and the Deed
of Trust are collectively referred to as the "Loan Documents ".
3. Closing Conditions. The funding and release of the Loan proceeds to the
Developer shall, unless waived by the Agency, be subject to the satisfaction by the
Developer of each of the following conditions:
3.1 Performance of Agreements. On the Closing Date, Developer shall
not be in default under this Agreement or the DDA and shall have performed all of its
obligations theretofore to be performed under this Agreement and the DDA.
3.2 Accuracy of Representations. The representations and warranties
of the Developer contained in this Agreement and in the DDA shall be true and correct
in all material respects as of the Closing Date.
3.3 Proceedings Satisfactory. All proceedings to be taken in
connection with the transactions contemplated by this Agreement and the DDA and all
documents incident to this Agreement and the DDA shall be satisfactory in form and
substance to the Agency.
3.4 Execution and Delivery. The original of the Note, duly executed by
the Developer, shall have been delivered to the escrow holder, Chicago Title Insurance
Company (the "Escrow Holder "), under the escrow (the "Escrow ") established pursuant
to the DDA for the purchase of the Property by Developer, and the original Deed of
Trust, duly executed and notarized, shall have been delivered to the Escrow Holder for
recording in the Official Records of Ventura County, California on the closing of the
purchase of the Property by Developer and pursuant to authority given to the Escrow
Holder in separate, written escrow instructions from the Agency.
3.5 Title Insurance. Chicago Title Company issues a CLTA Standard
Coverage Policy in the full amount of the Loan, with coverage and in form and
substance acceptable to the Agency in all respects, insuring the Agency's interest under
the Deed of Trust.
4. Representations and Warranties. Developer represents and warrants to
the Agency that:
4.1 Organization and Authority. Developer is a corporation duly
organized, validly existing and in good standing under the laws of the State of
California, and has all requisite right, power and authority to execute and deliver the
Loan Documents and to perform all of its obligations under the Loan Documents.
4.2 Due Execution; Enforceability. This Agreement has been duly
authorized, executed and delivered by Developer and constitutes the legal, valid and
binding obligation of Developer enforceable against it in accordance with its terms; and,
on the Closing Date, the Note and the Deed of Trust will each have been duly
53 62
authorized, executed and delivered by of Developer and will each constitute the legal,
valid and binding obligation of Developer enforceable against it in accordance with its
terms.
4.3 No Conflict. Neither the execution and delivery of the Loan
Documents, nor the performance by it of its obligations thereunder, will conflict with or
result in a breach of or a default under its articles of incorporation or bylaws or any law,
rule, regulation, judgment, order or decree or any mortgage, deed of trust, loan
agreement or other agreement or instrument to which it is a party or by which it or its
properties are bound.
4.4 Pending Litigation. There are no actions, suits, investigations or
proceedings pending or, to the knowledge of Developer, threatened against Developer,
or its business or properties, before or by any court or governmental board or body
which if determined adversely to Developer would have a material and adverse effect
upon its business or properties or its ability to perform its obligations under any of the
Loan Documents.
4.5 Accuracy of Information. All financial and other information
supplied by or on behalf of Developer to the Agency is accurate in all material respects
and does not omit to state any facts necessary to make the information contained
therein not materially misleading.
5. Use of Loan Proceeds. Developer agrees that the Loan proceeds are to
be used solely to defray costs and expenses in connection with its acquisition of the
Property.
6. Events of Default. An "Event of Default" shall exist if any one or more of
the following occurs:
6.1 Failure to Pay. The Developer fails to pay the principal of or
interest on the Note, or any other amount payable by the Developer under the Note, as
and when the same is due and payable.
6.2 Failure to Perform. The Developer fails to fully perform and
discharge any of its obligations under any of the Loan Documents (other than as
provided in Section 6.1), and such failure continues for a period of ten (10) days after
receipt of written notice from the Agency to cure such failure; provided, that if the nature
of the failure is such that more than ten (10) days are reasonably required for its cure,
then no Event of Default will be deemed to have occurred so long as the Developer
commences to cure such failure within such ten (10) day period and thereafter diligently
pursues such cure to completion.
6.3 Breach of Representation or Warranty. Any representation or
warranty by Developer contained in any of the Loan Documents or in any document
54 63
furnished by it in compliance with or in reference to any of such Loan Documents shall
be false or misleading in a material respect at the time made.
6.4 Insolvency; Attachments. Developer is or becomes bankrupt or
insolvent, makes an assignment for the benefit of creditors, or commences or has
commenced against it a proceeding under the Federal Bankruptcy Code; or, a writ of
attachment or execution is levied on the Property; or, in any proceeding or action to
which the Developer is a party, a receiver is appointed with authority to take possession
of the Property.
6.5 Other Obligations. Developer is in default (beyond any applicable
cure period) under any other indebtedness or obligation owing to the Agency whether
now existing or hereafter created or incurred, including, without limitation, the DDA.
6.6 Other Secured Indebtedness. The holder of any indebtedness of
the Developer which is secured by a mortgage or deed of trust on the Property, which
mortgage or deed of trust is senior in priority to the Deed of Trust, declares a default by
the Developer with respect to such indebtedness and accelerates the maturity of such
indebtedness.
7. Remedies. If an Event of Default occurs, then the Agency may proceed to
protect and enforce its rights either by suit in equity and /or by action at law, or by any
other appropriate proceedings, whether for the specific performance of any covenant or
agreement contained in this Agreement or any of the other Loan Documents, or in aid of
the exercise of any power granted in this Agreement or in any of the other Loan
Documents, or may proceed to enforce the payment of the Note or to enforce any other
legal or equitable right it may have as holder of the Note. In particular, without limiting
the generality of the foregoing, the Agency shall have the right, at its option, to declare
the entire principal of, and all interest accrued on, the Loan then outstanding to be, and
such Loan and the Note evidencing the Loan shall thereupon become, forthwith due
and payable, without any presentment, demand, protest or other notice of any kind, all
of which are hereby expressly waived by Developer. All rights and remedies of the
Agency under this Agreement, the other Loan Documents, the DDA and at law and in
equity are cumulative and not alternative.
8. Waiver. No delay or omission by the Agency in exercising its rights under
any of the Loan Documents shall constitute a waiver of such rights.
9. Notices. All notices, requests, demands and other communications
required or permitted to be given under the terms of this Agreement or the Note by one
party to the other shall be in writing addressed to the recipient party's Notice Address
set forth below and shall be deemed to have been duly given or made (a) if delivered
personally (including by commercial courier or delivery service) to the party's Notice
Address, then as of the date delivered (or if delivery is refused, on presentation), or (b)
if mailed by certified mail to the party's Notice Address, postage prepaid and return
55 64
receipt requested, then at the time received at the party's Notice Address as evidenced
by the return receipt, or (c) if mailed by first class mail to the party's Notice address,
postage prepaid, then on the third (3rd) day following deposit in the United States Mail.
Any party may change its Notice Address by a notice given in the foregoing form and
manner. The Notice Addresses of the parties are:
If to Agency: Redevelopment Agency of the City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn.: Executive Director
If to Developer: Aszkenazy Development, Inc.
601 South Brand Boulevard, 3rd Floor
San Fernando, California 91340
Attn.: Severyn I. Aszkenazy, President
10. Full Payment and Reconveyance. Upon receipt of all sums owing and
outstanding under the Note, Lender shall issue a full reconveyance of the Deed of Trust
encumbering the Property.
11. Transfer of Interest In or Other Encumbrances Against the Property. The
Developer may not sell, convey, lease, transfer, or dispose of all or any part of the
Property or any interest of the Developer therein, nor further hypothecate or encumber
the Property or any part thereof, or enter into any agreement to do any of the foregoing,
except as expressly permitted under the terms of the DDA.
12. Relationship of Parties. The relationship of the Developer and the Agency
under the Loan Documents is, and shall at all times remain, solely that of borrower and
lender, and the Agency neither undertakes nor assumes any responsibility or duty to the
Developer or to any third party with respect to the Property, except as expressly
provided in this Agreement and the other Loan Documents.
13. Applicable Law; Venue. This Agreement shall be governed by and
interpreted under the laws of the State of California. This Agreement is made, entered
into, and executed in Ventura County, California, and any action filed in any court for the
interpretation, enforcement or other action arising from any term, covenant or condition
herein shall be filed in Ventura County, California.
14. Attorneys' Fees. Should it become necessary for either party to
commence legal action to enforce the provisions of this Agreement, then the prevailing
56 65
party in such action shall be entitled to recover all such costs and attorneys' fees as a
court may adjudge reasonable.
15. Time. Time is of the essence of this Agreement.
16. Entire Agreements; Amendments. This Agreement and the other Loan
Documents are the entire agreement of the parties hereto with respect to the subject
matter hereof and supersede all prior negotiations or agreements, written or oral, with
respect to that subject matter. To be enforceable, any amendment, alteration, waiver,
extension or modification of this Agreement or the other Loan Documents must be in
writing signed by the party to be bound.
17. Counterparts. This Agreement may be executed in counterparts, each of
which is an original but all of which together constitute but one and the same
instrument. Any signature page of this Agreement may be detached from any
counterpart and re- attached to any other counterpart of this Agreement which is
identical in form hereto but having attached to it one or more additional signature pages.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first set forth above.
ASZKENAZY DEVELOPMENT, INC
in
Severyn I. Aszkenazy, President
(Print Name)
Secretary
REDEVELOPMENT AGENCY OF THE
CITY OF MOORPARK, a public body
corporate and politic
In
Janice S. Parvin, Chair
ATTEST:
in
Deborah S. Traffenstedt
Agency Secretary
57 66
EXHIBIT "A"
PROMISSORY NOTE SECURED BY DEED OF TRUST
MOORPARK, California
20
For value received, , (the
"Developer "), does hereby covenant and promise to pay to the
REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK (the "Agency "), or
order, the principal sum of dollars ($ ), together
with interest thereon at the rate of percent (_%) per annum.
Principal and interest are payable in lawful money of the United States of
America without setoff, deduction or counterclaim and shall be paid to the
Agency, as provided in Section 2 below, at 799 Moorpark Avenue, Moorpark,
California, or at such other place as the Agency may from time to time designate
by written notice to the Developer,
1. Loan Agreement. This Promissory Note (the "Note ") is issued
pursuant to, and subject to, that certain Loan Agreement dated ,
20 , by and between the Developer and the Agency (the "Agreement "), to
which Agreement reference is made for a more complete statement of the
Agency's rights. Capitalized terms not defined in this Note shall have the same
meanings which are given to them in the Agreement. The indebtedness
evidenced by this Note is secured by a Deed of Trust as described in the
Agreement.
2. Terms of the Loan.
(a) Subject to the following sentence, interest only shall be
payable in monthly installments, commencing on , 20 , and
continuing thereafter on the same date of each succeeding month until
, 20 (the "Maturity Date "), at which time all outstanding
principal, together with all accrued interest thereon, shall be fully due and
payable. Notwithstanding the preceding sentence to the contrary, the Developer
may, at its option, choose not to pay one or more or all of the monthly
installments of interest coming due prior to the date when the Project (as defined
below) is first 90% leased, and any such installments of interest not paid by
Developer shall be added to the principal amount of this Note and thereupon
bear interest as provided in this Note. As used in this Note, the term "Project"
has the meaning given to it in that certain Disposition and Development
Agreement (the "DDA "), dated as of , 20 , by and between
the Agency and the Developer.
(b) To the extent that the Developer makes any payment or the
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67
Agency receives any payment or proceeds for the Developer's benefit, which are
subsequently invalidated, declared to be fraudulent or preferential, or are
required to be set aside or to be repaid to a trustee, debtor -in- possession,
receiver, custodian or any other party under any bankruptcy law, common law or
equitable cause, then, to such extent, the obligations of the Developer hereunder
intended to be satisfied shall be revived and continue as if such payment or
proceeds had not been received by the Agency.
(c) In addition to any interest which may be charged hereunder,
the Developer shall pay to the Agency a charge ( "Late Charge ") for the collection
of late payments in an amount equal to five percent (5 %) of any payment
required hereunder which is not paid within ten (10) days after the date such
payment is due, as liquidated damages and not as a penalty. Without limiting the
foregoing, the Developer agrees that the Late Charge shall be due and payable
upon the entire unpaid principal amount if not paid when due upon the Maturity
Date. The Developer recognizes that its default in making any payment as
provided herein or in the Loan Agreement as agreed to be paid when due, or the
occurrence of any other Event of Default hereunder or under any other loan
document, will require the Agency to incur additional expense in servicing and
administering the Loan, will result in loss to the Agency of the use of the money
due and in frustration to the Agency in meeting its other financial and loan
commitments and that the damages caused thereby would be extremely difficult
and impractical to ascertain. Nothing in this Note shall be construed as an
obligation on the part of the Agency to accept, at any time, less than the full
amount then due hereunder or as a waiver or limitation of the Agency's right to
compel prompt performance.
(d) All payments on this Note will be applied first to the payment
of any costs, fees, Late Charges, or other charges incurred in connection with the
indebtedness evidenced by this Note; next, to the payment of accrued interest;
then to the reduction of the principal balance. The Developer may prepay this
Note, in whole or in part, at any time without any penalty or additional fees.
(e) The Deed of Trust which secures the indebtedness evidence
by this Note provides as follows:
"In the event of any Transfer (as defined below) of said property,
Beneficiary shall have the absolute right at its option, without prior demand
or notice, to declare all sums secured hereby immediately due and
payable. As used herein, 'Transfer' means any sale, conveyance, lease,
transfer or disposition of all or any part of said property or any interest of
Trustor therein, or the further hypothecation or encumbering of said
property or any part thereof or any interest of Trustor therein, or the entry
into any agreement to do any of the foregoing; provided, however, that
'Transfer' shall not mean any of the foregoing which are approved by the
Beneficiary in accordance with the terms of the Disposition and
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68
Development Agreement (the "DDA "), dated as of , 20 ,
by and between the Beneficiary and the Trustor or are otherwise expressly
permitted under the terms of the DDA without the approval of Beneficiary."
(f) The parties hereto intend to conform strictly to the applicable
usury laws. In no event shall the Agency be entitled to interest exceeding the
maximum rate permitted by law. If fulfillment of any provision of this Note, or of
any other document pertaining to the indebtedness evidenced hereby, at the time
performance of such provisions shall be due, would involve exceeding the
maximum rate of interest prescribed by law, then the obligation to be fulfilled
shall be reduced automatically so as to equal such maximum rate. If the Agency
shall ever receive anything of value deemed interest under applicable law which
would exceed interest at the highest lawful rate, an amount equal to any amount
which would have been excessive interest shall be applied to the reduction of
principal payable with respect to this Note and not to the payment of interest, or if
such amount which would have been excessive interest exceeds the unpaid
balance of principal hereof, such excess shall be refunded to Developer. All
sums paid or agreed to be paid to the Agency for the use, forbearance or
detention of the indebtedness of the Developer to the Agency hereunder shall, to
the extent permitted by applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term of such indebtedness so that the amount
of interest on account of such indebtedness does not exceed the maximum
permitted by applicable law.
3. Acceleration on Default. If the Developer fails to pay the principal
of or interest on this Note, or any other amount payable by the Developer under
this Note, as and when the same is due and payable, or if an Event of Default
occurs under the Agreement, then, in addition to all rights and remedies of the
Agency under the Agreement, the Deed of Trust, applicable law or otherwise, all
such rights and remedies being cumulative, the Agency may, at its option,
declare all amounts owing under this Note to be due and payable, whereupon the
then unpaid principal balance hereof together with all interest accrued thereon
shall forthwith become due and payable.
4. Cost of Collection. The Developer agrees to pay the following
costs, expenses and attorneys' fees paid or incurred by the Agency: (i) costs and
expenses of collection or enforcement of, and attorneys' fees paid or incurred in
connection with the collection or enforcement of, this Note, whether or not suit is
filed; and (ii) costs of suit and such sum as the Court may adjudge as attorneys'
fees in an action to enforce payment of this Note or any part of it.
5. Forbearance Not a Waiver. No delay or omission on the part of the
Agency in exercising any rights under this Note, the Agreement or the Deed of
Trust on breach or default by the Developer shall operate as a waiver of such
right or any other right under this Note or the Deed of Trust for the same breach
or default or any other breach or default.
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69
6. Assignment. The Agency shall have the right to sell, assign or
otherwise transfer, in whole or in part, this Note, the Deed of Trust, and any other
instrument evidencing or securing the indebtedness of this Note without the
consent of the Developer. The Developer shall not sell, assign or otherwise
transfer this Note, in whole or in part, without the prior written consent of the
Agency which consent the Agency is under no obligation to give.
7. No Oral Modifications. Neither this Note nor any of the terms or
provisions hereof can be altered, modified, amended, waived, extended,
changed, discharged or terminated orally or by a course of conduct, but only by
an agreement in writing signed by the party against whom enforcement of any
alteration, modification, amendment, waiver, extension; change, discharge or
termination is sought.
8. Time is of the Essence. Time is of the essence for each and every
obligation under this Note.
ASZKENAZY DEVELOPMENT, INC.
Severyn I. Aszkenazy, Authorized Signatory
Secretary
(Print Name)
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Attachment No. 8
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Redevelopment Agency of the
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn.: Executive Director
Space Above This Line For Recorder's Use
DEED OF TRUST
WITH ASSIGNMENT OF RENTS AS ADDITIONAL SECURITY
This DEED OF TRUST, made as of , 20 , between
herein called TRUSTOR, whose
address is 601 South Brand Boulevard, 3rd Floor, San Fernando, California
91340, CHICAGO TITLE COMPANY, a California corporation, herein called
TRUSTEE, and the REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK, a public body, corporate and politic, herein called BENEFICIARY.
Trustor irrevocably grants, transfers and assigns to Trustee in trust, with power of
sale, that property in the County of Ventura, State of California, described as:
See Attached Exhibit A
Together with the rents, issues and profits thereof, subject, however, to the right,
power and authority hereinafter given to and conferred upon Beneficiary to
collect and apply such rents, issues and profits.
For the purpose of securing (1) payment of the sum of $ with
interest thereon according to the terms of a promissory note of even date
herewith made by Trustor, payable to the order of Beneficiary, and extensions or
renewals thereof; (2) the performance of each agreement of Trustor incorporated
by reference or contained herein or reciting it is so secured; (3) payment of
additional sums and interest thereon which may hereafter be loaned to Trustor,
or it successors or assigns, when evidenced by a promissory note or notes
reciting that they are secured by this Deed of Trust.
A. To protect the security of this Deed of Trust, Trustor agrees:
(1) To keep said property in good condition and repair; not to remove or
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demolish any building thereon; to complete or restore promptly and in good and
workmanlike manner any building which may be constructed, damaged or
destroyed thereon and to pay when due all claims for labor performed and
materials furnished therefor; to comply with all laws affecting said property or
requiring any alterations or improvements to be made thereon; not to commit or
permit waste thereof; not to commit, suffer, or permit any act upon said property
in violation of law; to cultivate, irrigate, fertilize, fumigate, prune and do all other
acts which from the character or use of said property may be reasonably
necessary, the specific enumerations herein not excluding the general.
(2) To provide, maintain and deliver to Beneficiary fire insurance satisfactory
to and with loss payable to Beneficiary. The amount collected under any fire or
other insurance policy may be applied by Beneficiary upon any indebtedness
secured hereby and in such order as Beneficiary may determine, or at option of
Beneficiary the entire amount so collected or any part thereof may be released to
Trustor. Such application or release shall not cure or waive any default or notice
of default hereunder or invalidate any act done pursuant to such notice. Without
limiting the foregoing, said insurance shall consist of a policy or policies of fire
and extended coverage insurance in the amount of the full replacement cost of
all buildings and other improvements on said property and with such deductibles
and having such endorsements as are satisfactory to Beneficiary, including,
without limitation, endorsements for vandalism, malicious mischief, earthquake
and flood coverages.
(3) To appear in and defend any action or proceeding purporting to affect the
security hereof or the rights or powers of Beneficiary or Trustee; and to pay all
costs and expenses, including cost of evidence of title and attorney's fees in a
reasonable sum, in any action or proceeding in which Beneficiary or Trustee may
appear, and in any suit brought by Beneficiary to foreclose this Deed of Trust.
(4) To pay: at least ten days before delinquency all taxes and assessments
affecting said property, including assessments on appurtenant water stock; when
due, all encumbrances, charges and liens, with interest, on said property or any
part thereof, which appear to be prior or superior hereto; all costs, fees and
expenses of this Trust.
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Should Trustor fail to make any payment or to do any act as herein provided,
then Beneficiary or Trustee, but without obligation so to do and without notice to
or demand upon Trustor and without releasing Trustor from any obligation
hereof, may, make or do the same in such manner and to such extent as either
may deem necessary to protect the security hereof, Beneficiary or Trustee being
authorized to enter upon said property for such purposes; appear in and defend
any action or proceeding purporting to affect the security hereof or the rights or
powers of Beneficiary or Trustee; pay, purchase, contest or compromise any
encumbrance, charge, or lien which in the judgment of either appears to be prior
or superior hereto; and, in exercising any such powers, pay necessary expenses,
employ counsel and pay his or her reasonable fees.
(5) To pay immediately and without demand all sums so expanded by
Beneficiary or Trustee, with interest from date of expenditure at the amount
allowed by law in effect at the date hereof, and to pay for any statement provided
for by law in effect at the date hereof regarding the obligation secured hereby,
any amount demanded by the Beneficiary not to exceed the maximum allowed
by law at the time when said statement is demanded.
B. It is mutually agreed:
(1) That any award of damages in connection with any condemnation for
public use of or injury to said property or any part thereof is hereby assigned and
shall be paid to Beneficiary who may apply or release such moneys received by
him or her in the same manner and with the same effect as provided above in
paragraph A(2) regarding disposition of proceeds of fire or other insurance.
(2) That by accepting payment of any sum secured hereby after its due date,
Beneficiary does not waive his or her right either to require prompt payment
when due of all other sums so secured or to declare default for failure so to pay.
(3) That at any time or from time to time, without liability therefor and without
notice, upon written request of Beneficiary and presentation of this Deed of Trust
and said note for endorsement, and without affecting the personal liability of any
person for payment of the indebtedness secured hereby, Trustee may: reconvey
any part of said property; consent to the making of any map or plat thereof; join in
granting any easement thereon; or join in any extension agreement or any
agreement subordinating the lien or charge hereof.
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73
(4) That upon written request of Beneficiary stating that all sums secured
hereby have been paid, and upon surrender of this Deed of Trust and said note
to Trustee for cancellation and retention or other disposition as Trustee in its sole
discretion may choose and upon payment of its fees, Trustee shall reconvey,
without warranty, the property then held hereunder. The recitals in such
reconveyance of any matters or facts shall be conclusive proof of the truthfulness
thereof. The Grantee in such reconveyance may be described as "the person or
persons legally entitled thereto."
(5) That as additional security, Trustor hereby gives to and confers upon
Beneficiary the right, power and authority, during the continuance of these
Trusts, to collect the rents, issues and profits of said property, reserving unto
Trustor the right, prior to any default by Trustor in payment of any indebtedness
secured hereby or in performance of any agreement hereunder, to collect and
retain such rents, issues and profits as they become due and payable. Upon any
such default, Beneficiary may at any time without notice, either in person, by
agent, or by a receiver to be appointed by a court, and without regard to the
adequacy of any security for the indebtedness hereby secured, enter upon and
take possession of said property or any part thereof, in his or her own name sue
for or otherwise collect such rents, issues, and profits, including those past due
and unpaid, and apply the same, less costs and expenses of operation and
collection, including reasonable attorney's fees, upon any indebtedness secured
hereby, and in such order as Beneficiary may determine. The entering upon and
taking possession of said property , the collection of such rents, issues and
profits and the application thereof as aforesaid, shall not cure or waive any
default or notice of default hereunder or invalidate any act done pursuant to such
notice.
(6) That upon default by Trustor in payment of any indebtedness secured
hereby or in performance of any agreement hereunder, Beneficiary may declare
all sums secured hereby immediately due and payable by delivery to Trustee of
written declaration of default and demand for sale and of written notice of default
and of election to cause to be sold said property, which notice Trustee shall
cause to be filed for record. Beneficiary also shall deposit with Trustee this Deed
of Trust, said note and all documents evidencing expenditures secured hereby.
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After the lapse of such time as may then be required by law following the
recordation of said notice of default, and notice of sale having been given as then
required by law, Trustee, without demand on Trustor, shall sell said property at
the time and place fixed by it in said notice of sale, either as a whole or in
separate parcels, and in such order as it may determine, at public auction to the
highest bidder for cash in lawful money of the United States, payable at time of
sale. Trustee may postpone sale of all or any portion of said property by public
announcement at such time and place of sale, and from time to time thereafter
may postpone such sale by public announcement at the time fixed by the
preceding postponement. Trustee shall deliver to such purchaser its deed
conveying the property so sold, but without any covenant or warranty, express or
implied. The recitals in such deed of any matters or facts shall be conclusive
proof of the truthfulness thereof. Any person, including Trustor, Trustee, or
Beneficiary as hereinafter defined, may purchase at such sale.
After deducting all costs, fees and expenses of Trustee and of this Trust,
including cost of evidence of title in connection with sale, Trustee shall apply the
proceeds of sale to payment of: all sums expended under the terms hereof, not
then repaid, with accrued interest at the amount allowed by law in effect at the
date hereof; all other sums then secured hereby; and the remainder, if any, to the
person or persons legally entitled thereto.
(7) Beneficiary, or any successor in ownership of any indebtedness secured
hereby, may from time to time, by instrument in writing, substitute a successor or
successors to any Trustee named herein or acting hereunder, which instrument,
executed by the Beneficiary and duly acknowledged and recorded in the office of
the recorder of the county or counties where said property is situated, shall be
conclusive proof of proper substitution of such successor Trustee or Trustees,
who shall, without conveyance from the Trustee predecessor, succeed to all its
title, estate, rights, powers and duties. Said instrument must contain the name of
the original Trustor, Trustee and Beneficiary hereunder, the book and page
where this Deed of Trust is recorded and the name and address of the new
Trustee.
(8) That this Deed of Trust applies to, inures to the benefit of, and binds all
parties hereto, their heirs, legatees, devisees, administrators, executors,
successors, and assigns. The term Beneficiary shall mean the owner and
holder, including pledgees of the note secured hereby, whether or not named as
Beneficiary herein. In this Deed of Trust, whenever the context so requires, the
masculine gender includes the feminine and /or the neuter, and the singular
number includes the plural.
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(9) The Trustee accepts this Trust when this Deed of Trust, duty executed
and acknowledged, is made a public record as provided by law. Trustee is not
obligated to notify any party hereto of pending sale under any other Deed of
Trust or of any action or proceeding in which Trustor, Beneficiary or Trustee shall
be a party unless brought by Trustee.
(10) In the event of any Transfer (as defined below) of said property,
Beneficiary shall have the absolute right at its option, without prior demand or
notice, to declare all sums secured hereby immediately due and payable. As
used herein, `Transfer' means any sale, conveyance, lease, transfer or
disposition of all or any part of said property or any interest of Trustor therein, or
the further hypothecation or encumbering of said property or any part thereof or
any interest of Trustor therein, or the entry into any agreement to do any of the
foregoing; provided, however, that 'Transfer' shall not mean any of the foregoing
which are approved by the Beneficiary in accordance with the terms of the
Disposition and Development Agreement (the "DDA "), dated as of
, 20 , by and between the Beneficiary and the Trustor or are
otherwise expressly permitted under the terms of the DDA without the approval
of Beneficiary.
Beneficiary may charge for a statement regarding the obligation secured hereby,
provided the charge thereof does not exceed the maximum allowed by laws.
(11) Beneficiary has agreed to subordinate this Deed of Trust to other deeds of
trust upon the terms set forth in Section 3.11 of the DDA.
The undersigned Trustor, requests that a copy of any notice of default and
any notice of sale hereunder be mailed to him at his address hereinbefore set
forth.
a
Severyn I. Aszkenazy
Authorized Signatory
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State of California
County of Ventura
WE
personally appeared
ALL - PURPOSE ACKNOWLEDGMENT
)ss
, 20 , before me,
[ ] personally known to me -OR-
[ ] proved to me on the basis of satisfactory evidence to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
Witness my hand and official seal.
SIGNATURE OF NOTARY
CAPACITY CLAIMED
BY SIGNER(S)
[ ] INDIVIDUAL(S)
[ ]
OFFICER(S) (TITLE[S]):
[ ]
PARTNER(S)
[ ] ATTORNEY -IN -FACT
[ ] TRUSTEE(S)
(] SUBSCRIBING WITNESS
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77
[ ] GUARDIAN /CONSERVATOR
[ ] CHAIRPERSON /MAYOR
[ ] OTHER:
SIGNER(S) IS /ARE REPRESENTING:
Aszkenazy Development, Inc.
DO NOT RECORD REQUEST FOR FULL RECONVEYANCE
TO CHICAGO TITLE COMPANY
The undersigned is the legal owner and holder of the note or notes and of all
other indebtedness secured by the foregoing Deed of Trust. Said note or notes,
together with all other indebtedness secured by said Deed of Trust, have been
fully paid and satisfied; and you are hereby requested and directed, on payment
to you of any sums owing to you under the terms of said Deed of Trust, to cancel
said note or notes above mentioned, and all other evidence of indebtedness
secured by said Deed of Trust delivered to you herewith, together with the said
Deed of Trust, and to reconvey, without warranty, to the parties designated by
the terms of said Deed of Trust, all the estate now held by you under the same.
Dated:
Please mail Deed of Trust,
Note and Reconveyance to
Do not lose or destroy this Dead of Trust OR THE NOTE which it secures. Both
must be delivered to the Trustee for cancellation before reconveyance will be
made.
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EXHIBIT E
RESOLUTION NO. 2009-
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF THE
CITY OF MOORPARK, CALIFORNIA, ADOPTING A MITIGATED
NEGATIVE DECLARATION AND MITIGATION MONITORING
AND REPORTING PROGRAM IN COMPLIANCE WITH THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT FOR
DEVELOPMENT OF AN APPROXIMATELY 72,000 SQUARE -
FOOT COMMERCIAL CENTER ON APPROXIMATELY 2.3
ACRES LOCATED ON THE SOUTH SIDE OF HIGH STREET,
EAST OF MOORPARK AVENUE, ON THE APPLICATION OF THE
MOORPARK REDEVELOPMENT AGENCY AND ASZKENAZY
DEVELOPMENT, INC. (THE PROJECT ALSO INVOLVES THE
USE OF APPROXIMATELY 20 FEET OF VENTURA COUNTY
TRANSPORTATION COMMISSION -OWNED RAILROAD RIGHT -
OF -WAY FOR PARKING AND LANDSCAPING)
WHEREAS, the California Environmental Quality Act (CEQA) requires public
agencies to conduct environmental review on certain projects that would result in a
physical change to the environment; and
WHEREAS, an Initial Study was prepared in compliance with CEQA for proposed
development of an approximately 72,000 square -foot commercial center on
approximately 2.3 acres located on the south side of High Street, east of Moorpark
Avenue, in order to determine if any significant environmental effects would result from
the project; and
WHEREAS, the conclusion of the Initial Study was that, with the incorporation of
mitigation measures, no significant effects would result from proposed development of
an approximately 72,000 square -foot commercial center on approximately 2.3 acres
located on the south side of High Street, east of Moorpark Avenue and a Mitigated
Negative Declaration was prepared; and
WHEREAS, public notice of the Mitigated Negative Declaration was given in
accordance with CEQA with comments accepted between November 20, 2009 to
December 14, 2009 and comments were received during this period.
NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. CONSIDERATION OF MITIGATED NEGATIVE DECLARATION:
The Redevelopment Agency has considered the Mitigated Negative Declaration
prepared for development of an approximately 72,000 square -foot commercial center on
approximately 2.3 acres located on the south side of High Street, east of Moorpark
Avenue, together with any comments received during the public review process.
79
Resolution No. 2009 -
Page 2
SECTION 2. ADOPTION OF MITIGATED NEGATIVE DECLARATION: The
Redevelopment Agency finds on the basis of the whole record for development of an
approximately 72,000 square -foot commercial center on approximately 2.3 acres
located on the south side of High Street, east of Moorpark Avenue, including the Initial
Study and any comments received, that there is no substantial evidence that the project
will have a significant effect on the environment with the inclusion of mitigation
measures identified in the Mitigated Negative Declaration included in Exhibit A
(Mitigated Negative Declaration), that these mitigation measures are incorporated into
the project as conditions of approval, and that the Mitigated Negative Declaration
prepared for the project reflects the independent judgment and analysis of the City of
Moorpark and is hereby adopted by the Redevelopment Agency of the City of Moorpark.
SECTION 3. MITIGATION MONITORING AND REPORTING PROGRAM: The
Mitigation Monitoring and Reporting Program identified in the Initial Study prepared on
behalf of development of an approximately 72,000 square -foot commercial center on
approximately 2.3 acres located on the south side of High Street, east of Moorpark
Avenue, is hereby adopted.
SECTION 4. CERTIFICATION OF ADOPTION: 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 16th day of December, 2009.
Janice S. Parvin, Chair
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
Attachment A — Mitigated Negative Declaration
O
ATTACHMENT A
MITIGATED NEGATIVE DECLARATION
CITY OF MOORPARK
799 MOORPARK AVENUE
MOORPARK, CA 93021
(805) 517 -6200
The following Mitigated Negative Declaration has been prepared in accordance with the California
Environmental Quality Act of 1970 as amended, the State Guidelines, and the Environmental Procedures
of the City of Moorpark.
Public Review Period: November 20, 2009 to December 14, 2009
Project Title /Case No.: Moorpark Station
Project Location: South side of High Street, east of Moorpark Avenue. (Location Map
Attached)
Project Description: Development of an approximately 72,000 square -foot commercial center on
approximately 2.3 acres. Discretionary permits include, but are not limited to,
a Disposition and Development Agreement (DDA) and a Commercial Planned
Development. The project also involves the use of approximately 20 feet of
Ventura County Transportation Commission -owned railroad right -of -way for
parking and landscaping.
Project Type: X Private Project Public Project
Project Applicant: Moorpark Redevelopment Agency and Aszkenazy Development
Finding: After preparing an Initial Study for the above - referenced project, revisions
have been made by or agreed to by the applicant consistent with the mitigation
measures identified in the Initial Study. With these revisions, it is found that
there is no substantial evidence, in light of the whole record before the City of
Moorpark, that the project may have a significant effect on the environment.
(Initial Study Attached)
Responsible Agencies: City of Moorpark, Ventura County Transportation Commission
Trustee Agencies:
Attachments: Location Map
Initial Study with Mitigation Measures
Contact Person: Joseph Fiss
Community Development Department
City of Moorpark
799 Moorpark Avenue
Moorpark, California, 93021
(805) 517 -6226
C: \Documents and Settings \dmoe.MOORPARMLocal Settings \Temporary Internet Files \01-K70D\Proposed MND.doc 81
s,
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LOCATION MAP
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2 82
Project Title: Moorpark Station
Moorpark Station
CITY OF MOORPARK INITIAL STUDY
799 MOORPARK AVENUE
MOORPARK, CA 93021
(805) 517 -6200
Case No.: n/a
Contact Person and Phone No.: David Moe, Redevelopment Manager (805) 517 -6217
Name of Applicant: Moorpark Redevelopment Agency and Aszkenazy Development
Address and Phone No.: 799 Moorpark Avenue, Moorpark, CA 93021
Project Location: South Side of High Street, East of Moorpark Avenue
General Plan Designation
Project Description:
General Commercial (C -2) Zoning: Old Town Commercial (C -OT)
Development of an approximately 72.000 square -foot commercial center on approximately 2.3 acres located
on the south side of High Street, east of Moorpark Avenue. Discretionary permits include, but are not limited
to. a Disposition and Development Agreement (DDA) and a Commercial Planned Development. The voiect
also involves the use of approximately 20 feet of Ventura County Transportation Commission -owned railroad
right -of -way for parking and landscaping.
Surrounding Land Uses and Setting:
North: General Commercial, Office, Retail
South: Railroad Tracks, Metrolink/VCTC Parking
Fast: Metrolink/VCTC Parking
West: General Commercial, Office, Post Office
Responsible and Trustee Agencies: City of Moorpark, Ventura County Transportation Commission
ENVIRONMENTAL
The
Potentially
FACTORS POTENTIALLY
environmental factors checked below would
Significant Impact' or "Less Than Significant
Aesthetics
Biological Resources
Hazards and Hazardous Materials
Mineral Resources
Public Services
Utilities/Service Systems
AFFECTED:
be potentially affected by this project, involving at least one impact that is a
With Mitigation,' as indicated by the checklist on the following pages.
Agricultural Resources Air Quality
Cultural Resources Geology /Soils
Hydrology/Water Quality Land Use/Planning
X Noise Population/Housing
Recreation X Transportation/Traffic
Mandatory Findings of Significance None
DETERMINATION: On the basis of this initial evaluation,
I find that although the proposed project could have a significant effect on the environment, there will not be a
significant effect in this case because revisions in the project have been made by or agreed to by the project
proponent. Mitigation measures described on the attached Exhibit 1 have been added to the project. A
MITIGATED NEGATIVEJ),ECLA�TION will be prepared.
Prepared by:
Date: t I I t' 1,91
Reviewed by:
David A. Bobardt
Date: 1 t6 A* 0-ri
mg
Moorpark Station
INITIAL STUDY EXHIBIT 1:
MITIGATED NEGATIVE DECLARATION
MITIGATION MEASURES AND
MONITORING AND REPORTING PROGRAM
1. A nesting survey will be conducted by a qualified biologist prior to the removal of any vegetation or
structures from the site. Vegetation and structure removal will be conducted in compliance with the
recommendations of the nesting survey.
Monitoring Action: Review of Nesting Survey
Timing: Prior to Removal of Vegetation or Structures
Responsibility: Planning Director
2. Once the detailed architectural plans are completed for the Phase 11 building, an acoustical
verification must be conducted to ensure that the building has been properly designed to comply with the
City's CNEL requirement of 50 dB for interior areas. The design features required to achieve the noise
standard may include one or more of the following elements to achieve this requirement: noise barriers,
sound -rated windows and doors, orientation of windows relative to the street and railroad, upgraded
exterior wall and /or roof construction, insulation batts, and /or forced air ventilation.
Monitoring Action: Applicant to provide acoustical verification
Timing: Prior to Zoning Clearance for Construction
Responsibility: Planning Director
3. Once the detailed architectural plans are completed for the Project, an acoustical verification must
be conducted to ensure that the Project has been properly designed to comply with Section 17.53.080 of
the City of Moorpark Municipal Code regarding noise intrusion onto surrounding properties. The design
features may include one or more of the following elements to comply with this section of the Moorpark
Municipal Code: noise barriers, locating activity centers behind buildings and /or away from sensitive
property lines, reduction in hours of operation, procurement specifications for quiet mechanical equipment,
locating mechanical equipment inside buildings and /or away from sensitive property lines, and screening
or enclosing rooftop equipment.
Monitoring Action: Applicant to provide acoustical verification
Timing: Prior to Zoning Clearance for Construction
Responsibility: Planning Director
4. Construction activities shall be scheduled only between 7 a.m. and 7 p.m. Monday through
Saturday. No construction shall be permitted on Sundays or legal holidays.
Monitoring Action: Monitor Construction Times
2
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Moorpark Station
Timing: During all Construction Operations
Responsibility: Planning Director
5. All construction equipment must be equipped with properly operating mufflers of a type
recommended by the manufacturer.
Monitoring Action: Monitor Construction Equipment
Timing: During all Construction Operations
Responsibility: Planning Director
6. To avoid construction noise impacts at the existing on -site restaurant (Building 19) during Phase I
construction, a minimum 10' -high temporary noise barrier shall be erected along the west boundary of the
Phase I Project site between the restaurant and the construction activity. The noise barrier shall be located
as close as possible to the restaurant property and shall extend from the north Project property line to the
south Project property line. The barrier shall remain in place during Phase I construction. The barrier may
be constructed as follows:
a. From acoustical blankets hung over or from a supporting frame. The blankets shall provide a
minimum sound transmission class (STC) rating of 28 and a minimum noise reduction coefficient (NRC)
of 0.80 and shall be firmly secured to the framework with the sound absorptive side of the blankets
oriented towards the equipment. The blankets shall be overlapped by at least 6" at seams and taped so
that no gaps exist. The largest blankets available shall be used in order to minimize the number of seams.
The blankets shall be draped to the ground to eliminate any gaps at the base of the barrier; or,
b. From commercially - available acoustical panels with a minimum surface density of 4 pounds per
square foot; or,
c. From common construction materials such as plywood with a minimum surface density of 4
pounds per square foot.
Monitoring Action: Provide Temporary Noise Barrier
Timing: During Phase I Construction
Responsibility: Planning Director
7. To avoid potential annoyance /interference due to vibration from Phase II construction, heavy
equipment (backhoes, dozers, graders, loaders, etc.) must not be operated within 77 feet of the existing
theatre to the north (Building 3, High Street Arts Center) during performances.
Monitoring Action: Do not Operate Heavy Equipment within 77 feet of High Street Arts
Center during performances
Timing: During Phase If Construction
Responsibility: Planning Director
3
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Moorpark Station
8. To avoid potential building damage due to vibration from Phase I construction, heavy equipment
(backhoes, dozers, graders, loaders, etc.) shall not be operated within 15 feet of the existing on -site
restaurant (Building 19). If the required distance cannot be maintained then the following measures shall
be implemented:
a. Qualified structural and geotechnical engineers shall review the peak vibration velocities
estimated in this report, and determine if there are any risks to the restaurant building, including possible
risks from dynamic soil settlement induced by the vibration. If the structural or geotechnical engineers
identify any potential risks, they shall take all necessary steps to protect the building including, but not
limited to, photographing and /or videotaping the building in order to provide a record of the existing
conditions before construction.
b. If considered appropriate by a qualified structural engineer or geotechnical engineer, an
engineer shall be on -site during the construction activities and perform such tests and observations as are
necessary to ensure the structural stability of the building. This may include vibration measurements
obtained inside or outside of the building.
Monitoring Action: Do not Operate Heavy Equipment within 15 feet of Existing On -Site
Restaurant or Monitor Vibration if required.
Timing: During Phase I Construction
Responsibility. Planning Director
9. Developer must pay a fair -share contribution by the Project for Intersection Improvements toward
the mitigation of Moorpark Avenue and High Street intersection improvements. Project contribution is
estimated at 5 %.
Monitoring Action: Payment of Fair -Share Contribution
Timing: Prior to Zoning Clearance for Construction
Responsibility: Planning Director /Public Works Director
AGREEMENT TO PROPOSED MITIGATION MEASURES AND
MONITORING AND REPORTING PROGRAM
In accordance with the CEQA Guidelines Section 15070 (California Code of Regulations Title 14, Chapter 3,
Article 6), this agreement must be signed prior to release of the Mitigated Negative Declaration for public
review.
I, THE UNDERSIGNED PROJECT APPLICANT, HEREBY AGREE TO MODIFY THE PROJECT DESIGN,
CONSTRUCTION OR OPERATION AS NECESSARY TO INCLUDE ALL OF THE ABOVE - LISTED
MITIGATION MEASURES IN THE PROJECT.
I/ b
Signatur roject AM C ant Date
4
M.N.
Moorpark Station
4) Create a new source of substantial light or glare which
would adversely affect day or nighttime views in the
area?
Response:
Sources:
Mitigation:
X
The project will result in the demolition and removal of a dilapidated structure, to be replaced
with a commercial center with architecture consistent with the surrounding area and
consistent with the Downtown Specific Plan. The Site is not located within an identified
scenic corridor and there are no scenic resources on site. The existing Pepper trees located
along High Street are required to be retained as part of the City's adopted Pepper Tree
Maintenance Program for High Street. Normal street lighting and residential light sources will
not have a significant impact on vistas and will be evaluated and be consistent with the City's
lighting ordinance. Architecture and landscaping will be evaluated for consistency with City
standards.
Project Description, General Plan Land Use Element (1992). Downtown Specific Plan, High
Street Pepper Tree Maintenance Plan
None Required
B. AGRICULTURE RESOURCES — In determining whether impacts to agricultural resources are
significant environmental effects, the City of Moorpark may refer to the California Agricultural Land
Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an
optional model to use in assessing impacts on agriculture and farmland. Would the project:
1) Convert Prime Farmland, Unique Farmland, or Farmland x
of Statewide Importance (Farmland), as shown on
maps prepared pursuant to the Farmland Mapping and
Monitoring Program of the California Resources
agency, to non - agricultural use?
2) Conflict with existing zoning for agricultural use, or a X
Williamson Act contract?
3) Involve other changes in the existing environment which, X
due to their location or nature, could result in
conversion of Farmland, to non - agricultural use?
Response:
The project is an infill development within an urbanized area and will not affect agriculture
resources. The Ventura County Important Farmland Map classifies the site as "Urban and
Built -Up land ".
5
WN
Less Than
Potentially
Significant Less Than
Significant
With Significant No
Impact
Mitigation Impact Impact
A. AESTHETICS — Would the project:
1) Have a substantial adverse effect on a scenic vista?
X
2) Substantially damage scenic resources, including, but
X
not limited to, trees, rock outcroppings, and historic
buildings within a state scenic highway?
3) Substantially degrade the existing visual character or
X
quality of the site and its surroundings?
4) Create a new source of substantial light or glare which
would adversely affect day or nighttime views in the
area?
Response:
Sources:
Mitigation:
X
The project will result in the demolition and removal of a dilapidated structure, to be replaced
with a commercial center with architecture consistent with the surrounding area and
consistent with the Downtown Specific Plan. The Site is not located within an identified
scenic corridor and there are no scenic resources on site. The existing Pepper trees located
along High Street are required to be retained as part of the City's adopted Pepper Tree
Maintenance Program for High Street. Normal street lighting and residential light sources will
not have a significant impact on vistas and will be evaluated and be consistent with the City's
lighting ordinance. Architecture and landscaping will be evaluated for consistency with City
standards.
Project Description, General Plan Land Use Element (1992). Downtown Specific Plan, High
Street Pepper Tree Maintenance Plan
None Required
B. AGRICULTURE RESOURCES — In determining whether impacts to agricultural resources are
significant environmental effects, the City of Moorpark may refer to the California Agricultural Land
Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an
optional model to use in assessing impacts on agriculture and farmland. Would the project:
1) Convert Prime Farmland, Unique Farmland, or Farmland x
of Statewide Importance (Farmland), as shown on
maps prepared pursuant to the Farmland Mapping and
Monitoring Program of the California Resources
agency, to non - agricultural use?
2) Conflict with existing zoning for agricultural use, or a X
Williamson Act contract?
3) Involve other changes in the existing environment which, X
due to their location or nature, could result in
conversion of Farmland, to non - agricultural use?
Response:
The project is an infill development within an urbanized area and will not affect agriculture
resources. The Ventura County Important Farmland Map classifies the site as "Urban and
Built -Up land ".
5
WN
Sources:
Mitigation:
Less Than
Potentially Significant
Significant With
Impact Mitigation
Moorpark Station
Less Than
Significant No
Impact Impact
Project Description, California Dep't of Conservation: Ventura County Important Farmland
Map (2006)
None Required
C. AIR QUALITY — Would the project:
1) Conflict with or obstruct implementation of the applicable X
air quality plan?
2) Violate any air quality standard or contribute X
substantially to an existing or projected air quality
violation?
3) Result in a cumulatively considerable net increase of any X
criteria pollutant for which the project region is non
attainment under an applicable federal or state ambient
air quality standard (including releasing emissions
which exceed quantitative thresholds for ozone
precursors)?
4) Expose sensitive receptors to substantial pollutant X
concentrations?
5) Create objectionable odors affecting a substantial number X
of people?
Response:
Sources:
Mitigation:
According to the 2003 Ventura County Air Quality Assessment Guidelines, this size project will
produce less than the allowable 25 pound threshold of NOX, resulting in the conclusion that there
will not be an impact on regional air quality. As is required with all commercial /industrial projects
a standard condition of approval of any entitlement application will require a contribution to the
Moorpark Traffic Systems Management Fund to off -set air pollutants, consistent with the 2003
Ventura County Air Quality Assessment Guidelines.
Project Description, Ventura County Air Pollution Control District: Ventura County Air Quality
Assessment Guidelines (2003)
None Required
D. BIOLOGICAL RESOURCES — Would the project:
1) Have a substantial adverse effect, either directly or
through habitat modifications, on any species identified
as a candidate, sensitive, or special status species in
local or regional plans, policies, or regulations, or by the
California Department of Fish and Game or U.S. Fish
and Wildlife Service?
2) Have a substantial adverse effect on any riparian habitat
or other sensitive natural community identified in local or
regional plans, policies, regulations or by the California
Department of Fish and Game or US Fish and Wildlife
Service?
3) Have a substantial adverse effect on federally protected
0
X
X
X
• •,
4) Interfere substantially with the movement of any native X
resident or migratory fish or wildlife species or with
established native resident or migratory wildlife corridors,
or impede the use of native wildlife nursery sites?
5) Conflict with any local policies or ordinances protecting X
biological resources, such as a tree preservation policy
or ordinance?
6) Conflict with the provisions of an adopted Habitat X
Conservation Plan, Natural Community Conservation
Plan, or other approved local, regional, or state habitat
Response:
Sources:
The project is an infill development within an urbanized area. Due to the highly disturbed
urban setting of the site, there are minimal adverse affects to biological resources. There is
no anticipation that any of the mature Pepper trees along High Street would be removed as a
result of this project. All Pepper trees must be maintained in accordance with the City's
adopted High Street Pepper Tree Maintenance Plan. A nesting survey will be conducted prior
to any site activities that would involve vegetation removal. Based on the survey, vegetation
removal may be postponed.
Project Description, , California Department of Fish and Game: Natural Diversity Data Base -
Moorpark and Simi Valley Quad Sheets (1993), High Street Pepper Tree Maintenance Plan
Mitigation: A nesting survey will be conducted by a qualified biologist prior to the removal of any
vegetation or structures from the site. Vegetation and structure removal will be conducted in
compliance with the recommendations of the nesting survey.
E. CULTURAL RESOURCES — Would the project:
1) Cause a substantial adverse change in the significance of X
a historic resource as defined in §15064.5?
2) Cause a substantial adverse change in the significance of X
an archaeological resource pursuant to §15064.5?
3) Directly or indirectly destroy a unique paleontological
resource or site or unique geologic feature?
4) Disturb any human remains, including those interred X
outside of formal cemeteries?
Response:
The project is an infill development within an urbanized area and will not affect cultural
resources. There are no known or expected cultural resources on the project site.
Sources:
Project Description
7
AM
Moorpark Station
Less Than
Potentially
Significant
Less Than
Significant
With
Significant No
impact
Mitigation
Impact Impact
wetlands as defined by Section 404 of the Clean Water
Act (including, but not limited to, marsh, vernal pool,
coastal, etc.) through direct removal, filling, hydrological
interruption, or other means?
4) Interfere substantially with the movement of any native X
resident or migratory fish or wildlife species or with
established native resident or migratory wildlife corridors,
or impede the use of native wildlife nursery sites?
5) Conflict with any local policies or ordinances protecting X
biological resources, such as a tree preservation policy
or ordinance?
6) Conflict with the provisions of an adopted Habitat X
Conservation Plan, Natural Community Conservation
Plan, or other approved local, regional, or state habitat
Response:
Sources:
The project is an infill development within an urbanized area. Due to the highly disturbed
urban setting of the site, there are minimal adverse affects to biological resources. There is
no anticipation that any of the mature Pepper trees along High Street would be removed as a
result of this project. All Pepper trees must be maintained in accordance with the City's
adopted High Street Pepper Tree Maintenance Plan. A nesting survey will be conducted prior
to any site activities that would involve vegetation removal. Based on the survey, vegetation
removal may be postponed.
Project Description, , California Department of Fish and Game: Natural Diversity Data Base -
Moorpark and Simi Valley Quad Sheets (1993), High Street Pepper Tree Maintenance Plan
Mitigation: A nesting survey will be conducted by a qualified biologist prior to the removal of any
vegetation or structures from the site. Vegetation and structure removal will be conducted in
compliance with the recommendations of the nesting survey.
E. CULTURAL RESOURCES — Would the project:
1) Cause a substantial adverse change in the significance of X
a historic resource as defined in §15064.5?
2) Cause a substantial adverse change in the significance of X
an archaeological resource pursuant to §15064.5?
3) Directly or indirectly destroy a unique paleontological
resource or site or unique geologic feature?
4) Disturb any human remains, including those interred X
outside of formal cemeteries?
Response:
The project is an infill development within an urbanized area and will not affect cultural
resources. There are no known or expected cultural resources on the project site.
Sources:
Project Description
7
AM
Mitigation:
None Required
F. GEOLOGY AND SOILS — Would the project:
1) Expose people or structures to potential substantial
adverse effects, including the risk of loss, injury, or death
Involving:
i) Rupture of a known earthquake fault, as delineated on the
most recent Alquist- Priolo Earthquake Fault Zoning Map
issued by the State Geologist for the area or based on
other substantial evidence of a known fault? Refer to
Division of Mines and Geology Special Publication 42.
ii) Strong seismic ground shaking?
iii) Seismic - related ground failure, including liquefaction?
iv) Landslides?
2) Result in substantial soil erosion or the loss of topsoil?
3) Be located on a geologic unit or soil that is unstable, or
that would become unstable as a result of the project,
and potentially result in on- or off -site landslide, lateral
spreading, subsidence, liquefaction or collapse?
4) Be located on expansive soil, as defined in Table 18 -1 -B
of the Uniform Building Code (1994), creating substantial
risks to life or property?
5) Have soils incapable of adequately supporting the use of
septic tanks or alternative wastewater disposal systems
where sewers are not available for the disposal of waste
Response:
Sources:
Mitigation:
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant
Impact Mitigation Impact
No
Impact
X
X
X
X
X
X
X
X
This project will be built subject to compliance with building codes and compliance with all
project conditions of approval. All plans will be subject to the review and approval of the City
prior to issuance of building permits. The site is not located in an earthquake fault zone. The
site is, however, located in a liquefaction hazard zone; therefore, geotechnical measures will
be incorporated into the project design as required by the Seismic Hazards Mapping Act and
in accordance with the recommendations of a qualified soils engineer.
Project Description , General Plan Safety Element (2001)
None Required
G. HAZARDS AND HAZARDOUS MATERIALS — Would the project:
1) Create a significant hazard to the public or the
X
environment through the routine transport, use, or
disposal of hazardous materials?
2) Create a significant hazard to the public or the X
•#
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant No
Impact Mitigation Impact Impact
environment through reasonably foreseeable upset and
accident conditions involving the release of hazardous
materials into the environment?
3) Emit hazardous emission or handle hazardous or acutely x
hazardous materials, substances, or waste within one -
quarter mile of an existing or proposed school?
4) Be located on a site which is included on a list of x
hazardous materials sites compiled pursuant to
Government Code Section 65962.5 and, as a result,
would it create a significant hazard to the public or the
environment?
5) For a project located within an airport land use plan or, x
where such a plan has not been adopted, within two
miles of a public airport or public use airport, would the
project result in a safety hazard for people residing or
working in the project area?
6) For a project within the vicinity of a private airstrip, would x
the project result in a safety hazard for people residing or
working in the project area?
7) Impair implementation of or physically interfere with an x
adopted emergency response plan or emergency
evacuation plan?
8) Expose people or structures to a significant risk of loss, x
injury or death involving wildland fires, including where
wildlands are adjacent to urbanized areas or where
Response:
Sources:
Mitigation:
are mtermixea wim wnmianas!
There are no known hazards on the project site, nor will new hazards be created as a result
of the project. A soils analysis was conducted on the site to determine if there were higher
than normal traces of asbestos as a result of years of use of the adjacent railroad. Soil
samples were taken at four locations along the south property line. The results of the soil
tests found that while a small amount of an asbestiform mineral (chrysotile) found in one
sample, it is less than the 0.25 percent detection limit necessary to qualify as an "asbestos -
containing material' according to the Asbestos Airborne Toxic Control Measure (ATCM) for
Construction, Grading, Quarrying, and Surface Mining Operations (17CCR Section 93105) set
forth by the California Air Resources Board.
Project Description, General Plan Safety Element (2001); Soil Testing for the Presence of
Asbestos, 12/2/2008
None Required
H. HYDROLOGY AND WATER QUALITY — Would the project:
1) Violate any water quality standards or waste discharge
requirements?
2) Substantially deplete groundwater supplies or interfere
substantially with groundwater recharge such that there
would be a net deficit in aquifer volume or a lowering of
the local groundwater table level (e.g., the production
rate of pre - existing nearby wells would drop to a level
which would not support existing land uses or planned
uses for which permits have been granted)?
0
x
X
91
3) Substantially alter the existing drainage pattern of the site
or area, including through the alteration of the course of
a stream or river, in a manner which would result in
substantial erosion or siltation on- or off -site?
4) Substantially after the existing drainage pattern of the site
or area, including through the alteration of the course of
a stream or river, or substantially increase the rate or
amount of surface runoff in a manner which would result
in flooding on- or off -site?
5) Create or contribute runoff water which would exceed the
capacity of existing or planned stormwater drainage
systems or provide substantial additional sources of
polluted runoff?
6) Otherwise substantially degrade water quality?
7) Place housing within a 100 -year flood hazard area as
mapped on a federal Flood Hazard boundary or Flood
Insurance Rate Map or other flood hazard delineation
map?
8) Place within a 100 -year flood hazard area structures which
would impede or redirect flood flows?
9) Expose people or structures to a significant risk of loss,
injury or death involving i) flooding, including flooding as
a result of the failure of a levee or dam?
ii) inundation by seiche, tsunami, or mudflow?
Sources:
Mitigation:
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant No
Impact Mitigation Impact Impact
X
X
X
X
X
X
X
X
The project must comply with Chapter 15.24 (Floodplain Management) of the Moorpark
Municipal Code. Drainage and flood control devices must be provided in compliance with
City and National Pollutant Discharge Elimination System (NPDES) requirements. According
to the revised preliminary (November 24, 2008) Flood Insurance Rate Map, the project is
within an area of 0.2% (500 year) annual chance of flood.
Project Description, General Plan Safety Element (2001) Revised Preliminary Flood
Insurance Rate Map No. 06111C0816E, November 24, 2008
None Required
1. LAND USE AND PLANNING — Would the project:
1) Physically divide an established community? X
2) Conflict with any applicable land use plan, policy, or X
regulation of an agency with jurisdiction over the project
(including, but not limited to the general plan, specific
plan, local coastal program, or zoning ordinance)
adopted for the purpose of avoiding or mitigating an
environmental effect?
3) Conflict with any applicable habitat conservation plan or X
natural community conservation plan?
10
92
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant No
Impact Mitigation Impact Impact
Response:
The project is an infill development within an urbanized area and is consistent with the
General Plan and Zoning Ordinance of the City of Moorpark and with the Downtown Specific
Plan.
Sources:
Project Description, General Plan Land Use Element (1992) as amended; Downtown Specific
Plan (1998, as amended 2006)
Mitigation:
None Required
J. MINERAL RESOURCES — Would the project:
1) Result in the loss of availability of a known mineral X
resource that would be of value to the region and the
residents of the state?
2) Result in the loss of availability of a locally- important X
mineral resource recovery site delineated on a local
general plan, specific plan or other land use plan?
Response:
Sources:
Mitigation:
The project is an infill development within an urbanized area and will not affect mineral
resources. There are no known mineral resources on site
Project Description, General Plan Open Space, Conservation, and Recreation Element
(1986)
None Required
K. NOISE — Would the project result in:
1) Exposure of persons to or generation of noise levels in X
excess of standards established in the local general plan
or noise ordinance, or applicable standards of other
agencies?
2) Exposure of persons to or generation of excessive X
groundborne vibration or groundborne noise levels?
3) A substantial permanent increase in ambient noise levels X
in the project vicinity above levels existing without the
project?
4) A substantial temporary or periodic increase in ambient X
noise levels in the project vicinity above levels existing
without the project?
5) For a project located within an airport land use plan or,
where such a plan has not been adopted, within two
miles of a public airport or public use airport, would the
project expose people residing or working in the project
area to excessive noise levels?
6) For a project within the vicinity of a private airstrip, would
11
X
X
93
the project expose people residing or working in the
project area to excessive noise levels?
Response:
Sources:
Less Than
Potentially Significant
Significant With
Impact Mitigation
Moorpark Station
Less Than
Significant No
Impact Impact
The Project could potentially result in the exposure of persons to noise levels in excess of the
City of Moorpark's Noise Element of the General Plan at the interior of the Phase II office
building, if not attenuated. The design features required to achieve the noise standard shall
include one or more of the following elements: noise barriers, sound -rated windows and
doors, orientation of windows relative to the street and railroad, upgraded exterior wall and /or
roof construction, insulation batts, and /or forced air ventilation.
Project operation could potentially result in the exposure of persons to noise levels in excess
of the City of Moorpark's municipal code at the Project site if not attenuated. The design
features required to achieve the noise standards shall include one or more of the following
elements: noise barriers, locating activity centers behind buildings and /or away from sensitive
property lines, reduction in hours of operation, procurement specifications for quiet
mechanical equipment, locating mechanical equipment inside buildings and /or away from
sensitive property lines, and screening or enclosing rooftop equipment.
Project construction could result in the exposure of persons to noise levels in excess of the
City of Moorpark's municipal code at the existing on -site restaurant (Building 19) during
Phase I construction and would be considered of short duration, but still in need of mitigation.
Construction of the Project may potentially generate excessive ground -borne vibration or
ground -borne noise levels. These potentially significant impacts may occur in the form of
vibration levels that exceed the building damage threshold at the existing on -site restaurant
(Building 19) during Phase I construction and /or vibration levels that exceed the
annoyance /interference threshold at the theatre to the north of the Project site (Building 3/
High Street Arts Center) if construction were allowed to occur during performances.
Project operations may result in a substantial permanent increase in ambient noise levels in
the Project vicinity above existing levels than without the Project. If not mitigated, this would
be a potentially significant impact.
Project construction will create a substantial temporary or periodic increase in ambient noise
levels in the Project vicinity above existing levels than without the Project. This potentially
significant impact would occur at the existing on -site restaurant (Building 19) during Phase I
construction, if not mitigated.
Project Description, Environmental Noise & Vibration Study for the Proposed High Street
Redevelopment May 27, 2009, General Plan Noise Element (1998)
12
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant No
Impact Mitigation Impact Impact
Mitigation: Once the detailed architectural plans are completed for the Phase II building, an acoustical
verification must be conducted to ensure that the building has been properly designed to
comply with the City's CNEL requirement of 50 dB for interior areas. The design features
required to achieve the noise standard may include one or more of the following elements to
achieve this requirement: noise barriers, sound -rated windows and doors, orientation of
windows relative to the street and railroad, upgraded exterior wall and /or roof construction,
insulation batts, and /or forced air ventilation.
Once the detailed architectural plans are completed for the Project, an acoustical
verification must be conducted to ensure that the Project has been properly designed to
comply with Section 17.53.080 of the City of Moorpark Municipal Code regarding noise
intrusion onto surrounding properties. The design features may include one or more of the
following elements to comply with this section of the Moorpark Municipal Code: noise
barriers, locating activity centers behind buildings and /or away from sensitive property lines,
reduction in hours of operation, procurement specifications for quiet mechanical equipment,
locating mechanical equipment inside buildings and /or away from sensitive property lines,
and screening or enclosing rooftop equipment.
Construction activities shall be scheduled only between 7 a.m. and 7 p.m. Monday through
Saturday. No construction shall be permitted on Sundays or legal holidays.
All construction equipment shall be equipped with properly operating mufflers of a type
recommended by the manufacturer.
To avoid construction noise impacts at the existing on -site restaurant (Building 19) during
Phase I construction, a minimum 10' -high temporary noise barrier shall be erected along the
west boundary of the Phase I Project site between the restaurant and the construction
activity. The noise barrier shall be located as close as possible to the restaurant property and
shall extend from the north Project property line to the south Project property line. The barrier
shall remain in place during Phase I construction. The barrier may be constructed as follows:
a. From acoustical blankets hung over or from a supporting frame. The blankets shall
provide a minimum sound transmission class (STC) rating of 28 and a minimum noise
reduction coefficient (NRC) of 0.80 and shall be firmly secured to the framework with the
sound absorptive side of the blankets oriented towards the equipment. The blankets shall be
overlapped by at least 6" at seams and taped so that no gaps exist. The largest blankets
available shall be used in order to minimize the number of seams. The blankets shall be
draped to the ground to eliminate any gaps at the base of the barrier; or,
b. From commercially- available acoustical panels with a minimum surface density of 4
pounds per square foot; or,
c. From common construction materials such as plywood with a minimum surface density
of 4 pounds per square foot.
To avoid potential annoyance /interference due to vibration from Phase II construction,
heavy equipment (backhoes, dozers, graders, loaders, etc.) shall not be operated within 77
feet of the existing theatre to the north (Building 3) during performances.
To avoid potential building damage due to vibration from Phase I construction, heavy
equipment (backhoes, dozers, graders, loaders, etc.) shall not be operated within 15 feet of
the existing on -site restaurant (Building 19). If the required distance cannot be maintained
then the following measures shall be implemented:
a. Qualified structural and geotechnical engineers shall review the peak vibration velocities
estimated in this report, and determine if there are any risks to the restaurant building,
including possible risks from dynamic soil settlement induced by the vibration. If the structural
or geotechnical engineers identify any potential risks, they shall take all necessary steps to
protect the building including, but not limited to, photographing and /or videotaping the building
in order to provide a record of the existing conditions before construction.
b. If considered appropriate by a qualified structural engineer or geotechnical engineer, an
engineer shall be on -site during the construction activities and perform such tests and
observations as are necessary to ensure the structural stability of the building. This may
include vibration measurements obtained inside or outside of the building.
13
95
Potentially
Significant
Impact
L. POPULATION AND HOUSING — Would the project:
1) Induce substantial population growth in an area, either
directly (for example, by proposing new homes and
businesses) or indirectly (for example, through extension
of roads or other infrastructure)?
2) Displace substantial numbers of existing housing,
necessitating the construction of replacement housing
elsewhere?
3) Displace substantial numbers of people, necessitating the
construction of replacement housing elsewhere?
Response:
Sources:
Mitigation:
Moorpark Station
Less Than
Significant Less Than
With Significant
Mitigation Impact
No
Impact
X
X
X
The project will not induce substantial population growth or displace any housing. There are
no residences on the site and the proposed use is consistent with land use and development
patterns of the area.
Project Description
None Required
M. PUBLIC SERVICES
1) Would the project result in substantial adverse physical
impacts associated with the provision of new or
physically altered governmental facilities, need for new
or physically altered governmental facilities, the
construction of which could cause significant
environmental impacts, in order to maintain acceptable
service ratios, response times or other performance
objectives for any of the public services:
Fire protection?
Police protection?
Schools?
Parks?
Other public facilities?
Response:
X
X
X
X
X
While some incremental impact on public services is to be expected, the impacts are not
significant because development fees and increased property taxes will be paid to fund any
additional required public services.
Sources: Project Description, General Plan Safety Element (2001), General Plan Open Space,
Conservation, and Recreation Element (1986)
Mitigation:
None Required
N. RECREATION
14
W.
1) Would the project increase the use of existing
neighborhood and regional parks or other recreational
facilities such that substantial physical deterioration of
the facility would occur or be accelerated?
2) Does the project include recreational facilities or require
the construction or expansion of recreational facilities
which might have an adverse physical effect on the
Sources:
Mitigation:
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant
Impact Mitigation Impact
No
Impact
X
X
The project will not increase the use of existing recreational resources because passive
recreation areas are planned in the design of the project, and Park and Recreation fees will
be paid to fund recreational resources.
Project Description, General Plan Open Space, Conservation, and Recreation Element
(1986)
None Required
O. TRANSPORTATION/TRAFFIC — Would the project:
1) Cause an increase in traffic which is substantial in relation X
to the existing traffic load and capacity of the street
system (i.e., result in a substantial increase in either the
number of vehicle trips, the volume to capacity ratio on
roads, or congestion at intersections)?
2) Exceed, either individually or cumulatively, a level of X
service standard established by the county congestion
management agency for designated roads or highways?
3) Result in a change in air traffic patterns, including either
an increase in traffic levels or a change in location that
results in substantial safety risks?
4) Substantially increase hazards due to a design feature
(e.g., sharp curves or dangerous intersections) or
incompatible uses (e.g., farm equipment)?
5) Result in inadequate emergency access?
6) Result in inadequate parking capacity?
7) Conflict with adopted policies, plans, or programs
supporting alternative transportation (e.g., bus turnouts,
bicycle racks)?
15
X
X
X
X
X
97
Response:
Sources:
Mitigation:
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant No
Traffic impacts are identified as significant if the traffic generated by a proposed development
will result in a change in traffic conditions at a study intersection that will cause the
volume /capacity ratio to increase beyond a threshold limit specified by the overseeing
agency.
During the existing (Year 2009) conditions scenario, all five study intersections are operating
at LOS D or better during the weekday morning and afternoon peak hours.
Under future (Year 2011 and 2012) with ambient growth and related project conditions, four
of the five study intersections are projected to operate at LOS D or better during the weekday
morning peak hour. The same study intersections would operate at LOS E or worse during
the afternoon peak period, except Moorpark Avenue and First Street/Poindexter Avenue
(operates at LOS D or better).
The Project would be constructed under two Phases, Phase 1 is anticipated to be in
operation by 2011 and Phase 2 is anticipated to be in operation by 2012.
Phase 1 of the Project would include the construction of 25,850 square feet of office and
23,290 square feet of retail space. Phase 2 would include the construction of 12,322 square
feet of office and 10,194 square of restaurant space.
It is estimated that the Project under both Phases would generate about 2,751 "net" daily trips
of which 210 and 234 trips would occur during morning and afternoon peak hour trips,
respectively.
During the future period (Year 2011), with Project (Phase 1) traffic included, four of the five
study intersections are projected to operate at LOS E or worse during the weekday morning
and afternoon peak hours. The remaining intersection would operate at LOS D or better
during both peak periods.
During the future period (Year 2012), with Project (Phases 1 & 2) traffic included, all five of
the study intersections are projected to operate at LOS E or worse during the weekday
morning and afternoon peak hours.
The proposed Project, along with the cumulative development planned in the area, would
create a significant traffic impact at the intersection of Moorpark Avenue and High Street
under both Phases 1 and 2, unless mitigated.
KOA Traffic Impact Analysis for the Aszkenazy Development June 1, 2009, Project
Description, General Plan Circulation Element (1992)
Implementation of proposed intersection improvements would mitigate the cumulative and
project impact to a level of insignificance at the impacted location.
The improvement that can be implemented to improve the level of service to an acceptable
level (LOS E or better) and reduce the Project's traffic impact at the intersection of Moorpark
Avenue and High Street is the widening of Moorpark Avenue and High Street to increase the
capacity of the intersection.
The Project must pay a fair -share contribution of five (5) percent toward the total intersection
improvement costs of Moorpark Avenue and High Street.
16
Moorpark Station
Less Than
Potentially Significant Less Than
Significant With Significant No
Impact Mitigation Impact Impact
P. UTILITIES AND SERVICE SYSTEMS — Would the project:
1) Exceed wastewater treatment requirements of the
applicable Regional Water Quality Control Board?
2) Require or result in the construction of new water or X
wastewater treatment facilities or expansion of existing
facilities, the construction of which could cause
significant environmental effects?
3) Require or result in the construction of new storm water X
drainage facilities or expansion of existing facilities, the
construction of which could cause significant
environmental effects?
4) Have sufficient water supplies available to serve the X
project from existing entitlements and resources, or are
new or expanded entitlements needed?
5) Result in a determination by the wastewater treatment X
provider which serves or may serve the project that it has
adequate capacity to serve the project's projected
demand in addition to the provider's existing
commitments?
6) Be served by the landfill with sufficient permitted capacity X
to accommodate the project's solid waste disposal
needs?
7) Comply with federal, state, and local statutes and X
regulations related to solid waste?
Response:
Utilities and service systems within the area are adequate to serve the project. Development
fees will be paid to fund required utilities and service systems, or they will be provided by the
developer.
Sources: Project Description, Ventura County Watershed Protection District: Technical Guidance
Manual for Stormwater Quality Control Measures (2002)
Mitigation:
None Required
Q. MANDATORY FINDINGS OF SIGNIFICANCE
1) Does the project have the potential to degrade the quality X
of the environment, substantially reduce the habitat of a
fish or wildlife species, cause a fish or wildlife population
to drop below self - sustaining levels, threaten to eliminate
a plant or animal community, reduce the number or
restrict the range of a rare or endangered plant or animal
or eliminate important examples of the major periods of
California history of prehistory?
2) Does the project have impacts that are individually limited, X
but cumulatively considerable? ( "Cumulatively
considerable" means that the incremental effect of a
project are considerable when viewed in connection with
the effects of past projects, the effects of other current
projects, and effects of probable future projects)?
3) Does the project have environmental effects which will X
17
..
Potentially
Significant
Impact
cause substantial adverse effects on human beings,
either directly or indirectly?
Response:
This is an infill project on a previously developed site within an urban setting. The proposed
use is consistent with the City of Moorpark's Zoning and General Plan. Because of the
previous development on the site, the project would not create impacts that would rise to the
level of a mandatory finding of significance. The site does not contain fish or wildlife habitat
and its redevelopment would not restrict the range of a rare or endangered plants or animals.
There are no important examples of the major periods of California history or prehistory on
site. No impacts from the project could be considered individually limited, but cumulatively
considerable as the project is proposed to be developed in a manner consistent with local
zoning codes and plans. There are no environmental effects which will cause substantial
adverse effects on human beings as a result of the project.
Sources:
See below
Earlier Environmental Documents Used in the Preparation of this Initial Study
None
Additional Project References Used to Prepare This Initial Study
One or more of the following references were incorporated into the Initial Study by
reference, and are available for review in the Community Development Office, City Hall,
799 Moorpark Avenue, Moorpark, CA 93021. Items used are referred to by number in the
Response Section of the Initial Study Checklist.
1. Project Description (Attachment 1)
2. Final Traffic Impact Analysis for the Aszkenazy Development June 1, 2009 (Summary and Project
Recommendations, Attachment 2)
3. Final Environmental Noise & Vibration Study for the Proposed High Street Redevelopment May 27,
2009 (Executive Summary, Attachment 3)
4. Phase I Environmental Site Assessment, November 30, 2007 (Findings and Conclusions,
Attachment 4)
5. Limited Phase II Investigation Report, December 21, 2007 (Executive Summary, Attachment 5)
6. Soil Testing for the Presence of Asbestos, December 2, 2008 (Conclusions, Attachment 6)
7.The City of Moorpark's General Plan, as amended
8.The Moorpark Municipal Code, as amended
9. The City of Moorpark Procedures for the Implementation of the California Environmental Quality Act
(CEQA) and the State CEQA Guidelines adopted by Resolution No. 2004 -2224
10. Public Resources Code Section 21000 et. seq. and California Code of Regulations, Title 14
Section 15000 et. seq.
11. Ventura County Air Quality Assessment Guidelines, October 31, 2003
12. Downtown Specific Plan, as amended
13. High Street Pepper Tree Maintenance Plan
IR]
100
Moorpark Station
Less Than
Significant
Less Than
With
Significant No
Miti ation
Impact Im ap ct
Response:
This is an infill project on a previously developed site within an urban setting. The proposed
use is consistent with the City of Moorpark's Zoning and General Plan. Because of the
previous development on the site, the project would not create impacts that would rise to the
level of a mandatory finding of significance. The site does not contain fish or wildlife habitat
and its redevelopment would not restrict the range of a rare or endangered plants or animals.
There are no important examples of the major periods of California history or prehistory on
site. No impacts from the project could be considered individually limited, but cumulatively
considerable as the project is proposed to be developed in a manner consistent with local
zoning codes and plans. There are no environmental effects which will cause substantial
adverse effects on human beings as a result of the project.
Sources:
See below
Earlier Environmental Documents Used in the Preparation of this Initial Study
None
Additional Project References Used to Prepare This Initial Study
One or more of the following references were incorporated into the Initial Study by
reference, and are available for review in the Community Development Office, City Hall,
799 Moorpark Avenue, Moorpark, CA 93021. Items used are referred to by number in the
Response Section of the Initial Study Checklist.
1. Project Description (Attachment 1)
2. Final Traffic Impact Analysis for the Aszkenazy Development June 1, 2009 (Summary and Project
Recommendations, Attachment 2)
3. Final Environmental Noise & Vibration Study for the Proposed High Street Redevelopment May 27,
2009 (Executive Summary, Attachment 3)
4. Phase I Environmental Site Assessment, November 30, 2007 (Findings and Conclusions,
Attachment 4)
5. Limited Phase II Investigation Report, December 21, 2007 (Executive Summary, Attachment 5)
6. Soil Testing for the Presence of Asbestos, December 2, 2008 (Conclusions, Attachment 6)
7.The City of Moorpark's General Plan, as amended
8.The Moorpark Municipal Code, as amended
9. The City of Moorpark Procedures for the Implementation of the California Environmental Quality Act
(CEQA) and the State CEQA Guidelines adopted by Resolution No. 2004 -2224
10. Public Resources Code Section 21000 et. seq. and California Code of Regulations, Title 14
Section 15000 et. seq.
11. Ventura County Air Quality Assessment Guidelines, October 31, 2003
12. Downtown Specific Plan, as amended
13. High Street Pepper Tree Maintenance Plan
IR]
100
MOORPARK STATION
PROJECT DESCRIPTION
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 first phase of the project would include the land east of Maria's Restaurant location
to the improved Metrolink parking lot. The Developer would construct a 49,140 square
foot building to include retail and office uses.
The second phase would include Maria's Restaurant and the vacant land east of the
Moorpark Chamber of Commerce. The building in this phase would consist of 22,516
square feet.
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ATTACHMENT 1
101
[-91: _ w
Traffic Impact Analysis for the
Aszkenazy Development
Moorpark, CA
June I, 2009
Prepared For
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Telephone: (805) 517 -6200
Prepared by:
PP KOA CORPORATION
PLANNING & ENGINEERING
1055 Corporate Center Drive, Suite 300
Monterey Park, California 91754
Telephone: (323) 260 -4703
FAX: (323) 260 -4705
JA81 179
ATTACHMENT 2
102
10. Summary and Project Recommendations
The following are the conclusions made from the analysis within this report.
• During the existing (Year 2009) conditions scenario, all five study intersections are operating at
LOS D or better during the weekday morning and afternoon peak hours.
• Under future (Year 2011 and 2012) with ambient growth and related project conditions, four of
the five study intersections are projected to operate at LOS D or better during the weekday
morning peak hour. The same study intersections would operate at LOS E or worse during the
afternoon peak period, except Moorpark Avenue and First Street/Poindexter Avenue (operates
at LOS D or better).
• The Project would be constructed under two Phases, Phase I is anticipated to be in operation
by 2011 and Phase 2 is anticipated to be in operation by 2012.
• Phase I of the Project would include the construction of 25,850 square feet of office and 23,290
square feet of retail space. Phase 2 would include the construction of 12,322 square feet of
office and 10,194 square of restaurant space.
• It is estimated that the Project under both Phases would generate about 2,751 "net" daily trips
of which 210 and 234 trips would occur during morning and afternoon peak hour trips,
respectively.
• During the future period (Year 2011), with Project (Phase 1) traffic included, four of the five
study intersections are projected to operate at LOS E or worse during the weekday morning
and afternoon peak hours. The remaining intersection would operate at LOS D or better during
both peak periods.
• During the future period (Year 2012), with Project (Phases I & 2) traffic included, all five of the
study intersections are projected to operate at LOS E or worse during the weekday morning
and afternoon peak hours.
• The proposed Project, along with the cumulative development planned in the area, would create
a significant traffic impact at the intersection of Moorpark Avenue and High Street under both
Phases I and 2.
• Implementation of proposed intersection improvements would mitigate the cumulative and
project impact to a level of insignificance at the impacted location.
• The fair -share contribution by the Project toward the mitigation of Moorpark Avenue and High
Street is estimated at 5 %.
Prepared far Gty of Moorpark
Traffic Impact Analysis — Aszkenazy Development
June 1, 2009
KOA Corporation 43
103
WIELAND
ACOUSTICS
nolse @ vibration consultants
WIELAND ACOUSTICS, INC.
2691 Richter Avenue, Suite 114
Irvine, CA 92606
Tel: 949.474.1222
Fax: 949.474.9122
www.wielandacoustics.com
Environmental Noise & Vibration Study for the Proposed
High Street Redevelopment
in the City of Moorpark
Project File 08.085.00
May 27, 2009
Prepared for:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Prepared by:
Jonathan Higginson, Senior Consultant
David L. Wieland, Principal Consultant
ATTACHMENT 3
104
WIELAND
ACOUSTICS
nolsc 8 vl bration consultants
1 Executive Summary
CITY OF MOORPARK
High Street Redevelopment
Project File 08.085.00 - FINAL
The purpose of this study is to identify and assess the potential noise and vibration impacts
associated with the construction and operation of the High Street Redevelopment Project in the City
of Moorpark. The existing Project site consists of surface parking and five buildings. A restaurant and
a thrift,store occupy two of the buildings while the three other buildings on the site are vacant.
Other land uses in the Project vicinity include offices, stores, apartments, a single - family home, a
theatre, a First 5 family resource center, a fire station, a parking lot and a railroad station. The two -
phase Project proposes the removal of the existing on -site structures and the construction of new
buildings and other improvements at the site. Phase I (year 2011) will redevelop the central and east
portions of the Project site and includes a new 2 -story building, a park, and surface parking. Phase 11
(year 2012) will redevelop the west portion of the Project site and includes another new 2 -story
building, a diner, and additional surface parking. The new buildings will accommodate retail, office,
and restaurant uses.
In order to identify the existing noise and vibration environment, measurements were taken at eight
locations throughout the study area. The introduction of new noise sources, such as construction
activities, Project - related traffic, and on -site operations, will result in a change to the noise and
vibration environment at existing properties in the vicinity of the Project.
Using the criteria established in this study, it may be concluded that construction of the proposed
Project may create significant impacts at some existing properties in the study area. Significant noise
impacts will also occur at some proposed Project buildings as a result of the railroad to the south.
Project operation may result in potentially significant impacts at the surrounding properties.
There will be no significant increases in railroad or traffic noise at the commercial properties north
of High Street as a result of the Project (refer to the results in Section 16 and the noise contour
figures of Appendix II for further details).
The following measures are recommended to mitigate the significant impacts associated with the
Project:
1. An acoustical study shall be required for the Phase II building to verify that the building has been
properly designed to comply with the City's CNEL requirement of 50 dB for interior areas. The
design features required to achieve the noise standard shall include one or more of the
following elements, as verified by the acoustical study: noise barriers, sound -rated windows and
doors, orientation of windows relative to the street and railroad, upgraded exterior wall and /or
roof construction, insulation batts, and /or forced air ventilation.
2. An acoustical study shall be required for the Project to verify that the Project has been properly
designed to comply with Section 17.53.080 of the City of Moorpark municipal code regarding
noise intrusion onto surrounding properties. The design features required to achieve the noise
standards shall include one or more of the following elements, as verified by the acoustical
study: noise barriers, locating activity centers behind buildings and /or away from sensitive
property lines, reduction in hours of operation, procurement specifications for quiet mechanical
www.wielandacoustics.com
1
May 27, 2009
105
`l � ELAND CITY OF MOORPARK
ACOUSTICS High Street Redevelopment
noise a vibration consultants Project File 08.085.00 - FINAL
equipment, locating mechanical equipment inside buildings and /or away from sensitive
property lines, and screening or enclosing rooftop equipment.
3. Construction activities shall be scheduled only between 7 a.m. and 7 p.m. Monday through
Saturday. No construction shall be permitted on Sundays or legal holidays.
4. All construction equipment shall be equipped with properly operating mufflers of a type
recommended by the manufacturer.
To avoid construction noise impacts at the existing on -site restaurant during Phase
construction, a minimum 10' -high temporary noise barrier shall be erected along the west
boundary of the Phase I Project site, between the restaurant and the construction activity.
Acceptable construction materials for the barrier include: a) acoustical blankets hung over a
supporting frame; b) commercially - available acoustical panels; or, c) common construction
materials such as plywood. Refer to Section 20 for additional construction information/
specifications.
6. To avoid potential annoyance /interference due to vibration from Phase II construction, heavy
equipment (backhoes, dozers, graders, loaders, etc.) shall not be operated within 77 feet of the
existing theatre to the north.
To avoid potential building damage due to vibration from Phase I construction, heavy
equipment (backhoes, dozers, graders, loaders, etc.) shall not be operated with 15 feet of the
existing on -site restaurant. If the required distance cannot be maintained then the following
measures shall be implemented:
Qualified structural and geotechnical engineers shall review the peak vibration velocities
estimated in this report, and determine if there are any risks to the restaurant building,
including possible risks from dynamic soil settlement induced by the vibration. If the
structural or geotechnical engineers identify any potential risks, they shall take all necessary
steps to protect the building including, but not limited to, photographing and /or videotaping
the building in order to provide a record of the existing conditions before construction.
b. If considered appropriate by a qualified structural engineer or geotechnical engineer, an
engineer shall be on -site during the construction activities and perform such tests and
observations as are necessary to ensure the structural stability of the building. This may
include vibration measurements obtained inside or outside of the building.
Depending on the final details of the Phase II construction schedule for the Project, it may not be
possible to maintain the recommended minimum distance between construction vibration sources
and the theatre to the north (mitigation measure 6), in which case an unmitigated impact may
occur. It is noted that, if such an impact does occur it will be sporadic and temporary, will diminish
over the course of construction, and will cease entirely at the completion of the Project. Assuming
all the mitigation measures are properly implemented, there will be no other unmitigated impacts
as a result of the Project.
www.wielandacoustics.com
2
May 27, 2009
106
WAING-1MIN
A.G.I. GEOTECHNICAL, INC.
16555 Sherman Way, Suite A - Van Nuys, CA 91406 - (818) 785 -5244 - FAX (818) 785 -6251
November 30, 2007
Moorpark Redevelopment Agency
799 Moorpark Avenue
Moorpark, CA 93021
Attention: Ms. Jessica Sczepan
Subject: PHASE I ENVIRONMENTAL SITE ASSESSMENT
192 East High Street
Moorpark, California
APN# 512 -0- 090 -105
Dear Ms. Sczepan:
Project No. 17- 3141 -80
Pursuant to your request, we have conducted a Phase I Environmental Site Assessment on the
property located on the south side of East High Street between Moorpark Avenue and Magnolia
Street in the City of Moorpark, California. The assessment was performed in October and
November, 2007. The report is presented in two sections. Section 1 is a summary of the data
gathered and reviewed during the course of this site assessment. Section 2 presents a summary
of our findings and conclusions.
If you have any questions regarding the information presented in this report, please do not
hesitate to contact our office. We appreciate the opportunity to be of service to you.
Sincerely,
A.G.I., GEOTECHNICAL, INC.
- I ka P.. b7p '( -\.
7/A. Vidal, R.E.A. 0464 ' �; ex�:.z _� -3a •o , as C. Brudos
sT4N FESS
JAVITCB:tcb
Distribution: (6) City of Moorpark Redevelopment Agency No. 861
EXP. 12-31-07
` �aTFCHN�G�,,�PI/
Engineering Geology - Soil Engineering - Environmental Studies
ATTACHMENT 4
107
Moorpark Redevelopment Agency
Project No. 17- 3141 -80
Page 30
High Street. The 1993 GTE directory lists "The Children's Hour" and "The Gas Station" under
this address. The 1996 GTE directory list "The Gas Station" at 213 East High Street. The-2002
Haines directory lists the Gas Station at 213 East High Street. During our site walk, AGI noted
the presence of a concrete island and canopy on this property, consistent with the layout of,a gas
station. However, this off -site property is not listed on any databases for underground storage
tanks and leaking underground storage tanks. In addition, the property owners would be
responsible for any contamination on their site. AGI concludes the property at 213 High Street
does not represent a significant environmental threat to the subject site.
Section 2
5.0 FINDINGS AND CONCLUSIONS
5.1 Findings
Based upon the information that has been obtained during the course of this investigation, the
following our are findings.
AGI recommends a Phase II Environmental Study be performed on the eastern portion of the site
in the vicinity of 220/222 East High Street (presently One More Time Thrift Shop) and the
former location of 224/226 East High Street, just east of the thrift shop. Several documents and
historical records indicate that enterprises associated with hazardous materials (e.g., solvents,
fuels, paints) occupied this portion of the property.
1. A Zoning Clearance on file at the City of Moorpark Department of Building and Safety dated
November 20, 1989 listed the proposed use of 224/226 East High Street as "Auto Detailing ".
2. A Memo dated October 6, 1993 on file at the City of Moorpark Department of Building and
1'
Moorpark Redevelopment Agency
Project No. 17- 3141 -80
Page 31
Safety outlines the storage of paints, thinner, gas, and unidentified materials at 224/226 East
High Street.
3. The 1993 GTE Phone Directory listed Tony's Auto and Truck Repair at 226 East High Street.
These documents show the potential of adverse environmental impact to the subject property at
this location (224/226 East High Street) from past storage and use of hazardous materials.
The present potential for hazardous materials contamination from other properties appears to be
low. At the time of the border zone reconnaissance there was no evidence which would indicate
any environmental hazards from possible nearby sources.
We reviewed the data provided by the government agencies in the EDR report and found that any
"open cases" being studied by the regulatory agencies will not have an adverse impact on the site
due to the location of nearby case sites with respect to the subject site.
Based on information obtained during this Phase I Environmental Site Assessment, further action
toward the determination of the presence of any hazardous materials on the site is warranted
based on the data outlined above.
6.0 LIMITATIONS
This Phase I Environmental Site Assessment was completed in accordance with generally
accepted industry practice for determining the likelihood of the presence of hazardous substances
at or beneath the site. Information presented in this report is based on visual review, limited
research, review of maps, experience, and professional judgement. No sampling or testing was
conducted. This assessment is not, and should not be construed as, a warranty or guarantee
concerning the presence or not of hazardous substances which may affect the property. All
discovered information has been disclosed and a good faith effort has been made to consult
109
LIMITED PHASE II INVESTIGATION REPORT
192 East High Street
APN # 5.12 -0 -090 -105
Moorpark, California
Project No. 17- 3141 -81
Prepared For:
Moorpark Redevelopment Agency
799 Moorpark Avenue
Moorpark, CA 93021
Prepared By:
AGI Geotechnica[, Inc.
16555 Sherman Way, Suite A
Van Nuys, CA 91406
December 21, 2007
ATTACHMENTS
110
EXECUTIVE SUMMARY
Based on our findings presented in our Phase I Environmental Site Assessment Report for the
subject site (Nov.2007), we have performed a limited phase II site investigation on the eastern
portion of the site in the vicinity of 220/222 East High Street (presently One More Time Thrift
Shop) and the former location of 224/226 East High Street, immediately east of the thrift shop. The
fieldwork was performed on November 16, 2007. Five soil borings were advanced with hand -held
augering and sampling equipment with soil samples collected at discrete depths from 1 foot below
ground surface (bgs) to a maximum depth of approximately 8 feet bgs. No groundwater was
encountered during sampling.
Laboratory analyses of select soil samples collected from the borings indicated that concentrations
of total petroleum hydrocarbons as gasoline (TPH -G) were not detected, total petroleum
hydrocarbons as diesel (TPH -D) were not detected and total petroleum hydrocarbons as waste oil
(TPH -W.O.) were below laboratory reporting limits to 532 mg/kg. Analysis on select soil samples
did not detect Volatile Organic Compounds in all samples analyzed. CAM 17 metals analytical
results in select soil samples were reported below 10 X Soluble Threshold Limit Concentrations
(STLC) in all samples analyzed.
Based on our field observations and laboratory analytical results as presented in this report, no
chemical constituents were encountered above regulatory action levels. No additional site
investigation seems to be necessary for the Property.
111
a�a
A.G.I. GEOTECHNICAL, INC.
16555 Sherman Way, Suite A - Van Nuys, CA 91406 - (818) 785 -5244 - FAX (818) 785 -6251
December 2, 2008
Moorpark Redevelopment Agency
799 Moorpark Avenue
Moorpark, CA 93021
Attention: Ms. Jessica Sandifer
Project No. 17- 3141 -83
Subject: SOIL TESTING FOR THE PRESENCE OF ASBESTOS
192 E. High Street
APN #512 -0- 090 -105
Moorpark, California
Pursuant to your request, we have completed our analyses for the presence of asbestos in the
samples of the soil at the subject site. We have prepared this report to present the results of the
analyses.
If you have any questions regarding the information presented in this report, please do not
hesitate to contact our office. We appreciate the opportunity to be of service to you.
Sincerely, pSAL ilG
A.G.I., GEOTECHNICAL, INC.
* No. 8355
Martha Sgriccia, P.G. 8355, C.E.G. 2494 q�c op cA��FoP
Engineering Geologist
Distribution: (6) City of Moorpark Redevelopment Agency
w — No. 2494
ElRTiRED M
er+c+iNeear�
\� Qeowmar .P/
Engineering Geology - Soil Engineering - Environmental Studies
ATTACHMENT 6
112
CONCLUSIONS
Asbestos is a term used to describe six commercially important silicate minerals; chrysotile,
tremolite, actinolite, anthophyllite, riebeckite and cummingtonite. All can occur naturally in the
soil but chrysotile is the most common and is found in many places in California. It is derived
from the weathering of rocks containing serpentine or amphibole minerals such as serpentinite,
some granitic rocks and a variety of less common rock types. According to a report by Churchill
and Hill (2000), which offers a general guide to areas in California most likely to contain
naturally occurring asbestos (NOA), the subject site is not included in or near such an area.
Based on our testing we cannot say whether the chrysotile fiber detected in Sample 1 is a product
of past industrial activities or occurs naturally in the soil. The small amount of chrysotile
detected and the fact that asbestos was not detected in Samples 2, 3, and 4 would suggest the
latter. Although not a significant source of NOA the rocks that underlie the Simi Hills to the
north of the site consist primarily of weakly consolidated sand and gravel of the Saugus
Formation that were deposited by rivers and streams. Some of the gravel and sand grains are
composed of mafic rocks that may contain asbestiform minerals. As the hills erode the sand and
pebbles wash down and are deposited on the valley floor as sediment. This may account for the
presence of chrysotile in Sample 1.
According to the Asbestos Airborn Toxic Control Measure (ATOM) for Construction, Grading,
Quarrying, and Surface Mining Operations (17CCR Section 93105) set forth by the California
Air Resources Board the weight percent of asbestos found in the bulk Sample I (less than 0.1
percent) via CARB 435 testing method is less than the 0.25 percent detection limit necessary to
qualify as an "asbestos- containing material ". Based on the testing results of the four bulk soil
samples we conclude that asbestos dust mitigation plans as outlined in the ATCM Section 93105
are not necessary at this time.
113
EXHIBIT F
RESOLUTION NO. 2009-
A RESOLUTION OF THE REDEVELOPMENT AGENCY OF
THE CITY OF MOORPARK, CALIFORNIA, APPROVING
THE DISPOSITION AND DEVELOPMENT AGREEMENT
BETWEEN THE MOORPARK REDEVELOPMENT
AGENCY AND ASZKENAZY DEVELOPMENT, INC.
WHEREAS, the City Council of the City of Moorpark, adopted the
Redevelopment Plan for the Moorpark Redevelopment Project ( "Plan ") on July 5, 1989,
by Ordinance No. 110, in accordance with the California Community Redevelopment
Law (Health and Safety Code Section 33000 et seq.); and
WHEREAS, the Moorpark Redevelopment Agency ( "Agency ") purchased the
east 800 feet of APN 512 -0- 090 -100 ( "Property ") for redevelopment purposes; and
WHEREAS, the Agency negotiated a Disposition and Development Agreement
with Aszkenazy Development, Inc. ( "Developer ") to construct one commercial building in
accordance with the Plan; and
WHEREAS, a proposed Disposition and Development Agreement was on the
Agency's November 19, 2008 agenda; however, the Agency Board continued the item
until December 3, 2008, at the request of staff; and
WHEREAS, on December 3, 2008, the Agency removed the Disposition and
Development Agreement from calendar; and
WHEREAS, the Agency considered the proposed Disposition and Development
Agreement at their meeting of December 16, 2009, adopted Resolution No. 2009 -
approving a Mitigated Negative Declaration and Mitigation Monitoring and Reporting
Program, and reached its decision on the Disposition and Development Agreement.
NOW, THEREFORE, THE REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Agency approves and authorizes the Chair to execute 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.
114
PASSED AND ADOPTED this 16th day of December, 2009.
Janice S. Parvin, Chair
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
115
RECEIVED RDA ITEM 5.A.
DEC 16 2009 DIVI
Cm(0 RMOORPARK
DRAFT
Traffic Impact Analysis for the
Aszkenazy Development
Moorpark, CA
December 11, 2009
Prepared For
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Telephone: (805) 517 -6200
Prepared by:
KOA CORPORATION
PLANNING & ENGINEERING
1055 Corporate Center Drive, Suite 300
Monterey Park, California 91754
Telephone: (323) 260 -4703
FAX: (323) 260 -4705
JA81 179
7. Summary and Project Recommendations
The following are the conclusions made from the analysis within this report.
• During the existing (Year 2009) conditions scenario, all five study intersections are operating at
LOS D or better during the weekday morning and afternoon peak hours.
Under future (Year 2011 and 2012) with ambient growth and related project conditions, all of
the study intersections are projected to operate at LOS D or better during the weekday
morning peak hour, except at the intersection of Moorpark Avenue and High Street where it is
anticipated to operate at LOS E. During the afternoon peak hour, two of the five study
intersections are projected to operate at LOS D or better in 2011; One of the five study
intersections is projected to operate at LOS D or better in 2012.
• The Project would be constructed in two Phases. Phase I is anticipated to be in operation by
2011 and Phase 2 is anticipated to be in operation by 2012.
• Phase I of the Project would include the construction of 25,850 square feet of office and 23,290
square feet of retail space. Phase 2 would include the construction of 12,322 square feet of
office and 10,194 square feet of restaurant space.
• It is estimated that the Project under both Phases would generate about 2,751 daily trips of
which 210 and 234 trips would occur during the morning and afternoon peak hours,
respectively.
• For the future (Year 201 1) condition with Project (Phase 1) traffic included, all of the study
intersections are projected to operate at the same LOS during both peak hour periods
compared to the future (Year 201 1) baseline condition, except at the intersection of Spring
Road and High Street during the afternoon peak hour where it would operate at LOS D without
the Project and LOS E with the Project. Four of the five study intersections during the morning
peak hour and one of the five study intersections during the afternoon peak hour are projected
to operate at LOS D or better.
• For the future (Year 2012) condition with Project (Phases I & 2) traffic included, all of the study
intersections are projected to operate at the same LOS during both peak hour periods
compared to the future (Year 2012) baseline condition. Four of the five study intersections
during the morning peak hour and one of the five study intersections during the afternoon peak
hour are projected to operate at LOS D or better.
The proposed Project traffic, along with the cumulative developments traffic in the area, are
projected to cause the intersection of Moorpark Avenue and High Street to operate at a
deficient level of service (i.e. LOS F) during the afternoon peak hour under both Phases I and 2.
The intersection of Moorpark Avenue and High Street is projected to operate at a V/C better
than the V/C level without the Project for both Phases I and 2. Thus, this intersection is
considered mitigated to an acceptable level with the proposed improvement.
Prepared for Gry of Moorpark
Traffic Impact Analysis — Aszkenazy Development
KOA Corporation 43
Decembe11,1009
9. Developer must improve Moorpark Avenue, on the south side of the High Street
intersection to provide one left -turn lane, one through lane, and one right -turn lane in the
northbound direction, including the necessary feasibility studies, engineering, and design of the
improvement, to the satisfaction of the City of Moorpark and Caltrans.
Monitoring Action: Improvement of Moorpark Avenue on the south side of the High Street
intersection.
Timing: Prior to Zoning Clearance for Occupancy
Responsibility: Planning Director /Public Works Director
CITY OF MOORPARK, CALIFORNIA
Redevelopment Agency Meeting
Of IA -161-011069
ACTION:
lut
ITEM 6.A.
BY:
MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Agency Board of Directors
FROM: David C. Moe II, Redevelopment Manager
DATE: December 4, 2009 (Agency Meeting of 12/16/09)
SUBJECT: Consider Approving an Agreement with Urban Futures, Inc. for
Professional Consulting Services to Analyze the Feasibility of
Adding Area to the Redevelopment Project Area
BACKGROUND & DISCUSSION
Staff is considering an amendment to the Moorpark Redevelopment Plan to expand the
project area boundary slightly to the west and northeast. The area proposed to be
incorporated into the project area is the vacant lot west of the Edison transfer station,
which is the proposed site for the Commonwealth Studio project, and the southwestern
portion of the Campus Park neighborhood ( "Proposed Area "). The Proposed Area
includes approximately 200 acres, which would increase the size of the current project
area by about 16% from 1,217 acres to 1,417 acres.
Staff has received a proposal from Urban Futures, Inc. ( "UFI ") to analyze the feasibility
of adding the Proposed Area and prepare an opinion letter detailing the findings. The
analysis will consider urbanization issues, physical and economic blight, public health
and safety concerns, and financial impacts of the new project area. The cost to conduct
the analysis shall not exceed $17,750.00.
FISCAL IMPACT
The funds needed to finance this agreement can be absorbed in the Agency's existing
budget.
STAFF RECOMMENDATION
Authorize the Executive Director of the Redevelopment Agency to execute the
Professional Services Agreement for this transaction, subject to final language approval
by Executive Director and Agency Counsel.
ATTACHMENT "A" Professional Services Agreement
116
AGREEMENT FOR PROFESSIONAL SERVICES
BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF MOORPARK AND URBAN FUTURES, INC. FOR
PROJECT AREA EXPANSION FEASIBILITY OPINION
This Agreement is made and entered into in the City of Moorpark on this
day of ' 2009, by and between the Redevelopment Agency of
the City of Moorpark ( "Agency "), a public body, corporate and politic, and Urban Futures,
Inc., a California corporation providing consultant services ( "Consultant "). In
consideration of the mutual covenants and conditions set forth herein, the parties agree
as follows:
1. Term
This Agreement shall commence on the date it is executed hereof, and shall
remain and continue in effect until the tasks described herein, and on any amendments
hereto, are completed, unless sooner terminated pursuant to the provisions of this
Agreement.
2. Services
Agency hereby retains Consultant in a contractual capacity to perform a feasibility
study on an expansion of the Redevelopment Project Areas as set forth in Exhibit A,
Proposal, attached hereto and incorporated herein. If the Proposal is modified by this
Agreement, or in the event there is a conflict between the provisions of the Proposal and
this Agreement, the language contained in this Agreement shall take precedence.
3. Performance
Consultant shall at all times faithfully, competently and to the best of his /her
ability, experience, and talent, perform all tasks described herein. Consultant shall
employ, at a minimum, generally accepted standards and practices utilized by persons
engaged in providing similar services as are required of Consultant hereunder to meet its
obligations under this Agreement.
4. Responsible Individuals
The individual directly responsible for Consultant's overall performance of the
Agreement provisions herein above set forth and to serve as principal liaison between
Consultant and Agency shall be Marshall Linn, or his designee.
The Executive Director, or his designee, shall represent Agency in all matters
pertaining to the administration of this Agreement, review and approval of all products
Professional Services Agreement between Page 1 of 8
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117
submitted by Consultant. The Executive Director is authorized to act on Agency's behalf
to execute all necessary documents which increase the scope of services or change
Consultant's compensation, subject to Section 5 hereof.
5. Payment
a) For providing services as specified in this Agreement, Agency shall pay and
Consultant shall receive as full compensation a total sum not -to- exceed $17,750.00,
which includes out of pocket expenses for the Consultant. In no event shall total
compensation for the herein described work exceed that described in the Proposal
without prior written authorization from Agency.
b) In the event that additional work is required of Consultant, beyond the Scope of
Work for this Agreement, Consultant may be authorized to undertake and complete such
additional work only if such authorization is provided in writing, identifying the exact
nature of the additional work required and a "not -to- exceed" fee to be paid by Agency for
such work.
c) Consultant will submit invoices at the completion of each of the tasks. Invoices
shall be submitted on or about the first business day of the month, or as soon thereafter
as practical, for services provided. Payment shall be made within 30 -days of receipt of
each invoice as to all non - disputed fees. If the Agency disputes any of Consultant's fees
it shall give written notice to Consultant within 15 -days of receipt of an invoice of any
disputed fees set forth on the invoice.
6. Incorporation by Reference
All exhibits herein referenced are hereby incorporated into and made a part of the
Agreement.
7. Suspension or Termination of Agreement without Cause
a) The Agency may at any time, for any reason, with or without cause, suspend or
terminate this Agreement, or any portion hereof, by serving upon the Consultant at least
ten (10) days prior written notice. Upon receipt of said notice, the Consultant shall
immediately cease al.l work under this Agreement, unless the notice provides otherwise.
If the Agency suspends or terminates a portion of this Agreement such suspension or
termination shall not make void or invalidate the remainder of this Agreement.
b) In the event this Agreement is terminated pursuant to this Section, the Agency
shall pay to Consultant the actual value of the work performed up to the time of the
termination, provided that the work performed is of value to the Agency. Upon
Professional Services Agreement between Page 2 of 8
Redevelopment Agency of the City of Moorpark and Urban Futures, Inc.
118
termination of the Agreement pursuant to this Section, the Consultant will submit an
invoice to the Agency pursuant to Section 5 hereof.
8. Default of Consultant
a) The Consultant's failure to comply with the provisions of this Agreement shall
constitute a default. In the event that Consultant is in default for cause under the terms
of this Agreement, Agency shall have no obligation or duty to continue compensating
Consultant for any work performed after the date of default and can terminate this
Agreement immediately by written notice to the Consultant. If such failure by the
Consultant to make progress in the performance of work hereunder arises out of causes
beyond the Consultant's control, and without fault or negligence of the Consultant, it
shall not be considered a default.
b) If the Executive Director, or his designee, determines that the Consultant is in
default in the performance of any terms or conditions of this Agreement, the Executive
Director, or his designee, shall cause to be served upon the Consultant a written notice
of the default. The Consultant shall have ten (10) days after service of said notice in
which to cure the default by rendering a satisfactory performance. In the event that the
Consultant fails to cure its default within such period of time, the Agency shall have the
right, notwithstanding any other provision of this Agreement, to terminate this Agreement
without further notice and without prejudice to any other remedy to which it may be
entitled at law, in equity or under this Agreement.
9. Indemnification and Hold Harmless
Consultant shall indemnify, defend (with counsel reasonably acceptable to
Agency) and hold harmless Agency, and any and all of its employees, officials and
agents ( "the Indemnitees ") from and against any liability (including liability for claims,
suits, actions, arbitration proceedings, administrative proceedings, regulatory
proceedings, losses, expenses or costs of any kind, whether actual, alleged or
threatened, including attorneys' fees and costs, court costs, interest, defense costs, and
expert witness fees), where the same arises out of, are a consequence of, or are in any
way attributable to, in whole or in part, the negligence, willful misconduct, errors or
omissions, or performance of this Agreement by Consultant or by any individual, or entity
for which Consultant is legally liable, including but not limited to officers, agents,
employees or subcontractors of Consultant, except such damage as is caused by
negligence of the Agency or any of its officers, employees, servants, project coordinators
or agents.
Indemnification Provisions from Subcontractors. Consultant agrees to obtain
executed indemnity agreements with provisions identical to those set forth here in this
Professional Services Agreement between Page 3 of 8
Redevelopment Agency of the City of Moorpark and Urban Futures, Inc.
119
Section from each and every subconsultant, or any other person or entity involved by,
for, with, or on behalf of Consultant in the performance of this Agreement. In the event
Consultant fails to obtain such indemnity obligations from others as required here,
Consultant 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 Consultant and shall survive the termination of this
Agreement or this Section.
Agency does not and shall not waive any rights that it may have against
Consultant by reason of this Section, because of the acceptance by Agency, or the
deposit with Agency, of any insurance policy or certificate required pursuant to this
Agreement. The hold harmless and indemnification provisions shall apply regardless of
whether or not said insurance policies are determined to be applicable to any losses,
liabilities, damages, costs and expenses described in Section 9 and 10 of this
Agreement.
10. Insurance
Consultant shall maintain prior to the beginning of and for the duration of this
Agreement insurance coverage as specified in Exhibit B attached to and part of this
Agreement.
11. Independent Consultant
a) Consultant is and shall at all times remain as to the Agency a wholly
independent Consultant. The personnel performing the services under this Agreement
on behalf of Consultant shall at all times be under Consultant's exclusive direction and
control. Neither Agency nor any of its officers, employees, or agents shall have control
over the conduct of Consultant or any of Consultant's officers, employees, or agents,
except as set forth in this Agreement. Consultant shall not at any time or in any manner
represent that it or any of its officers, employees, or agents are in any manner officers,
employees, or agents of the Agency. Consultant shall not incur or have the power to
incur any debt, obligation, or liability whatever against Agency, or bind Agency in any
manner.
b) No employee benefits shall be available to Consultant in connection with the
performance of this Agreement. Except for the fees paid to Consultant as provided in
the Agreement, Agency shall not pay salaries, wages, or other compensation to
Consultant for performing services hereunder for Agency. Agency shall not be liable for
compensation or indemnification to Consultant for injury or sickness arising out of
performing services hereunder.
Professional Services Agreement between Page 4 of 8
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120
12. Notices
Any notices which either party may desire to give to the other party under this
Agreement must be in writing and may be given either by 1) personal service, 2) delivery
by a reputable document delivery service, which provides a receipt showing date and
time of delivery, or 3) mailing in the United States Mail, certified mail, postage prepaid,
return receipt requested, addressed to the address of the party as set forth below or at
any other address as that party may later designate by notice:
Agency: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: Executive Director
Consultant: Urban Futures, Inc.
3111 N. Tustin Avenue
Orange, CA 92865
Attn: Marshall Linn, CEO
13. Assignment
The Consultant shall not assign the performance of this Agreement, nor any part
thereof, nor any monies due hereunder, without prior written consent of the Agency. It is
understood and acknowledged by the parties that Consultant is uniquely qualified to
perform the services provided for in this Agreement.
14. Entire Agreement
This written Agreement, including all writings specifically incorporated herein by
reference, 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 on the parties hereto. Should interpretation
of this Agreement, or any portion thereof, be necessary, it is deemed that this Agreement
was prepared by the parties jointly and equally, and shall not be interpreted against
either party on the ground that the party prepared the Agreement or caused it to be
prepared. No waiver of any provision of this Agreement shall be deemed or shall
constitute, a waiver of any other provision, whether or not similar, nor shall any such
waiver constitute a continuing or subsequent waiver of the same provisions. No waiver
shall be binding, unless executed in writing by the party making the waiver.
Professional Services Agreement between Page 5 of s
Redevelopment Agency of the City of Moorpark and Urban Futures, Inc.
121
15. Anti - Discrimination
In the performance of the terms of this Agreement, Consultant agrees that it will
not engage in, nor permit such subcontractors as it may employ, to engage in
discrimination in employment of persons because of the age, race, color, creed, sex,
sexual orientation, national origin, ancestry, religion, physical disability, medical
disability, medical condition, or marital status of such persons. Violation of this provision
may result in the imposition of penalties referred to in the Labor Code of the State of
California, Section 1735.
16. General Conditions
a) Consultant agrees not to work for any private firm located within the city limits
or its Area of Interest, or for any public agency where its jurisdiction includes all or part of
the Agency without the prior written consent of the Agency, during the term of this
Agreement. Furthermore, Consultant agrees to limit its actions related to economic
interest and potential or real conflicts of interest as such as defined by applicable State
law to the same standards and requirements for designated Agency employees.
b) Agency shall not be called upon to assume any liability for the direct payment
of any salary, wage or other compensation to any person employed by Consultant
performing services hereunder for Agency.
c) At the time of 1) termination of this Agreement or 2) conclusion of all work, all
original reports, documents, calculations, computer files, notes, and other related
materials whether prepared by Consultant or its subcontractor(s) or obtained in the
course of providing the services to be performed pursuant to this Agreement shall
become the sole property of Agency. Any word processing computer files provided to
Agency shall use Microsoft Word for Windows software.
d) Nothing contained in this Agreement shall be deemed, construed or
represented by Agency or Consultant or by any third person to create the relationship of
principal or agent, or of a partnership, or of a joint venture, or of any other association of
any kind or nature between Agency and Consultant.
e) In the event any action, suit or proceeding is brought for the enforcement of, or
the declaration of any right or obligation pursuant to this Agreement or as a result of any
alleged breach of any provision of this Agreement, the prevailing party shall be entitled
to recover its costs and expenses, including reasonable attorneys' fees, from the losing
party, and any judgment or decree rendered in such a proceeding shall include an award
thereof.
Professional Services Agreement between Page 6 of 8
Redevelopment Agency of the City of Moorpark and Urban Futures, Inc.
122
f) Cases involving a dispute between Agency and Consultant may be decided by
an arbitrator if both sides agree in writing on the arbitration and on the arbitrator
selected, with costs proportional to the judgment of the arbitrator.
g) The captions and headings of the various Sections and Exhibits of this
Agreement are for convenience and identification only and shall not be deemed to limit
or define the content of the respective Sections and Exhibits hereof.
h) If any portion of this Agreement is held by a court of competent jurisdiction to
be invalid, void, or unenforceable, the remaining provisions will never - the -less continue
in full force without being impaired or invalidated in any way.
i) No officer, employee, director or agent of the Agency shall participate in any
decision. relating to this Agreement which affects the individual personal interest or the
interest of any corporation, partnership, or association in which he is directly or indirectly
interested, or shall any such person have any interest, direct or indirect, in this
Agreement or the provisions thereof.
17. Governing Law
The Agency and Consultant 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.
18. Authority to Execute this Agreement
The person or persons executing this Agreement on behalf of Consultant warrants
and represents that this individual has the authority to execute this Agreement on behalf
of the Consultant and has the authority to bind Consultant to the performance of its
obligations hereunder.
Professional Services Agreement between Page 7 of 8
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123
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
REDEVELOPMENT AGENCY OF CONSULTANT:
THE CITY OF MOORPARK: Urban Futures, Inc.
Steven Kueny
Executive Director
ATTEST:
Deborah S. Traffenstedt, Agency Secretary
Marshall F. Linn
CEO
Exhibit "A ": Proposal for Professional Services
Exhibit "B ": Insurance Requirements
Professional Services Agreement between
Redevelopment Agency of the City of Moorpark and Urban Futures, Inc.
Page 8 of 8
124
November 12, 2009
Mr. Hugh Riley, Deputy City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
RE: Project Area Expansion Feasibility Opinion
Dear Hugh:
EXHIBIT A
it'
J, 0
. 3 �
We are pleased to submit this letter outlining Urban Futures, Inc.'s scope of work to prepare an opinion
letter regarding the feasibility of adding certain territory to the Moorpark Redevelopment Project. The
study will include the site of the possible Commonwealth Studios, nearby industrial property, and the
College Park neighborhood (collectively, the Study Area).
We intend the study to include a preliminary analysis of urbanization issues, physical and economic
blight, public health and safety issues, and financial impacts of a new project. We also will assess
whether to amend the existing project area or adopt an entirely new project area.
PROJECT TEAM
Marshall Linn, CEO, Doug Anderson, Managing Principal, and Ernie Glover, Managing Principal will work
on the project. Mr. Glover will act as project manager and Mr. Anderson will prepare financial analyses.
Mr. Linn will provide general oversight.
SCOPE OF WORK
The proposed scope of services in regard to a possible Plan Amendment includes:
Task 1 Urban Futures, Inc. will conduct a one day in- field, visual evaluation of physical conditions
existing within the Study Area identified during a meeting with staff on November 6. In addition,
UFI will preliminarily identify additional candidate areas throughout the entire city. During this
one -day field trip, UFI will meet with knowledgeable City staff to identify public service and
health and safety issues in the Study Area, to include but not be limited to flooding, drainage,
access and water service.
Task 2 In order to assess the financial impact of adopting a new redevelopment project area, UFI will
prepare tax increment projections for the Study Area using several development alternatives,
125
Hugh Riley
November 12, 2009
Page - 2
including minimal growth, early buildout of the Commonwealth Studios, and delayed buildout
thereof. These projections will be compared to estimated potential program and infrastructure
costs.
Task 3 UFI will draft a memorandum summarizing the observations as they relate to the California
Community Redevelopment Law, and most particularly Sections 33030 and 33031, thereof. The
memorandum will conclude with a professional opinion about the potential to successfully
engage the redevelopment planning process, for the purpose of including all or part of the
recommended area within a new redevelopment project area, or to amend the existing
redevelopment plan to include new area. The content of the memorandum will be based solely
upon professional experience; as such, it will not be based upon, nor will it contain, parcel -
specific or block -level analyses of physical or economic conditions and land use description,
economic analysis, or other detailed work products. The memorandum will also address such
issues as "costing out" the formal plan adoption process. In addition, we will include a
preliminary adoption schedule for consideration.
Task 4l UFI will transmit hard copy and electronic versions of the memorandum to your offices.
Task 5 At staff direction, UFI will meet with Agency staff to discuss the memorandum, and will be
available to present the findings and recommendations to the Agency Board on a time -and-
materials basis as directed by staff.
PROJECT SCHEDULE
Based on the above Scope of Services, UFI will complete the analysis within a period of approximately
four weeks of official direction to proceed.
The following is a preliminary schedule. A refined production schedule will be prepared as part of
Task 1.
Week
Task
1 and 2
TASK 1— One Day In -Field Evaluation
2
TASK 2 — Financial Analysis
3 and 4
TASK 2 — Draft Memorandum Summary
4
TASK 3 — Transmit Memorandum to Staff
TBD
TASK 4 — Telephone Conference
TBD
TASK 5 — Present Findings to Agency Board
126
Hugh Riley
November 12, 2009
Page - 3
PROJECT COSTS
UFI will accomplish the Scope of Work, subject to the conditions described in this proposal, for a fixed
Professional Services Fee of $17,000 plus direct expenses. This fee includes one field visit to the City and
review /presentation meeting with Agency staff.
The Professional Services Fee does not include out -of- pocket expenses that may be incurred during the
accomplishment of the Scope of Work. Out of pocket expenses include, but are not limited to all other
necessary materials, supplies, services, printing, postage electronic data files, travel, etc. All out -of-
pocket expenses shall be charged on an actual cost basis, plus 10 %.
For budgetary purposes, UFI recommends that the Agency set -aside an estimated $750 (this is a not to
exceed number) to cover out -of- pocket expenses. Therefore, the total recommended budget for the
Scope of Work described above, with an estimated allocation for out -of- pocket expenses, is $17,750.
Further, in the event that the Agency requires any services that are in addition to the Scope of Work,
such additional services will be charged on an actual cost basis at the following rates:
Managing Principal
$
225.00
Principal
$
175.00
Senior Planner
$
120.00
Planners
$
95.00
Associate Staff
$
75.00
Assistant /Technician
$
55.00
Administrative
$
45.00
Again, thank you for the opportunity to present this brief Proposal. We look forward to again working
with you, your staff and the rest of the City team.
Sincerely,
URBAN FUTURES INC.! /�
Marshall F. Linn
CEO
CC: David Moe, Redevelopment Manager
127
WA:u:1r
Insurance Requirements
Prior to the beginning of and throughout the duration of the Work, Consultant will
maintain insurance in conformance with the requirements set forth below. Consultant will
use existing coverage to comply with these requirements. If that existing coverage does
not meet the requirements set forth here, Consultant agrees to amend, supplement or
endorse the existing coverage to do so. Consultant 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.
Consultant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office "Commercial
General Liability" policy form CG 00 01 or the exact 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 are subject to review but in no event less than
$2,000,000 per occurrence and $5,000,000 in the aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no event
to be less than $1,000,000 per accident. If Consultant owns no vehicles, this
requirement may be satisfied by a non -owned auto endorsement to the general liability
policy described above. If Consultant or Consultant employees will use personal autos in
any way on this project, Consultant shall provide evidence of personal auto liability
coverage for each such person.
Professional Liability or Errors and Omissions Insurance as appropriate shall be written
on a policy form coverage specifically designed to protect against acts, errors or
omissions of the consultant and "Covered Professional Services" as designated in the
policy must specifically include work performed under this agreement. The policy limit
shall be no less than $1,000,000 per claim and in the aggregate. The policy must "pay
on behalf of the insured and must include a provision establishing the insurer's duty to
defend. The policy retroactive date shall be on or before the effective date of this
Agreement.
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 or
disease.
Professional Services Agreement between
Redevelopment Agency of the City of Moorpark and DMD Appraisals, Inc.
128
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 of $25,000 self- insured
retention for liability not covered by primary but covered by umbrella. Coverage shall be
provided on a "pay on behalf' basis, with defense costs payable in addition to policy
limits. Policy shall contain a provision obligating insurer at the time insured's liability is
determined, not requiring actual payment by the insured first. There shall be no cross
liability exclusion precluding coverage for claims or suits by one insured against another.
Coverage shall be applicable to the Agency for injury to employees of Consultant,
subconsultants or others involved in the Work. The scope of coverage provided is
subject to approval by the 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.
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. Bests rating of A- or better
and a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Consultant.
Consultant and Agency agree to the following with respect to insurance provided by
Consultant:
1. Consultant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds Agency, its officials,
employees, servants, agents, and independent consultants ( "Agency
indemnities "), using standard ISO endorsement No. CG 2010 with an edition prior
to 1992. Consultant also agrees to require all contractors and subcontractors to
do likewise.
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Consultant, or Consultant's employees, or agents, from waiving the right
of subrogation prior to a loss. Consultant agrees to waive subrogation rights
against Agency regardless of the applicability of any insurance proceeds, and to
require all contractors and subcontractor's to do likewise.
3. All insurance coverage and limits provided by Consultant and available or
applicable to this agreement are intended to apply to the full extent of the policies.
Nothing contained in this Agreement or any other agreement relating to the
Agency or its operations limits the application of such insurance coverage.
Professional Services Agreement between
Redevelopment Agency of the City of Moorpark and DMD Appraisals, Inc.
129
4. 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.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so- called "third party action over" claims, including any exclusion for
bodily injury to an employee of the insured or any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the Agency, as the need arises. Consultant shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability
or reduction of discovery period) that may affect Agency's protection without
Agency's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to Consultant's general liability policy, shall be delivered to Agency
at or prior to the execution of this Agreement. 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 Consultant or deducted from
sums due Consultant, at Agency option.
8. Certificates are to reflect that the insurer will provide 30 days notice to Agency of
any cancellation of coverage. Consultant agrees to require its insurer to modify
such certificates to delete any exculpatory wording stating that failure of the
insurer to mail written notice of cancellation imposes no obligation, or that any
party will "endeavor" (as opposed to being required) to comply with the
requirements of the certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Consultant or any subconsultant, 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. Consultant agrees to ensure that subcontractors, and any other party involved
with the project, who is brought onto or involved in the project by Consultant,
provide the same minimum insurance coverage required of Consultant.
Consultant 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. Consultant agrees that upon request, all agreements
Professional Services Agreement between
Redevelopment Agency of the City of Moorpark and DMD Appraisals, Inc.
130
with subcontractors and others engaged in the project will be submitted to Agency
for review.
11. Consultant agrees not to self- insure or to use any self- insured retention or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, 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 Consultant'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 Consultant, which may include reduction or elimination of
the deductible of self- insured retention, substitution of other coverage, or other
solutions.
12. 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 Consultant
ninety (90) days advance written notice of such change. If such change results in
substantial additional cost to the Consultant, the Agency will negotiate additional
compensation proportional to the increased benefit to Agency.
13. For purposes of applying insurance coverage, only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any
steps that can be deemed to be in furtherance of or towards performance of this
Agreement.
14. Consultant acknowledges and agrees that any actual or alleged failure on the part
of the Agency to inform Consultant 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.
15. Consultant 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. Termination of this obligation is not effective until
Agency executes a written statement to that effect.
16. Consultant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has been
ordered shall be submitted prior to expiration. A coverage binder or letter from
Consultant's insurance agent to this effect is acceptable. A certificate of insurance
and /or additional insured endorsement is required in these specifications
Professional Services Agreement between
Redevelopment Agency of the City of Moorpark and DMD Appraisals, Inc.
131
applicable to the renewing or new coverage must be provided to Agency within
five days of the expiration of the coverages.
17. The provisions of any workers' compensation or similar act will not limit the
obligations of Consultant under this agreement. Consultant expressly agrees not
to use any statutory immunity defenses under such laws with respect to Agency,
its employees, officials, and agents.
18. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference
to a give coverage feature is for purposes of clarification only as it pertains to a
given issue, and is not intended by any party of insured to be limiting or all -
inclusive.
19. 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. The requirements in this Section supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts with or
impairs the provisions of this Section.
21. Consultant 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
Consultant for the cost of additional insurance coverage required by this
Agreement. Any such provisions are to be deleted with reference to the 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.
22. Consultant agrees to provide immediate notice to Agency of any claim or loss
against Consultant arising out of the work performed under this agreement.
Agency assumes no obligation or liability by such notice, but has the right (but not
the duty) to monitor the handling of any such claim or claims if they are likely to
involve Agency.
Professional Services Agreement between
Redevelopment Agency of the City of Moorpark and DMD Appraisals, Inc.
132
CITY OF MOORPARK, CALIFORNIA
Redevelopment Agency Meeting
ITEM 7.A.
Of A- 4- '9009
ACTION: 45" Z-,-
�^ MINI ITFS OF THE SPECIAL MEETING OF THE
WEDEVELORMENT AGENCY OF THE CITY OF MOORPARK
BY: `?'h
Moorpark, California
November 4, 2009
A Special Meeting of the Redevelopment Agency of the City of Moorpark was held on
November 4, 2009 in the Community Center of said City located at 799 Moorpark
Avenue, Moorpark, California.
1. CALL TO ORDER:
Chair Parvin called the meeting to order at 6:49 p.m.
2. ROLL CALL:
Agency /City Council: Agency Members Mikos, Pollock, Van Dam, and
Chair Parvin.
Absent: Agency Member Millhouse.
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. CONSENT CALENDAR:
MOTION: Chair Parvin moved and Agency Member Van Dam seconded a motion to
approve the Consent Calendar. The motion carried by voice vote 4 -0, Agency Member
Millhouse absent.
A. Consider Minutes of Special Meeting of October 7, 2009. Staff
Recommendation: Approve the minutes.
B. Consider Minutes of Regular Meeting of October 7, 2009. Staff
Recommendation: Approve the minutes.
C. Consider Authorization of Recordation of the Notice of Completion for
Demolition of Structures at 1123 and 1063 Walnut Canyon Road, 661
133
Minutes of the Redevelopment Agency
Moorpark, California Page 2 November 4, 2009
Moorpark Avenue, and 450 Charles Streets and Release of Bonds in
Accordance with the Contract. Staff Recommendation: Authorize the
Agency Secretary to file the Notice of Completion with the Ventura County
Recorder and to release the project bonds as outlined in the agenda
report.
6. CLOSED SESSION:
Mr. Kueny requested the Agency go into closed session for discussion of Item
6.C. on the agenda.
MOTION: Agency Member Van Dam moved and Agency Member Mikos seconded a
motion to go into closed session for discussion of Item 6.C. on the agenda. The motion
carried by voice vote 4 -0, Agency Member Millhouse absent.
C. CONFERENCE WITH REAL PROPERTY NEGOTIATOR
(Pursuant to Government Code Section 54956.8)
Property: 450 High Street (APN's: 512 -0- 082 -02 and 512 -0- 082 -03)
Agency Negotiator: Redevelopment Agency of the City of Moorpark -
Steven Kueny, Executive Director
Negotiating Parties: Jim Clark
Under Negotiation: Price and terms of sale
Present in closed session were Agency Members Mikos, Pollock, Van Dam, and
Mayor Parvin; Steven Kueny, Executive Director; Joseph Montes, General
Counsel; Hugh Riley, Assistant Executive Director; David Moe, Redevelopment
Manager; and Deborah Traffenstedt, Administrative Services Director /City Clerk.
The Agency reconvened into open session at 6:55 p.m. Mr. Kueny stated Item
6.C. was discussed and there was no action to report.
7. ADJOURNMENT:
Chair Parvin adjourned the Redevelopment Agency meeting at 6:55 p.m.
Janice S. Parvin, Chair
ATTEST:
Maureen Benson
Assistant Agency Secretary
134
W' yof M,7" �ORPARK, CALIFORNIA
ftdi�vfllopment Agency Meeting
o____w
ACTION:
MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
To: Honorable Agency Board of Directors
From: Hugh R. Riley, Assistant Executive Director LL
Date: December 2, 2009 (Agency Meeting of 12/16/09)
ITEM 7.B.
Subject: Consider California Redevelopment Association Request for
Financial Support for Legal Services
BACKGROUND & DISCUSSION
This item was originally agendized for the regular Redevelopment Agency meeting of
December 2, 2009, which was adjourned to December 16, 2009.
In March 2009, the Agency Board approved a contribution of $281.00 to the California
Redevelopment Association (CRA) to assist with legal expenses for the litigation filed on
behalf of all redevelopment agencies against the State of California for violation of the
Constitution when the legislature approved and the Governor signed AB 1389 taking
$350 million from redevelopment agencies (CRA v. Genest). Over 325 of CRA's agency
members paid their share of the more than $700,000 CRA incurred in legal expenses to
prevail in that first lawsuit.
With the recent passage of AB 26 4x, the State Legislature and the Governor are once
again attempting to balance the State's budget, with a massive takeaway of local
government funds, a large part of which includes the taking of tax increment funds from
Redevelopment Agencies. This time the hit to Redevelopment Agencies is $2.05 billion
dollars over the next two fiscal years. As with AB 1389, the California Redevelopment
Association will be filing a lawsuit on the same grounds as CRA v. Genest, that the take
of Redevelopment Funds violate state law and the California Constitution. CRA has
retained the same legal team that was successful in the first lawsuit and the suit has
been filed.
On September 2, 2009 the Agency Board Authorize the Redevelopment Agency of the
City of Moorpark to participate in the California Redevelopment Association's lawsuit
however the Agency was not among those selected as plaintiffs.
At their September 10 meeting, the CRA Board of Directors voted to ask agency
members for the legal defense funds needed for this effort. These funds will also be
used to increase communication with the press and our members about the lawsuit and
to keep the press informed about the repercussions the State's action will have on
135
Agency Chair and Board of Directors
December 16, 2009
Page 2
redevelopment. The Moorpark Redevelopment Agency is being asked to contribute
$335.00. The amount is based on the total amount of tax increment the agency receives
annually.
FISCAL IMPACT
The fiscal impact on the Agency's budget is minimal ($335.00) and can be absorbed in
the current budget.
STAFF RECOMMENDATION
Provide financial support in the amount of $335.00 to the CRA to assist with the suit
against the State of California.
Attachment: CRA letter dated 9/28/09
136
L,,4P "/q
California Redevelopment Association
Redevelopment. Building Better Communities
September 28, 2009
Mr. Hugh Riley
Assistant Executive Director
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021 -1136
Dear Mr. Hugh Riley:
RECEIVED
OCT 5 2
Asst. City Manager
Once again, CRA is preparing to wage a battle to prevent the State of California from raiding
redevelopment funds to balance the State budget, this time for $2.05 billion!
As -you know, we won the court case brought by CRA and the Madera and Moreno Valley redevelopment
agencies against the State to prevent the unconstitutional taking of $350 million in redevelopment funds in
the last budget. Consequently, redevelopment agencies, including yours, did not have to make the ERAF
payments that were due on May 10 this year. Over 325 of CRA's agency members paid their share of the
more than $700,000 CRA incurred in legal expenses to prevail in that first lawsuit.
We have retained the same legal team that was successful in our first lawsuit to protect your interests in the
second lawsuit, which will be filed in the next few weeks. After several years of successful efforts to defeat
or pass ballot initiatives and protect redevelopment funds from unconstitutional takings, CRA is not in a
position to absorb the cost of another lawsuit. We need your help. At their September 10 meeting, the CRA
Board of Directors voted to ask our agency members for the legal defense funds needed for this effort.
These funds will also be used to increase communication with the press and our members about the lawsuit
and to keep the press informed about the repercussions the State's action will have on redevelopment.
Enclosed is the invoice for your agency for this special fee. The amount is based on the total amount of tax
increment you receive annually.
The CRA Board members continue to be committed to this fight, and they are counting on participation by
all agency members to defray the costs. We know that you face severe budgetary constraints and we are
doing all we can to protect your redevelopment funds now and into the future. We need your support in
order to continue our efforts.
If you have questions, call me at (916) 448 -8760. Thank you for your continuing support of CRA!
Sincerely,
John F. Shirey
Executive Director
14 ATTACHMENT I
some
137
CITY OF MOORPARK, CALIFORNIA
,development Agency Meeting
of
ACTION:
MOORPARK REDEVELOPMENT AGENCY
AGENDA REPORT
TO: Honorable Board of Directors
FROM: Ron Ahlers, Finance Director 62,A__
DATE: December 8, 2009 (Agency meeting of December 16, 2009)
ITEM 7.C.
SUBJECT: Consider Authorizing the Executive Director to Write a Letter to the
County- Auditor Regarding Payment into the Supplemental Education
Revenue Augmentation Fund (SERAF) for Fiscal Year 2009 -10
BACKGROUND
As part of the budget balancing by the State of California, the California legislature and the
Governor approved taking $1.7 billion from redevelopment agencies throughout the State
in fiscal year 2009 -10. The Moorpark Redevelopment Agency's share is $1,925,105. This
amount must be paid by May 10, 2010. Prior to the payment, each redevelopment agency
must inform their County- Auditor on the method of payment. The redevelopment agency
is currently facing a March 1 deadline by which the Agency must inform the Ventura
County Auditor of how it intends to fund the Supplemental Education Revenue
Augmentation Fund {SERAF} payments required to be made by May 10, 2010. The
redevelopment agency intends to pay the Ventura County- Auditor, with a check, from
redevelopment tax increment funds.
DISCUSSION
ABx4 26 is State legislation enacted this past session to shift $2.05 billion from
redevelopment agencies to county SERAFs. ABx4 26 requires redevelopment agencies to
remit to their county SERAF a proportionate share of $1.7 billion for fiscal year 2009 -10
and $350 million for fiscal year 2010 -11. Those payments are due May 10, 2010 and May
10, 2011, respectively. The Moorpark Redevelopment Agency's share is $1,925,105 and
$395,977, respectively. The California Redevelopment Association {CRA} has filed a
lawsuit in Sacramento Superior Court challenging the constitutionality of A13x4 26. A
hearing on the merits of the lawsuit has been set for February 5, 2010. It is CRA's
objective to obtain a Superior Court judgment declaring ABx4 26 unconstitutional and
enjoining its enforcement prior to the May 10, 2010 deadline for SERAF payments.
However, until A13x4 26 has been judicially determined to be unconstitutional, it is the law.
The Moorpark Redevelopment Agency should be prepared to comply with its terms if that
becomes necessary either because CRA is unable to obtain a judgment or injunction prior
to May 10, 2010, or that judgment is unfavorable and must be appealed.
138
Honorable Board of Directors
December 16, 2009
Page 2
Staff is requesting that the Executive Director of the Redevelopment Agency be authorized
to write a letter to the Ventura County- Auditor stating that the Agency intends to pay
$1,925,105 in redevelopment tax increment funds.
STAFF RECOMMENDATION
Authorize the Executive Director of the Redevelopment Agency to send a letter to the
Ventura County- Auditor advising them of the Agency's intention to pay SERAF with
redevelopment tax increment funds.
139
ITEM 7.13.
MOORPARK REDEVELOPMENT AGENCY CITY OP MOORPARK, CALIFORNI,Z,
AGENDA REPORT R Agency Meeting
TO: Honorable Agency Board of Directors
FROM: Ron Ahlers, Finance Director G24-- �---
13y-
DATE: December 7, 2009 (Agency Meeting of December 16, 2009)
SUBJECT: Consider the Annual Financial Report for the Fiscal Year Ended June
30, 2009 for the Moorpark Redevelopment Agency
SUMMARY
The Annual Financial Report for the Moorpark Redevelopment Agency for June 30,
2009 is hereby submitted for Agency approval.
BACKGROUND
Pursuant to Section 33080.1 of the Health and Safety Code of the State of California,
an annual financial report must be presented and accepted by the Moorpark
Redevelopment Agency by December 31, 2009. This report must include an
independent auditor's report.
DISCUSSION
The firm of Teaman, Ramirez & Smith, Inc., Certified Public Accountants (Independent
Auditors) has been engaged to perform the audit for fiscal year ending June 30, 2009.
A copy of the annual financial report of the Moorpark Redevelopment Agency for June
30, 2009 is hereby submitted. The Agency has received an unqualified opinion on this
Annual Financial Report.
The Agency's financial position is measured by increases or decreases in net assets.
As of June 30, 2009, the Agency has unrestricted net assets of approximately $3.6
million. Redevelopment agencies typically have a deficit in net assets. Redevelopment
agencies typically leverage current property tax increment revenues by issuing long
term debt (including loans from the City of Moorpark) in order to qualify for receipt of
property tax increment revenue and to raise capital to promote economic development
within the project area. The new projects constructed, in turn, generate additional
property tax increment revenues, which again, may only be captured to the extent that
the Agency incurs indebtedness. Indebtedness includes bonded indebtedness, City
loans and advances. The Agency incurs debt based on future property tax increments
to fund redevelopment projects. Once the redevelopment projects are completed, the
asset is transferred to the City, however, the debt remains with the Agency resulting in
deficit net assets.
140
Honorable Agency Board of Directors
December 16, 2009
Page 2
FISCAL IMPACT
The assets of the Agency exceeded its liabilities at the close of the most recent fiscal
year by $10,522,000 (positive net assets). The Agency's total debt decreased by
approximately $464,000 or 1.6 %. This decrease is due to on -going debt service
payments.
Gross property tax increment revenue during the fiscal year increased by $167,000 to
$7,054,000. This was due to an increase in the assessed values of taxable properties
in the project area. The Agency received $1 million from the County of Ventura as part
of a settlement agreement.
As of the end of June 30, 2009, the governmental funds reported combined ending fund
balances of $36,338,000. This amount is further divided: $1,884,000 Reserve for Debt
Service; $17,814,000 Land held for resale or development; and $16,639,000 available
Fund Balance.
The Low - Moderate Income Housing Fund, a special revenue fund, is used to account
for funds that are set aside for low and moderate income housing, as well as related
expenditures. At the end of the current fiscal year, the fund balance was $6,929,000,
the majority of which is in Land held for resale or development ($6,655,000).
Therefore, there is approximately $274,000 in available fund balance.
The MRA Area 1 Operations Fund, a special revenue fund, is the chief operating fund
of the Agency. At the end of the current fiscal year, the fund balance of the MRA Area
1 Operations Fund was $10,974,000, the majority of which is in Land held for resale or
development ($9,117,000). Therefore, there is approximately $1,857,000 in available
fund balance.
The Agency has two Capital Projects Funds which account for the expenditures of the
2001 and 2006 bond proceeds. Their available fund balances are approximately
$14,247,000. This amount is set -aside for the human services center.
Other highlights of the report can be found by reading the Letter of Transmittal {pages i-
iv} and Management's Discussion and Analysis {pages vii -xii }.
STAFF RECOMMENDATION
(Roll Call Vote)
Accept the Annual Financial Report of the Moorpark Redevelopment Agency and
receive and file this report.
Attached:
Annual Financial Report of the Moorpark Redevelopment Agency
141
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MOORPARK REDEVELOPMENT AGENCY
ANNUAL FINANCIAL REPORT
Year Ended June 30, 2009
Chairperson Janice Parvin
Agency Members Roseann Mikos
Keith Millhouse
David Pollock
Mark Van Dam
Executive Director Steven Kueny
Assistant City Manager Hugh Riley
Report Prepared by:
Ron Ahlers, Agency Treasurer
Inning Lumbad, Finance & Accounting Manager
Debbie Burdorf, Accountant I
143
Moorpark Redevelopment Agency
Annual Financial Report
Year Ended June 30, 2009
TABLE OF CONTENTS
Letter of Transmittal
Independent Auditors' Report
Management's Discussion and Analysis
Basic Financial Statements:
Government -wide Financial Statements:
Statement of Net Assets
Statement of Activities
Fund Financial Statements:
Balance Sheet - Governmental Funds
Reconciliation of the Balance Sheet of Governmental Funds to the
Statement of Net Assets
Statement of Revenues, Expenditures and Changes in Fund Balances -
Governmental Funds
Reconciliation of the Statement of Revenues, Expenditures and Changes in
Fund Balances of Governmental Funds to the Statement of Activities
Notes to Financial Statements
Required Supplementary Information
Notes to Required Supplementary Information
Statement of Revenues, Expenditures, and Changes in Fund Balance
Low and Moderate Income Housing Fund - Budget and Actual
MRA Area 1 Operations Fund - Budget and Actual
Supplementary Information
Major Fund Budgetary Comparison Schedules
Schedule of Revenues, Expenditures, and Changes in Fund Balances -
Budget and Actual
MRA Debt Service Fund
1999 Tax Allocation Bonds Debt Service Fund
2001 Tax Allocation Bonds Debt Service Fund
2006 Tax Allocation Bonds Debt Service Fund
2001 Bond Proceeds Capital Projects Fund
2006 Bond Proceeds Capital Projects Fund
Independent Auditors' Report on Internal Control Over Financial Reporting
and on Compliance and Other Matters Based on an Audit of Financial
Statements Performed in Accordance with Government Auditing Standards
PAGE
i - iv
v - vi
vii- x11
1
2
3 -4
5
6 -7
8
9 -30
31
32
33
34
35
36
37
38
39
Hill l
144
November 1, 2009
Honorable Chair and Members
of the Moorpark Redevelopment Agency
City of Moorpark
Moorpark, CA 93021
INTRODUCTION
California (State) law requires that all general - purpose local governments publish
within six months of the close of each fiscal year a complete set of financial
statements presented in conformity with accounting principles generally accepted in
the United States of America (GAAP) and audited by a firm of licensed certified
public accountants in accordance with auditing standards generally accepted in the
United States of America and the standards applicable to financial audits contained
in Govemment Auditing Standards, issued by the Comptroller General of the United
States. Pursuant to the requirement, we hereby issue the annual financial report of
the Moorpark Redevelopment Agency (Agency) for the fiscal year ended June 30,
2009.
This report consists of management's representations concerning the finances of the
Agency. Consequently, management assumes full responsibility for the
completeness and reliability of all of the information presented in this report. To
provide a reasonable basis for making these representations, management of the
Agency has established a comprehensive internal control framework that is
designed both to protect the Agency's assets from loss, theft, or misuse and to
compile sufficient reliable information for the preparation of the Agency's financial
statements in conformity with GAAP. Because the cost of internal controls should
not outweigh their benefits, the Agency's comprehensive framework of internal
controls has been designed to provide reasonable rather than absolute assurance
that the financial statements will be free from material misstatement. As
management, we assert that, to the best of our knowledge and belief, this financial
report is complete and reliable in all material respects.
Teaman, Ramirez & Smith, Inc., a firm of certified public accountants, has audited
the Agency's financial statements. The goal of the independent audit was to provide
reasonable assurance that the financial statements of the Agency for the fiscal year
ended June 30, 2009, are free of material misstatement. The independent audit
involved examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements; assessing the accounting principles used
and significant estimates made by management; and evaluating the overall financial
statement presentation. The independent auditor concluded, based upon the audit,
that there was a reasonable basis for rendering an unqualified opinion that the
Agency's financial statements for the fiscal year ended June 30, 2009, are fairly
145
presented in conformity with GAAP. The independent auditor's report is presented
as the first component of the financial section of this report.
GAAP requires that management provide a narrative introduction, overview, and
analysis to accompany the basic financial statements in the form of Management's
Discussion and Analysis (MD&A). This letter of transmittal is designed to
complement the MD&A and should be read in conjunction with it. The Agency's
MD&A can be found immediately following the report of the independent auditors.
PROFILE OF THE MOORPARK REDEVELOPMENT AGENCY
The Agency was created by the Moorpark City Council Ordinance No. 87, adopted
March 18, 1987. The City Council appointed the Board of Directors and established
bylaws of the Agency on May 20, 1987, by Resolution No. 87 -387. The Agency
was established pursuant to the Community Redevelopment Law of California as
modified in Part I of Division 24 of the State of California Health and Safety Code.
As such, the Agency acts as a legal entity, separate and distinct from the City even
though the City Council has the authority to appoint the Agency's Governing Board.
The Agency has a Redevelopment Plan which was adopted by the Moorpark City
Council Ordinance No. 110, on July 5, 1989.
At present, the Moorpark City Council serves as the governing body of the Agency
with the authority to carry out redevelopment activities. The City Manager serves as
Executive Director; the Finance Director serves as the Treasurer of the Agency; the
City Clerk serves as Secretary of the Agency; and the City Attorney serves as
Agency Counsel.
The Agency currently has one project area:
1. The Project Area consists of one large contiguous area consisting of
approximately 1,217 acres. The Project Area is comprised of a mixture of
residential, commercial, industrial and institutional land uses along with parcels
that are undeveloped and /or under - utilized, parking areas, and public rights -of-
way.
The actions of the Agency are binding, and its appointed representatives routinely
transact business, including the incurrence of long -term debt, in the Agency's name.
The Agency is broadly empowered to engage in the general economic revitalization
and redevelopment of the City through acquisition and development of property in
those areas of the City determined to be in a blighted condition, as defined under
State law.
The California Community Redevelopment Law of California provides that, pursuant
to the adoption of a redevelopment plan, the Agency is entitled to a proportional
amount based on tax - sharing agreements for all future incremental property tax
revenues attributable to increases in the property tax base within the Project Area.
146
Property taxes levied for the fiscal year ended on June 30 are payable in equal
installments due on November 1 and February 1 and collectible December 10 and
April 10, respectively.
FACTORS AFFECTING FINANCIAL CONDITION
The information presented in the financial statements is perhaps best understood
when it is considered from the broader perspective of the specific environment within
which the Agency operates.
LOCAL ECONOMY
Economic growth in the City of Moorpark is relatively flat. During the last year, there
has been continued growth in property tax revenue due to continued real estate
sales and healthy values for properties being sold. However, with the recent
housing crisis and lower values for properties being sold, growth in property tax
revenue is slowing. Overall, growth in sales tax revenue decreased due to declining
sales activity, especially for general consumer goods.
AGENCY LOANS
As of June 30, 2009, the Agency's outstanding loan total is $1,846,684. The
Agency's loan to Mission Bell Partners in the amount of $1,704,786 was to fund land
disposition. Principal and interest are due on September 2, 2029. The Agency has
loaned $125,514 to the Area Housing Authority for a low /moderate- income housing
project on Charles Street. The Agency operates rehabilitation loan programs for the
renovation of low /moderate- income housing; total outstanding is in the amount of
$16,384.
CASH MANAGEMENT POLICIES AND PRACTICES
Cash temporarily idle during the year was invested in the City Treasurer's portfolio.
The average yield was 2.55 percent for the fiscal year. Investment income includes
appreciation in the fair value of investments. Increases in fair value during the
current year, however, do not necessarily represent trends that will continue; nor is it
always possible to realize such amounts, especially in the case of temporary
changes in the fair value of investments that the government intends to hold to
maturity.
RISK MANAGEMENT
As a component unit of the City of Moorpark, the Agency is covered under the City's
policies for general liability, property insurance and workers compensation coverage.
Additional information on the Agency's risk management can be found in Note 14 of
the financial statements.
147
R11MMARY
In conclusion, I would like to take this opportunity to express my appreciation to the
staff of the Finance Department and Redevelopment Agency, led by the efforts of
the Finance & Accounting Manager, Irmina Lumbad and Accountant I, Debbie
Burdorf, whose hard work and dedication have made the preparation of this report
possible. I would like to express my appreciation to the Agency Members, Steve
Kueny as Executive Director and Hugh Riley as Assistant City Manager, for their
support and responsible planning of the Agency's financial affairs.
Respectfully submitted,
RON AHLERS
AGENCY TREASURER
Iv 148
07RSTEAMAN, RAMIREZ & SMITH, INC.
CERTIFIED PUBLIC ACCOUNTANTS
Independent Auditors' Report
The Honorable Chair and Members of the Agency
Moorpark Redevelopment Agency
Moorpark, California
We have audited the accompanying financial statements of the governmental activities and each major fund
of the Moorpark Redevelopment Agency of the City of Moorpark (Agency), a component unit of the City
of Moorpark, California (City), as of and for the year ended June 30, 2009, which collectively comprise the
Agency's basic financial statements as listed in the table of contents. These financial statements are the
responsibility of the Agency's management. Our responsibility is to express opinions on these financial
statements based on our audit.
We conducted our audit in accordance with auditing standards generally accepted in the United States of
America and the standards applicable to financial audits contained in Government Auditing Standards
issued by the Comptroller General of the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall financial statement
presentation. We believe that our audit provides a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the
financial position of the governmental activities and each major fund of the Agency, as of June 30, 2009,
and the respective changes in financial position thereof for the year then ended in conformity with
accounting principles generally accepted in the United States of America.
In accordance with Government Auditing Standards, we have also issued our report dated December 4,
2009 on our consideration of the Agency's internal control over financial reporting and on our tests of its
compliance with certain provisions of laws, regulations, contracts, and grant agreements and other matters.
The purpose of that report is to describe the scope of our testing of internal control over financial reporting
and on compliance and the results of that testing, and not to provide an opinion on the internal control over
financial reporting or on compliance. That report is an integral part of an audit performed in accordance
with Government Auditing Standards and should be considered in assessing the results of our audit.
The required supplementary information, such as management's discussion and analysis on pages vii
through xii and the major Special Revenue Fund budgetary comparison schedules on pages 32 and 33, are
not a required part of the basic financial statements, but are supplementary information required by the
accounting principles generally accepted in the United States of America. We have applied certain limited
procedures, which consisted principally of inquiries of management regarding the methods of measurement
and presentation of the required supplementary information. However, we did not audit the information
and express no opinion on it.
Richard A. Teaman, CPA a Greg W. Fankhanel, CPA a David M. Ramirez, CPA o Javier H. Carrillo, CPA 149
4201 Brockton Ave. Suite 100, Riverside CA 92501 a 951.274.9500 a 951 .274.7828 VAX 0 www.trscpas.com
Our audit was conducted for the purpose of forming opinions on the financial statements that collectively
comprise the Agency's basic financial statements. The letter of transmittal and other supplementary
information listed in the table of contents, including additional budgetary comparison schedules are
presented for purposes of additional analysis and are not a required part of the basic financial statements.
These schedules have been subjected to the auditing procedures applied in the audit of the basic financial
statements and in our opinion, are fairly stated in all material respects in relation to the basic financial
statements taken as a whole.
December 4, 2009
150
MOORPARK REDEVELOPMENT AGENCY
MANAGEMENTS DISCUSSION AND ANALYSIS
JUNE 30, 2009
As management of the Moorpark Redevelopment Agency (Agency), we offer readers of
the Agency's financial statements this narrative overview and analysis of the financial
activities of the Agency for the fiscal year ended June 30, 2009. Readers are highly
encouraged to consider the information presented here in conjunction with the
accompanying basic financial statements which immediately follow this section.
FINANCIAL HIGHLIGHTS
• The assets of the Agency exceeded its liabilities at the close of the most recent fiscal
year by $10,522,000 (net assets).
• The Agency's total debt decreased by $464,000 during the current fiscal year due to
the normal pay down of the principal.
• The Agency's governmental funds reported combined ending fund balances of
$36,338,000, a decrease of $127,000 from the prior year.
• The Agency's gross property tax increment revenue during the current fiscal year
increased by $167,000 to $7,054,000.
• The Agency received $1 million from the County of Ventura as part of a settlement
agreement {see Notes 11 and 131.
OVERVIEW OF THE BASIC FINANCIAL STATEMENTS
This discussion and analysis is intended to serve as an introduction to the Agency's
basic financial statements. The Agency's basic financial statements comprise three
components:
1) Government -wide financial statements
2) Fund financial statements
3) Notes to the financial statements
This report also contains other supplementary information in addition to the basic
financial statements themselves.
Government -wide financial statements. These statements are designed to provide
readers with a broad overview of the Agency's finances, in a manner similar to a
private- sector business.
The statement of net assets presents information on all of the Agency's assets and
liabilities, with the difference between the two reported as net assets. In time, increases
or decreases in net assets may serve as a useful indicator of whether the financial
position of the Agency is improving or deteriorating.
The statement of activities presents information on how the Agency's net assets
changed during the fiscal year. All changes in net assets are reported as soon as the
vii 151
MOORPARK REDEVELOPMENT AGENCY
MANAGEMENT'S DISCUSSION AND ANALYSIS
JUNE 30, 2009
underlying event giving rise to the change occurs, regardless of the timing of related
cash flows. Thus, revenues and expenses are reported in this statement for some
items that will only result in cash flows in future fiscal periods; (i.e., uncollected taxes).
The government -wide financial statements include only the Agency itself.
Fund financial statements. A fund is a grouping of related accounts that is used to
maintain control over resources that have been segregated for specific activities or
objectives. The Agency, like other state and local governments, uses fund accounting
to ensure and demonstrate compliance with finance- related legal requirements. All of
the funds can be divided into three categories: governmental funds, proprietary funds
and fiduciary funds. The Agency uses only governmental funds.
Governmental funds. Governmental funds are used to account for essentially the
same functions reported as govemmental activities in the government -wide financial
statements. However, unlike the government -wide financial statements, governmental
fund financial statements focus on near -term inflows and outflows of spendable
resources, as well as on balances of spendable resources available at the end of the
fiscal year. Such information may be useful in evaluating a government's near -term
financing requirements.
Because the focus of governmental funds is narrower than that of the government -wide
financial statements, it is useful to compare the information presented for governmental
funds with similar information presented for govemmental activities in the government -
wide financial statements. By doing so, readers may better understand the long -term
impact of the Agency's near -term financing decisions. Both the governmental fund
balance sheet and the governmental fund statement of revenues, expenditures and
changes in fund balances provide a reconciliation to facilitate this comparison between
governmental funds and governmental activities.
The Agency maintains three individual governmental funds and all of them are
considered to be major funds. Information is presented separately in the governmental
fund balance sheet and in the governmental fund statement of revenues, expenditures
and changes in fund balances for the Low - Moderate Income Housing Fund, Debt
Service Fund and the Capital Projects Fund.
The Agency adopts an annual appropriated budget for each of its governmental funds.
A budgetary comparison statement has been provided for these funds to demonstrate
compliance with the budget.
Notes to the financial statements. The notes provide additional information that is
essential to a full understanding of the data provided in the government -wide and fund
financial statements.
viii 152
MOORPARK REDEVELOPMENT AGENCY
MANAGEMENT'S DISCUSSION AND ANALYSIS
JUNE 30, 2009
Supplementary Information. The Agency's Capital Projects Fund and Debt Service
Fund Schedule of Revenues, Expenditures and Changes in Fund Balances — Budget
and Actual are presented.
GOVERNMENT -WIDE FINANCIAL ANALYSIS
As noted earlier, net assets may serve over time as a useful indicator of a government's
financial position. In the case of the Agency, assets exceeded liabilities by $10.5 million
at the close of the most recent fiscal year. Of the $32.9 million in total liabilities, $28.4
million is outstanding debt for the 1999 Tax Allocation Bonds, 2001 Tax Allocation
Bonds and 2006 Tax Allocation Bonds.
Table 1
Net Assets
Governmental Activities
As of June 30, 2009 and 2008
Assets:
Current and other assets
Capital assets
Total Assets
Liabilities:
Long -term debt outstanding
Other liabilities
Total Liabilities
Net Assets:
Restricted
Unrestricted
Total Net Assets
2009
$ 25,649,579
17,814,168
43,463,747
28,422,563
4,519,105
32,941,668
6,912,421
3,609,658
$10,522,079
2008
$ 30,320,662
14,373,268
44,693,930
28,906,716
6,843,848
35,750,564
6,247,751
2,695,615
$ 8,943,366
The Agency's net assets increased by $1.6 million during the 2008 /09 fiscal year.
ix 153
MOORPARK REDEVELOPMENT AGENCY
MANAGEMENT'S DISCUSSION AND ANALYSIS
JUNE 30, 2009
Table 2
Changes in Net Assets
Governmental Activities
As of June 30, 2009 and 2008
Revenues
Property tax - Redevelopment Agency tax increment
Investment income
Other/Rentals
County Settlement
Total Revenues, Transfers & Special Items
Expenses
Public Services
Interest on long -term debt
Total Expenses
Increase /(decrease) in net assets
2009
$ 7,054,432
1,954,274
76,285
1,000,000
10,084,991
6,889,436
1,616,842
8,506,278
$1,578,713
FINANCIAL ANALYSIS OF THE GOVERNMENT'S FUNDS
2008
$ 6,887,079
1,519,173
51,453
0
8,457,705
5,427,627
1,773,841
7,201,468
$1,256,237
As noted earlier, the Agency uses fund accounting to ensure and demonstrate
compliance with finance- related legal requirements.
Governmental funds. The focus of the Agency's governmental funds is to provide
information on near -term inflows, outflows and balances of spendable resources. Such
information is useful in assessing the Agency's financing requirements. In particular,
unreserved fund balance may serve as a useful measure of a government's net
resources available for spending at the end of the fiscal year.
As of the end of the current fiscal year, governmental funds reported combined ending
fund balances of $36,338,000.
The Low - Moderate Income Housing Fund, a special revenue fund, is used to account
for funds that are set aside for low and moderate income housing, as well as related
expenditures. At the end of the current fiscal year, the fund balance was $6,929,000,
the majority of which is in Land held for resale or development ($6,655,000).
X 154
MOORPARK REDEVELOPMENT AGENCY
MANAGEMENT'S DISCUSSION AND ANALYSIS
JUNE 30, 2009
The MRA Area 1 Operations Fund, a special revenue fund, is the chief operating fund of
the Agency. At the end of the current fiscal year, the fund balance of the MRA Area 1
Operations Fund was $10,974,000, the majority of which is in Land held for resale or
development ($9,117,000).
The Debt Service Funds account for the accumulation of resources to be used for the
repayment of Agency debt. Their fund balances are mainly for the contractual reserves
for the bond indentures of the 1999, 2001 and 2006 bond issuances.
The Agency has two Capital Projects Funds which account for the expenditures of the
2001 and 2006 bond proceeds. Their fund balances are approximately $16.3 million.
BUDGETARY HIGHLIGHTS
Supplemental appropriations were approved during the 2008 /09 fiscal year for the
purchase of property: Caltrans property, 1063, 1073, 1123 Walnut Canyon Road.
Additional appropriations were required for: Area Housing Authority Loan, Walnut
Canyon Storm Drain, road and parking lot improvements on High Street.
Capital projects budgeted during the year included: 81 First Street Building
Construction, Property Acquisition /Rehabilitation, Moorpark Human Services Complex,
Flinn Avenue Remnant Parcel Landscaping, Granary Station, Moorpark Avenue
Widening from Casey to 3`d Street, High Street Streetscape, Metrolink Parking Lot
Improvements, Post Office Off -site Improvements, Downtown Parking Lot and the
Aszkenazy Project.
Xi 155
MOORPARK REDEVELOPMENT AGENCY
MANAGEMENT'S DISCUSSION AND ANALYSIS
JUNE 30, 2009
LONG -TERM DEBT
At the end of the current fiscal year, the Agency had total debt outstanding of
$28,906,716.
1999 Tax Allocation Bonds
2001 Tax Allocation Bonds
2006 Tax Allocation Bonds
Total
Agency Outstanding Debt
Governmental Governmental
Activities Activities
June 30. 2009 June 30. 2008
$ 5,970,000
11,540,000
11,396,716
$ 28,906,716
$ 6,430,000
11,555,000
11,385,869
$ 29,370,869
The Agency's total debt decreased by $464,000 during the current fiscal year, due to
the normal pay down of the principal.
ECONOMIC FACTORS AND NEXT YEAR'S BUDGET AND RATES
• In addition to various Capital Improvement Projects, the Redevelopment Agency
budgeted $240,000 for the High Street Arts Center expenditure in the upcoming
fiscal year. The estimated revenue is approximately $81,000, resulting in a net
loss of approximately $159,000. This loss will be absorbed by MRA Funds and is
part of the revitalization efforts in the downtown area.
Assessed property values are expected to have a nominal decrease.
• Interest income should decrease, reflecting the decrease in interest rates.
All of these factors were considered in preparing the Agency's budget for fiscal year
2009110.
REQUESTS FOR INFORMATION
This financial report is designed to provide a general overview of the Moorpark
Redevelopment Agency's finances for all those with an interest in the Agency's
finances. Questions concerning any of the information provided in this report or
requests for additional financial information should be addressed to the Finance
Department, Moorpark Redevelopment Agency, 799 Moorpark Avenue, Moorpark,
California 93021.
Xii 156
BASIC FINANCIAL STATEMENTS
YEAR ENDED - JUNE 309 2009
157
Moorpark Redevelopment Agency
Statement of Net Assets
June 30, 2009
ASSETS
Cash and Investments
Receivables:
Accounts
Interest
Notes
Due from City of Moorpark
Prepaid Items
Property Held for Resale/Development
Restricted Cash and Investments
Debt Issuance Costs
Total Assets
LIABILITIES
Accounts Payable and Accrued Liabilities
Interest Payable
Deposits
Due to the City of Moorpark
Noncurrent Liabilities:
Due Within One Year
Due in More Than One Year
Total Liabilities
NET ASSETS
Restricted for:
Low and Moderate Income Housing
Unrestricted
Total Net Assets
Governmental
Activities.
$ 19,765,894
25,770
1,341,939
1,846,684
54,577
5,200
17,814,168
2,146,058
463,457
43,463,747
3,596,483
347,022
11,750
79,697
484,153
28,422,563
32,941,668
6,912,421
3,609,658
$ 10,522,079
The accompanying notes are an integral part of this statement.
1 158
Moorpark Redevelopment Agency
Statement of Activities
Year Ended June 30, 2009
Program Revenues
Charges Operating Capital Net
for Grants and Grants and (Expense)
Functions/Programs Expenses Services Contributions Contributions Revenue
Governmental Activities:
Public Services $ 6,889,436 $ - $
Interest on Long -Term Debt 1,616,842 -
Total Governmental
$ - $ (6,889,436)
(1,616,842)
Activities $ 8,506,278 $ - $ - $ - (8,506,278)
General Revenues:
Taxes:
Property Tax, Redevelopment Agency Tax Increment
Investment Income
Other
Special Items:
County Settlement
Total General Revenues
Change in Net Assets
Total Net Assets, Beginning
Total Net Assets, Ending
7,054,432
1,954,274
76,285
1,000,000
10,084,991
1,578,713
8,943,366
$ 10,522,079
The accompanying notes are an integral part of this statement.
2 159
MOORPARK REDEVELOPMENT AGENCY
Balance Sheet
Governmental Funds
June 30, 2009
ASSETS
Cash and Investments
Imprest Cash
Cash with Fiscal Agent
Receivables
Accounts
Interest
Notes
Due from City of Moorpark
Due from Other Funds
Prepaid items
Property Held for Resale/Development
Total Assets
LIABILITIES AND FUND BALANCES
Liabilities
Accounts Payable
Accrued Wages and Withholdings
Due to the City of Moorpark
Due to other Funds
Deferred Revenue
Deposits
Total Liabilities
Fund Balances:
Reserved for
Prepaid Items
Debt Service
Property Held for Resale/Development
Unreserved
Total Fund Balances
Total Liabilities and
Fund Balances
Special Revenue Funds
Low and
Moderate MRA
Income Area 1
Housing Operations
$ 621,582 $ 5,018,031
1,500
4,488 17,952
1,253,181
141,898 1,704,786
54,577
Debt Service Funds
1999 Tax
MRA Debt Allocation
Service Bonds
1,027,730
5,200
6,655,250 9,117,374
$ 7,428,418 $ 17,167,401 $ - $ 1,027,730
$ 118,569 $ 3,156,879 $
800
17,780
2,110
60,301
350,000
16,384
2,957,967
11,750
499,613
6,192,927
5,200
771,100
6,655,250 9,117,374
268,355 1,857,100 256,630
6,928,805 10,974,474 - 1,027,730
$ 7,428,418 $ 17,167,401 $ - $ 1,027,730
The accompanying notes are an integral part of this statement. 3
160
MOORPARK REDEVELOPMENT AGENCY
Balance Sheet
Governmental Funds
June 30, 2009
Debt Service Funds
Capital Projects Funds
2001 Tax
2006 Tax
Total
Allocation
Allocation
2001 Bond
2006 Bond
Governmental
Bonds
Bonds
Proceeds
Proceeds
Funds
$
$
$ 4,492,220
$ 9,632,561
$ 19,764,394
1,500
584,674
533,654
2,146,058
3,330
25,770
88,758
1,341,939
1,846,684
54,577
350,000
350,000
5,200
2,041,544
17,814,168
$ 584,674
$ 531,654
$ 6,975,852
$ 9,632,561
$ 43,350,290
$ $ $ 302,455 $ $ 3,577,903
18,580
13,091 4,195 79,697
350,000
2,974,351
11,750
- - 315,546 4,195 7,012,281
5,200
584,674 528,948 1,884,722
2,041,544 17,814,168
4,706 4,618,762 9,628,366 16,633,919
584,674 533,654 6,660,306 9,628,366 36,338,009
$ 584,674 $ 533,654 $ 6,975,852 $ 9,632,561 $ 43,350,290
The accompanying notes are an integral part of this statement. 4 161
Moorpark Redevelopment Agency
Reconciliation of the Balance Sheet of Governmental Funds
to the Statement of Net Assets
June 30, 2009
Fund balances of governmental funds $ 36,338,009
Amounts reported for governmental activities in the Statement of Net Assets
are different because:
Capital assets used in governmental activities are not current financial
resources. Therefore, they were not reported in the Governmental
Funds Balance Sheet.
Long -term loans and notes receivable are not current financial resources.
Therefore, they are deferred in the governmental funds. 2,974,351
Other long -term assets are not available to pay for current period expenditures
and, therefore, are deferred in the funds.
Interest expenditures are recognized when due, and therefore, interest
payable is not recorded in the governmental funds. (347,022)
Long -term liabilities are not due and payable in the current period and,
therefore, are not reported in the governmental funds.
Bonds Payable (29,205,000)
Less: Issuance Discount 298,284
Issuance costs net of accumulated amortization were recorded as
expenditures in the governmental funds. 463,457
Net assets of governmental activities $ 10,522,079
The accompanying notes are an integral part of this statement.
5
162
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163
MOORPARK REDEVELOPMENT AGENCY
Statement of Revenues, Expenditures and Changes in Fund Balances
Governmental Funds
For the Fiscal Year Ended June 30, 2009
REVENUES
Taxes
Use of Money and Property
Other Revenues
Total Revenues
EXPENDITURES
Current
Public Services
Pass -Thru Agreements
Administration
Capital Outlay
Debt Service:
Principal Retirement
Interest on Bonds
Interest on Debt to City
Special Revenue Funds
Low and
Moderate MRA
Income Area 1
Housing Operations
Debt Service Funds
1999 Tax
MRA Debt Allocation
Service Bonds
$ 7,054,432 $
28,494 44,595 224,688
69,295
28,494 113,890 7,279,120
3,366,956
319,485 1,503,760 173,689
234,174 347,509
475,000
36,166 1,397,921
159,975
Total Expenditures
589,825
1,851,269
5,573,541
-
Excess (Deficiency) of Revenues
over Expenditures
(561,331)
(1,737,379)
1,705,579
-
OTHER FINANCING SOURCES (USES)
Transfers In
1,410,886
5,777,516
152,117
1,027,730
Transfers Out
(152,117)
(4,488,137)
Total Other Financing Sources (Uses)
1,258,769
5,777,516
(4,336,020)
1,027,730
SPECIAL ITEMS
County Settlement
1,000,000
Net Change in Fund Balances
697,438
4,040,137
(1,630,441)
1,027,730
Fund Balances, July 1, 2008
6,231,367
6,934,337
1,630,441
-
Fund Balances, June 30, 2009 $
6,928,805
$ 10,974,474
$ - $
1,027,730
The accompanying notes are an integral part of this statement. 6 164
MOORPARK REDEVELOPMENT AGENCY
Statement of Revenues, Expenditures and Changes in Fund Balances
Governmental Funds
For the Fiscal Year Ended June 30, 2009
Debt Service Funds
Capital Projects Funds
2001 Tax 2006 Tax Total
Allocation Allocation 2001 Bond 2006 Bond Governmental
Bonds Bonds Proceeds Proceeds Funds
$ $ $ $ $ 7,054,432
201,624 201,692 701,093
6,990 76,285
208,614 201,692 7,831,810
The accompanying notes are an integral part of this statement 7 165
3,366,956
126,380
2,123,314
664,067
153,416
1,399,166
475,000
1,434,087
159,975
-
-
790,447
153,416
8,958,498
-
-
(581,833)
48,276
(1,126,688)
584,674
533,654
9,486,577
(4,846,323)
(9,486,577)
584,674
533,654
(4,846,323)
-
-
1,000,000
584,674
533,654
(5,428,156)
48,276
(126,688)
-
-
12,088,462
9,580,090
36,464,697
$ 584,674 $
533,654
$ 6,660,306 $
9,628,366
$ 36,338,009
The accompanying notes are an integral part of this statement 7 165
Moorpark Redevelopment Agency
Reconciliation of the Statement of Revenues, Expenditures and Changes in Fund Balances
of Governmental Funds to the Statement of Activities
Year Ended June 30, 2009
Net change in fund balances -total governmental funds $ (126,688)
Amounts reported for governmental activities in the statement of activities are different because:
Governmental funds report capital outlays as expenditures. However, in the Statement
of Activities, the cost of those assets is allocated over their estimated useful lives
as depreciation expense or are allocated to the appropriate functional expense when
the cost is below the capitalization threshold. This activity is reconciled as follows:
Cost of Assets Capitalized
Depreciation
Governmental funds report revenues when notes receivable are repaid and expenditures
when new notes are funded. These changes in notes receivable are not reflected in
the Statement of Activities. This amount represents the current year change in
notes receivable. 1,253,181
Revenues in the Statement of Activities that do not provide current financial
resources are not reported as revenues in the funds.
The issuance of long -term debt (e.g., bonds, leases) provides current financial
resources to governmental funds, while the repayment of the principal or long -term
debt consumes the current financial resources of governmental funds. Neither
transaction, however, has any effect on net assets. Also, governmental funds
report the effect of issuance costs, premiums, discounts, and similar items when
debt is first issued, whereas these amounts are deferred and amortized in the
Statement of Activities. The detail of these differences in the treatment of
long -term debt is as follows:
Debt Issued or Incurred:
Principal Repayments 475,000
Amortization of Issuance Costs (16,852)
Amortization of Bond Discounts (10,847)
Accrued Interest for Tax Allocation Bonds. This is the net change in accrued
interest for the current period. 4,919
Change in Net Assets of Governmental Activities $ 1,578,713
The accompanying notes are an integral part of this statement.
8 166
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
NOTE
DESCRIPTION
PAGE
1
Reporting Entity and Summary of Significant
Accounting Policies
10-15
2
Cash and Investments
15-18
3
Notes Receivable
18-19
4
Property Held for Resale/Development
19
5
Interfund Activity
20
6
Due To/Due From the City of Moorpark
21
7
Long -term Debt
21-24
8
Short Term Debt
24
9
Classification of Net Assets and Fund Balance
24-25
10
Expenditures in Excess of Appropriations
25
11
Agreements with Various Taxing Agencies
25-27
12
Low and Moderate Income Housing Set Aside
27
13
Retirement Plan
28
14
Risk Management
28-30
15
Special Items
30
16
Contingencies /Subsequent Events
30
9 167
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
1) REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
The accounting policies of the Moorpark Redevelopment Agency (Agency) conform to accounting
principles generally accepted in the United States of America as applicable to governments. The
Governmental Accounting Standards Board (GASB) is the accepted standard setting body for
governmental accounting and financial reporting principles. The following is a summary of the
significant policies.
A) Reporting Entity
The Agency is a separate governmental entity created in 1987, pursuant to the Community
Redevelopment Law of the State of California Health and Safety Code. It has been included as a
component unit of the City of Moorpark (City) for purposes of the City's annual financial report.
The Agency has responsibility for elimination of blight within the limits of the project area by
preparing and carrying out redevelopment plans for area improvements and rehabilitation.
The Agency's primary source of revenue comes from property taxes (tax increment), referred to in
the accompanying financial statements as "taxes ". The assessed valuation of all property within the
project area is determined on the date of adoption of the Redevelopment Plan. Property taxes
related to the incremental increase in assessed values after the adoption of the Redevelopment Plan
are allocated to the Agency; all taxes on the "frozen" assessed valuation of the property are
allocated to the City and other districts.
The Agency has no power to levy and collect taxes and any legislative property tax de- emphasis
might reduce the amount of tax revenues that would otherwise be available to pay the principal and
interest on debt. Broadened property tax exemptions could have a similar effect. Conversely, any
increase in the tax rate or assessed valuation, or any reduction or elimination of present exemptions
would increase the amount of tax revenues that would be available to pay principal and interest on
debt.
Members of the City Council act as the governing body of the Agency. The Agency is also staffed
by employees of the City.
B) Basis of Presentation
Government -Wide Financial Statements
The Government -wide financial statements (i.e., the Statement of Net Assets and the Statement of
Activities) report information on all of the nonfiduciary activities of the primary government and its
component units. For the most part, the effect of interfund activity has been removed from these
10 168
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
1) REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -
Continued
B) Basis of Presentation - Continued
statements. Governmental activities, which normally are supported by taxes and intergovernmental
revenues, are reported separately from business -type activities, which rely to a significant extent on
fees and charges for support. All Agency activities are governmental; no business -type activities
are reported in these financial statements.
The Statement of Activities demonstrates the degree to which the direct expenses of given
functions or segments are offset by program revenues. Direct expenses are expenses that are clearly
identifiable with a specific program, project, function or segment. Program revenues of the Agency
include: 1) charges to customers or applicants who purchase, use, or directly benefit from goods,
services, or privileges provided by a given function or segment; and 2) grants and contributions that
are restricted to meeting the operational or capital requirements of a particular function or segment.
Taxes and other items that are properly included among program revenues are reported instead as
general revenues.
Fund Financial Statements
Separate financial statements are provided for governmental funds. Major individual governmental
funds are reported as separate columns in the fund financial statements.
C) Measurement Focus, Basis of Accounting, and Financial Statement Presentation
The government -wide financial statements are reported using the economic resources measurement
focus and the accrual basis of accounting. Revenues are recorded when earned and expenses are
recorded when a liability is incurred, regardless of the timing of related cash flows. Property taxes
are recognized as revenues in the year for which they are levied. Grants and similar items are
recognized as revenue as soon as all eligibility requirements imposed by the providers have been
met.
Governmental fund financial statements are reported using the current financial resources
measurement focus and the modified accrual basis of accounting. Revenues are recognized as soon
as they are both measurable and available. Revenues are considered to be available when they are
collected within the current period or soon enough thereafter to pay liabilities of the current period.
For this purpose, the Agency considers revenues to be available if they are collected
11 169
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
1) REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -
Continued
C) Measurement Focus, Basis of Accounting, and Financial Statement Presentation - Continued
within 60 days of the end of the current fiscal period. Expenditures generally are recorded when a
liability is incurred as under accrual accounting. However, debt service expenditures are recorded
only when payment is due.
Interest associated with the current fiscal period is considered to be susceptible to accrual, and is
therefore recognized as revenues of the current fiscal period.
The Agency reports the following major governmental funds:
Special Revenue Funds
Low and Moderate Income Housing Fund - To account for housing set aside required under
redevelopment laws of the State of California.
MRA Area 1 Operations Fund - To account for monies received and expended within the project
area in accordance with the Redevelopment Plan of the Agency made pursuant to redevelopment
laws of the State of California.
Debt Service Funds
MRA Debt Service Fund - To accumulate monies for the payment of interest and principal of the
1999, 2001, and 2006 Tax Allocation Bonds. Debt service is financed via the incremental property
tax from the Moorpark Redevelopment Agency.
1999 Tax Allocation Bonds Fund - To accumulate monies for the payment of interest and principal
of the 1999 Tax Allocation Refunding Bonds. Debt service is financed via the incremental
properly tax from the Moorpark Redevelopment Agency.
2001 Tax Allocation Bonds Fund - To accumulate monies for the payment of interest and principal
of the 2001 Tax Allocation Bonds. Debt service is financed via the incremental property tax from
the Moorpark Redevelopment Agency.
2006 Tax Allocation Bonds Fund - To accumulate monies for the payment of interest and principal
of the 2006 Tax Allocation Bonds. Debt service is financed via the incremental property tax from
the Moorpark Redevelopment Agency.
12 170
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
1) REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -
Continued
C) Measurement Focus, Basis of Accounting, and Financial Statement Presentation - Continued
Capital Projects Funds
2001 Bond Proceeds Fund - Development fund for the 2001 Tax Allocation Bonds proceeds.
2006 Bond Proceeds Fund - Development fund for the 2006 Tax Allocation Bonds proceeds.
As a general rule, the effect of inter -fund activity has been eliminated from the government -wide
financial statements. Direct expenses have not been eliminated from the functional categories;
indirect expenses and internal payments have been eliminated, if any.
When both restricted and unrestricted resources are available for use, it is the Agency's policy to
use restricted resources first, and then use unrestricted resources as they are needed.
D) Budgetary Controls and Encumbrances
The Agency adopts an annual budget using the modified - accrual basis of accounting, consistent
with accounting principles generally accepted in the United States of America. Budgetary controls
are established at the department level. At year end, unexpended appropriations lapse.
The Agency Executive Director may transfer budget appropriations between major categories
within a fund in conformance with the policies set by the Agency Board. Any major changes or
amendments must be approved by the Agency Board. Adopted budget and budget amendments
made during the year are reflected in the accompanying financial statements.
E) Use of Estimates
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States of America requires management to make estimates and
assumptions that effect certain reported amounts and disclosures. Accordingly, actual results
could differ from those estimates.
F) Investments
The Agency has adopted the provisions of GASB Statement No. 31, "Accounting and Financial
Reporting for Certain Investments and External Pools ", which require governmental entities to
report certain investments at fair value in the balance sheet and recognize the corresponding
13 171
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
1) REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -
Continued
F) Investments - continued
change in the fair value of investments in the year in which the change occurred. In accordance
with GASB Statement No. 31, the Agency has adjusted certain investments to fair value (when
material).
G) Property Held for Resale/Development
Property held for resale /development represents land and buildings (properties) purchased by the
Agency. Such properties are valued at the lower of cost or estimated net realizable value (as
determined by a disposition and development agreement between the Agency and a developer) and
has been offset by a reservation of fund balance to indicate that assets constitute future capital
projects and are not available spendable resources. The balance outstanding at June 30, 2009 was
$17,814,168.
H) Capital Assets
Capital assets, if any, are reported in Governmental Activities column of the Government -wide
Financial Statements. Capital assets are defined by the Agency as vehicles, computers and
equipment with an initial individual cost of more than $5,000. Such assets are recorded at
historical cost or estimated historical cost if purchased or constructed. Donated or annexed capital
assets are recorded at estimated market value at the date of donation or annexation.
I) Property Taxes
The Agency receives incremental property taxes on property within its project area over a base -
assessed valuation on the date the project area was established.
The duties of assessing and collecting property taxes are performed by the Ventura County
Assessor and Tax Collector, respectively. Tax levies cover the period from July 1 to June 30 of
each year. All tax liens attach annually on the first day in January preceding the fiscal year for
which the taxes are levied. Taxes are levied on both real and personal property, as it exists on that
date.
Secured property taxes are levied against real property and are due and payable in two equal
installments. The first installment is due on November 1 and becomes delinquent if not paid by
December 10. The second installment is due on February 1 and become delinquent if not paid by
April 10. Unsecured personal property taxes are due on July 1 each year. These taxes become
delinquent if not paid by August 31.
14 172
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
1) REPORTING ENTITY AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES -
Continued
J) Relationship to the City of Moorpark
The Agency is an integral part of the reporting entity of the City of Moorpark (City). The funds of
the Agency have been blended within the financial statements of the City because the City Council
of the City of Moorpark is the governing board of the Agency and exercises control over the
operations of the Agency. Only the funds of the Agency are included herein; therefore, these
financial statements do not purport to represent the financial position or the results of operations of
the City of Moorpark.
2) CASH AND INVESTMENTS
Cash and investments as of June 30, 2009 are classified in the accompanying financial statements as
follows:
Statement of Net Assets:
Cash and Investments
Restricted Cash and Investments
Total Cash and Investments
Cash and investments as of June 30, 2009, consist of the following:
Unrestricted:
Demand Deposits
Cash on Hand
Investments
Total Unrestricted Cash and Investments
$ 19,765,894
2,146,058
$ 21,911,952
$ 39,300
1,500
19,725,094
19,765,894
Restricted Cash and Investments (Held by Fiscal Agent)
Money Market Funds 1,561,384
CDC Investment Agreement 584,674
Total Restricted Cash and Investments
Total Cash and Investments
2,146,058
$ 21,911,952
15 173
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
2) CASH AND INVESTMENTS - Continued
Investments Authorized by the Agency's Investment Policy
The Agency's investment policy only authorizes investment in the local government investment pool
administered by the State of California (LAIF) and pooled cash and investment with the City. The
Agency's investment policy also identifies certain provisions of the California Government Code that
address interest rate risk, credit risk, and concentration of credit risk. Detailed information concerning
the City's pooled cash and investments can be found in the City's Comprehensive Annual Financial
Report for the year ended June 30, 2009.
Investments Authorized by Debt Agreements
Investment of debt proceeds held by the bond trustees are governed by provisions of the debt
agreements, rather than the general provisions of the California Government Code or the Agency's
investment policy. The table below identifies the investment types that are authorized for investments
held by bond trustees. The table also identifies certain provisions of these debt agreements that address
interest rate risk, credit risk, and concentration of credit risk.
Authorized Investment Type Maximum Maturity
U.S. Treasury Obligations
None
U.S. Agency Securities
None
Banker's Acceptances
180 Days
Commercial Paper
270 Days
Money Market Mutual Funds
N/A
Investment Contracts
30 years
Disclosures Relating to Interest Rate Risk
Interest rate risk is the risk that changes in market interest rates will adversely affect the fair value of an
investment. Generally, the longer the maturity of an investment, the greater the sensitivity of its fair
value to changes in market interest rates. As of year end, the weighted average maturity of the
investments contained in the LAW investment pool was less than one year.
Information about the sensitivity of the fair values of the Entity's investments to market interest rate
fluctuations is provided by the following table that shows the maturity of each investment:
16 174
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
2) CASH AND INVESTMENTS - Continued
Investment Type
State Investment Pool
Money Market Funds
CDC Investment Agreement
Total
Disclosures Relating to Credit Risk
Value
$ 19,725,094
1,561,384
584,674
$ 21,871,152
Maturity
Less than One Year
Less than One Year
October 1, 2031
Generally, credit risk is the risk that an issuer of an investment will not fulfill its obligation to the
holder of the investment. This is measured by the assignment of a rating by a nationally recognized
statistical rating organization. The Agency's investment in LAIF, investment contracts, and money
market fund do not have a rating provided by a nationally recognized statistical rating organization.
Concentration of Credit Risk
The investment policy of the Agency contains no limitations on the amount that can be invested in any
one issuer beyond that stipulated by the California Government Code. The Agency did not have
investments that represent more than 5% of the Agency's total investments (other than the LAIF).
Custodial Credit Risk
Custodial credit risk for deposits is the risk that, in the event of the failure of a depository financial
institution, a government will not be able to recover its deposits or will not be able to recover collateral
securities that are in the possession of an outside parry. The California Government Code and the
Agency's investment policy do not contain legal or policy requirements that would limit the exposure
to custodial credit risk for deposits, other than the following provision for deposits: The California
Government Code requires that a financial institution secure deposits made by state or local
governmental units by pledging securities in an undivided collateral pool held by a depository regulated
under state law (unless so waived by the governmental unit). The market value of the pledged
securities in the collateral pool must equal at least 110 percent of the total amount deposited by the
public agencies. California law also allows financial institutions to secure public agency deposits by
pledging first trust deed mortgage notes having a value of 150 percent of the secured public deposits.
17 175
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
2) CASH AND INVESTMENTS - Continued
All of the Agency's $39,300 demand deposits with financial institutions are covered by Federal
depository insurance limits.
The custodial credit risk for investments is the risk that, in the event of the failure of the counterparty
(e.g., broker - dealer) to a transaction, a government will not be able to recover the value of its
investment or collateral securities that are in the possession of another party. The California
Government Code and the Agency's investment policy do not contain legal or policy requirements that
would limit the exposure to custodial credit risk for investments. With respect to investments,
custodial credit risk generally applies only to direct investments in marketable securities. Custodial
credit risk does not apply to a local government's indirect investment in securities through the use of
mutual funds or government investment pools (such as LAIF).
Investment in State Investment Pool
The Agency is a voluntary participant in the Local Agency Investment Fund (LAIF) that is regulated by
the California Government Code under the oversight of the Treasurer of the State of California. The
fair value of the Agency's investment in this pool is reported in the accompanying financial statements
at amounts based upon the Agency's pro -rated share of the fair value provided by LAIF for the Agency
LAIF portfolio (in relation to the amortized cost of that portfolio). The balance available for
withdrawal is based on the accounting records maintained by LAIF, which are recorded on an
amortized cost basis.
LAW is a governmental investment pool managed and directed by the California State Treasurer and is
not registered with the Securities and Exchange Commission. An oversight committee comprised of
California State officials and various participants, provide oversight to the management of the fund.
The daily operations and responsibilities of LAIF fall under the auspices of the State Treasurer's Office.
3) NOTES RECEIVABLE
Mission Bell Note
On August 2, 1995, the Agency entered into an agreement with Mission Bell Partners whereby in return
for land disposition, the Agency received seven promissory notes totaling $3,934,500. The notes bear
simple interest rates ranging from 4 percent to 6 percent per annum from August 29, 1995 until August
29, 2029. In June 2004, the Agency, per a settlement agreement, discharged three of the remaining six
of the original seven promissory notes totaling $500,000. In September of 2006, notes number 2 and 6
were paid off. The balance of the remaining note (note no. 7) outstanding at June 30, 2009 was
$1,704,786. Principal and interest are due on September 2, 2029.
Rehab Loans
The Agency operates a rehabilitation loan program for the renovation of low /moderate - income housing.
The total balance outstanding at June 30, 2009 was $16,384.
18 176
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
3) NOTES RECEIVABLE - Continued
Other Notes Receivable
The Agency has entered into an agreement to loan the County of Ventura Area Housing Authority
(AHA) up to $350,000 to assist in developing residential rental units on Agency owned property. As of
June 30, 2009, the AHA has drawn down $125,514 on the available loan. The outstanding principal
balance and interest are expected to be paid during the 2009/10 fiscal year.
4) PROPERY HELD FOR RESALE/DEVELOPMENT
Fiscal Year Acquired
1992 -93
1993 -94
1993 -94
1999 -00
2000 -01
2000 -01
2000 -01
2001 -02
2001 -02
2001 -02
2002 -03
2002 -03
2003 -04
2004 -05
2005 -06
2005 -06
2006 -07
2006 -07
2006 -07
2006 -07
2006 -07
2007 -08
2007 -08
2007 -08
2007 -08
2007 -08
2007 -08
2007 -08
2007 -08
2008 -09
2008 -09
2008 -09
2008 -09
Location
High Street/Moorpark Avenue SE Comer
18 High Street
661 Moorpark Avenue
APN 506 -0- 020 -525
285 High Street
500 Spring Road
782 Moorpark Avenue
798 Moorpark Avenue
83 High Street
Fitch Avenue Cul -de -sac
467 E High Street
47 -51 High Street
81 Charles Street
81 First Street
347 Moorpark Avenue
45 High Street
1095 Walnut Canyon
250 E Los Angles Avenue
460 Charles Street
765 Walnut Street
Lots 69 -82 Princeton Avenue
1113 Walnut Canyon
1123 Walnut Canyon
1293 Walnut Canyon
1331 Walnut Canyon
18 High Street
33 High Street
450 Charles Street
484 Charles Street
1063 Walnut Canyon
1073 Walnut Canyon
512 Los Angeles Avenue
780 Walnut Street
Total Property Held for Resale/Development
Carrying Value
$ 334,000
425,162
109,305
170,100
110,737
1,859,114
115,271
225,854
883,244
1,022,164
451,439
352,645
339,491
215,000
668,713
1,250,880
374,464
578,814
450,860
518,026
574,837
411,800
477,781
535,103
397,974
107,800
960,609
520,217
498,291
464,859
301,073
1,857,500
251.041
$ 17,814,168
19 177
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
5) INTERFUND ACTIVITY
Interfund Transfers
With the Agency Board approval, resources may be transferred from one fund to another. Transfers
between individual funds during the fiscal year ended June 30, 2009 are presented below:
Low/Mod Housing Special Revenue
MRA Area 1 Operations
TRANSFER MRA Debt Service
TO 1999 Tax Allocation Bonds
2001 Tax Allocation Bonds
2006 Tax Allocation Bonds
Low/Mod
Housing
Special Revenue
152,117
TRANSFERS FROM
MRA 2001 Bond
Debt Service Proceeds Total
$ 1,410,886 $
931,193
1,027,730
584,674
533,654
4,846,323
$ 1,410,886
5,777,516
152,117
1,027,730
584,674
533,654
Total $ 152,117 $ 4,488,137 $ 4,846,323 $ 9,846,577
The MRA Debt Service Fund transferred funds to the Low/Mod Housing Special Revenue Fund to
meet the low and moderate income housing 20 percent tax increment set -aside requirement.
The MRA Debt Service Fund transferred funds to the 1999, 2001, and 2006 Tax Allocation Bond Debt
Service funds in an amount equal to the restricted cash for the three bond issues.
The MRA Debt Service Fund transferred its remaining equity to the MRA Area 1 Operations Fund.
The 2001 Bond Proceeds Fund transferred funds to the MRA Area 1 Operations Fund to reimburse for
eligible capital expenditures.
The Low/Mod Housing Special Revenue Fund transferred funds to the MRA Debt Service Fund to pay
the 20% debt service on the 1999 Tax Allocation Refunding Bonds.
Interfund Balances
During the fiscal year, the 2001 Bond Proceeds Fund advanced the Low and Moderate Housing Fund
$350,000. This advance is expected to be paid back in the 2009/10 fiscal year.
20 178
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
6) DUE TO/DUE FROM THE CITY OF MOORPARK
The City's General Fund has advanced $2,110, $301, $13,091, and $4,195 to the Low and Moderate
Income Housing, MRA Area 1 Operations, 2001 Bond Proceeds, and the 2006 Bond Proceeds funds
respectively. These advances are expected to be paid back to the City's General Fund in 2009/10.
The City's Capital Projects fund advanced $60,000 during the fiscal year to the MRA Area 1
Operations fund. This advance is expected to be paid back to the City's Capital Projects Fund in
2009 /10. Also, during the fiscal year, the Agency's Low and Moderate Income Housing Fund
advanced $54,577 to the City's General Fund. This advance is expected to be paid back to the
Agency's Low and Moderate Income Housing Fund in 2009/10.
7) LONG -TERM DEBT
Changes in long -term debt for the year ended June 30, 2009 are as follows:
1999 Tax Allocation Bonds
In 1999, the Moorpark Redevelopment Agency issued a $9,860,000 aggregated principal amount of
Moorpark Redevelopment Project 1999 Tax Allocation Refunding Bonds (1999 Bonds). The purpose
of the 1999 Bonds was to advance refund the Agency's previously issued $10,000,000 Moorpark
Redevelopment Project, 1993 Tax Allocation Bonds (1993 Bonds). The purpose of the 1993 Bonds
was to finance a portion of the costs of implementing the Redevelopment Plan, including low and
moderate income housing projects.
The 1999 Bonds bear interest at rates ranging from 3.05 percent to 4.875 percent per annum, payable
semi - annually on April 1 and October 1 of each year, commencing on October 1, 1999 and are subject
to mandatory sinking fund redemption commencing on October 1, 2009 and on each October 1
thereafter. The 1999 Bonds are payable from and secured by the tax revenues to be derived from the
project area.
21 179
Balance
Balance
Due
Beginning
End
Within
of Year Additions
Reductions
of Year
One Year
1999 Tax Allocation Bonds
$ 6,430,000 $
$ (460,000)
$ 5,970,000
$ 475,000
2001 Tax Allocation Bonds
11,555,000
(15,000)
11,540,000
20,000
2006 Tax Allocation Bonds
11,695,000
11,695,000
Discount on Bonds
(309,131)
10,847
(298,284)
(10,847)
Totals
$ 29,370,869 $ -
$ (464,153)
$ 28,906,716
$ 484,153
1999 Tax Allocation Bonds
In 1999, the Moorpark Redevelopment Agency issued a $9,860,000 aggregated principal amount of
Moorpark Redevelopment Project 1999 Tax Allocation Refunding Bonds (1999 Bonds). The purpose
of the 1999 Bonds was to advance refund the Agency's previously issued $10,000,000 Moorpark
Redevelopment Project, 1993 Tax Allocation Bonds (1993 Bonds). The purpose of the 1993 Bonds
was to finance a portion of the costs of implementing the Redevelopment Plan, including low and
moderate income housing projects.
The 1999 Bonds bear interest at rates ranging from 3.05 percent to 4.875 percent per annum, payable
semi - annually on April 1 and October 1 of each year, commencing on October 1, 1999 and are subject
to mandatory sinking fund redemption commencing on October 1, 2009 and on each October 1
thereafter. The 1999 Bonds are payable from and secured by the tax revenues to be derived from the
project area.
21 179
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
7) LONG -TERM DEBT - Continued
The 1999 Bonds are secured by all property tax increment revenues, which are deposited in the Debt
Service Fund. Cash and investments in the custody of the fiscal agent are restricted by the bond
resolutions for payment of principal and interest on the Tax Allocation Bonds. In addition, the bond
resolutions require retention of funds held by the fiscal agent prior to use for other than debt service.
The Agency is in compliance with the covenants contained in debt indentures, which require the
establishment of certain specific accounts for the Tax Allocation Bonds.
Debt service payments on the 1999 Tax Allocation Refunding Bonds payable will be made from the
Debt Service Fund. Annual debt service requirements to maturity are as follows:
Year Ended
June 30,
Tax Allocation Bonds
Principal
Interest
Total
2010
$ 475,000
$ 279,459
$ 754,459
2011
500,000
255,694
755,694
2012
525,000
230,709
755,709
2013
550,000
204,506
754,506
2014
580,000
176,962
756,962
2015 -2019
3,340,000
422,905
3,762,905
Total
$ 5,970,000
$ 1,570,235
$ 7,540,235
2001 Tax Allocation Bonds
In December 2001, the Moorpark Redevelopment Agency issued $11,625,000 of Tax Allocation Parity
Bonds (2001 Bonds). The proceeds of the 2001 Bonds are to be used to fund redevelopment activities
within the Moorpark Redevelopment Project area. Interest on the 2001 Bonds is payable semi - annually
on April 1 and October 1, commencing April 1, 2002, at rates ranging from 2.85 percent to 5.13 percent
per annum. The 2001 Bonds maturing October 2031 are subject to mandatory sinking fund
redemption. The 2001 Bonds are payable from and secured by the tax revenues to be derived from the
project area.
22 180
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
7) LONG -TERM DEBT - Continued
The 2001 Bonds are secured by all property tax increment revenues, which are deposited in the Debt
Service Fund. Cash and investments in the custody of the fiscal agent are restricted by the bond
resolutions for payment of principal and interest on the Tax Allocation Bonds. In addition, the bond
resolution requires retention of funds held by the fiscal agent prior to use for other than debt service.
The Agency is in compliance with the covenants contained in debt indentures, which require the
establishment of certain specific accounts for the Tax Allocation Bonds.
Debt service payments on the 2001 Tax Allocation Parity Bonds payable will be made from the Debt
Service Fund. Annual debt service requirements to maturity are as follows:
Year Ended
June 30,
Tax Allocation Bonds
Principal Interest
Total
2010
$ 20,000
$ 588,469
$ 608,469
2011
15,000
587,743
602,743
2012
15,000
587,098
602,098
2013
20,000
586,319
606,319
2014
15,000
585,525
600,525
2015 -2019
100,000
2,913,875
3,013,875
2020 -2024
3,530,000
2,473,206
6,003,206
2025 -2029
4,520,000
1,449,095
5,969,095
2030 -2032
3,305,000
259,454
3,564,454
Total
$ 11,540,000
$ 10,030,784
$ 21,570,784
2006 Tax Allocation Bonds
In 2006, the Moorpark Redevelopment Agency issued an $11,695,000 aggregated principal amount of
Moorpark Redevelopment Project 2006 Tax Allocation Bonds (2006 Bonds). The purpose of the 2006
Bonds was to finance redevelopment activities within the Moorpark Redevelopment Project Area. The
2006 Bonds bear interest at rates ranging from 3.625 percent to 4.375 percent per annum, payable semi-
annually on April 1 and October 1 of each year, commencing on April 1, 2007, and are subject to
mandatory sinking fund redemption commencing on October 1, 2016, and on each October 1 thereafter.
The 2006 Bonds are payable from and secured by the tax revenues to be derived from the project area.
23 181
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
7) LONG -TERM DEBT - Continued
The 2006 Bonds are secured by all property tax increment revenue, which is recorded in the Debt
Service Fund. Cash and investments in the custody of the fiscal agent are restricted by the bond
resolutions for payment of principal and interest on the Tax Allocation Bonds.
The Agency is in compliance with the covenants contained in the debt indenture, which require the
establishment of certain specific accounts for the Tax Allocation Bonds.
Debt service payments on the 2006 Tax Allocation Bonds payable will be made from the Debt Service
Fund. Annual debt service requirements to maturity are as follows:
Year Ending
June 30,
2010
2011
2012
2013
2014
2015 -2019
2020 -2024
2025 -2029
2030 -3034
2035 -2039
Total
8) SHORT TERM DEBT
Tax Allocation Bonds
Principal Interest
40,000
40,000
35,000
40,000
225,000
280,000
345,000
2,920,000
7,770,000
$ 11,695,000
$ 508,163
507,437
505,987
504,628
503,269
2,492,706
2,443,069
2,376,884
2,185,313
878,937
$ 12,906,393
Total
$ 508,163
547,437
545,987
539,628
543,269
2,717,706
2,723,069
2,721,884
5,105,313
8,648,937
$ 24,601,393
At the beginning of the fiscal year, the Agency borrowed $5,000,000 from the City for cash flow
purposes throughout the year. The Agency repaid the balance before June 30, 2009.
9) CLASSIFICATION OF NET ASSETS AND FUND BALANCE
Net Assets
Net assets are the differences between assets and liabilities. Net assets invested in capital assets, net of
related debt are capital assets, less accumulated depreciation and any outstanding debt related to the
acquisition, construction or improvement of those assets. Net assets are reported as restricted when
24 182
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
9) CLASSIFICATION OF NET ASSETS AND FUND BALANCE - Continued
there are legal limitations imposed on their use by Agency legislation or external restrictions by other
governments, creditors or grantors.
Fnn� Ralanne
Under accounting principles generally accepted in the United States of America a governmental entity
may set up "reserves" of fund equity to segregate fund balances, which are not appropriable for
expenditure in future periods, or which are legally set aside for a specific future use. Fund
"designations" also may be established to indicate tentative plans for financial resources utilization in a
future period.
10) EXPENDITURES IN EXCESS OF APPROPRIATIONS
The following fund had expenditures in excess of the budget in the following amounts for the year
ended June 30, 2009:
MRA Debt Service Fund $ 670,620
The variance of $670,620 is mainly a result of the required tax increment pass - through payments that
were higher than budgeted reflecting the increase in property tax revenue received.
11) AGREEMENTS WITH VARIOUS TAXING AGENCIES
The Moorpark Redevelopment Agency has entered into five (5) agreements for allocation and
distribution of tax increment revenues:
The first agreement is with the County of Ventura, County Library District, Ventura County Fire
Protection District, and Ventura Flood Control District (collectively, the "County Taxing Entities "),
which provides for the Agency to retain 100 percent of the County Taxing Entities share (55.82
percent) of annual tax increment revenues up to $1,750,000. For annual tax increment revenue in
excess of $1,750,000, the Agency shall distribute 55.82 percent of such revenues to the County on
behalf of the County Taxing Entities. The County Taxing Entities have agreed to defer payments in the
initial years of the Redevelopment Plan, and consequently, the parties agree that the County Taxing
Entities may receive payments in any single fiscal year in excess of the amount of tax revenues the
County Taxing Entities would otherwise be entitled to, but for the adoption of the Redevelopment Plan.
25 183
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
11) AGREEMENTS WITH VARIOUS TAXING AGENCIES - Continued
Additionally, the agreement calls for the Agency to receive a $1,000,000 payment from the tax
increment disbursed to the County pursuant to the agreement, by December 31, 2008, if and only if the
Agency's annual debt statements which are filed with the County Auditor - Controller from fiscal year
1993/94 to fiscal year 2008/09 list debts in an amount equal to or in excess of the maximum tax
increment available to the Agency in each of such fiscal years. (Also, see Note 15)
With respect to the first paragraph, 4.2 percent of the County Taxing Entities' share is allocated to the
County Library District (aka County Free Library System). The City of Moorpark has withdrawn from
the County Free Library System and now operates the Moorpark Library. Pursuant to the
Memorandum of Understanding governing the County Free Library System, upon withdrawal, a city is
entitled to all property taxes allocated to library purposes from within the corporate boundaries of such
city. The County has agreed that the City of Moorpark is entitled to the share of annual tax increment
previously allocated to the County Library District under the first agreement.
The second agreement is with the City of Moorpark Vector Control, formerly known as the Moorpark
Mosquito Abatement District and states that the City of Moorpark Vector Control shall receive 87.5
percent of its share (1.53 percent) of annual tax increment revenue, following a deduction from total
increment revenues for amounts required to be used for housing purposes (currently 20 percent of total
tax increment revenue).
The third agreement is with the Moorpark Unified School District (the School District), and states that
the School District shall receive, after the Agency has satisfied debt service payments to bond or note
holders or to the holder of any other instruments of Agency indebtedness (provided such indebtedness
is not reasonably foreseeable to impair the Agency's obligation under the agreement), the School
District's share (33.41 percent) of tax increment revenues generated by an annual 2 percent increase in
assessed valuation, and beginning in fiscal year 1995/96, 14 percent of the School District's share of
annual tax increment revenue.
Per the agreement between the School District and the Moorpark Redevelopment Agency, the
distributions to the School District shall be expended for the following purposes at school sites in the
incorporated boundaries of the City:
1. Telephone systems for new buildings;
2. Computer hardware and educational systems;
3. Land acquisition;
26 184
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
11) AGREEMENTS WITH VARIOUS TAXING AGENCIES - Continued
4. Books; and
5. School buildings and facilities and related capital improvements and modernization projects
(collectively "public works "); such public works may include design, inspection and administration
costs, but not School District overhead or salary/benefits for regular School District employees.
The Agency may pre- approve other proposed expenditures that are submitted in writing by the School
District.
The fourth agreement is with the Ventura County Community College District (the Community
College District), and states that the Community College District will receive, after the Agency has
satisfied debt service payments to bond or note holders or to the holders of any other instruments of
agency indebtedness (provided such indebtedness is not reasonably foreseeable to impair the Agency's
obligation under the agreement), the Community College District's share (5.81 percent) of tax
increment revenues generated by an annual 2 percent increase in assessed valuation, and beginning in
fiscal year 1993/94, 14 percent of the Community College District's share of annual tax increment
revenue.
An agreement, dated May 1, 2008, between the City and the Community College District redirects
the Community College District's tax increment allocation. The Agency shall transfer to the City the
Community College District's tax increment allocations, up to One Million Dollars ($1,000,000),
beginning with fiscal year 2006/07 and for every fiscal year thereafter through and including the
2024/25 fiscal year for the purpose of constructing certain public improvements near Moorpark
College.
The fifth agreement is with the Ventura County Superintendent of School Office (the Superintendent),
and states that the Superintendent shall receive its share (2.49 percent) of tax increment revenues
generated by an annual 2 percent increase in assessed valuation.
12) LOW AND MODERATE INCOME HOUSING SET ASIDE
The California Health and Safety Code Section 33334.2 requires a redevelopment agency to use at
least 20 percent of tax increment revenues generated by a redevelopment project area to increase and
improve the supply of low and moderate income housing in the community. Accordingly, the
Agency's unspent commitment for its low and moderate income housing program amounted to
$268,355 and has been reflected as unreserved fund balance in the Agency's Low and Moderate
Income Special Revenue Fund.
27 185
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
13) RETIREMENT PLAN
A) Plan Description
Employees of the Moorpark Redevelopment Agency are all City employees. The City of Moorpark
contributes to the California Public Employees Retirement System (CalPERS), a cost - sharing
multiple- employer public employee defined benefit pension plan. CalPERS provides retirement and
disability benefits, annual cost -of- living adjustments, and death benefits to plan members and
beneficiaries. CalPERS acts as a common investment and administrative agent for participating
public entities within the State of California. Benefit provisions and all other requirements are
established by state statute and city ordinance. Copies of CalPERS' annual financial report may be
obtained from their executive office: 400 P Street, Sacramento, California 95814.
B Funding Policy
Active plan members are required to contribute 7% of their covered salary. The City of Moorpark
makes the contribution required of the City employees on their behalf. The City is also required to
make an additional contribution at an actuarially determined rate. The required employer
contribution rate for the fiscal year 2008/09 was 11.607 %. The contribution requirements for plan
members are established by State statute and the employer contribution rate is established and may
be amended by CalPERS. The following represents the required contributions for the past three
fiscal years:
Fiscal
Required
Percent
Year
Contributions
Contributed
2006/07
$ 455,376
100%
2007/08
$ 448,187
100%
2008/09
$ 491,357
100%
14) RISK MANAGEMENT
A) Description of Self - Insurance Pool Pursuant to Joint Powers Agreement
The City (which includes the Moorpark Redevelopment Agency) is a member of the California
Joint Powers Insurance Authority (Authority). The Authority is composed of over 100 California
public entities and is organized under a joint powers agreement pursuant to California Government
Code 6500 et seq. The purpose of the Authority is to arrange and administer programs for the
pooling of self-insured losses, to purchase excess insurance or reinsurance, and to arrange for
group - purchased insurance for property and other coverages. The Authority's pool began covering
claims of its members in 1978. Each member government has an elected official as its
representative on the Board of Directors. The Board operates through a nine- member Executive
Committee.
28 186
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
14) RISK MANAGEMENT - Continued
B) Self Insurance Programs of the Authority
General Liability: Each member government pays a primary deposit to cover estimated losses for a
fiscal year (claims year). Six months after the close of a fiscal year, outstanding claims are valued.
A retrospective deposit computation is then made for each open claims year. Costs are spread to
members as follows: the first $30,000 of each occurrence is charged directly to the member; costs
from $30,001 to $750,000 are pooled based on a member's share of costs under $30,000; costs
from $50,001 to $5,000,000 are pooled based on payroll. Cost of covered claims above $5,000,000
are currently paid by reinsurance. The Protection for each member is $50,000,000 per occurrence
and $50,000,000 annual aggregate.
Workers' Compensation: The City also participates in the workers compensation pool
administered by the Authority. Members retain the first $50,000 of each claim. Claims are pooled
separately between public safety and non -public safety. Loss development reserves are allocated by
pool and by loss layer ($0 to $100,000 allocated by retained amount and $100,000 to $2,000,000 by
payroll). Losses from $50,000 to $100,000 and the loss development reserve associated with losses
up to $100,000 are pooled based on the member's share of losses under $50,000. Losses from
$100,000 to $2,000,000 are pooled based on payroll. Costs in excess of $50,000,000 are pooled
among the Members based on payroll. Administrative expenses are paid from the Authority's
investment earnings.
C) Purchased Insurance
The City participates in the all-risk property protection program of the Authority. This insurance
protection is underwritten by several insurance companies. The City property is currently insured
according to a schedule of covered property submitted by the City to the Authority. Total all-risk
property insurance coverage is $25,067,394. There is a $5,000 per loss deductible. Premiums for
the coverage are paid annually and are not subject to retroactive adjustments.
D) Earthquake and Flood Insurance
The City purchased earthquake and flood insurance on a portion of its property. The earthquake
insurance is part of the property protection insurance program of the Authority. The City property
currently has earthquake protection in the amount of $20,504,842. There is a deductible of 5
percent of the value with a minimum deduction of $100,000. Premiums for the coverage are paid
annually and are not subject to retroactive adjustments.
29 187
Moorpark Redevelopment Agency
Notes to Financial Statements
Year Ended June 30, 2009
14) RISK MANAGEMENT - Continued
E) Adequacy of Protection
During the past three fiscal (claims) years none of the above program of protection have had
settlements or judgments that exceeded pooled or insured coverage. There have been no significant
reductions in pooled or insured liability coverage from coverage in the prior year.
F) Claims and Judgments
The City accounts for uninsured, material claims and judgments and associated legal and
administrative costs when it is probable that the liability claim has been incurred and the amount
of the loss can be reasonably estimated. Included therein are claims incurred but not reported,
which consists of (a) known loss events expected to be presented as claims later, (b) unknown
loss events that are expected to become claims, and (c) expected future development on claims
already reported. This is based upon historical actual results that have established a reliable pattern
supplemented by specific information about current matters. Small dollar claims and judgments are
recorded as expenditures when paid.
15) SPECIAL ITEMS
The Agency received $1,000,000 from the County of Ventura resulting from a settlement agreement
between the Agency and the County.
16) CONTINGENCIES /SUBSEQUENT EVENTS
There are certain legal actions currently pending against the Agency arising in the normal course of the
Agency's operations. In the opinion of management and the Agency Attorney, the ultimate resolution
of such actions is not expected to have a significant effect upon the financial statements of the Agency.
Subsequent to June 30, 2009, the State of California passed legislation to divert approximately $2.05
billion of local redevelopment funds to use for State purposes, as part of the 2009/10 State budget.
This includes $1.7 billion in fiscal year 2009/10 and another $350 million in fiscal year 2010/11.
The California Redevelopment Association (CRA) has filed a lawsuit in Sacramento Superior Court
to challenge the constitutionality of this legislation. Currently, the effect that this legislation and
resulting lawsuit will have on the Agency's future revenues is unknown. If the legislation is upheld
in court then the Moorpark Redevelopment Agency's share is approximately $1,923,000 in fiscal
year 2009/10 and $395,000 in fiscal year 2010/11.
30 188
REQUIRED SUPPLEMENTARY INFORMATION
..
Moorpark Redevelopment Agency
Notes to Required Supplementary Information
Year Ended June 30, 2009
A budgetary comparison schedule is presented as part of the required supplementary information for the
major special revenue funds as provided for by GASB Statement No. 34. The budgetary comparison
schedules for the remaining major funds are presented to aid in additional analysis and are not a required
part of the basic financial statements.
31 190
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
Low and Moderate Income Housing Special Revenue Fund
Budget and Actual
Year Ended June 30, 2009
Revenues
Use of Money and Property
Total Revenues
Expenditures
Current:
Public Services
Administration
Capital Outlay
Debt Service:
Principal
Interest on Bonds
Total Expenditures
Excess (Deficiency) of Revenues
over Expenditures
Other Financing Sources (Uses)
Transfers In
Transfers Out
Total Other Financing
Sources (Uses)
Net Change in Fund Balance
Fund Balance, Beginning of Year
Fund Balance, End of Year
Budgeted Amounts
Original Final
Actual
Amounts
Variances with
Final Budget
Positive (Negative)
$ 100,909 $
100,909 $
28,494 $
(72,415)
100,909
100,909
28,494
(72,415)
2,120,229 2,199,571 319,485 1,880,086
378,950 443,366 234,174 209,192
31,000 36,166 36,166 -
2,530,179 2,679,103 589,825 2,089,278
(2,429,270) (2,578,194) (561,331) 2,016,863
1,312,000 1,312,000 1,410,886 98,886
(152,117) (152,117) (152,117) -
1,159,883 1,159,883 1,258,769 98,886
(1,269,387) (1,418,311) 697,438 2,115,749
6,231,367 6,231,367 6,231,367 -
$ 4,961,980 $ 4,813,056 $ 6,928,805 $ 2,115,749
32 191
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
MRA Area 1 Operations Special Revenue Fund
Budget and Actual
Year Ended June 30, 2009
Revenues
Use of Money and Property
Other Revenue
Total Revenues
Expenditures
Current:
Public Services
Administration
Capital Outlay
Debt Service:
Principal
Interest
Total Expenditures
Excess (Deficiency) of Revenues
over Expenditures
Other Financing Sources (Uses)
Transfers In
Transfers Out
Total Other Financing
Sources (Uses)
Net Change in Fund Balance
Budgeted Amounts
Original Final
$ 59,000
73,850
Actual
Amounts
Variances with
Final Budget
Positive (Negative)
59,000 $ 44,595 $ (14,405)
96,643 69,295 (27,348)
132,850 155,643 1 13,890 (41,753)
1,536,050
2,423,026
1,503,760
919,266
1,178,138
1,063,903
347,509
716,394
2,714,188
3,486,929
1,851,269
1,635,660
(2,581,338)
(3,331,286)
(1,737,379)
1,593,907
5,777,516
5,777,516
-
-
5,777,516
5,777,516
(2,581,338)
(3,331,286)
4,040,137
7,371,423
Fund Balance, Beginning of Year
6,934,337
6,934,337
6,934,337 -
Fund Balance, End of Year $
4,352,999
$ 3,603,051
$ 10,974,474 $ 7,371,423
33 192
SUPPLEMENTARY INFORMATION
193
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
MRA Debt Service
Budget and Actual
Year Ended June 30, 2009
Revenues
Taxes
Use of Money and Property
Total Revenues
Expenditures
Current:
Public Services
Pass -Thru Agreements
Administration
Debt Service:
Principal
Interest on Bonds
Interest on Debt to City
Total Expenditures
Excess (Deficiency) of Revenues
over Expenditures
Budgeted Amounts
Original Final
Variances with
Actual Final Budget
Amounts Positive (Negative)
$ 6,560,000 $ 6,560,000 $ 7,054,432 $ 494,432
342,060 342,060 224,688 (117,372)
6,902,060 6,902,060 7,279,120 377,060
2,800,000 2,800,000
475,000
475,000
1,397,921
1,397,921
230,000
230,000
3,366,956 (566,956)
173,689 (173,689)
475,000 -
1,397,921 -
159,975 70,025
4,902,921 4,902,921 5,573,541 (670,620)
1,999,139 1,999,139 1,705,579 (293,560)
Other Financing Sources (Uses)
Transfers In 152,117 152,117 152,117 -
Transfers Out (1,312,000) (1,312,000) (4,488,137) (3,176,137)
Total Other Financing
Sources (Uses)
Special Items
County Settlement
Net Change in Fund Balance
(1,159,883) (1,159,883) (4,336,020) (3,176,137)
1,000,000 1,000,000.
839,256 1,839,256 (1,630,441) (3,469,697)
Fund Balance, Beginning of Year 1,630,441 1,630,441 1,630,441
Fund Balance, End of Year $ 2,469,697 $ 3,469,697 $
- $ (3,469,697)
34 194
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
1999 Tax Allocation Bonds Debt Service Fund
Budget and Actual
Year Ended June 30, 2009
35 195
Variances with
Budgeted Amounts
Actual
Final Budget
Original Final
Amounts
Positive (Negative)
Revenues
Taxes $ $
$
$ _
Use of Money and Property
_
Total Revenues - -
-
-
Expenditures
Current:
Public Services
-
Debt Service:
Principal
-
Interest
_
Total Expenditures
Excess (Deficiency) of Revenues
over Expenditures - -
-
-
Other Financing Sources (Uses)
Transfers In
1,027,730
1,027,730
Transfers Out
-
Total Other Financing
Sources (Uses) - -
1,027,730
1,027,730
Net Change in Fund Balance - -
1,027,730
1,027,730
Fund Balance, Beginning of Year - -
-
-
Fund Balance, End of Year $ - $ -
$ 1,027,730
$ 1,027,730
35 195
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
2001 Tax Allocation Bonds Debt Service Fund
Budget and Actual
Year Ended June 30, 2009
36 196
Variances with
Budgeted Amounts
Actual
Final Budget
Original Final
Amounts
Positive (Negative)
Revenues
Taxes $ $
$
$
Use of Money and Property
-
Total Revenues -
- -
-
Expenditures
Current:
Public Services
-
Debt Service:
Principal
-
Interest
-
Total Expenditures - -
-
-
Excess (Deficiency) of Revenues
over Expenditures - -
-
-
Other Financing Sources (Uses)
Transfers In
584,674
584,674
Transfers Out
-
Total Other Financing
Sources (Uses) - -
584,674
584,674
Net Change in Fund Balance - -
584,674
584,674
Fund Balance, Beginning of Year - -
-
-
Fund Balance, End of Year $ - $ -
$ 584,674
$ 584,674
36 196
37 197
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
2006
Tax Allocation Bonds Debt Service Fund
Budget and Actual
Year Ended June 30, 2009
Variances with
Budgeted Amounts Actual
Final Budget
Original Final Amounts
Positive (Negative)
Revenues
Taxes
$ $ $
$ -
Use of Money and Property
"
Total Revenues
Expenditures
Current:
Public Services
-
Debt Service:
Principal
-
Interest
-
Total Expenditures
Excess (Deficiency) of Revenues
over Expenditures
- - -
-
Other Financing Sources (Uses)
Transfers In
533,654
533,654
Transfers Out
-
Total Other Financing
Sources (Uses)
- - 533,654
533,654
Net Change in Fund Balance
- - 533,654
533,654
Fund Balance, Beginning of Year
- - -
-
Fund Balance, End of Year
$ - $ - $ 533,654
$ 533,654
37 197
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
2001 Bond Proceeds Capital Projects Fund
Budget and Actual
Year Ended June 30, 2009
38 198
Variances with
Budgeted Amounts
Actual
Final Budget
Original
Final
Amounts
Positive (Negative)
Revenues
Use of Money and Property
$ 355,489
$ 355,489
$ 201,624
$ (153,865)
Intergovernmental
-
Other Revenue
6,990
6,990
Total Revenues
355,489
355,489
208,614
(146,875)
Expenditures
Current:
Public Services
Administration
122,975
249,485
126,380
123,105
Capital Outlay
3,499,474
664,067
2,835,407
Total Expenditures
122,975
3,748,959
790,447
2,958,512
Excess (Deficiency) of Revenues
over Expenditures
232,514
(3,393,470)
(581,833)
2,811,637
Other Financing Sources (Uses)
Transfers Out
(4,846,323)
(4,846,323)
Total Other Financing
Sources (Uses)
-
-
(4,846,323)
(4,846,323)
Net Change in Fund Balance
232,514
(3,393,470)
(5,428,156)
(2,034,686)
Fund Balance, Beginning of Year
12,088,462
12,088,462
12,088,462
-
Fund Balance, End of Year
$ 12,320,976
$ 8,694,992
$ 6,660,306
$ (2,034,686)
38 198
Moorpark Redevelopment Agency
Statement of Revenues, Expenditures, and Changes in Fund Balances
2006 Bond Proceeds Capital Projects Fund
Budget and Actual
Year Ended June 30, 2009
39 199
Variances with
Budgeted Amounts
Actual
Final Budget
Original
Final
Amounts
Positive (Negative)
Revenues
Use of Money and Property
$ 330,542
$ 330,542
$ 201,692
$ (128,850)
Total Revenues
330,542
330,542
201,692
(128,850)
Expenditures
Current:
Public Services
Administration
2,430,178
2,369,199
153,416
2,215,783
Capital Outlay
9,500,000
9,500,000
9,500,000
Total Expenditures
11,930,178
11,869,199
153,416
11,715,783
Excess (Deficiency) of Revenues
over Expenditures
(11,599,636)
(11,538,657)
48,276
11,586,933
Other Financing Sources (Uses)
Transfers In
-
Total Other Financing
Sources (Uses)
-
-
-
-
Net Change in Fund Balance
(11,599,636)
(11,538,657)
48,276
11,586,933
Fund Balance, Beginning of Year
9,580,090
9,580,090
9,580,090
-
Fund Balance, End of Year
$ (2,019,546)
$ (1,958,567)
$ 9,628,366
$ 11,586,933
39 199
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200
RS TEAMAN, RAMIRE- & SMITH, INC.
07CERTIFIED PUBLIC ACCOUNTANTS
Report on Internal Control Over Financial Reporting and on Compliance and
Other Matters Based On an Audit of Financial Statements Performed
in Accordance With Government Auditing Standards
The Honorable Chair and Members of the Agency
Moorpark Redevelopment Agency
Moorpark, California
We have audited the financial statements of the Moorpark Redevelopment Agency (the "Agency") as of
and for the year ended June 30, 2009, and have issued our report thereon dated December 4, 2009. We
conducted our audit in accordance with auditing standards generally accepted in the United States of
America and the standards applicable to financial audits contained in Government Auditing Standards,
issued by the Comptroller General of the United States.
Internal Control Over Financial Reportin;
In planning and performing our audit, we considered the Agency's internal control over financial
reporting as a basis for designing our auditing procedures for the purpose of expressing our opinion on
the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the
Agency's internal control over financial reporting. Accordingly, we do not express an opinion on the
effectiveness of the Agency's internal control over financial reporting.
A control deficiency exists when the design or operation of a control does not allow management or
employees, in the normal course of performing their assigned functions, to prevent or detect
misstatements on a timely basis. A significant deficiency is a control deficiency, or combination of
control deficiencies, that adversely affects the Agency's ability to initiate, authorize, record, process, or
report financial data reliably in accordance with generally accepted accounting principles such that there
is more than a remote likelihood that a misstatement of the Agency's financial statements that is more
than inconsequential will not be prevented or detected by the Agency's internal control.
A material weakness is a significant deficiency, or combination of significant deficiencies, that results in
more than a remote likelihood that a material misstatement of the financial statements will not be
prevented or detected by the Agency's internal control.
Our consideration of internal control over financial reporting was for the limited purpose described in
the first paragraph of this section and would not necessarily identify all deficiencies in internal control
that might be significant deficiencies or material weaknesses. We did not identify any deficiencies in
internal control over financial reporting that we consider to be material weaknesses, as defined above.
40
Richard A. Teaman, CPA o Greg W. Fankhanel, CPA • David M. Ramirez, CPA • Javier H. Carrillo, cPA 201
4201 Brockton Ave. Suite 100, Riverside CA 92501 • 951.274.9500 • 951 .274.7828 FAX a www.trscpas.com
Compliance and Other Matters
As part of obtaining reasonable assurance about whether the Agency's financial statements are free of
material misstatement, we performed tests of its compliance with certain provisions of laws, regulations,
contracts and grant agreements, noncompliance with which could have a direct and material effect on the
determination of financial statement amounts. Such provisions include those provisions of laws and
regulations identified in the Guidelines for Compliance Audits of California Redevelopment Agencies,
issued by the State Controller. However, providing an opinion on compliance with those provisions was
not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests
disclosed no instances of noncompliance or other matters that are required to be reported under
Government Auditing Standards. We noted certain matters that we reported to management in a separate
letter dated December 4, 2009.
This report is intended solely for the information and use of management, and the State Controller's
Office, and is not intended to be and should not be used by anyone other than these specified parties.
December 4, 2009
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