Loading...
HomeMy WebLinkAboutAGENDA REPORT 1988 1102 CC REG ITEM 11BJOHN PATRICK LANE Mayor ELOISE BROWN Mayor Pro Tern JOHN GALLOWAY Councilmember CLINT HARPER, Ph.D. Councilmember BERNARDO M. PEREZ Councilmember MAUREEN W. WALL City Clerk TO: FROM: DATE: SUBJECT: BackV,round MOORPARK MEMORANDUM The Honorable City Council Steven Rueny, City Manager October 28, 1988 ITEM 11. B. STEVEN KUENY City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police Consider a :Request. by Structural Concepts Concerning an Agreement for Completion of Offsite improvements for DP -302 (American Products) In September, 1987, the Director of Community Development received a request from Mr. Jerry Gershenberg, the applicant /owner of the American Products Building, to allow occupancy by the tenant (American Products) prior to all the conditions of development being met. Over the course of several weeks, it was agreed upon that occupancy would be allowed subject to an approved agreement between the owner and the City. The draft. agreement was modified several times between October, 1987 and final signing on February 19, 1988. Section 7 of the "Agreement Regarding a. Request for Certification of Occupancy Prior to Completion of Development Plan Conditions" required the developer to deposit Thirty Thousand Dollars ($30,000) with the City in an interest- bearing trust account. for possible assessment by the City of liquidated damages. Section 3 of the Agreement required that all conditions be satisfied by August 31, 1988. For each consecutive calendar day in excess of the completion time, the developer shall forfeit One Thousand Dollars ($1,000) from the liquidated damages account held by the City. This section also authorized the City Manager to extend the time of performance by the developer for up to an additional thirty (30) calendar days. At the request of the developer's representative, Structural Concepts, 1 authorized the full thirty (30) day extension. Even with this extension, the off-site improvements were not completed until. Friday, October 7, 1988. . A letter from Structural Concepts dated 799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864 The Honorable City Council October 28, 1988 Page 2 September 16, 1988 explains the reason for the delay. A copy of the letter is attached. Pursuant to the terms of the Agreement, the City can assess $7,000 ($1,000 /day) in liquidated damages. I feel that such is not warranted since they diligently pursued completion. Paragraph 9 of the Agreement requires the developer to reimburse the City for legal /administrative costs for the preparation of the Agreement at a cost not to exceed $1,500. The actual legal costs were $1,785 and as of this date, costs have been paid by the City. I am concerned that before taking action concerning the liquidated damages that the City receive full reimbursement foi• its legal costs plus associated administrative costs. I feel that $2, 000 would be an adequate amount. Mr. Tom Nelson of Structural Concepts has been informed of my position and indicated concurrence with the payment of the $2,000 with the Council's concurrence not to impose the liquidated damages. In addition, Mr. Nelson informed me that Mr. Gershenberg has recently sold the project. Staff Recommendation That upon payment of $2,000 by the Developer for the legal /administrative costs referenced in Paragraph 9 of the Agreement, the Council agrees not to impose the liquidated damages authorized by Paragraph 7 of the Agreement. SK: se cm. 810281 -A JOHN PATRICK LANE Mayor ELOISE BROWN Mayor Pro Tem JOHN GALLOWAY Councilmember CLINT HARPER, Ph.D. Councilmember BERNARDO M.PEREZ Councilmember MAUREEN W. WALL City Clerk TO: FROM: DATE: SUBJECT MOORPARK MEMORANDUM STEVEN KUENY City Manager CHERYL J. KANE City Attorney PATRICK RICHARDS, A.I.C.P. Director of Community Development R. DENNIS DELZEIT City Engineer JOHN V. GILLESPIE Chief of Police THOMAS P. GENOVESE City Treasurer Patrick J. Richards, Director of Community Services Steven Kueny, City Manager ez April 7, 1988 DP -302 OCCUPANCY AGREEMENT - CITY ATTORNEY COSTS For the months of January and February 1988, the City Attorney's office billed the City a total of $1,785.00 for services related to the referenced matter as follows: January February Total Hours Total Cost C. Kane 3.2 6.7 9.9 x $100/hour $990.00 M. Goodkind 3.0 7.6 10.6 x $75 /hour $795.00 Please coordinate with Tom Genovese on how to charge the appropriate account prior to April 13, 1988. The City will be processing these payments to the City Attorney for consideration by the Council on April 20, 1988. cc: Thomas P. Genovese, Deputy City Manager 799 Moorpark Avenue Moorpark, California 93021 (805) 529 -6864 - 1 9 1988 Structural Concepts of v= California Inc. September 16, 1988 Mr. Steven Kueny City Manager City of Moorpark 99 Moorpar;lz Avenue Moorpark, CA 93021 RE: American Products /Woodcrest Building Offsite Flood Control Channel Improvements Dear mr. Kueny: Per our telephone conversation earlier this morning, and after talking to Mr. John Knipe, I am addressing you this letter. The purpose of this letter is to give you an overview of why this project may potentially exceed the extended deadline date of September 30, 1987, but moreover to seek direction from your office as to the proper channels to follow to seek a short extension of established time limit. I feel it note worthy that even though the agreement between the developer and the City of Moorpark was signed on February 19, 1988, and all feasible preliminary preparation work, such as pole relocation, and utility movement was being performed the necessary CalTrans "permit ryder" to start construction was not issued until July 8, 1988. In as much as CalTrans, specifically Mr. Ron Higginbotham, has been a tremendous help throughout this entire project, the process of change within such an agency can be very time consuming. The net result of this permit change was to leave only 38 working days to complete a very involved construction project. (Please note the approval date of the "Permit Ryder" attached.) With the addition of the requested and approved time extension the actual working days allowed was raised to 60 working days. Other notable time delays have been the need to twice change the detour layout which required substantial re- engineering. Further when excavating the existing Highway 118 we encountered a "very old" sixteen foot wide concrete road under Highway 118. There have been many other delays most of which would be to minute to mention. My sole reason for addressing these area's of the construction process with you, are to demonstrate that Structural Concepts as the owner's agent, has maintained a sense of urgency throughout 480 CONSTITUTION AVENUE • CAMARILLO, CALIFORNIA 93010 • (805) 388 -2305 Mr. Steven Kueny September 16, 1988 Page II the allotted time frame determined by the signed agreement. A substantial percentage of the required work has been completed in a relatively short period of time! We are now and will continue to strive to attain completion by September 30, 1988. However, the final completion of this project could potentially extend from 10 days to 2 weeks into October. We are very aware that the liquidated damages clause imposed by the City of Moorpark is done in the interest of securing the timely and effective completion of this construction project and feel we have demonstrated our desire for the same. We are therefore requesting from the City of Moorpark, an additional fifteen working day extension. Should this request require the approval of the Honorable City Council of Moorpark, please accept this letter as a formal request for admittance to the agenda of the next available City Council meeting. Structural Concepts would be happy to meet with the City's Engineering Staff to discuss our completion schedule, or any other facet of this project. We appreciate your continued help and support of this complex project and we look forward to your prompt response. Sincerely, \ Thomas C. Nelson Business Development TCN:lmr Enc. cc: The Honorable City Council (with attachments) Pat Richards, Director of Community Development Cheryl J. Kane, City Attorney Gerry Gershenberg, Woodcrest Carpet Mill Lon Morton, The Morton Company Scott Taylor, A.P.C. R. Dennis Delzeit, City Engineer mag /AGR2862 AGREEMENT REGARDING A REQUEST FOR CERTIFICATE OF OCCUPANCY PRIOR TO COMPLETION OF DEVELOPMENT PLAN CONDITIONS This Agreement is entered into this 19th" day of , 1988, between the CITY OF MOORPARK, California, a Muni ipal corporation (hereinafter "City ") and JERRY GERSHENBERG, an individual (hereinafter "Developer ") as developer of that certain parcel of real property located at 10952 Los Angeles Avenue, Moorpark, California and more particularly described as County Assessor's Parcel No. 500 -0- 340 -165 (hereinafter "Property "). R- E- C- I- T -A -L -S WHEREAS, pursuant to Resolution No. PC -85 -201 of the City Council of the City of Moorpark (incorporated herein by reference) and Development Plan No. DP -302 (incorporated herein by reference), City imposed certain conditions on Developer (hereinafter "Conditions "). WHEREAS, Developer agrees that the Conditions must be met and completed prior to obtaining a certificate of occupancy for Development Plan No. DP -302 from the City (hereinafter "Certificate of Occupancy), or Developer shall enter into an agreement with City on an extension of time to complete the Conditions. WHEREAS, the Conditions have not been met or completed as of the date of this Agreement. Therefore, Developer desires to obtain the Certificate of Occupancy prior to completion and fulfillment of the Conditions by entering into an agreement with City for an extension of time. WHEREAS, City is willing to enter into an agreement for the purpose of allowing Developer to obtain the Certifi- cate of Occupancy prior to the completion and fulfillment of the Conditions, subject to the terms, provisions and stipu- lations set forth in this Agreement. NOW THEREFORE, the parties, in consideration of the mutual promises set forth below do agree as follows: A- G- R- E- E- M -E -N -T 1. This Agreement shall remain in effect until Developer has completed and fulfilled the Conditions and complied with the terms of this Agreement to the satisfac- tion of City. mag /AGR2862 2. In consideration of the obligation to be per- formed by Developer under this Agreement, City shall allow Developer to obtain the Certificate of Occupancy prior to the completion and fulfillment of Conditions, subject to the terms, provisions and stipulations set forth below. 3. Developer shall satisfy all of the Conditions by August 31, 1988, to the satisfaction of City. The City Manager of the City of Moorpark may extend the time of per- formance of this Agreement by Developer up to a maximum of thirty (30) calendar days. 4. Developer shall secure from a good and respon- sible company or companies doing insurance business in the .• _ c n 1 :c.. --I r-- �"A m�in�ain in �I1� fnr('P and I.I L 1.. G 1 1 L V i 1 1 i to , i— Y -, ._..._ effect for the duration of this Agreement the policy of insurance required by this section, and shall furnish to the City Clerk of the City of Moorpark certificates of said insurance, prior to Developer obtaining the Certificate of Occupancy. Notwithstanding any inconsistent statement in any said policy or any subsequent endorsement attached thereto, the protection offered by the policy shall: A. Name City and its officers, employees, servants and agents as additional insured with Developer, whether liability is attributable to Developer or City; B. Insure City and Developer and their respective officers, employees, servants, agents, successors and assigns, while acting in the scope of their duty under this Agreement, against all liability for any and all cost, expense, claim, obligation, cause or causes of action, attorneys' fees, loss, damage, or injury to any person or any property arising from, or in any way connected with, directly or indirectly, the Property, the Conditions or the performance of this Agreement by Developer or City, includ- ing without limitation, all consequential damages, whether or not resulting from the negligence of City or its officers, employees, servants or agents, and any damage resulting from traffic accidents at the temporary driveway entrance, or within Cal Trans right -of -way or the public right -of -way; C. Bear an endorsement or have attached a rider, executed by a duly authorized officer of the insurance company, whereby it is provided that such policy provides primary coverage and that any other policy that may afford -2- mag /AGR2862 coverage to City shall be in excess of, and not concurrent with, such policy; D. Bear an endorsement or have attached a rider, executed by a duly authorized officer of the insurance company, whereby it is provided that, in the event of pro- posed cancellation or amendment of such policy for any reason whatsoever, City shall be notified by certified or registered mail, postage prepaid, return receipt requested, not less than thirty (30) days before the cancellation or amendment is effective. Consistent with the provisions of this section, Developer shall provide comprehensive and personal injury insurance as Culluw5: Bodily Injury and Property Damage Combined . . . . $2,000,000 each occurrence 5. Developer shall indemnify and hold harmless City and its officers, employees, servants and agents from all liability for any and all cost, expense, claim, obliga- tion, cause or causes of action, attorneys' fees, loss, damage or injury to any person or any property arising from, or in any way connected with, directly or indirectly, the Property, Conditions or the performance of this Agreement, including, without limitation, all consequential damages, whether or not resulting from the negligence of City or its officers, employees, servants or agents, and any damage resulting from traffic accidents at the temporary driveway entrance, or within Cal Trans right -of -way, or the public right -of -way. 6. Concurrently herewith, City and Developer shall execute an Agreement Regarding Completion of Offsite Improvements and Escrow Instructions (the "Instructions "), by and among the parties and Mitsui Manufacturers Bank, which assures City of the completion and fulfillment of the Conditions by Developer. Prior to Developer obtaining the Certificate of Occupancy, the City shall be notified of Escrow Holder's receipt of the Off -Site Funds in accordance with Paragraph 3.1 of the Instructions. 7. Prior to Developer obtaining the Certificate of Occupancy, Developer shall deposit with City, a lump sum cash amount of Thirty Thousand Dollars ($30,000) to be main- tained by City in an interest - bearing trust account for the possible assessment by City of liquidated damages (herein- after "Liquidated Damages Account "). Failure of Developer to complete and fulfill all Conditions and comply with the -3- mag /AGR2862 terms of this Agreement within the times specified by this Agreement, will result in damages to City. Such damages are, and will continue to be, impracticable or extremely difficult to determine. The factors relating to the imprac- ticability or extreme difficulty of ascertaining damages include, but are not limited to, the following facts: A. That the public will be substantially damaged if Developer fails to timely install improvements, as required by the Conditions and this Agreement; B. That any failure to timely install improvements causes inconvenience, anxiety, frustration and deprivation of the benefits of the Conditions and this Agreement LU Li1c public, fcr whose benefit these Conditions and this Agreement exists, in subjective ways and varying degrees of intensity which are incapable of measurement in precise dollar terms; and C. The termination of this Agreement for any failure to timely complete and fulfill the Conditions and comply with the terms of this Agreement is, at best, a means of future correction and not a remedy which makes the public whole for past breaches. For each consecutive calendar day in excess of the comple- tion times specified in this Agreement, Developer shall forfeit One Thousand Dollars ($1,000) from the Liquidated Damages Account held by City. Execution of this Agreement shall constitute acceptance between City and Developer that One Thousand Dollars ($1,000) per day is the minimum value of the costs and actual damage caused by failure of Developer to complete and fulfill the Conditions and comply with the terms of this Agreement within the time specified in this Agreement. Without the provision of this section establishing liquidated damages, the actual damage for which Developer would be liable could greatly exceed the amount of liquidated damages provided for in this section. Therefore, the liquidated damages provisions are of benefit to Developer and to City and its residents. The funds in the Liquidated Damages Account minus any forfeiture will be refunded to Developer within fifteen (15) days upon written verification from the Director of Community Development that all Conditions have been completed and fulfilled and all terms of this Agreement have been complied with by Developer to the satisfaction of City. -4- mag /AGR2862 8. This Agreement does not in any manner author- ize the violation of law, or any lawful rules or regulations or orders of an authorized governmental agency, including, but not limited to, the Ventura County Flood Control District. 9. Developer hereby agrees to pay for any and all administrative costs, including legal fees, associated with the preparation of this Agreement, not to exceed Fifteen Hundred Dollars ($1500). 10. Developer shall not assign its rights or dele- gate its duties and obligations under this Agreement without prior express written approval from City. 11. If any legal action, including an action for declaratory relief, is brought to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees from the other party. These fees, which shall be set by the court in the same action or in a separate action brought for that purpose, are in addition to any other relief to which the prevailing party may be entitled. This provision applies to the entire Agreement. 12. This Agreement supersedes and replaces all other agreements, either oral or in writing, between City and Developer with respect to the subject of this Agreement. This Agreement contains all of the covenants and agreements between the parties with respect to the Conditions, and each party to this Agreement acknowledges that no representa- tions, inducements, promises, or agreements have been made by, or on behalf of, any party except those covenants and agreements embodied in this Agreement. The terms of this Agreement are contractual and not a mere recital. No agree- ment, statement, or promise not contained in this Agreement shall be valid or binding. 13. Each party acknowledges that it has entered into and executed this Agreement solely on the basis of its own independent investigation of the facts, and the advice of its own independent selected counsel, if any, and other advisors, and has not relied upon any statement or omission by the other party. 14. This Agreement shall not be amended except by a writing duly executed by the parties. -5- mag /AGR2862 15. Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid, void or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding. 16. Should interpretations of this Agreement be necessary, it shall be deemed that the Agreement was prepar- ed by each of the parties hereto, jointly and equally, and shall not be interpreted against any party on the ground that the party prepared it or caused it to be prepared. This Agreement shall in all respects be interpreted, enforced and governed by and under the laws of the State of CAI i fornia. Executed on 1988 at ,,a,/ - California. APPROVED AS TO FORM: CITY TTO NEY l "DEVELOPER" Z "CITY OF MOORPARK" Title- ' mag /AGR2862 STATE OF CALIFORNIA ) ) SS. COUNTY OF LOS ANGELES) On 4.j Z2 , 1988, before me, a Notary blic in 0(nd for said State, per*dnallly appeare JERRY GERSHENBERG, personally known to me or proved to me o the basis of satisfactory evidence to be the persons whose names are subscribed to the within instrument and acknowledged that they executed it. WITNESS my hand and official seal. OFFICIAL SEAL ` MAUREEN W. WALL ��. ate;; -i• NOTARYPUBUC - CALIFORNIA V[NTURA COUNTY vS V.y Cc r:. Expires Uc:. 14, ]1989 STATE OF CALIFORNIA ) ) ss. COUNTY OF LOS ANGELES) Notary Public On , 1988, before me, a Notary ublic in and for said State, personally appeared of the City bf Moorpark, pe onaal yknown to me or proved to me on the basis of satisf story evidence to be the person whose name and title is subscribed to the within instrument and acknowledged that he /she executed it. WITNESS my hand and official seal. OFFICIAL SEAL �9AU -105U -C W. WALL L /1/1GL /0. 1 _L� MO MA Ji! EN • CALIFORNIA ! C 11- .';URACOUNTY Notary Public My Cc r.:- �z,-,ir Oct. Id, 1989 —7—