HomeMy WebLinkAboutAGENDA REPORT 2015 0902 CCSA REG ITEM 10K ITEM 10.K.
CITY OF MOORPARK,CALIFORNIA
City Council Meeting
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MOORPARK CITYCITY COUNCIL�°ua� -
AGENDA REPORT , `
BY: 'Th , _
TO: Honorable City Council
FROM: David C. Moe II, Economic Development and Housing Manager tYin
DATE: August 21, 2015 (CC meeting of 9/2/15)
SUBJECT: Consider Exclusive Negotiating Agreement Between the City of
Moorpark and Aldersgate Investment, LLC to Study the Feasibility of
Scattered Site Affordable Housing Projects on Various City Owned
Properties
BACKGROUND
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
became 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).
DISCUSSION
Aldersgate Investment, LLC ("Developer") is in the process of seeking entitlements from
the City to construct 390 transitional senior units on approximately 50 acres north of
Casey Road and west of Walnut Canyon Road (RPD 2013-01 & GPA 2013-02). The
City is currently negotiating the affordable housing component with the Developer. Due
to the nature of this project, it would be difficult to apply an affordable housing
component onsite. Therefore, staff is considering an offsite affordable housing
component on various City owned properties (Attachment II).
The Developer 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.
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Honorable City Council
September 2, 2015
Page 2
Staff has prepared an Exclusive Negotiating Agreement ("ENA") between the City and
the Developer (Attachment), which the City Attorney has reviewed. 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. The thirteen (13)
properties are described in Exhibit A of the referred attachment. During the term of the
ENA, the City is restricted from discussion or considering any development proposal for
the properties. Staff is recommending approval of the ENA.
FISCAL IMPACT
Developer shall pay $1.00 for the exclusive right to negotiate with the City for a period of
three (3) months. Developer shall also pay City for all staff time worked on processing
and managing the ENA with an initial deposit of $2,500.00.
STAFF RECOMMENDATION
Approve Exclusive Negotiating Agreement and authorize the City Manager to sign the
Agreement, subject to final language approval by the City Manager and City Attorney.
Attachment - Exclusive Negotiating Agreement
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ATTACHMENT
AGREEMENT TO NEGOTIATE EXCLUSIVELY
THIS AGREEMENT, made and entered into this day of
, 2015, between the City of Moorpark, a municipal
corporation, hereafter referred to as "CITY" and Aldersgate Investment, LLC, a
Delaware limited liability company, hereinafter referred to as "DEVELOPER".
WITNESSETH:
WHEREAS, the CITY intends to partner with a developer to construct
affordable housing units on CITY owned properties 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
RPD 2013-01.
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 properties, as shown on Exhibit
"A" "REAL PROPERTY", and constructs an affordable housing project to satisfy
the affordable housing requirement for RPD 2013-01.
2. During the period from the date of this Agreement until ninety (90)
days, hereafter referred to as "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
NEGOTIATION 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
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all studies, plans, and reports made by DEVELOPER, provided that such studies,
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, hereafter referred to as "PROJECT" within
the period of the AGREEMENT. The concept plan will include the following:
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, or any department
thereof. This AGREEMENT does not constitute a disposition of property or
exercise of control over property owned by the CITY 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 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
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Aldersgate Investment, LLC 8 7
To: Aldersgate Investment, LLC
300 Esplanade Drive, #1550
Oxnard, CA 93036
Attention: Ernest T. Mansi
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, 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.
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Aldersgate Investment, LLC 88
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed the day and year first above written.
CITY OF MOORPARK ALDERSGATE
INVESTMENT, LLC
By By
Steven Kueny Ernest T. Mansi
City Manager Managing Partner
Exhibit A — List of Properties
Exhibit B — Insurance Requirements
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Aldersgate Investment, LLC 89
Exhibit A
Address APN
282 Los Angeles Avenue 506-0-020-240
112 First Street 512-0-102-100
124 First Street 512-0-102-110
224 Charles Street 512-0-093-020
236 Charles Street 512-0-093-030
450 Charles Street 512-0-081-050
460 Charles Street 512-0-081-060
484 Charles Street 512-0-081-080
No Address 512-0-081-090 (Pardee to transfer to City SAV corner of Spring Rd. &Charles St)
780 Walnut Street 512-0-063-010
1293 Walnut Canyon 511-0-040-140 & 511-0-040-130
1331 Walnut Canyon 511-0-040-120
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EXHIBIT B
INSURANCE REQUIREMENTS
Prior to the beginning of and throughout the duration of the License, Licensee will
maintain insurance in conformance with the requirements set forth below. Licensee will
use existing coverage to comply with these requirements. If that existing coverage does
not meet the requirements set forth here, it will be amended to do so. Licensee
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 City in excess of the limits and coverage required in this License and which is
applicable to a given loss, will be available to the City.
Licensee shall provide the following types and amounts of insurance:
1. Commercial General Liability
Commercial General Liability Insurance shall be provided by an Insurance
Services Office "Commercial General Liability" policy form CG 00 01 or the exact
equivalent. Defense costs must be paid in addition to limits. There shall be no cross
liability exclusion for claims or suits by one insured against another. Limits shall be no
less than $1,000,000 per occurrence for all covered losses and no less than $2,000,000
general aggregate.
Licensee's policy shall contain no endorsements limiting coverage beyond the
basic policy coverage grant for any of the following:
a. Explosion, collapse or underground hazard (XCU)
b. Products and completed operations
c. Pollution liability
d. Contractual liability
Coverage shall be applicable to City for injury to employees of Licensee,
subcontractors, or others involved in the project. Policy shall be endorsed to provide a
separate limit applicable to this project.
2. Workers' Compensation
Workers' Compensation insurance shall be provided on a state-approved policy
form providing statutory benefits as required by law with employers' liability limits no
less than $1,000,000 per accident for all covered losses.
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3. Business Auto Coverage
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 06 92
including symbol 1 (Any Auto) or the exact equivalent shall be provided. Limits shall be
no less than $1,000,000 per accident, combined single limit. If Licensee owns no
vehicles, this requirement may be satisfied by a non-owned auto endorsement to the
general liability policy described above. If Licensee or Licensee's employees will use
personal autos in any way on this project, Licensee shall provide evidence of personal
auto liability coverage for each such person.
4. Excess or Umbrella Liability
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. There shall be no cross liability exclusion precluding
coverage for claims or suits by one insured against another. Coverage shall be
applicable to City for injury to employees of Licensee, subcontractors, or others involved
in the Work. The scope of coverage provided is subject to the approval of city following
receipt of proof of insurance as required herein. Limits are subject to review.
Insurance procured pursuant to these requirements shall be written by insurers
that are admitted carriers in the state of California and with A.M. Best rating of A- or
better and a minimum financial size of VII.
Licensee and City agrees as follows:
1. General liability policies shall provide or be endorsed to provide that City and its
officers, officials, employees, and agents shall be additional insureds under such
policies. This provision shall also apply to any excess liability policies.
Contractor agrees to have its insurer endorse the third party general liability
coverage required herein using standard ISO endorsement CG 2010 with an
edition prior to 1992 or other endorsement form that City considers equivalent.
Contractor also agrees to require all contractors and subcontractors to do
likewise.
2. Any waiver of subrogation express or implied on the part of the City to any party
involved in this License or related documents applies only to the extent of
insurance proceeds actually paid. City, having required that it be named as an
additional insured to all insurance coverage required herein, expressly retains the
right to subrogate against any party for sums not paid by insurance. For its part,
Licensee agrees to waive subrogation rights against City regardless of the
applicability of any insurance proceeds, and to require all contractors,
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subcontractors, or others involved in any way with the project contemplated by
this License to do likewise.
3. All insurance coverage maintained or procured by Licensee or required of others
by Licensee pursuant to this License shall be endorsed to delete the subrogation
condition as to the City, or to specifically allow Licensee or others providing
insurance herein to waive subrogation prior to a loss. This endorsement shall be
obtained regardless of existing policy wording that may appear to allow such
waivers.
4. It is agreed by Licensee and City that insurance provided pursuant to these
requirements is not intended by any party to be limited to providing coverage for
the vicarious liability of City, or to the supervisory role, if any, of City. All
insurance coverage provided pursuant to this or any other Agreement (express
or implied) in any way relating to City is intended to apply to the full extent of the
policies involved. Nothing referred to here or contained in any agreement
involving City in relation to the project contemplated by this License is intended to
be construed to limit the application of insurance coverage in any way.
5. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not
been first submitted to City and approved of in writing.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the City, as the need arises. Licensee shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discover period) that may affect City's protection without City's prior
written consent.
7. Proof of compliance with these insurance requirements, consisting of binders of
coverage, or endorsements, or certificates of insurance, shall be delivered to City
at or prior to the execution of this License. In the event such proof of 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, 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 premium so paid by
City shall be charged to and promptly paid by Licensee or deducted from sums
due Licensee, at City option.
8. Licensee agrees to endorse, and to required others to endorse, the insurance
provided pursuant to these requirements, to require 30 days notice to City and
the appropriate tender prior to cancellation or reduction of such liability coverage
and notice of any material alteration or non-renewal of any such coverage, and to
require contractors, subcontractors, and any other party in any way involved with
the project contemplated by this License to do likewise.
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9. It is acknowledged by the parties of this License that all insurance coverage
required to be provided by Licensee or any subcontractor, and any other party
involved with the project who is brought onto or involved in the project by
Licensee, 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. Licensee agrees to ensure that subcontractors, and any other party involved with
the Work who is brought onto or involved in the Work by Licensee, provide the
same minimum insurance coverage required of Licensee. Licensee 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
License. Licensee agrees that upon request, all agreements with subcontractors
and others engaged in this project will be submitted to City for review.
11. Licensee agrees that all layers of third party liability coverage required herein,
primary, umbrella and excess, will have the same starting and expiration date.
Licensee agrees further that all other third party coverages required herein will
likewise have concurrent starting and ending dates.
12. Licensee agrees not to self-insure or to use any self-insured retentions or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, architect, engineer, or other
entity or person in any way involved in the performance of Work on the project
contemplated by this License to self-insure its obligations to City. If Licensee'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 Licensee, which may include reduction or elimination of
the deductible or self-insured retention, substitution of other coverage, or other
solutions.
13. The City reserves the right at any time during the term of this License to change
the amounts and types of insurance required by giving the Licensee ninety (90)
days advance written notice of such change. If such change results in substantial
additional cost to the Licensee, the City will negotiate additional compensation
proportional to the increased benefit to City.
14. For purposes of applying insurance coverage only, all contracts pertaining to the
project will be deemed to be executed when finalized and any activity
commences in furtherance of performance under this License.
15. Licensee acknowledges and agrees that any actual or alleged failure on the part
of City to inform Licensee of non-compliance with any insurance requirement in
no way imposes any additional obligations on City nor does it waive any rights
hereunder in this or any other regard.
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16. Licensee will renew the required coverage annually as long as City, or its
employees or agents face an exposure from operations of any type pursuance to
this License. This obligation applies whether or not the Agreement is canceled or
terminated for any reason. The insurance shall include but not be limited to
products and completed operations and discontinued operations, where
applicable. Termination of this obligation is not effective until City executes a
written statement to that effect.
17. Licensee agrees to waive its statutory immunity under any workers'
compensation statute or similar statute, in relation to the City, and to require all
subcontractors and any other person or entity involved in the project
contemplated by this License to do likewise.
18. Requirements of specific coverage features are not intended as limitations on
other requirements or as a waiver of any coverage normally provided by any
given policy. Specific reference to a given coverage feature is for purposes of
clarification only as it pertains to a given issue, and is not intended by any party
or insured to be all-inclusive.
19. Any provision in any of the construction documents dealing with the insurance
coverage provided pursuant to these requirements, is subordinate to and
superseded by the requirements contained herein. These insurance
requirements are intended to be separate and distinct from any other provision in
this License and are intended by the parties to be interpreted as such.
20. All liability coverage provided according to these requirements must be endorsed
to provide a separate aggregate limit for the project that is the subject of this
License and evidencing products and completed operations coverage for not less
than two years after issuance of a final certificate of occupancy by all appropriate
government agencies or acceptance of the completed work by City.
21. Licensee agrees to be responsible for ensuring that no contract used by any
party involved in any way with the project reserves the right to change City or
Licensee for the cost of additional insurance coverage required by this License.
Any such provisions are to be deleted with reference to City. It is not the intent of
City to reimburse any third party for the cost of complying with these
requirements. There shall be no recourse against City for payment of premiums
or other amounts with respect thereto.
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