HomeMy WebLinkAboutAGENDA REPORT 2014 0319 CCSA REG ITEM 10D ITEM 10.D.
CITY OF MOORPARK,CALIFORNIA
City Council Meeting
_ s -/9-0,30i4
MOORPARK CITYCITY COU
AGENDA REPORT 4• Gd
TO: Honorable City Council BY:
FROM: David C. Moe II, Economic Development and Housing Manager
DATE: March 11, 2014 (City Meeting of 3/19/14)
SUBJECT: Consider Approving Exclusive Negotiating Agreement Between the
City of Moorpark and City Ventures
BACKGROUND & DISCUSSION
On August 27, 2012, the City of Moorpark ("City"), acting as the Successor Housing
Agency of the Redevelopment Agency of the City of Moorpark, officially acquired all
housing related properties and assumed the affordable housing obligations of the
former Redevelopment Agency of the City of Moorpark. On January 1, 2014, SB 341
become effective, adding additional rules for expenditures of money in the housing
successor's low and moderate income housing asset fund; annual reporting
requirements; and establishing a five (5) year limit to develop the housing related
properties (August 27, 2017).
CV Urban Land, LLC ("City Ventures") has purchased the residential development Tract
5130 and is moving forward with developing this land. Tract 5130 has an affordable
housing component requiring 12 affordable units to be constructed or substantially
rehabilitated within the City and sold to very low, low, and moderate income
households.
City Ventures has approached the City to discuss constructing 12 affordable and 6
market rate units on the City's properties of 1095, 1113, 1123, 1293 (two parcels), and
1331 Walnut Canyon Road ("Properties") to satisfy its affordable housing requirement
for Tract 5130. City Ventures has requested that the City not consider any other
development proposals or conduct negotiations with any other parties while they
perform their due diligence review of the Properties.
Staff has prepared an Exclusive Negotiating Agreement ("ENA") between the City and
the Developer (Exhibit A). The ENA will secure the Developer's interest to enter into
negotiations with the City for the purchase and development of the Properties for a
period of three (3) months. During the term of the ENA, the City is restricted from
50
Honorable City Council
March 19, 2014
Page 2
discussion or considering any development proposal for the Properties. Staff is
recommending approval of the ENA.
FISCAL IMPACT
None.
STAFF RECOMMENDATION
Approve Exclusive Negotiating Agreement subject to final language approval by the City
Manager and City Attorney.
Attachment 1 - Exclusive Negotiating Agreement
Attachment 1
AGREEMENT TO NEGOTIATE EXCLUSIVELY
THIS AGREEMENT, made and entered into this day of 12014,
between the City of Moorpark, a municipal corporation, hereafter referred to as
"CITY" and City Ventures, a California Corporation, hereinafter referred to as
"DEVELOPER".
WITNESSETH.-
WHEREAS,
ITNESSETH:
WHEREAS, the CITY intends to partner with a developer to construct
affordable housing units on CITY owned property in accordance with the Housing
Element of the CITY's General Plan; and
WHEREAS, DEVELOPER is desirous of negotiating a contract to
purchase and develop property to satisfy its affordable housing requirement for
Tract 5130.
NOW, THEREFORE, in consideration of the mutual covenants, benefits,
and premises herein stated, the parties hereto agree as follows:
1. CITY and DEVELOPER shall cooperatively seek to develop a plan
whereby the DEVELOPER may purchase real property necessary for the
proposed affordable housing as shown on Exhibit "A" ("REAL PROPERTY").
2. During the period from the date of this Agreement until June 30,
2014, ("NEGOTIATION PERIOD") CITY and DEVELOPER shall seek, in good
faith, to negotiate a Disposition and Development Agreement (hereinafter
referred to as "DDA") for the sale and development of said REAL PROPERTY.
Such DDA shall provide for the CITY to sell REAL PROPERTY to the
DEVELOPER for a price and on terms and conditions to be determined by the
parties during the NEGOTIATION PERIOD.
3. The CITY shall not negotiate regarding REAL PROPERTY or any
portion thereof with any person or entity other than DEVELOPER during the
Negotiating Period, provided DEVELOPER is pursuing its obligations under this
Agreement with reasonable due diligence. At the end of the NEGOTIATION
PERIOD, this AGREEMENT, if not extended by mutual written agreement, shall
automatically terminate and neither party shall have any further obligations to the
other party under this AGREEMENT, except for those terms and conditions that
expressly survive termination as set forth below.
4. Upon execution of this AGREEMENT, DEVELOPER hereby stands
ready to proceed diligently and in good faith with its obligations under this
AGREEMENT. If the negotiations do not result in an agreement to purchase and
develop said REAL PROPERTY, DEVELOPER will submit to the CITY copies of
all studies, plans, and reports made by DEVELOPER, provided that such studies,
52
plans and reports shall be delivered in their as -is condition with no
representations or warranties by DEVELOPER.
5. During the term of this AGREEMENT, DEVELOPER shall submit
biweekly written progress reports to the CITY advising of activities undertaken
and completed, as part of DEVELOPER's due diligence.
6. DEVELOPER shall produce a concept plan for development of an
affordable housing residential project (the "PROJECT") within the period of the
AGREEMENT. The concept plan will include the following.-
A.
ollowing:
A. Adequate on-site parking
B. Site plan
C. Preliminary elevations
7. DEVELOPER is hereby granted temporary access for the benefit of
itself and its employees, contractors and consultants, to access the REAL
PROPERTY to conduct research and studies to determine the feasibility of the
PROJECT.
8. By its execution of this AGREEMENT, the CITY is not committing
itself to or agreeing to undertake: (a) any disposition of land to the DEVELOPER;
(b) any DDA with DEVELOPER; or (c) any other acts or activities requiring the
subsequent independent exercise of discretion by the CITY, the City of Moorpark
or any CITY or department thereof. This AGREEMENT does not constitute a
disposition of property or exercise of control over property owned by the City of
Moorpark and does not require a public hearing. Execution of this AGREEMENT
by the CITY is merely an agreement to enter into a period of exclusive
negotiations according to the terms hereof, reserving final discretion and
approval by the City of Moorpark as to any DDA and all proceedings and
decisions in connection therewith.
9. The CITY shall not be liable for any finder's fee, real estate
commissions or brokerage fees which may arise herefrom or from subsequent
sale of property to developers. The CITY and DEVELOPER each represent that
it has not engaged a broker in connection with this transaction.
10. Any notice to be given pursuant to this agreement shall be in
writing, and all such notices and any other document to be delivered shall be
delivered by personal service or by deposit in the United States mail, certified or
registered, return receipt requested, with postage prepaid, and addressed to the
party for whom intended as follows:
To: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: Steven Kueny, City Manager
53
To: City Ventures
2000 Avenue of the Stars
9th Floor South
Los Angeles, CA 90067
Attention: Bill McReynolds
Either party may, from time to time, by written notice to the other,
designate a different address, which shall be substituted for the one above
specified. Notices, payments, and other documents shall be deemed delivered
upon receipt by personal service or upon deposit in the United States mail.
11. DEVELOPER agrees to indemnify, protect, defend, and hold
harmless the City of Moorpark, and any and all of its officials, employees, and
agents from and against any and all losses, liabilities, damages, costs and
expenses, including attorney's fees and costs to the extent same are caused in
whole or in part by any negligent or wrongful act, error or omission of
DEVELOPER, its officers, agents, employees or sub -consultants in the
performance of this AGREEMENT.
DEVELOPER agrees to obtain executed indemnity agreements with
provisions identical to those set forth here in this section from each and every
subconsultant, contractor, subcontractor, or any other person or entity involved
by, for, with, or on behalf of DEVELOPER in the performance of this
AGREEMENT. Failure of CITY to monitor compliance with these requirements
imposes no additional obligations on CITY and will in no way act as a waiver of
any rights hereunder. This obligation to indemnify and defend CITY as set forth
here is binding on the successors, assigns or heirs of DEVELOPER and shall
survive the termination of this AGREEMENT or this section.
CITY does not and shall not waive any rights that it may have against
DEVELOPER by reason of this Section, because of the acceptance by CITY, or
the deposit with CITY, of any insurance policy or certificate required pursuant to
this AGREEMENT. The hold harmless and indemnification provisions shall apply
regardless of whether or not said insurance policies are determined to be
applicable to any losses, liabilities, damages, costs and expenses described in
this Agreement.
12. DEVELOPER shall maintain prior to the beginning of and for the
duration of this AGREEMENT insurance coverage as specified in Exhibit B
attached hereto and incorporated herein by this reference as though set forth in
full.
54
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK
as
Steven Kueny
City Manager
Date
Exhibit A — Map of the Properties
CITY VENTURES
Bill McReynolds
Vice President
Date
55
,- �, ' —. Y ..r •� . -. �z
Y
y c7
to
co
J1 �. ..
ii
4 .
,,,
4:-.,,P.s.,,
..,.
CP ' -�- r
.� -.ra....mos.
., .
4 Iloilo,
r -, . ,
, . . .... ._ ....
: r
lie.
4 ` •
Y1 4
• - ,
al I do,
�sR•'". 4 �a '• ..t
a
• .• a •.
N V
•
rf ..- .• _.
-► .� il
C C
O i f/ r
fIA/ Ark
- � I•1 - c c
t � N N f0
c c
Q t� aiw i C C s
c r Qr CO (� m
iit g•
N c'')
t. _
C'. / w
.,4• _ ,. fir
Piriiii" / ,
4P / --- P
._
i
1.. 1�
.v . •.C1b.0
MrAi* `
'PO •
1 sM r l
W
•
'1�. r
it.
yp •r "...„....„..,`` :..7.1
I \,'1 . '
-140,. e jimisei: i• ' .., . ,,,* . . " &elk' .....:. :
A 1 0 '.;
56
... .
------. k
a:
-P--NI
..')
..
;pp .
it 1
.=
(.)
v• .-A -..
/.. •
• ,,, .,- —
o...
.•
. ., .
1 ...•
.. .. ,.. ... . .
...,. ,t
" .
_
• .
-1•41
$ .3. ' • '..; - lir.'
. .. .
•.-: '. .
.. .
. . ,
..,_
. -
94.
• ".-,
• ....• ..= . . , • ....
. ..laifilp'
t lir-1
,
---;•• - .,
. . .
.
0,-‘('' '.--4.---v.4 i . - v . ' .
Aik. • . *- r... ::::',
. - - - ‘4.4*-
•,.
1 '
AI.,
•iet., .., ... ... .1, :
. -i.
--(41, ,e..., . • .... ., P ..1--, .. •
..(
4.-
+1..
, k
,• , '...4
. *
-. '..."
$ w ...,. •
, .. .•••,"... '':. 41116114. ..1"...
1. 4., M'- - • i1/4,10. . "..
C C C
1144,
• ..
- 4
—.8 •
i 1 .. .
•. ,,s4...4.....,111". 00,11 .
1% •. -
it
. . . ',• N..
- ' ' -. ' -0 •.`
.,..
et
• o o .-.
o i
...... tit . . •._ -, .... ; - . 4. % , >, >. > '2-'
C t' C tn
CZ CZ CV ,
. - 111110 .. 4*. - ' .E
. .... • Itior ,.-.
dii,,x .... I- . : ,.. .5 -5 ...:
, i .., mho c
....
• ..- 1 c __c — "8
... . -ler V% Airliii6,II To
C1.5 CZ
' -41'81,8111thr -- -
111 1, 1
-
....,
•
.4 lip
ar) `.°0 0'7, 1
, .
0-.) ,.. i..N
. . .....-, i
0 c— ..„--
• 24.—?.' lb ' . z. • ... • 'S''- ....---• (N
0 ... .
, .
•
(g)-,,
' ,1 NN•k,, ' ' Ii-.4' , .. '4,4..
i -..."'`,....
N,..' - -.. . - •' 1-- • gli
4 N..
.-- . •S4 -
N.
„ . ,
,..... .....
4111114,1 .. at • •
.1, Likg...1„.
•
•..
.. _
-‘....
• -
._ •.,-.
, • - vri --
.
-/ .. ,•3
• ,p$,
,....
„,.... .
4 -• . .
,..._. •
. .,..
......
•
.. . .
. .
• .. ...
-Li Itie 411P A .-
... .2 MINIUM.
i r
' 7
- -,
.1 .t. „at',, , • - -1
„AP lik—, • w
._..,. . . ,
ICID .
. ,
.. ,,.
1 ,t,
.. .'”
?..-
it.L... ...... " I? -t•-'-.1 .
., .
-..,........ -
•
_ t.- • :Ilk — ' • '-
alit .
57. ..
Exhibit B
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of this AGREEMENT,
DEVELOPER will maintain insurance in conformance with the requirements set forth
below. DEVELOPER will use existing coverage to comply with these requirements. If
that existing coverage does not meet requirements set forth here, DEVELOPER agrees
to amend, supplement or endorse the existing coverage to do so. DEVELOPER
acknowledges that the insurance coverage and policy limits set forth in this section
constitute the minimum amount of coverage required. Any insurance proceeds available
to the City in excess of the limits and coverage required in this AGREEMENT and which
is applicable to a given loss, will be available to the City.
DEVELOPER shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office (ISO)
"Commercial General Liability" policy form CG 00 01 or the exact equivalent. Defense
costs must be paid in addition to limits. There shall be no cross liability exclusion for
claims or suits by one insured against another. Limits are subject to review but in no
event less than $1,000,000 per occurrence for all covered losses and no less than
$2,000,000 general aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident. If DEVELOPER owns no vehicles, this
requirement may be satisfied by a non -owned auto endorsement to the general liability
policy described above. If DEVELOPER or DEVELOPER's employees will use personal
autos in any way on this project, DEVELOPER shall provide evidence of personal auto
liability for each such person.
Workers' Compensation on a state -approved policy form providing statutory benefits as
required by law with employer's liability limits no less than $1,000,000 per accident or
disease.
Excess or Umbrella Liability Insurance (Over Primary) if used to meet limit
requirements, shall provide coverage at least as broad as specified for the underlying
coverages. Coverage shall be provided on a "pay on behalf' basis, with defense costs
payable in addition to policy limits. Policy shall contain a provision obligating insurer at
the time insured's liability is determined, not requiring actual payment by the insured
first. There shall be no cross liability exclusion precluding coverage for claims or suits by
one insured against another. Coverage shall be applicable to the City for injury to
employees of DEVELOPER, subconsultants or others involved in the Work. The scope
of coverage provided is subject to approval by the City following receipt of proof of
insurance as required herein.
om
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of A- or better
and a minimum financial size of VII.
General conditions pertaining to provision of insurance coverage by DEVELOPER.
DEVELOPER and the City agree to the following with respect to insurance provided by
DEVELOPER:
1. DEVELOPER agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds the City, its officials,
employees, and agents, using standard ISO endorsement CG 2010 with an
edition prior to 1992. DEVELOPER also agrees to require all contractors and
subcontractors to do likewise.
2. No liability insurance coverage provided to comply with this AGREEMENT shall
prohibit DEVELOPER, or DEVELOPER's employees, or agents, from waiving the
right to subrogation prior to a loss. DEVELOPER agrees to waive subrogation
rights against the City regardless of the applicability of any insurance proceeds,
and to require all contractors and subcontractors to do likewise.
3. All insurance coverage and limits provided by Contractor and available or
applicable to this AGREEMENT are intended to apply to the full extent of the
policies. Nothing contained in this AGREEMENT or any other agreement relating
to the City or its operation limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include limiting endorsement of any kind that has not been
first submitted to the City and approved in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for
bodily injury to an employee of the insured or of any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. DEVELOPER shall not
make any reductions in scope of coverage (e.g. elimination of contractual liability
or reduction of discovery period) that may affect the City's protection without the
City's prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to DEVELOPER's general liability policy, shall be delivered to city
at or prior to the execution of this AGREEMENT. In the event such proof of any
insurance is not delivered as required, or in the event such insurance is canceled
or reduced at any time and no replacement coverage is provided, the City has
the right, but not the duty, to obtain any insurance it deems necessary to protect
its interests under this or any other agreement and to pay the premium. Any
Page 2 of 5
59
premium so paid by the City shall be charged to and promptly paid by
DEVELOPER or deducted from sums due DEVELOPER, at the City's option.
8. Certificate(s) are to reflect that the insurer will provide 30 days notice to the City
of any cancellation or reduction of coverage. DEVELOPER agrees to require its
insurer to modify such certificates to delete any exculpatory wording stating that
failure of the insurer to mail written notice of cancellation or reduction of coverage
imposes no obligation, or that any party will "endeavor" (as opposed to being
required) to comply with the requirements of the certificate.
9. It is acknowledged by the parties of this AGREEMENT that all insurance
coverage required to be provided by DEVELOPER or any subcontractor, is
intended to apply first and on a primary, non-contributing basis in relation to any
other insurance or self-insurance available to the City.
10. DEVELOPER agrees to ensure that subcontractors, and any other party involved
with the Work who is brought onto or involved in the Work by DEVELOPER,
provide the same minimum insurance required of DEVELOPER. DEVELOPER
agrees to monitor and review all such coverage and assumes all responsibility for
ensuring that such coverage is provided in conformity with the requirements of
this section. DEVELOPER agrees that upon request, all agreements with
subcontractors and others engaged in the Work will be submitted to the City for
review.
11. DEVELOPER agrees not to self -insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, Architect, Engineer, or other
entity or person in any way involved in the performance of Work contemplated by
this AGREEMENT to self -insure its obligations to the City. If DEVELOPER's
existing coverage includes a deductible or self-insured retention, the deductible
or self-insured retention must be declared to the City. At that time, the City shall
review options with the DEVELOPER, which may include reduction or elimination
of the deductible or self-insured retention, substitution of other coverage, or other
solutions.
12. The City reserves the right at any time during the term of the AGREEMENT to
change the amounts and types of insurance required by giving the DEVELOPER
90 days advance written notice of such change. If such change results in
substantial additional cost to the DEVELOPER, the City will negotiate additional
compensation proportional to the increased benefit to the City.
13. For purposes of applying insurance coverage only, this AGREEMENT will be
deemed to have been executed immediately upon any party hereto taking any
steps that can be deemed to be in furtherance of or towards performance of this
AGREEMENT.
14. DEVELOPER acknowledges and agrees that any actual or alleged failure on the
part of the City to inform DEVELOPER of non-compliance with an insurance
Page 3 of 5
60
requirement in no way imposes any additional obligations to the City nor does it
waive any rights hereunder in this or any other regard.
15. DEVELOPER will renew the required coverage annually as long as the City, or
its employees or agents face an exposure from operations of any type pursuant
to this AGREEMENT. This obligation applies whether or not the AGREEMENT is
canceled or terminated for any reason. Termination of this obligation is not
effective until the City executes a written statement to that effect.
16. DEVELOPER shall provide proof that policies of insurance required herein
expiring during the term of this AGREEMENT have been renewed or replaced
with other policies providing at least the same coverage. Proof that such
coverage has been ordered shall be submitted prior to expiration. As coverage
binder or letter from DEVELOPER's insurance agent to this effect is acceptable.
A certificate of insurance and/or additional insured endorsement as required in
these specification applicable to the renewing or new coverage must be provided
to the City within five days of the expiration of coverage.
17. The provisions of any Workers' Compensation or similar act will not limit the
obligations of DEVELOPER under this AGREEMENT. DEVELOPER expressly
agrees not to use any statutory immunity defenses under such laws with respect
to the City, its employees, officials, and agents.
18. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits, or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference
to a given coverage feature is for purposes of clarification only as it pertains to a
given issue, and is not intended by any party or insured to be limiting or all-
inclusive.
19. These insurance requirements are intended to be separate and distinct from any
other provision in this AGREEMENT and are intended by the parties here to be
interpreted as such.
20. The requirements in this section supersede all other sections and provisions of
this AGREEMENT to the extent that any other section or provision conflicts or
impairs the provisions of this section.
21. DEVELOPER agrees to be responsible for ensuring that no contract used by any
party involved in any way with the Work reserves the right to charge the City or
DEVELOPER for the cost of additional insurance coverage required by this
AGREEMENT. Any such provisions are to be deleted with reference to the City.
It is not the intent of the City to reimburse any third party for the cost of complying
with these requirements. There shall be no recourse against the City for payment
of premiums or other amounts with respect thereto.
22. DEVELOPER agrees to provide immediate notice to City of any claim or loss
against DEVELOPER arising out of the work performed under this
Page 4of5
61
AGREEMENT. The City assumes no obligation or liability by such notice, but has
the right (but not the duty) to monitor the handling of any such claim or claims if
they are likely to involve the City.
Page 5 of 5
62