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HomeMy WebLinkAboutAGENDA REPORT 1992 0909 CC ADJ ITEM 08O //El 7g�/) QPpK CO4 oa 6,d15r_i ITEM ° -\ ora Aavaloc MOORPARK c///, ��/ W "� 799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864 %" fo ,Jr `:)oRPARK. CALIFORNA MEMORANDUM Ci 1'Council Moot ng c t 199 . TO: The Honorable City Council .°N. FROM: Kenneth C. Gilbert, Director of Public Works w DATE: September 2, 1992 (Council Meeting 9-2-92) SUBJECT: Consider Approval of a Revised Agreement with G. H. Palmer Associates OVERVIEW This presents an Agreement between the City and a developer intended to clarify the financial obligations of each with respect to the design and construction of pedestrian/equestrian bridge across the Arroyo Simi at Liberty Bell Road to serve the Arroyo Vista Community Park. DISCUSSION A. Background One of the Conditions of Approval of PD-1010 required the developer to construct the subject pedestrian bridge. This obligation was further clarified in a Settlement Agreement dated May 1987. B. Agreement The City is in receipt of a request (Exhibit 1) from the developer's representative to further clarify the mutual obligations associated with this matter, through the execution of an Agreement (Exhibit 2) . ;.'70RPARK, CALIFOR::n City Cou II Meet no of / � 199 l �/ ACTION: (T�1. 1, 4 . 61//b BVS/41/44184-/C11 PAUL W.LAWRASON JR. JOHN E.WOZNIAK SCOTT MONTGOMERY BERNARDO M. PEREZ ROY E.TALLEY JR. Mayor Mayor Pro Tern Councilmember Councilmember Councilmember Printed On Recycled Pape, Pedestrian Bridge Page 2 The terms of the Agreement are summarized as follows: Developer shall. . . • make an immediate payment of one-half of the estimated costs as determined at this time; and, • make a future payment(s) of one-half of any future additional costs incurred by the City for this project. City shall. . . • assume the responsibility for proceeding with the design, right-of-way acquisition and construction of the project. RECOMMENDED ACTION Approve the attached Agreement. rpt\pedbrg UnktilIT I Cohen, England & Whitfield (I, OL 3) THEODORE J. ENGLAND ATTORNEYS AT LAW ANSON M. WHITFIELO ROBERT W. SCHROEDER SIXTH FLOOR, UNION BANK TOWER DAVID W. TREDW AV SOUTHERN CALIFORNIA TOLL FREE ROBERT A. MCSORLEv 300 ESPLANADE DRIVE (400) 255-3A85 ROBERT B. ENGLAND OXNARD, CALIFORNIA 93030 FAX (8051 983-0297 STUART A. GOMIS MITCHEL B. KAHN (805) 485-9627 MARK A. NELSON THOUSAND OAKS OFFICE ERIC J. KANANEN (805) 647-8237 ROLLING OAKS OFFICE CENTER MARY E. SCHROEDER 351 ROLLING OAKS DRIVE RANDALL A. COHEN WILLIAM J. KESATIE SUITE 101 MARYANNE G. DALTON July 20, 1992 THOUSAND OAKS, CALIFORNIA 91360 OSCAR C. GONZALEZ STEVEN K. PERRIN JEFFREY T. MOERER STANLEY UCOHEN MELISSA E. COHEN OF COUNSEL TERRY R. BAILEY ANDREW S. HUGHES 7201-001 MADISON M. CHRISTIAN KURT E. KANANEN RONALD A. CHER ANTHONY C. BIEDUL Mr. Steve Kueny City Manager • City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 0 Re: PD-1010 (Palmer) Dear Steve: I was apprised on Friday, July 17, 1992, that if G. H. Palmer Associates provided to the City an agreement for com- pensating the City for Palmer's share of the pedestrian/ equestrian bridge, whether or not the agreement was ' in final form, you would authorize the City's effort in the refinancing • of the Moorpark Le Club apartments to proceed forward. Please find enclosed draft agreement that leaves the ultimate dollar cost blank as you requested and incorporates within it the $50, 000.00 liability of Palmer -to the City re- lating to the street overlay bond that was accidently exoner- ated. If you have any questions or concerns, please feel free to communicate with me. Veryruly, / , 1_7-t MITC EL B. KAHN MBK/aa a �� / Enclosures s,�iI '+r.: cc: Mr. Geoff Palmer (W/Encl. ) �J 2 : jt01 CITY OF MOORPARK OFFICE OF CITY MANAGER RJUl 0 02 Cohen, England & Whitfield pity of MYY�,1��``�}Park 1 ^} `J THEODORE J. ENGLAND ATTORNEYS AT LAW �i IT,U V,1 1 (a 0 • 3• ANSON M. WHITFIELD ROBERT W. SCHROEDER SIXTH FLOOR, UNION BANK TOWER SOUTHERN CALIFORNIA TOLL FREE DAVID W. TREDWAY ROBERT A. mcSORLEv 300 ESPLANADE DRIVE 18001 255-3485 ROBERT B. ENGLAND OXNARD, CALIFORNIA 93030 FAX 18051 983-0297 STUART A. GOMIS MITCHEL B. KAHN 1805) 485-9627 MARK A. NELSON THOUSAND OAKS OFFICE ERIC J. KANANEN (805) 647-8237 ROLLING OAKS OFFICE CENTER MARY E. SCHROEDER RANDALL A. COHEN 351 ROLLING OAKS DRIVE WILLIAM J. KESATIE SUITE 101 MARYANNE G. DALTON July 29, 1992 THOUSAND OAKS. CALIFORNIA 91360 OSCAR C. GONZALEZ STEVEN K. PERRIN JEFFREY T. MOERER STANLEY E. COHEN MELISSA E. COHEN of courvsEL TERRY R. BAILEY ANDREW S. HUGHES 7201-001 MADISON M. CHRISTIAN KURT E. KANANEN RONALD A. CHER ANTHONY C. BIEDUL Mr. Ken Gilbert Public Works Director City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Dear Ken: Enclosed please find a revised version of the Imple- mentation and Release Agreement between the City of Moorpark and G.H. Palmer Associates (and Moorpark Le Club, Ltd. ) . You will note that I have broken paragraph 1 into two subparagraphs. The first subparagraph provides for immediate payment of $158, 500. 00 from the bond refinancing of the Moorpark Le Club apartments. The second subparagraph requires that Palmer pay to the City one-half of any additional costs to build the bridge represented by the Settlement Agreement and the VCE Civil Engineering design and construction estimate of June 26, 1992 . That subparagraph requires that the $300, 000. 00 surety bond posted to guarantee our performance under the Settlement Agreement shall serve to guarantee the additional payment provided for in this Agreement. The sub- paragraph also provides the City with the latitude to reduce or exonerate the bond, but places a one year outside limit by which time the bond shall be exonerated. The only other changes to the agreement that I am pro- posing is the opening clause to paragraph 4 to recognize the contingent nature of the Agreement and adding the last four words to paragraph 5 which I simply omitted on the last draft by accident. Ext iT % ( a6r3) Mr. Ken Gilbert July 29, 1992 Page 2 Of course, if you have any concerns, comments or re- quests for additional changes, please let me know as soon as possible. Very ly, 7 , MITCHEL B. KAHN MBK/aa Enclosure cc: Mr. Geoff Palmer Brett Reed, Esq. Mr. Steven Kueney, City Manager E A1117 Z IMPLEMENTATION AND RELEASE AGREEMENT This Implementation and Release Agreement ( "Agreement "), dated this day of , 1992, is entered into by and between the City of Moorpark, California, a municipal corporation ( "City ") and Moorpark Le Club Ltd., a California limited partnership, and G. H. Palmer Associates, a sole proprietorship, (jointly "Palmer ") subject to the following terms and conditions: RECITALS 1. The parties previously entered into a settlement agreement dated May 18, 1987 ( "Settlement Agreement ") for the purpose of resolving various issues existing between them, including but not limited to, the interpretation and implementation of conditions 1B and 29 of PD -1010. 2. The Settlement Agreement spelled out the obligations of the parties with respect to the design and construction of a pedestrian /equestrian bridge ( "bridge ") across the Arroyo Simi at a location to be determined by the City Council. 3. Since entering into that Settlement Agreement in 1987, the proposed location and design for the bridge has changed from time to time, as the requirements of the Ventura County Flood Control District evolved and became more well defined alenq -wkth tl�e- r�eeels- sr�el- ele9��es- a €- �l�e -E��y . 4. Both parties desire to implement the Settlement Agreement by having Palmer pay to the City an amount equal to one -half the estimated cost of the bridge, less $55,000.00, thereby allowing the City to complete the design and construction of the bridge at its own pace and under its own control. 5. Concurrently, there is still owing to the City $50,000.00 for the completion of the street overlay near the intersection of Moorpark Avenue and Los Angeles Avenue (Highway 118). Palmer desires, by this Agreement, to resolve that payment to the City as well. NOW, THEREFORE, in consideration of the mutual promises and covenants herein contained, the parties hereto agree as follows: 1. A. Advance Payment. Within thirty days of the date of this Agreement. Palmer shall pay to the City the amount of $158,500.00 from the bond refinancing of the Moorpark Le Club apartments now being undertaken by Palmer and expected to be complete in the Fall of 1992. That amount is computed as follows: $163,500.00 based upon a design and construction estimate prepared by VCE Civil Engineering dated June 26, 1992 in the amount of $327,000.00 less a credit to Palmer by the City ,,. of Moorpark in the amount of $55,000.00, consistent with the Settlement Agreement, and a credit to the City by Palmer in the sum of $50,000.00, pursuant to the facts in Recital 5, above. B. Additional Payment. Palmer shall pay to the City upon thirty (30) days' invoicing one -half of the cost of any City authorized costs for City administrative expenses, design inspection, contract administration change orders, acquisition of right of way and other costs unknown at this time necessarily incurred by the City to construct the pedestrian /equestrian bridge contemplated by the Settlement Agreement, conditions 1B and 29 of PD -1010 and the June 26, 1992 VCE Civil Engineering design and construction estimate. The $300,000.00 surety bond currently posted to guarantee Palmer's performance under the Settlement Agreement shall serve as a sufficient surety to guarantee Palmer's performance hereunder. The City shall, in its sole discretion, exonerate all or any portion of the bond to reflect Palmer's liability hereunder, but in no case shall the - 2 - exoneration of the entire bond occur later than September-a-, 1993 December 31, 1995. unless delayed by need to use eminent domain to acquire any property necessary to construct the bridge. In such event, said December 31 1995, date shall be extended by a length of time equal to the time required for eminent domain proceedings, as measured from the date of the City's first offer to the owner(s) of any such property, to the date of recordation of the Notice of Acceptance for said property. 2. The City shall be hereafter fully and completely responsible for the development, including the final design and construction, of the pedestrian /equestrian bridge, including all permits, approvals and entitlements that may be required for that purpose. 3. The payments by Palmer to the City made pursuant to Paragraphs lA and 1B of this Agreement shall be in full satisfaction of the Settlement Agreement and any and all other agreements, conditions and requirements relating to the construction of the Moorpark Le Club apartments, including any on -site and off -site work of improvement. 4. Except to the extent provided for in Paragraph 1B hereinabove, the parties hereby release each other from any claims or causes of action that may arise resulting from the implementation of the Settlement Agreement, whether known or unknown. In doing so, the parties specifically waive the provisions of Civil Code section 1542 which reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." - 3 - 5. This Agreement is deemed to be in full compliance with condition 1B and condition 29 of PD -1010 (Palmer) adopted on September 3, 1985 by the City Council of the City and the Settlement Agreement. 6. The undersigned have read and considered this Agreement and fully understand all of its terms and conditions as well as the significance thereof. ATTEST: By: City Clerk, City of Moorpark G.H. PALMER ASSOCIATES By: Geoff Palmer By: CITY OF MOORPARK Paul W. Lawrason, Jr. Mayor MOORPARK LE CLUB, LTD., a California limited partnership, by PALMER MOORPARK PROPERTIES, LTD., a California limited partnership, by G. H. PALMER ASSOCIATES, general partner By: GEOFF PALMER