HomeMy WebLinkAboutRES CC 2005 2387 2005 0921RESOLUTION NO. 2005 -2387
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, CALIFORNIA, APPROVING FUNDING,
CONSTRUCTION AND ACQUISITION AGREEMENT IN
CONNECTION WITH COMMUNITY FACILITIES
DISTRICT NO. 2004 -2 (MOORPARK VISTAS)
WHEREAS, the Council is conducting proceedings to form a
community facilities district as described in Resolution No.
2004 -2241 with respect to Community Facilities District No. 2004-
2 (Moorpark Vistas) (the "CFD ") of the City pursuant to the
Mello -Roos Community Facilities Act of 1982, as amended, Chapter
2.5 of Part 1 of Division 2 of Title 5, commencing with Section
53311, of the California Government Code (the "Act "); and
WHEREAS, the facilities to
proceedings are to be set forth
forming the CFD; and
be provided as stated in the
in an exhibit to the resolution
WHEREAS, subsequent to formation of the CFD pursuant to the
Act, the City desires to acquire the facilities in accordance
with the provisions of the Act and to enter into an agreement for
such purpose.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
HEREBY RESOLVES AS FOLLOWS:
SECTION 1. As a part of the proceedings for the CFD,
this City has caused to be prepared a Funding and Acquisition
Agreement (the "Agreement ") by and between the City of Moorpark
and Moorpark 150, LLC, the form of which is attached hereto. The
purpose of the Agreement is to provide, in connection with the
establishment of the CFD, for the acquisition of certain
facilities and payment of certain incidental expenses relating
thereto, all of which will benefit the property in the CFD, in
connection with the issuance and sale of the bonds for the CFD
financing, including incidental expenses, and to provide the
terms of any reimbursement to owners of land within the CFD.
SECTION 2. The City Council hereby approves the
Agreement in the form presented to the City Council at this
meeting. The Mayor, the City Manager, the Assistant City
Manager, the City Attorney or such other person or persons as any
one of them may designate (collectively, the "Authorized
Officers "), are each hereby authorized and directed to execute
Resolution No. 2005 -2387
Page 2
one of them may designate (collectively, the "Authorized
Officers "), are each hereby authorized and directed to execute
the Agreement and the City Clerk is hereby authorized to attest
its execution, for and in the name and on behalf of the City and
the CFD, in such form, together with any additions thereto or
changes therein deemed necessary or advisable by the Authorized
Officer, upon consultation with the City Attorney and Bond
Counsel for the District.
SECTION 3. Certification. The City Clerk shall certify
to the adoption of this reso �ofori cause a certified
resolution to be filed in the ooal res olutions.
A
PASSED AND ADOPTED ,this 21st day of Septetnb /r, 2
n mayor
ATTEST:
1
Deborah S. Traffensted City Clerk
Attachments: Exhibit "A" - Funding and Acquisition Agreement
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FUNDING AND ACQUISITION AGREEMENT
by and between the
CITY OF MOORPARK
and
MOORPARK 150, LLC
Dated as of September 7, 2005
Relating to:
City of Moorpark
Community Facilities District No. 2004 -2
(Moorpark Vistas)
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EXHIBIT A
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section1.01. Definitions .............................................................................................................. ..............................1
ARTICLE II
RECITALS
Section2.01. The CFD ................................................................................................................. ..............................3
Section2.02. The Development ................................................................................................... ..............................3
Section2.03. The Facilities .......................................................................................................... ..............................3
Section2.04. The Financing ........................................................................................................ ..............................4
Section2.05. The Bonds .............................................................................................................. ..............................4
Section 2.06. No Advantage to City Construction ................................................................... ............................... 4
Section2.07. Agreements ............................................................................................................ ..............................4
ARTICLE III
FUNDING
Section3.01. City Proceedings .................................................................................................... ..............................4
Section3.02. Special Taxes ......................................................................................................... ..............................4
Section3.03. Bonds ...................................................................................................................... ..............................4
Section3.04. Bond Proceeds ...................................................................................................... ............................... 5
ARTICLE IV
CONSTRUCTION OF FACILITIES
Section4.01. Plans ...................................................................................................................... ............................... 5
Section 4.02. Duty of Developer to Construct .......................................................................... ............................... 6
Section 4.03. Relationship to Public Works; Bidding Requirements ...................................... ..............................6
Section 4.04. Independent Contractor ...................................................................................... ............................... 7
Section 4.05. Performance and Payment Bonds ....................................................................... ............................... 7
Section 4.06. Contracts and Change Orders ............................................................................ ............................... 8
ARTICLE V
ACQUISITION AND PAYMENT
Section5.01. Inspection ............................................................................................................... ..............................8
Section 5.02. Agreement to Sell and Purchase City Facilities .................................................. ..............................8
Section5.03. Payment Requests ................................................................................................. ..............................8
Section 5.04. Processing Payment Requests .............................................................................. ..............................9
Section5.05. Payment ................................................................................................................. ..............................9
Section 5.06. Restrictions on Payments ..................................................................................... ..............................9
Section 5.07. Defective or Nonconforming Work .................................................................... .............................11
Section 5.08. Modification or Designation of Discrete Components ...................................... .............................11
ARTICLE VI
OWNERSHIP AND TRANSFER OF CITY FACILITIES
Section 6.01. City Facilities to be Owned by the City — Conveyance of Land and Easements to City ..............11
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Section 6.02. City Facilities to be Owned by the City — Title Evidence ................................. .............................12
Section 6.03. City Facilities Constructed on Private Lands .................................................... .............................12
Section 6.04. City Facilities Constructed on City Land .......................................................... .............................12
Section 6.05. Maintenance and Warranties ............................................................................. .............................12
ARTICLE VII
INSURANCE; RESPONSIBILITY FOR DAMAGE
Section 7.01. Insurance Requirements ...................................................................................... .............................13
Section 7.02. Responsibility for Damage .................................................................................. .............................13
ARTICLE VIII
CITY FEES
Section8.01. Funding of City Fees ............................................................................................ .............................14
ARTICLE IX
MISCELLANEOUS
Section 9.01. Limited Liability of City ...................................................................................... .............................14
Section9.02. Force Majeure ...................................................................................................... .............................14
Section9.03. Excess Costs .......................................................................................................... .............................14
Section. 9.04. Audit ...................................................................................................................... .............................14
Section9.05. Attorney's Fees ..................................................................................................... .............................15
Section9.06. Notices ................................................................................................................... .............................15
Section9.07. Severability ........................................................................................................... .............................15
Section 9.08. Successors and Assigns ........................................................................................ .............................15
Section10.08. Otber Agreements .............................................................................................. .............................16
Section9.10. Waiver ................................................................................................................... .............................16
Section9.11. Merger .................................................................................................................. .............................16
Section9.12. Parties in Interest ................................................................................................. .............................16
Section9.13. Amendment ........................................................................................................... .............................16
Section9.14. Counterparts ........................................................................................................ .............................16
Section9.16. Governing Law ..................................................................................................... .............................16
EXHIBIT A DESCRIPTION OF FACILITIES
EXHIBIT B DISCRETE COMPONENTS OF FACILITIES
EXHIBIT C -1 FORM OF PAYMENT REQUEST (Facilities)
EXHIBIT C -2 FORM OF PAYMENT REQUEST (Fees)
EXHIBIT D FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
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THIS FUNDING AND ACQUISITION AGREEMENT (the "Acquisition Agreement "), dated as
of September 7, 2005, is by and between the City of Moorpark a general law city organized and existing
under the laws of the State of California (the "City"), for and on behalf of the City's Community
Facilities District No. 2004 -2 (Moorpark Vistas) (the "CFD "), and Moorpark 150, LLC, a Delaware
limited liability company (the "Developer ").
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms shall have the meanings ascribed to them in this
Section 1.01 for purposes of this Acquisition Agreement.
"Acceptable Title" means title to land or interest therein, in form acceptable to the City Engineer,
which title or interest is free and clear of all liens, taxes, assessments, leases, easements and
encumbrances, whether or not recorded, but subject to any exceptions determined by the City Engineer as
not interfering with the actual or intended use of the land or interest therein. Notwithstanding the
foregoing, an irrevocable offer of dedication may constitute land with an "Acceptable Title" if: (i) such
offer is necessary to satisfy a condition to a tentative or final parcel map, (ii) such offer is in a form
acceptable to the City Engineer, (iii) the City Engineer has no reason to believe that such offer of
dedication will not be accepted by the applicable public agency, and (iv) the Developer commits in
writing not to allow any liens to be imposed on such property prior to its formal acceptance by the
applicable public agency.
"Acceptance Date" means the date the City Council of the City (or other public entity which is to
own a Facility) takes final action to accept dedication of or transfer of title to a Facility.
"Acquisition Agreement" means this Funding and Acquisition Agreement, together with any
Supplement hereto.
"Act" means the Mello -Roos Community Facilities Act of 1982, Sections 53311 et seq. of the
California Government Code, as amended.
"Actual Cost" means the substantiated cost of a Facility or a Discrete Component, which costs
may include: (i) the costs incurred by the Developer for the construction of such Facility or Discrete
Component, (ii) the reasonable costs incurred by the Developer in preparing the Plans for such Facility or
Discrete Component and the related costs of design, engineering and environmental evaluations of the
Facility or Discrete Component, (iii) the fees paid to governmental agencies for obtaining permits,
licenses or other governmental approvals for such Facility or Discrete Component, (iv) professional costs
incurred by the Developer associated with such Facility or Discrete Component, such as engineering,
legal, accounting, inspection, construction staking, materials testing and similar professional services; (v)
costs directly related to the construction and/or acquisition of a Facility or Discrete Component, such as
costs of payment, performance and/or maintenance bonds, and insurance costs (including costs of any
title insurance required hereunder), and (vi) the cost or fair market value of any real property or interest
therein ( "Real Estate ") that (a) is required for the construction, operation or maintenance of a Facility,
and (b) is required to be conveyed with such Facility. Actual Cost may also include an amount not in
excess of ten percent (10 %) of the cost described in clause (i) of the preceding sentence in respect of any
construction, project management or other similar fee payable to the Developer or any party related
thereto.
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"Affiliate" means any entity with respect to which fifty percent (50 %) or more of the ownership
or voting power is held individually or collectively by any of the Developer and any other entity owned,
controlled or under common ownership or control by or with, as applicable, the Developer, and includes
the managing member of any entity that is a limited liability company, and includes all general partners
of any entity which is a partnership. Control shall mean ownership of fifty percent (50 %) or more of the
voting power of or ownership interest in the respective entity.
"Bonds" means the bonds or other debt (as defined in the Act) issued by the City for the CFD, or
otherwise secured by the levy of special taxes within the CFD.
"CFD" means the City of Moorpark Community Facilities District No. 2004 -2 (Moorpark
Vistas), created by the City Council of the City under the Act.
"City" means the City of Moorpark, California.
"City Engineer" means the City Engineer of the City, or his written designee acting as such under
this Acquisition Agreement.
"City Facilities" means the public facilities described in Exhibit A hereto to be owned, operated
or maintained by the City.
"City Fees" means the City fees described in Exhibit A authorized to be financed by the CFD.
"Conditions of Approval" means the conditions of approvals and mitigation measures imposed in
connection with the granting of the land use entitlements for the development of land in the CFD, and
any subdivision improvement, development or other agreement with the City relating to the development
of the land in the CFD or the installation of the City Facilities.
"Developer" means Moorpark 150, LLC, a Delaware limited liability company, and its
successors and assigns to the extent permitted under Section 10.07 hereof.
"Discrete Component" means a functional segment or component of a City Facility that the City
Engineer has agreed can be separately identified, inspected and completed, and be the subject of a
Payment Request hereunder. The Discrete Components of each City Facility, if any, are described in
Exhibit B hereto.
"Facilities" means, collectively, City Facilities and City Fees.
"Fiscal Agent" means a financial institution, in its capacity as fiscal agent under the Fiscal Agent
Agreement, or any successor thereto acting as fiscal agent under the Fiscal Agent Agreement.
"Fiscal Agent Agreement" means an agreement by that name to be entered into by the City and
the Fiscal Agent prior to the issuance of any Bonds, which will, provide for, among other matters, the
issuance of the Bonds and the establishment of the Improvement Fund, as it may be amended from time
to time.
"Goals and Policies" means the City of Moorpark Land Secured Financing Policy in the form
adopted by the City Council of the City on July 21, 2004.
"Improvement Fund" means a fund by that name to be established by the Fiscal Agent
Agreement.
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"Payment Request" means a document, substantially in the form of Exhibit C -1 or Exhibit C -2
hereto, to be used by the Developer in requesting payment of a Purchase Price for a City Facility or a
disbursement in satisfaction of City Fees, respectively.
"Plans" means the plans, specifications, schedules and related construction contracts for the City
Facilities and/or any Discrete Components thereof approved pursuant to the applicable standards of the
City. As of the date of this Acquisition Agreement, the City standards for construction incorporate those
set forth in the Green Book, Standard Specifications for Public Works Construction (SSPWC), by Public
Works Standards, Inc., as modified by applicable City Special Provisions.
"Purchase Price" means the amount paid by the City for a City Facility and/or any Discrete
Components thereof determined in accordance with Article V hereof, being an amount equal to the
Actual Cost of such City Facility or Discrete Component.
"RMA" means the rate and method of apportionment of special taxes pursuant to which the
special taxes of the CFD are authorized to be levied.
"Risk Manager" shall mean the person acting in the capacity of Risk Manager for the City.
"Special Taxes" means the special taxes of the CFD levied as the "Assigned Special Tax for
Facilities" pursuant to the RMA.
"State" means the State of California.
"Supplement" means a written document amending, supplementing or otherwise modifying this
Acquisition Agreement and any exhibit hereto, including any amendments to the list of City Facilities
and City Fees in Exhibit A, any amendments to the list of Facilities and their Discrete Components in
Exhibit B, and/or the addition to Exhibit A and Exhibit B of additional City Facilities (and Discrete
Components) or City Fees to be financed with the proceeds of the Bonds deposited in the Improvement
Fund.
ARTICLE II
RECITALS
Section 2.01. The CFD. The City Council of the City has established the CFD under the Act
for the financing of the Facilities.
Section 2.02. The Development. The Developer is developing land located within the CFD.
Section 2.03. The Facilities. The City Facilities are within or in the general vicinity of the
CFD, and the City and the Developer will benefit from a coordinated plan of design, engineering and
construction of the City Facilities and the development of the land owned by the Developer that is
located within the CFD. The Developer acknowledges that the inclusion of City Facilities in Exhibit A
hereto in no way, in itself, implies that the City has in any way engaged the Developer to construct the
City Facilities, except as specifically provided in this Acquisition Agreement. The City Facilities which
are the subject of acquisition from the Developer under this Acquisition Agreement are only the City
Facilities listed in Exhibit A hereto, as such Exhibit may be amended and/or supplemented by any
Supplement.
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Section 2.04. The Financing. The Developer and the City wish to finance (i) the acquisition of
the City Facilities by the City and the payment therefor by entering into this Acquisition Agreement for
the acquisition of the City Facilities and payment for Discrete Components thereof as described in
Exhibit B hereto (as it may be amended and supplemented), and (ii) City Fees with Special Taxes of the
CFD and the proceeds of the Bonds to be deposited in the Improvement Fund.
Section 2.05. The Bonds. The City intends to proceed with the issuance of the Bonds under the
Act and the Fiscal Agent Agreement, the proceeds of which Bonds shall be used, in part, to finance the
Facilities. The execution by the City of this Acquisition Agreement in no way obligates the City to issue
any Bonds, or the City to acquire any City Facilities financed with proceeds of any Bonds issued, except
the City Facilities listed in Exhibit A hereto which are to be acquired subject to the terms and conditions
set forth in this Agreement.
Section 2.06. No Advantage to City Construction. The City, by its approval of this
Acquisition Agreement, has determined that it will obtain no advantage from undertaking the
construction by the City directly of the City Facilities, and that the provisions of this Acquisition
Agreement require that the City Facilities be constructed by the Developer as if they had been
constructed under the direction and supervision of the City. The Developer hereby represents that it has
experience in the supervision of the construction of public facilities of the character of the City Facilities.
Section 2.07. Agreements. In consideration of the mutual promises and covenants set forth
herein, and for other valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the City and the Developer agree that the foregoing recitals, as applicable to each, are true
and correct and further make the agreements set forth herein.
ARTICLE III
FUNDING
Section 3.01. City Proceedings. The City shall conduct all necessary proceedings under the
Act for the issuance, sale and delivery of the Bonds; provided, however, that nothing herein shall be
construed as requiring the City to issue the Bonds or any portion thereof except in accordance with this
Acquisition Agreement and the Goals and Policies. Upon the written request of the Developer, the
Developer and the City staff shall meet regarding the amount, timing and other material aspects of the
Bonds.
Section 3.02. Special Taxes. The City agrees to levy annual Special Taxes of the CFD at 100%
of the Assigned Special Tax Rates for Facilities on all parcels classified as "Developed Property"
pursuant to and as such term is defined in the RMA prior to the issuance of Bonds in order to pay directly
for Facilities. Such Special Taxes collected shall be held in an account held and administered by the City
and disbursed to pay the Purchase Price of City Facilities and/or Discrete Components and to fund City
Fees pursuant to Payment Requests submitted by the Developer.
Section 3.03. Bonds. The City expects, subject to the provisions of Section 3.01 hereof, to
proceed with the issuance and delivery of the Bonds for the CFD. The City shall not be obligated to pay
the Purchase Price of the City Facilities or any Discrete Components thereof, to pay City Fees or to fund
City Fees except from amounts deposited in the Improvement Fund and the account described in Section
3.02. The City makes no warranty, express or implied, that any proceeds of the Bonds deposited and
held in the Improvement Fund, and any investment earnings thereon deposited to the Improvement Fund,
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will be sufficient for payment of the Purchase Price of all of the City Facilities sufficient to fund all City
Fees or sufficient to fund all City Fees.
The City agrees that, in determining the principal amount of the Bonds to be issued, it will take
into account a debt service coverage ratio of 110% (based upon the aggregate Special Taxes authorized
to be levied in the CFD upon buildout of the CFD), and will require a minimum "value -to- lien" ratio
determined in a manner consistent with the Goals and Policies. The City agrees to consider the use of an
escrow structure, at the Developer's request, in order to comply with the minimum value -to -lien ratio
requirement.
Section 3.04. Bond Proceeds. The proceeds of the Bonds will be deposited, held, invested,
reinvested and disbursed as provided in this Acquisition Agreement and the Fiscal Agent Agreement.
The proceeds of the Bonds available after funding costs of issuance, a reserve fund for the Bonds and
capitalized interest for a period of twelve (12) months (or a different period requested by the Developer)
shall be deposited in the Improvement Fund. Moneys in the Improvement Fund shall be withdrawn
therefrom in accordance with the applicable provisions of this Acquisition Agreement for payment of all
or a portion of the Purchase Price of the City Facilities and Discrete Components thereof and to fund City
Fees.
The Fiscal Agent Agreement shall include provisions which periodically allocate available
investment earnings on funds held thereunder, including on amounts in the reserve fund (to the extent its
balance in the reserve fund exceeds the reserve fund requirement) and the Improvement Fund (but not
including investment earnings on any capitalized interest account that is "net" funded or on any escrow
fund utilized to achieve a 3:1 value -to -lien ratio), to the Improvement Fund until all Facilities have been
fully funded or Developer certifies that amounts in the Improvement Funds are sufficient to all Payment
Requests for facilities Developer expects to submitted and thereafter such earnings shall be allocated to
the bond fund io pay debt service on the Bonds and reduce the annual levy of Special Taxes. The City
shall have no responsibility whatsoever to the Developer with respect to any investment of funds made
by the Fiscal Agent under the Fiscal Agent Agreement, including any loss of all or a portion of the
principal invested or any penalty for liquidation of an investment. Any such loss may diminish the
amounts available in the Improvement Fund to fund City Fees.
The Developer acknowledges that any lack of availability of amounts in the Improvement Fund
to pay the Purchase Price of City Facilities or any Discrete Components thereof and to fund City Fees
shall in no way diminish any obligation of the Developer with respect to the construction of or
contributions for public facilities required by the Conditions of Approval.
ARTICLE IV
CONSTRUCTION OF FACILITIES
Section 4.01. Plans. To the extent that it has not already done so, the Developer shall cause
Plans to be prepared for the City Facilities in accordance with the Conditions of Approval and
Developer's timing of development of the property within the CFD. The Developer shall obtain the
written approval of the Plans in accordance with applicable ordinances and regulations of the City.
Copies of all Plans shall be provided by the Developer to the City Engineer upon request therefor, and, in
any event, as built drawings and a written assignment of the Plans for any City Facility shall be provided
to the City prior to its acceptance of the City Facility.
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Section 4.02. Duty of Developer to Construct. All City Facilities to be acquired hereunder
specified in Exhibit A hereto, as amended from time to time, shall be constructed by or at the direction of
the Developer in accordance with the approved Plans and the Conditions of Approval. The Developer
shall perform all of its obligations hereunder and shall conduct all operations with respect to the
construction of City Facilities in a good, workmanlike and commercially reasonable manner, with the
standard of diligence and care normally employed by duly qualified persons utilizing their best efforts in
the performance of comparable work and in accordance with generally accepted practices appropriate to
the activities undertaken. The Developer shall employ at all times adequate staff or consultants with the
requisite experience necessary to administer and coordinate all work related to the design, engineering,
acquisition, construction and installation of the City Facilities to be acquired by the City from the
Developer hereunder.
The Developer shall be obligated: (i) to construct and cause conveyance to the City of all City
Facilities and Discrete Components thereof listed in Exhibit B hereto in accordance with the Conditions
of Approval and the Developer's timing of development of the property within the CFD, and (ii) to use
its own funds to pay all costs thereof in excess of the Purchase Prices thereof and available amounts in
the Improvement Fund (or in the account described in Section 3.02) to be paid therefor hereunder, except
as may be otherwise expressly provided in the Conditions of Approval.
Section 4.03. Relationship to Public Works; Bidding Requirements. The following shall
apply to all contracts applicable to the City Facilities and any Discrete Components thereof acquired with
funds withdrawn from the Improvement Fund:
A. General. This Acquisition Agreement is for the acquisition by the City of the
City Facilities and payment for Discrete Components thereof listed in Exhibit B hereto from
moneys in the Improvement Fund and is not intended to be a public works contract. The City
and the Developer agree that the City Facilities are of local, and not state -wide concern, and that
the provisions of the California Public Contract Code shall not apply to the construction of the
City Facilities. The City and the Developer agree that the Developer shall award all contracts for
the construction of the City Facilities and the Discrete Components thereof listed in Exhibit B
hereto and that this Acquisition Agreement is necessary to assure the timely and satisfactory
completion of the City Facilities and that compliance with the Public Contract Code with respect
to the Facilities would work an incongruity and would not produce an advantage to the City or
the CFD.
B. Bidding Procedures. Notwithstanding the foregoing, the Developer shall award
all contracts for construction of the City Facilities and any Discrete Components thereof, and
materials related thereto, by means of a bid process consistent with this Section 4.03 B. or
otherwise acceptable to the City Engineer, in each case consistent with applicable City
regulations.
The Developer shall prepare bid packages, including engineering reports and estimates,
for each of the City Facilities (or any specific Discrete Components thereof to be separately bid).
If the Developer would like the option to proceed under the provisions of Section 4.03 C. below,
the bid documents shall expressly disclose the rights of the Developer to elect to perform or have
its agent perform the work with a specific reference to Section 53329.5 of the Act. Bid packages
shall be provided to at least three qualified bidders, unless Developer and the City Engineer
reasonably determine that three such bidders are not available. A list of the proposed bidders and
copies of each bid package shall be provided to the City Engineer prior to their submission to the
bidders.
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The Developer shall, subject to the provisions of Section 4.03 C. below, award the
applicable contract to the lowest responsible bidder. Upon written request of the City Engineer,
the Developer shall provide an analysis of bids for construction and materials for the City
Facilities or applicable Discrete Components, indicating how the winning bid was determined.
C. Developer's Election to Perform Work. Notwithstanding the provisions of
Section 4.03 B. above, and in accordance with Section 53329.5 of the Act, if at the time bids are
received for any particular City Facility or Discrete Component the Developer owns three -
fourths of the area of lands in the CFD taxed or liable to be taxed for purposes of the CFD, the
Developer or a designated agent thereof (who shall provide the City Engineer with a written
declaration under penalty of perjury in form acceptable to the City Engineer to the effect that the
Developer so owns such land and, if applicable, that such other entity is such an agent), the
Developer or its designated agent may, within 10 days after the publication of the notice of the
bid results in such paper as the City Engineer shall specify, elect to perform the work and enter
into a written contract to do the whole work at prices not exceeding the prices specified in the bid
of the lowest responsible bidder, and all work done under the contract shall be subject to all
provisions of this Acquisition Agreement other than the requirement that the contract work be
awarded to and performed by the lowest responsible bidder. The Developer shall advise the City
Engineer of any election under the preceding sentence, and shall promptly provide written notice
to the lowest responsible bidder of its election to perform the work, and that the services of such
winning bidder will no longer be required. The Developer (and its agents) may only avail itself
of the foregoing provisions of this Section 4.03 C. if the bid documents for the respective Facility
or Discrete Component expressly disclosed its right to do so, as required by the second paragraph
of Section 4.03 B. above.
D. Periodic Meetings. From time to time at the request of the City Engineer,
representatives of the Developer shall meet and confer with City staff, consultants and
contractors regarding matters arising hereunder with respect to the City Facilities, Discrete
Components and the progress in constructing and acquiring the same, and as to any other matter
related to the City Facilities or this Acquisition Agreement.
E. Prevailing Wages. The Developer shall require with respect to any contracts or
subcontracts for the construction of City Facilities or Discrete Components to be acquired from
Developer hereunder that the contractor or subcontractor assure complete compliance with any
applicable law or regulation for the payment of prevailing wages.
Section 4.04. Independent Contractor. In performing this Acquisition Agreement, the
Developer is an independent contractor and not the agent or employee of the City or the CFD. None of
the City or the CFD shall be responsible for making any payments directly or otherwise to any contractor,
subcontractor, agent, consultant, employee or supplier of the Developer except as specified in a Payment
Request submitted by Developer.
Section 4.05. Performance and Payment Bonds. The Developer agrees to comply with all
applicable performance and payment bonding requirements of the City with respect to the construction of
the City Facilities. Performance and payment bonds shall not be required of the Developer to the extent
moneys are available and reserved in the Improvement Fund to pay the Purchase Price of a City Facility;
provided that all contractors and/or subcontractors employed by the Developer in connection with the
construction of City Facilities shall provide a labor and materials and performance bonds which name the
City and the City as additional insureds.
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Section 4.06. Contracts and Change Orders. The Developer shall be responsible for entering
into all contracts and any supplemental agreements (commonly referred to as "change orders ") required
for the construction of the City Facilities listed in Exhibit A hereto, as amended from time to time, and
all such contracts and supplemental agreements shall be submitted to the City Engineer. The increased
cost associated with any change order may be payable as part of the Purchase Price of the related City
Facility or Discrete Component as provided in Section 5.06A. hereof.
ARTICLE V
ACQUISITION AND PAYMENT
Section 5.01. Inspection. No payment hereunder shall be made by the City to the Developer for
a City Facility or Discrete Component thereof until the City Facility or Discrete Component thereof has
been inspected and found to be completed in accordance with the approved Plans by the City. The City
shall cause the City to make periodic site inspections of the City Facilities to be acquired hereunder;
provided that in no event shall the City incur any liability for any delay in the inspection of any City
Facilities or Discrete Components. For City Facilities to be acquired by public utilities, the Developer
shall be responsible for obtaining such inspections and providing written evidence thereof to the City
Engineer. The Developer agrees to pay all inspection, permit and other similar fees of the City
applicable to construction of the City Facilities, subject to reimbursement therefor as an Actual Cost of
the related City Facility.
Section 5.02. Agreement to Sell and Purchase City Facilities. The Developer hereby agrees
to sell the City Facilities listed in Exhibit A hereto to the City, and the City hereby agrees to use amounts
in the Improvement Fund to pay the Purchase Prices thereof to the Developer, subject to the terms and
conditions hereof. The City shall not be obligated to finance the purchase of any City Facility until the
City Facility is completed and the Acceptance Date for such City Facility has occurred; provided that the
City has agreed hereunder to make payments to the Developer for certain Discrete Components of City
Facilities expressly shown in Exhibit B hereto, as it may be supplemented by any Supplement prior to the
applicable Acceptance Date. The Developer acknowledges that the Discrete Components have been
identified for payment purposes only, and that the City shall not accept a City Facility of which a
Discrete Component is a part until the entire City Facility has been completed. The City acknowledges
that the Discrete Components do not have to be accepted by the City as a condition precedent to the
payment of the Purchase Price therefor, but any such payment shall not be made until the Discrete
Component has been completed in accordance with the Plans therefor, as determined by the City
Engineer. In any event, the City shall not be obligated to pay the Purchase Price for any City Facility or
Discrete Component except from the moneys in the Improvement Fund or the account described in
Section 3.02.
Section 5.03. Payment Requests. In order to receive the Purchase Price for a completed City
Facility or Discrete Component, inspection thereof under Section 5.01 shall have been made and the
Developer shall deliver to the City Engineer: (i) a Payment Request in the form of Exhibit C -1 hereto for
such City Facility or Discrete Component, together with all attachments and exhibits required by Exhibit
C -1 and this Section 5.03 to be included therewith (including, but not limited to Attachments 1 and 2 to
Exhibit C), and (ii) if payment is requested for a completed City Facility, (a) if the property on which the
City Facility is located is not owned by the City at the time of the request, a copy of the recorded
documents conveying to the City Acceptable Title to the real property on, in or over which such City
Facility is located, as described in Section 6.01 hereof, (b) a copy of the recorded notice of completion of
such City Facility (if applicable), (c) to the extent paid for with the proceeds of the Bonds, an assignment
to the CFD of any reimbursements that may be payable with respect to the City Facility, such as public or
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private utility reimbursements, and (d) an assignment of the warranties and guaranties for such City
Facility, as described in Section 6.05 hereof, in a form acceptable to the City.
Section 5.04. Processing Payment Requests. Upon receipt of a Payment Request (and all
accompanying documentation), the City Engineer shall conduct a review in order to confirm that such
request is complete, that such Discrete Component or City Facility identified therein was constructed in
accordance with the Plans therefor, and to verify and approve the Actual Cost of such Discrete
Component or City Facility specified in such Payment Request. The City Engineer shall also conduct
such review as is required in his discretion to confirm the matters certified in the Payment Request. The
Developer agrees to cooperate with the City Engineer in conducting each such review and to provide the
City Engineer with such additional information and documentation as is reasonably necessary for the
City Engineer to conclude each such review. For any City Facilities to be acquired by a public utility, the
Developer shall provide evidence acceptable to the City Engineer that such City Facilities are acceptable
to such utility. Within ten (10) business days of receipt of any Payment Request, the City Engineer
expects to review the request for completeness and notify the Developer whether such Payment Request
is complete, and, if not, what additional documentation must be provided. If such Payment Request is
complete, the City Engineer expects to provide a written approval or denial (specifying the reason for any
denial) of the request within 30 days of its submittal. If a Payment Request seeking reimbursement for
more than one City Facility or Discrete Component is denied, the City Engineer shall state whether the
Payment Request is nevertheless approved and complete for any one or more City Facilities or Discrete
Components and any such City Facilities or Discrete Components shall be processed for payment under
Section 5.05 notwithstanding such partial denial.
Section 5.05. Payment. Upon approval of the Payment Request by the City Engineer, the City
Engineer shall sign the Payment Request and forward the same to the City's Director of Finance. Upon
receipt of the reviewed and fully signed Payment Request, the City's Director of Finance shall, within the
then current Ciiy financial accounting payment cycle but in any event within thirty (30) days of receipt of
the approved Payment Request, cause the same to be paid by the Fiscal Agent under the applicable
provisions of the Fiscal Agent Agreement, to the extent of funds then on deposit in the Improvement
Fund (or otherwise will pay such amounts from the account described in Section 3.02). If an approved
Payment Request is not paid in full due to an insufficiency of funds in the Improvement Fund and the
account described in Section 3.02, the unpaid amount shall be paid promptly following the deposit into
the Improvement Fund of proceeds of any investment earnings or other amounts transferred to the
Improvement Fund under the terms of the Fiscal Agent Agreement.
The Purchase Price paid hereunder for any City Facility or Discrete Component shall constitute
payment in full for such City Facility or Discrete Component, including, without limitation, payment for
all labor, materials, equipment, tools and services used or incorporated in the work, supervision,
administration, overhead, expenses and any and all other things required, furnished or incurred for
completion of such City Facility or Discrete Component, as specified in the Plans.
Section 5.06. Restrictions on Payments. Notwithstanding any other provisions of this
Acquisition Agreement, the following restrictions shall apply to any payments made to the Developer
under Sections 5.02 and 5.05 hereof:
A. Amounts of Payments. Subject to the following paragraphs of this Section 5.06,
payments for each Discrete Component or City Facility will be made only in the amount of the
Purchase Price for the respective Discrete Component or City Facility. Nothing herein shall
require the City in any event (i) to pay more than the Actual Cost of a City Facility or Discrete
Component, or (ii) to make any payment beyond the available funds in the Improvement Fund
and in the account described in Section 3.02. The parties hereto acknowledge and agree that all
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payments to the Developer for the Purchase Prices of City Facilities or Discrete Components are
intended to be reimbursements to the Developer for monies already expended or for immediate
payment by the Developer (or directly by the City) to third parties in respect of such City
Facilities and/or Discrete Components.
B. Joint or Third Party Payments. The City may make any payment jointly to the
Developer and any mortgagee or trust deed beneficiary, contractor or supplier of materials, as
their interests may appear, or solely to any such third party, if the Developer so requests the same
in writing or as the City otherwise determines such joint or third party payment is necessary to
obtain lien releases.
C. Withholding Payments. The City shall be entitled, but shall not be required, to
withhold any payment hereunder for a Discrete Component or a City Facility if the Developer or
any Affiliate is delinquent in the payment of ad valorem real property taxes, special assessments
or taxes, or Special Taxes levied in the CFD. In the event of any such delinquency, the City shall
only make payments hereunder directly to contractors or other third parties employed in
connection with the construction of the City Facilities or to any assignee of the Developer's
interests in this Acquisition Agreement (and not to the Developer or any Affiliate), until such
time as the Developer provides the City Engineer with evidence that all such delinquent taxes
and assessments have been paid.
The City shall be entitled to withhold any payment hereunder for a Discrete Component
that is the subject of a Payment Request until it is satisfied that any and all claims for labor and
materials have been paid by the Developer for the Discrete Component that is the subject of a
Payment Request, or conditional lien releases have been provided by the Developer for such
Discrete Component. The City, in its discretion, may waive this limitation upon the provision by
the Developer of sureties, undertakings, securities and/or bonds of the Developer or appropriate
contractors or subcontractors and deemed satisfactory by the City Engineer to assure payment of
such claims.
The City shall be entitled to withhold payment for any City Facility hereunder to be
owned by the City (or the final Discrete Component of any such City Facility) until: (i) the City
Engineer determines that the City Facility is ready for its intended use, (ii) the Acceptance Date
for the City Facility has occurred and the requirements of Section 6.01, if applicable to such City
Facility, have been satisfied, and (iii) a Notice of Completion executed by the Developer, in a
form acceptable to the City Engineer, has been recorded for the City Facility and general lien
releases conditioned solely upon payment from the proceeds of the Bonds to be used to acquire
such City Facility (or final Discrete Component) have been submitted to the City Engineer for
the City Facility. The City hereby agrees that the Developer shall have the right to post or cause
the appropriate contractor or subcontractor to post a bond with the City to indemnify it for any
losses sustained by the City or the City because of any liens that may exist at the time of
acceptance of a City Facility, so long as such bond is drawn on an obligor and is otherwise in a
form acceptable to the City Engineer. If the City Engineer determines that a City Facility is not
ready for intended use under (i) above, the City Engineer shall so notify the Developer as soon as
reasonably practicable in writing specifying the reason(s) therefor.
Nothing in this Acquisition Agreement shall be deemed to prohibit the Developer from
contesting in good faith the validity or amount of any mechanics or materialmans lien nor limit
the remedies available to the Developer with respect thereto so long as such delay in
performance shall not subject the City Facilities or any Discrete Component thereof to
foreclosure, forfeiture or sale. In the event that any such lien is contested, the Developer shall
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only be required to post or cause the delivery of a bond in an amount equal to twice the amount
in dispute with respect to any such contested lien, so long as such bond is drawn on an obligor
and is otherwise in a form acceptable to the City Engineer.
D. Retention. The City shall withhold in the City Facilities Account an amount equal to
ten percent (10 %) of the Purchase Price of each City Facility or Discrete Component to be paid
hereunder. Any such retention will be released to the Developer upon final completion and
acceptance of the related City Facility and the earlier of (i) expiration of a maintenance period
consistent with applicable City policy thereafter or (ii) upon receipt of a maintenance bond
acceptable to the City Engineer to remain in effect for such maintenance period.
Notwithstanding the foregoing, the Developer shall be entitled to payment of any such
retention upon the completion and acceptance of a City Facility or Discrete Component, if a
maintenance or warranty bond is posted in lieu thereof in accordance with Section 6.05 hereof.
Payment of any retention shall also be contingent upon the availability of monies in the
Improvement Fund therefor. No retention shall apply if the Developer proves to the Director of
Public Work's satisfaction that the Developer's contracts for the City Facilities (or Discrete
Components) provide for the same retention as herein provided, so that the Purchase Price paid
for the City Facility or Discrete Component is at all times net of the required retention.
E. Right-of-Way. Payments for any right -of -way or other real property interests relating
to the City Facilities described in Exhibit B hereto shall be based upon appraisals of the
respective land to be acquired in a form acceptable to the City Engineer, or upon such other basis
as the City Engineer shall determine is appropriate in the circumstances.
Section 5.07. Defective or Nonconforming Work. If any of the work done or materials
furnished for a City Facility or Discrete Component are found by the City Engineer to be defective or not
in accordance with the applicable Plans: (i) and such finding is made prior to payment for the Purchase
Price of such City Facility or Discrete Component hereunder, the City may withhold payment therefor
until such defect or nonconformance is corrected to the satisfaction of the City Engineer, or (ii) and such
finding is made after payment of the Purchase Price of such City Facility or Discrete Component, the
City and the Developer shall act in accordance with the City's standard specification for public works
construction (which are set forth in the Green Book, Standard Specifications for Public Works
Construction (SSPWC), by Public Works Standards, Inc., as modified by applicable City Special
Provisions).
Section 5.08. Modification or Designation of Discrete Components. Upon written request of
the Developer, the City Engineer shall consider modification of the description of any City Facilities,
Discrete Components or City Fees and shall consider the addition of new City Facilities, Discrete
Components or City Fees not currently designated in Exhibit A or Exhibit B. Any such modification or
addition shall be subject to the written approval of the City Engineer.
ARTICLE VI
OWNERSHIP AND TRANSFER OF CITY FACILITIES
Section 6.01. City Facilities to be Owned by the City — Conveyance of Land and Easements
to City. Acceptable Title to all property on, in or over which each City Facility will be located, shall be
deeded over to the City by way of grant deed, quitclaim, irrevocable offer of dedication or dedication of
such property, or easement thereon, if such conveyance of interest is approved by the City as being a
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sufficient interest therein to permit the City to properly own, operate and maintain such City Facility
located therein, thereon or thereover, and to permit the Developer to perform its obligations as set forth
in this Acquisition Agreement. The Developer agrees to assist the City in obtaining such documents as
are required to obtain Acceptable Title. Completion of the transfer of title to land shall be accomplished
prior to the payment of the Purchase Price for a City Facility (or the last Discrete Component thereof)
and shall be evidenced by recordation of the acceptance thereof by the City Council or the designee
thereof.
Section 6.02. City Facilities to be Owned by the City — Title Evidence. Upon the request of
the City, the Developer shall furnish to the City a preliminary title report for land with respect to City
Facilities to be acquired by the City and not previously dedicated or otherwise conveyed to the City, for
review and approval at least fifteen (15) calendar days prior to the transfer of Acceptable Title to a City
Facility to the City. The City Engineer shall approve the preliminary title report unless it reveals a matter
which, in the judgment of the City, could materially affect the City's use and enjoyment of any part of
the property or easement covered by the preliminary title report for the purpose for which the property or
easement is being conveyed. In the event the City does not approve the preliminary title report, the City
shall not be obligated to accept title to such City Facility and the City shall not be obligated to pay the
Purchase Price for such City Facility (or the last Discrete Component thereof) until the Developer has
cured such objections to title to the satisfaction of the City.
Section 6.03. City Facilities Constructed on Private Lands. If any City Facilities to be
acquired are located on privately -owned land, the owner thereof shall retain title to the land and the
completed City Facilities until acquisition of the City Facilities under Article V hereof. Pending the
completion of such transfer, the Developer shall not be entitled to receive any payment for any such City
Facility or the last Discrete Component thereof. The Developer shall, however, be entitled to receive
payment for Discrete Components (other than the last Discrete Component) upon making an irrevocable
offer of dedication of such land in form and substance acceptable to the City Engineer. Notwithstanding
the foregoing, upon written request of the City Engineer before payment for any Discrete Component of a
City Facility, the Developer shall convey or cause to be conveyed Acceptable Title thereto in the manner
described in Sections 6.01 and 6.02 hereof.
Section 6.04. City Facilities Constructed on City Land. If the City Facilities to be acquired
are on land owned by the City, the City shall cause the City to grant to the Developer a license to enter
upon such land for purposes related to the construction (and maintenance pending acquisition) of the City
Facilities. The provisions for inspection and acceptance of such City Facilities otherwise provided herein
shall apply.
Section 6.05. Maintenance and Warranties. The Developer shall maintain each Discrete
Component in good and safe condition until the Acceptance Date of the City Facility of which such
Discrete Component is a part. Prior to the Acceptance Date, the Developer shall be responsible for
performing any required maintenance on any completed Discrete Component or City Facility. On or
before the Acceptance Date of the City Facility, the Developer shall assign to the City all of the
Developer's rights in any warranties, guarantees, maintenance obligations or other evidence of contingent
obligations of third persons with respect to such City Facility. The Developer shall maintain or cause to
be maintained each City Facility to be owned by the City (including the repair or replacement thereof) for
a period of one year from the Acceptance Date thereof, or, alternatively, shall provide a bond reasonably
acceptable in form and substance to the City Engineer for such period and for such purpose (specifically,
a one -year maintenance period for landscaping improvements, and for the posting of a warranty bond to
remain in effect for one year as to other City Facilities), to insure that defects, which appear within said
period will be repaired, replaced, or corrected by the Developer, at its own cost and expense, to the
satisfaction of the City Engineer. The Developer shall commence to repair, replace or correct any such
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defects within thirty (30) days after written notice thereof by the City to the Developer, and shall
complete such repairs, replacement or correction as soon as practicable. After such one -year period, the
City shall be responsible for maintaining such City Facility. Any warranties, guarantees or other
evidences of contingent obligations of third persons with respect to the City Facilities to be acquired by
the City shall be delivered to the City Engineer as part of the transfer of title.
ARTICLE VII
INSURANCE; RESPONSIBILITY FOR DAMAGE
Section 7.01. Insurance Requirements. The Developer shall provide to the City Engineer
evidence of insurance as may be required by the Conditions of Approval.
Section 7.02. Responsibility for Damage. The Developer shall take and assume all
responsibility for the work performed as part of the City Facilities constructed pursuant to this
Acquisition Agreement. The Developer shall bear all losses and damages directly or indirectly resulting
to it, to the City, and its consultants, and its Councilmembers, officers, employees and agents, or to others
on account of the performance or character of the work, unforeseen difficulties, accidents of any other
causes whatsoever.
The Developer shall assume the defense of and indemnify and save harmless the City, the City,
and its consultants, its Councilmembers, officers, employees, and agents, from and against any and all
claims, losses, damage, expenses and liability of every kind, nature, and description, directly or indirectly
arising from the performance of the work with respect to the City Facilities and from any and all claims,
losses, damage, expenses, and liability, howsoever the same may be caused, resulting directly, or
indirectly from the nature of the work covered by this Acquisition Agreement to the fullest extent
permitted by law. In accordance with Civil Code section 2782, nothing in this Section 7.02 shall require
defense or indemnification for death, bodily injury, injury to property, or any other loss, damage or
expense arising from the sole negligence or willful misconduct of the City, and its consultants, and its
Councilmembers, officers, employees, agents or independent contractors who are directly responsible to
the City, or for defects in design furnished by such persons. Moreover, nothing in this Section 7.02 shall
apply to impose on the Developer, or to relieve the City from, liability for active negligence of the City,
or its officers, employees, agents or consultants as delineated in Civil Code Section 2782. Any relief for
determining the City's sole or active negligence shall be determined by a court of law.
The City does not, and shall not, waive any rights against the Developer which it may have by
reason of the aforesaid hold harmless agreements because of the acceptance by the City, or deposit with
the City by the Developer of any insurance policies required pursuant to the Conditions of Approval.
The aforesaid hold harmless agreement by the Developer shall apply to all damages and claims for
damages of every kind suffered, or alleged to have been suffered by reasons of any of the aforesaid
operations of the Developer, or any subcontractor, regardless of whether or not such insurance policies
are determined to be applicable to any of such damages or claims for damages.
No act by the City, or its representatives in processing or accepting any plans, in releasing any
bond, in inspecting or accepting any work, or of any other nature, shall in any respect relieve the
Developer or anyone else from any legal responsibility, obligation or liability it might otherwise have.
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ARTICLE VIII
CITY FEES
Section 8.01. Funding of City Fees. The City may requisition from the Improvement Fund, in
this Agreement, an amount which is sufficient to pay all or a portion of the City Fees which are then
estimated to be due and payable by Developer or its successors and assigns upon receipt of a Payment
Request in the form attached hereto as Exhibit C -2. The City shall provide a credit against the applicable
City Fees to Developer or its successors and assigns equal to the amount of the moneys disbursed
pursuant to the Payment Request. In the event Developer or its successors or assigns is required to pay
City Fees to the City prior to the issuance and sale of the Bonds, Developer or its successors and assigns
shall deposit with the City the balance due in immediately available funds (a "Deposit ") and such
Deposit shall be reimbursed to Developer when funds subsequently deposited in the Improvement Fund
are disbursed to the City in an equal amount for the payment of such City Fees.
[Some of the City Facilities anticipated to be constructed are included in City development
impact fee or other financing programs. Developer shall be entitled to full credit against all applicable
City Fees based upon Developer's construction of such City Facilities whether or not the Purchase Price
of such City Facilities is funded out of the Improvement Fund.]
ARTICLE IX
MISCELLANEOUS
Section 9.01. Limited Liability of City. The Developer agrees that any and all obligations of
the City arising out of or related to this Acquisition Agreement are special and limited obligations of the
City and the City's obligations to make any payments hereunder are restricted entirely to the moneys, if
any, in the Improvement Fund and the account specified in Section 3.02 and from no other source. No
member of the City Council, or City staff member, employee or agent shall incur any liability hereunder
to the Developer or any other party in their individual capacities by reason of their actions hereunder or
execution hereof.
Section 9.02. Force Majeure. Whenever performance is required of a party hereunder, that
party shall use all due diligence and take all necessary measures in good faith to perform, but if
completion of performance is delayed by reasons of floods, earthquakes or other acts of God, war,
terrorism, vandalism, civil commotion, riots, strikes, picketing, or other labor disputes, damage to work
in progress by casualty, or by other cause beyond the reasonable control of the party, then the specified
time for performance shall be extended by the amount of the delay actually so caused.
Section 9.03. Excess Costs. The Developer agrees to pay all costs of the City Facilities that it is
obligated to construct pursuant to the Conditions of Approval in excess of the moneys available therefor
in the Improvement Fund, except as may otherwise be expressly provided in the Conditions of Approval.
Section 9.04. Audit. The City Engineer and/or the City's Director of Finance shall have the
right, during normal business hours and upon the giving of two (2) business days prior written notice to
the Developer, to review all books and records of the Developer pertaining to costs and expenses
incurred by the Developer relating to the City Facilities, and any bids taken or received for the
construction thereof or materials therefor.
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Section 9.05. Attorney's Fees. In the event that any action or suit is instituted by either party
against the other arising out of this Acquisition Agreement, the party in whose favor final judgment shall
be entered shall be entitled to recover from the other party all costs and expenses of suit, including
reasonable attorneys' fees.
Section 9.06. Notices. Any notice, payment or instrument required or permitted by this
Acquisition Agreement to be given or delivered to either party shall be deemed to have been received
when personally delivered, or transmitted by telecopy or facsimile transmission, or seventy-two hours
following deposit of the same in any United States Post Office, registered or certified mail, postage
prepaid, addressed as follows:
City or CFD: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Engineer
Developer: Moorpark 150, LLC
c/o SunCal Companies
21900 Burbank Blvd., Suite 114
Woodland Hills, CA 91367
Attention: Project Manager
with a copy to: Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, CA 92612
Attn: John P. Yeager, Esq.
Each party may change its address or addresses for delivery of notice by delivering written notice
of such change of address to the other party.
Section 9.07. Severability. If any part of this Acquisition Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Acquisition Agreement shall be
given effect to the fullest extent possible.
Section 9.08. Successors and Assigns. This Acquisition Agreement shall be binding upon and
inure to the benefit of the successors and assigns of the parties hereto. The Developer may assign its
rights pursuant to this Agreement to a purchaser (an "Assignee ") of a portion or portions of the property
which is/are located within the District the responsibility for the construction of all or a portion of the
City Facilities which remain to be constructed and the right to receive payment of the Purchase Price for
such City Facilities and Discrete Components thereof previously completed by the Developer. Such
Assignee shall, as a condition to receiving payment of a Purchase Price, enter into an assignment and
assumption agreement with the City and the Developer, in the form attached hereto as Exhibit D,
whereby such Assignee agrees, except as may be otherwise specifically provided therein, to assume the
obligations of the Developer pursuant to this Acquisition Agreement with respect to such City Facilities
and to be bound thereby and whereby the Developer shall be released with respect to such obligations. In
addition, Developer may assign to an Assignee, without the City's consent or the Assignee's execution of
an assignment and assumption agreement, the rights and obligations under this Acquisition Agreement
relating to the funding of City Fees, provided Developer gives City written notice of the identity of the
Assignee, the specific City Fees covered by the assignment and the property to be owned by such
Assignee.
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Section 9.09. Other Agreements. The obligations of the Developer hereunder shall be those of
a party hereto and not as an owner of property in the CFD. Nothing herein shall be construed as affecting
the City's or the Developer's rights, or duties to perform their respective obligations, under other
agreements, use regulations or subdivision requirements relating to the development of the lands in the
CFD. This Acquisition Agreement shall not confer any additional rights, or waive any rights given, by
either party hereto under any development or other agreement to which they are a party.
Section 9.10. Waiver. Failure by a party to insist upon the strict performance of any of the
provisions of this Acquisition Agreement by the other party, or the failure by a party to exercise its rights
upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand
strict compliance by the other party with the terms of this Acquisition Agreement thereafter.
Section 9.11. Merger. No other agreement, statement or promise made by any party or any
employee, officer or agent of any party with respect to any matters covered hereby that is not in writing
and signed by all the parties to this Acquisition Agreement shall be binding.
Section 9.12. Parties in Interest. Nothing in this Acquisition Agreement, expressed or implied,
is intended to or shall be construed to confer upon or to give to any person or entity other than the City,
the CFD and the Developer any rights, remedies or claims under or by reason of this Acquisition
Agreement or any covenants, conditions or stipulations hereof; and all covenants, conditions, promises,
and agreements in this Acquisition Agreement contained by or on behalf of the City, the CFD or the
Developer shall be for the sole and exclusive benefit of the City, the CFD and the Developer.
Section 9.13. Amendment. This Acquisition Agreement may be amended, from time to time,
by written Supplement hereto and executed by both the City and the Developer.
Section 9.14. Counterparts. This Acquisition Agreement may be executed in counterparts,
each of which shall be deemed an original.
Section 9.15. Governing Law. The provisions of this Acquisition Agreement shall be governed
by the laws of the State of California applicable to contracts made and performed in such State.
IN WITNESS WHEREOF, the parties have executed this Acquisition Agreement as of the day
and year first -above written.
CITY OF MOORPARK on behalf of itself and its
COMMUNITY CITY FACILITIES DISTRICT NO.
2004 -2 ( MOORPARK VISTAS)
am
ATTEST:
City Clerk
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MOORPARK 150, L.L.C., A DELAWARE
LIMITED LIABILITY COMPANY
By: Moorpark Equity Partners, Ltd., a California
limited partnership, its Managing Member
By: KRE, L.L.C., a Delaware limited liability
company, its General Partner
Bruce Elieff, its Managing Member
Todd Kurtin, its Managing Member
By: LSOF Moorpark Land, L.P., a Texas limited
partnership, its Managing Member
By: LSOF GenPar III, Inc., a Texas
corporation, its General Partner
By:
Name:
Title:
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EXHIBIT A
DESCRIPTION OF FACILITIES AND FEES
City Facilities
1. Spring Road cost participation
2. Walnut Canyon Road street improvements
3. North Hills Parkway street improvements
4. North Hills Parkway landscaping improvements
5. Wickes Road street improvements
City Fees
1. All City fees, charges or monetary contributions imposed pursuant to the Conditions of
Approval
J The description of the types of City Facilities eligible to be financed is general in
nature and includes any appurtenant work and incidental expenses relating to each City
Facility. The final nature, scope or location of the City Facilities will be determined upon the
preparation acid approval of plans and specifications for each City Facility. The description of
street improvements shall include, but not be limited to, all related soft costs, grading, dry
utilities, wet utilities, paving, striping, sidewalks, curbs and gutters, pedestrian access ramps,
traffic controls and street lighting. The description of landscaping improvements shall include,
but not be limited to, all related soft costs, grading, irrigation, surface improvements and
materials.
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EXHIBIT B
DISCRETE COMPONENTS OF FACILITIES
1. Discrete Components of Street Improvements shall consist of the following:
(i) soft costs
(ii) grading
(iii) underground utilities
(iv) paving (excluding final asphalt cap)
(v) sidewalks, curb and gutter
(vi) street lighting
(vii) traffic controls
(viii) final asphalt cap and other final completion items
Discrete components of Landscape Improvements shall consist of the following:
(i)
soft costs
(ii)
grading
(iii)
surface improvements
(iv)
final completion items
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EXHIBIT C -1
FORM OF PAYMENT REQUEST
(Facilities)
PAYMENT REQUEST NO.
The undersigned (the "Developer "), hereby requests payment in the total amount of
$ for the City Facilities (as defined in the Acquisition Agreement, dated as of
, 2005, between the City of Moorpark (the "City"), for and on behalf of the City of
Moorpark Community City Facilities District No. 2004 -2 (Moorpark Vistas) and the Developer), or
Discrete Components thereof (as described in Exhibit B to that Agreement), all as more fully described in
Attachment 1 hereto. In connection with this Payment Request, the undersigned hereby represents and
warrants to the City as follows:
1. He(she) is a duly authorized officer of the Developer, qualified to execute this Payment
Request for payment on behalf of the Developer and is knowledgeable as to the matters set forth herein.
2. To the extent that this payment request is with respect to a completed City Facility, the
Developer has submitted or submits herewith to the City as -built drawings or similar plans and
specifications for the items to be paid for as listed in Attachment 1 hereto with respect to any such
completed City Facility, and such drawings or plans and specifications, as applicable, are true, correct
and complete. To the extent that this payment request is for a Discrete Component, the Developer has in
its construction office a marked set of drawings or similar plans and specifications for the Discrete
Components to be acquired as listed in Attachment I hereto, which drawings or plans and specifications,
as applicable, are current and show all changes or modifications which have been made to date.
3. All costs of the City Facilities or Discrete Components thereof for which payment is
requested hereby are Actual Costs (as defined in the Acquisition Agreement referenced above) and have
not been inflated in any respect. The items for which payment is requested have not been the subject of
any prior payment request submitted to the City.
4. Supporting documentation (such as third party invoices) is attached with respect to each
cost for which payment is requested.
5. There has been compliance with applicable laws relating to prevailing wages for the
work to construct the City Facilities or Discrete Components thereof for which payment is requested.
6. The City Facilities or Discrete Components thereof for which payment is requested were
constructed in accordance with all applicable City or other governmental standards, and in accordance
with the as -built drawings or plans and specifications, as applicable, referenced in paragraph 2 above.
7. The Developer is in compliance with the terms and provisions of the Acquisition
Agreement and no portion of the amount being requested to be paid was previously paid.
8. The Purchase Price for each City Facility or Discrete Component (a detailed calculation
of which is shown in an Attachment 2 hereto for each such City Facility or Discrete Component), has
been calculated in conformance with the terms of Section 5.06 of the Acquisition Agreement.
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9. Neither the Developer nor any Affiliate (as defined in the Acquisition Agreement) is in
default in the payment of ad valorem real property taxes or special taxes or special assessments levied in
the CFD (as defined in the Acquisition Agreement).
I hereby declare under penalty of perjury that the above representations and warranties are true
and correct.
Date: DEVELOPER:
Date: CITY:
Payment Request Approved for Submission to the
Director of Finance of the City of Moorpark
City Engineer
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EXHIBIT C -1
ATTACHMENT 1
[list here all City Facilities or Discrete Components thereoffor which payment is requested, and attach
support documentation]
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1
EXHIBIT C -1
ATTACHMENT 2
CALCULATION OF PURCHASE PRICE
[Use a separate sheet for each City Facility or Discrete Component
for which payment is being requested]
Description (by reference to Exhibit B to the Acquisition Agreement) of
the City Facility or Discrete Component
2. Actual Cost (list here total of supporting invoices and/or other
documentation supporting determination of Actual Cost):
3. Subtractions from Purchase Price:
A. Holdback for Lien releases (see Section 5.06(C) of the
Acquisition Agreement)
B. Retention (see Section 5.06(D) of the Acquisition Agreement)
4. Total disbursement requested (amount listed in 2, less amounts, if any,
listed in 3)
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EXHIBIT C -2
FORM OF PAYMENT REQUEST (FEES)
1. The undersigned (the "Developer ") hereby requests payment in the amount of $
( "Requested Amount ") from CFD No. 2004 -2 for the City Fees specified below:
Fee Cateeory
Amount Requested
No. and Description of
Lots/DUs for which Fees
Requested
2. The Requested Amount is due and payable and has not formed the basis of any prior
request or disbursement.
3. The Developer is in compliance with the terms and provisions of the Acquisition
Agreement.
4. ' Neither the Developer not any Affiliate (as defined in the Acquisition Agreement) is in
default in the payment of ad valorem real property taxes or assessments of special assessments or taxes
levied in the District (as defined in the Acquisition Agreement).
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I hereby declare under penalty of perjury that the above representations and warranties are true
and correct.
DEVELOPER:
Date: By:
Name:
Title:
By:
Name:
Title:
CITY:
Payment Request Approved for Submission to Finance
Director
Date: By:
Director of Public Works
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EXHIBIT D
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Pursuant to an Acquisition Agreement dated as of , 2005 (the "Agreement ") by and
between the City of Moorpark ( "City ") and , [type of entity] (the "Owner "), which
Agreement is hereby incorporated herein by this reference, and for good and valuable consideration,
receipt of which is hereby acknowledged, the undersigned agree as follows:
1. The assignment, assumption and release provided for under this Assignment and
Assumption Agreement ( "Assignment ") is made together with the sale, transfer or assignment of all or a
part of the property subject to the Agreement. The property sold, transferred or assigned together with
this Assignment is included within CFD No. 2004 -2 (Moorpark Vistas) of the City and described in
"Attachment 1" attached hereto and incorporated herein by this reference (the "Subject Property").
2. , as the assignor hereof (the "Assignor ") hereby grants, sells, transfers,
conveys assigns and delegates to ( "Assignee "), all of Assignor's rights, title,
interest, benefits, privileges, duties and obligations arising under or from the Agreement with respect to
the Subject Property and the following Facilities and Assignor is released from all such duties and
obligations: [Insert description of Facilities to be subject to Assignment]:
3. Assignee hereby accepts the foregoing assignment and unconditionally assumes and
agrees to perform all of the duties and obligations of Assignor arising under or from the Agreement as
owner of the Subject Property.
4. The sale, transfer or assignment of the Subject Property and the assignment and
assumption provided for under this Assignment are the subject of additional agreements between
Assignor and Assignee. Notwithstanding any term, condition or provision of such additional agreements,
the rights of the City arising under or from the Agreement and this Assignment shall not be affected,
diminished or defeated in any way, except upon the express written agreement of the City.
5. Assignor and Assignee execute this Assignment pursuant to Section 9.08 of the
Agreement, and the City evidences its consent to this Assignment by signing below.
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Resolution No. 2005 -2387
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IN WITNESS WHEREOF, the parties have executed this Assignment on
ASSIGNOR:
By: _
Name:
Title:
ASSIGNEE:
By:
Name:
Title:
CITY:
CITY OF MOORPARK
By:
Its: City Manager
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Resolution No. 2005 -2387
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ATTACHMENT 1
DESCRIPTION OF SUBJECT PROPERTY
PROPERTY OWNER NAME AND ASSESSOR'S TAX PARCEL NUMBER
Community Facilities District No. 2004 -2 (Moorpark Vistas)
Property Owner Assessor Parcel Number
Moorpark 150 LLC
512- 010 -010
Moorpark 150 LLC
512- 010 -025
Moorpark 150 LLC
512- 010 -055
Moorpark 150 LLC
512 -010 -065
Moorpark 150 LLC
512- 020 -010
Moorpark 150 LLC
512- 020 -030
Moorpark 150 LLC
512- 030 -010
Moorpark 150 LLC
512- 030 -025
Moorpark 150 LLC
512- 040 -035
Moorpark 150 LLC
512- 040 -040
Moorpark 150 LLC
512- 040 -070
Moorpark 150 LLC
512- 040 -145
Moorpark 150 LLC
512- 040 -240
Moorpark 150 LLC
512- 050 -140
Moorpark 150 LLC
512- 050 -350
D -3
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
I, Deborah S. Traffenstedt, City Clerk of the City of
Moorpark, California, do hereby certify under penalty of perjury
that the foregoing Resolution No. 2005 -2387 was adopted by the
City Council of the City of Moorpark at a regular meeting held on
the 21st day of September, 2005, and that the same was adopted by
the following vote:
AYES: Councilmembers Mikos, Millhouse, Parvin, and Mayor
Pro Tempore Harper
NOES: None
ABSENT: Mayor Hunter
ABSTAIN: None
WITNESS my hand and the official seal of said City this 19th
day of October, 2005.
Deborah S. Traffenstedt, City Clerk
(seal)