HomeMy WebLinkAboutR33-Economica Development Agency
ECONOMIC DEVELOPMENT AGENCY
OF THE CITY OF SAN BERNARDINO
FROM: Maggie Pacheco
Executive Director
SUBJECT:
Property Owner Participation Agreement
for development of 696 West Sib Street,
San Bernardino in the Central City North
Redevelopment Projed Area (Bruce C.
Ko, Christopher C. Ko and Henry C. Ko)
DATE: September 8, 2006
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Svnonsis of Previous Commission/CounciVCommittee Action(s):
On February 7, 200S, the Community Development Commission ("Commission") authorized Staff to send out Owner Participation
notices to the property owners who own property in the proximity to the block bounded by 4ili, Sili, "G" and "H" Streets, the parcels
on the north side of Sth Street between "G" and "H" Streets, the 4 parcels on the northeast comer of Sili and "G" Streets and 6 parcels
on the south side of Sili Street between "G" and "F" Streets in accordance with the adopted Agency Owner Participation Rules for the
Central City North Redevelopment Project Area. No proposals were received.
On November 7, 200S, the Commission adopted a Resolution: I) approving the Downtown Mixed Use Project Concept Plan
("Project") and adopting a Mitigated Negative Declaration for the Project in accordance with CEQA, and; 2) approving a
Redevelopment Project Study and Exclusive Right to Negotiate Agreement by and between the Agency and Watson and Associates
Development Company, Inc. ("Watson") relative to the implementation of the Project.
On July 24, 2006, the Commission adopted Resolution No. CDC/2006-30 declaring the Public Interest and Necessity of Acquisition
of Real Property for community redevelopment purposes over the property located at 696 West S" Street, San Bernardino (APN's:
0134-061-21,22, 2S and 30) in the Central City North Redevelopment Project Area.
On September 7, 2006, Redevelopment Committee Members Estrada, Johnson and Baxter unanimously voted to recommend that the
Community Development Commission consider this action for approval.
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Recommended Motion(s):
(Communitv Develonment Commission)
Resolution of the Community Development Commission of the City of San Bernardino approving and authorizing
the Executive Director of the Redevelopment Agency of the City of San Bernardino ("Agency") to execute the 2006
Property Owner Participation Agreement by and between the Agency and Christopher Cheng-Chyh Ko, Bruce
Cheng-Hsieh Ko and Henry Cheng-Ju Ko ("Property Owners") for the development of the Property
____h______________________~_~_____________________________n_b_______________________h_________________________________nUh__________________u____________________________________________________________.
Contact Person(s):
Maggie Pacheco
Central City North
Redevelopment Project Area
Phone:
(909) 663-1044
Project Area( s)
Ward(s):
Supporting Data Attached: Ii'l Staff Report Ii'l Resolution(s) Ii'l Agreement(s)/Contract(s) Ii'l Map(s) 0 Letters
Approximately
FUNDING REQUIREMENTS $ 360,000 Source: Housing Fund Bond Proceeds
Budget Authority:
2006-2007 EDA Budget
SIGNATURE:
1. L
~. / ~
fi2"^ ,"ft.-C" ~- . ,,~l>;'ft,
~-. arbara Lindseth, Admin. Services Director
Commission/Council Notes:
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P:\Alcndu\Comm Del' Commillllon\CDC 1006\O?-I8-06 Ko OPA - 696 West 5th Street SR.doc Meeting Date: 09/18/2006
Agenda Item Number: {3 3
ECONOMIC DEVELOPMENT AGENCY
STAFF REPORT
PROPERTY OWNER PARTICIPATION AGREEMENT
FOR DEVELOPMENT OF 696 WEST 5TH STREET, SAN BERNARDINO
IN THE CENTRAL CITY NORTH REDEVELOPMENT PROJECT AREA
(BRUCE C. KO, CHRISTOPHER C. KO AND HENRY C. KO)
BACKGROUND:
On November 7, 2005, the Community Development Commission ("Commission") approved the Central
City North Downtown Mixed Use Project Concept Plan ("Plan" or "Project") and the Redevelopment
Project Study and Exclusive Right to Negotiate Agreement ("Agreement") with Watson and Associates
Development Co., Inc. ("Developer"). Through the Plan and the CEQA compliance that was undertaken
as part of the Plan approval on November 7,2005, the Agency will acquire certain properties in an effort
to encourage and effectuate the redevelopment of certain real property bounded by 5th Street to the north,
"G" Street on the east, "H" Street on the west, and 4th Street on the south, including the north side of 5th
Street between "H" and "G" Streets, the four ~4) parcels at the northeast corner of 5'h and "G" Streets, and
the six (6) parcels at the southeast corner of 5t and "G" Streets but excluding the new TELACU II Monte
Vista Senior Housing Complex ("Study Area"). The intent of the Plan is to eliminate blighted conditions,
encourage economic development b~ creating owner-occupied mixed use and mixed income housing for
those properties with frontage on 4t and 5th Streets, with townhouses located immediately south of the
mixed use development on the south side of 5th Street and on the west side of"G" Street.
On May 4, 2006, the Agency sent a purchase offer ("Offer") to Bruce C. Ko, Christopher C. Ko and
Henry C. Ko ("Property Owners") to purchase the property located at 696 West 5th Street, San
Bernardino, California (APN's: 0134-061-21,22,25 and 30) (the "Property" or the "Site") based on the
appraised value. The Property contains a restaurant built in or about 1956 that has been vacant for
approximately ten (10) years. The structure is dilapidated, in disrepair, boarded up and is another
example of blight within the Study Area and an impediment to the economic revitalization of the Project
Area.
In the response to the Offer and on-going communications with the Property Owners and their
representatives, the Property Owners replied that they required more time to determine if the purchase
price, as offered by the Agency, would be acceptable to them, and furthermore, expressed a desire to
participate in the proposed redevelopment of the Project as an owner participant. The Property Owners,
with their legal counsel, have met with Agency Staff and legal counsel regarding owner participation
opportunities for the Property. The Property Owners have neither accepted nor rejected the Agency's
Offer.
On July 24, 2006, the Commission adopted a Resolution of Public Interest and Necessity of Acquisition
of the Property. However, Staff was directed to continue to work with the Property Owners in hopes of
preparing an agreement whereby the Property Owners could participate in the Project as an owner
participant. Should the Property Owners execute the Property Owner Participation Agreement ("OPA"),
then the Agency would delay taking any further condemnation activities to acquire the Property provided
that the terms and conditions contained in the OP A were being met by the Property Owners.
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P:\Agendll\Comm Dev Commlss!on\CDC 1006\09-18-06 Ko OPA. 696 Wut Sth Streel SR.doc Meeting Date: 09/18/2006
Agenda Item Number: .K33
Economic Development Agency Staff Report
KoOPA
Page 2
On September 7, 2006, Staff presented to the Redevelopment Committee the business points concerning
an OPA with the Property Owners. The Redevelopment Committee reviewed the business points
including the time limits for submission and performance and recommended the OP A be moved to the
Community Development Commission for approval.
CURRENT ISSUE:
By executing the OPA, the Property Owners have agreed to comply with the development design
standards for the Property as currently zoned (CR-2) and to develop the Property, including, but not
limited to, improvements to the parking lot, lighting and landscaping in accordance with the OP A. The
Property Owners agree, at their own cost and expense, to the following items within the time limits for
submission and performance as required by the Agency and shall be specified in the final OP A to be
presented to the Commission:
· Within thirty (30) days from the Effective Date of the OPA, the Property Owners will deliver to
the Agency, a signed letter stating whether or not they will rehab the existing building or demolish
the building and construct a new 5,000 square feet structure.
· Within ninety (90) days from the Effective Date of the OPA, the Property Owners will deliver to
the Agency, for Agency approval, plans including a site grading plan, exterior elevations
(including materials, colors, fatyade, signage, and general exterior appearance), a conceptual
landscape plan, an architectural rendering of the structure, and a parking plan consistent with City
requirements and Redevelopment Plan.
· Within one hundred eighty (I 80) days from the Effective Date of the OP A, the Property Owners
will provide evidence that they have funding available from either equity sources and/or
commercial lenders to redevelop the Site.
· Within ninety (90) days from the Agency approval of the plans for the Site, the Property Owners
will deliver to the Agency, copies of fully executed agreements/contracts with consultants,
including, architectural, civil engineering and landscape architect that will be used in connection
with the redevelopment of the Site.
· Within one hundred eighty (I80) days from the Agency approval of the plans for the Site, the
Property Owners will deliver to the City, a completed and accepted development application for
the redevelopment of the Site and demonstrate to the Agency, with satisfactory evidence, that the
City has accepted and then approved their development application.
· Within one hundred eighty (180) days from the Agency approval of the plans for the Site, the
Property Owners shall submit to the Agency, a list of nationally recognized businesses that will
operate in the Property if the Property Owners intend to lease the Site or a statement together with
an acceptable business plan that the Property Owners intend to operate their own business on the
redeveloped Property.
. Within ninety (90) days from the Design Review Committee meeting, the Property Owners shall
obtain all permits and entitlements required to redevelop the Site.
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P:\A&tnd.sIComm De" Commllllion\CDC 2006\09.111-06 Ko OPA -696 West 5th Strefl SR.doe Meeting Date: 09/18/2006
Agenda Item Number: f( 33
Economic Development Agency Staff Report
Ko OPA
Page 3
. Within seventy (70) days from obtaining all permits and entitlements required to redevelop the
Site, the Property Owners shall commence the construction and installation of the approved
improvements by the required dates, including any off-site improvements, as may be required by
the City.
. Not more than twenty-four (24) months from the Effective Date of the OPA, the Property Owners
shall complete the construction and installation of the improvements to the Property, obtain a
Certificate of Occupancy from the City, and have signed one or more leases with tenants, as
applicable, and opened for business.
. Under certain default circumstances, the Property Owners agree to sell the Property to the Agency
if they fail to meet the development schedule through commencement of construction at a price
equal to $360,000 and if the Site is not substantially constructed or the Property Owners have
abandoned the Site, the Property Owners will sell the Property to the Agency for the $360,000
figure plus the actual costs incurred by the Property Owners to redevelop the Property. The
Agency will have additional remedies through a Stipulated Judgment in the condemnation
proceeding to enforce any such repurchase by the Agency.
The goal of the Plan was to redevelop those properties identified in the Study Area. All the properties
in the Study Area, except for the Site as owned by the Property Owners, were contiguous to other
properties in the Study Area. Because the Property is not contiguous to other parcels in the Study
Area, it is Staffs opinion that this exception of allowing the Property Owners to move forward with
the redevelopment of the Property will not detract from the intent of the Plan and will allow the
Agency to utilize its resources in a more cost efficient manner to foster the effective redevelopment on
the remaining contiguous parcels. The Agency will work with the Property Owners to assure that the
Property is developed (northeast comer of 5th and "G" Streets) in accordance with the Plan.
ENVIRONMENTAL IMPACT:
The approval of the proposed OPA described above is categorically exempt under the California
Environmental Quality Act ("CEQA"), Section 15301, Class 1. Accordingly, a Notice of Exemption for
the proposed development under CEQA Section 15301, Class 1 will be filed with the County Clerk.
FISCAL IMPACT:
There is no fiscal impact to the Agency as a result of this action unless the Agency elects to exercise its
repurchase option at the price specified in Section 8 of the OP A. The Property Owners are responsible for
all construction costs associated with developing the Property.
RECOMMENDATION:
That the C00ity Development Commission adopt the attached Resolution.
/" - J
~~
Maggie Pac eco, Executive Director
P:\Agelldll5\Comm Dev CummilJ,ilon\CDC 1006\09-18-06 Ko OPA. ''16 Wetl 5tb 511ft! SR.doe
COMMISSION MEETING AGENDA
Meeting Date: 09/18/2006
Agenda Item Number: ~
4817-1981-7473.1
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2
3
4
5
6
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8
RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE 2006
PROPERTY OWNER PARTICIPATION AGREEMENT BY AND BETWEEN
THE AGENCY AND CHRISTOPHER CHENG-CHYH KO, BRUCE CHENG-
HSIEH KO AND HENRY CHENG-JU KO ("PROPERTY OWNERS") FOR
THE DEVELOPMENT OF THE PROPERTY
WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency"), a
9 public entity created pursuant to the Community Redevelopment Law (Health and Safety Code
10 Section 33000, et seq.), is authorized to acquire and redevelop blighted properties located in the City
11 of San Bernardino (the "City"), in accordance with the Community Redevelopment Law; and
12 WHEREAS, the Community Development Commission of the City of San Bernardino (the
13 "Commission"), as the governing board of the Agency, has authorized the Agency to assemble and
14 acquire real property for community redevelopment purposes in the Central City North
15 Redevelopment Project Area ("Project Area"); and
16 WHEREAS, the Project Area displays substantial and pervasive symptoms of blight that
17 cannot be remedied by private parties acting alone without community redevelopment assistance;
18 and
19 WHEREAS, on November 7, 2005, the Commission adopted Resolution No. CDC/2005-39
.
20 approving a Redevelopment Study Agreement and Exclusive Right to Negotiate (the "Agreement")
21 by and between the Agency and Watson & Associates Development Company, Inc. (the
22 "Developer"), and adopted the Mitigated Negative Declaration for the Downtown Mixed Use
23 Project Plan (the "Plan"), and for the Project (the "Project") described in more detail in the
24 California Environmental Quality Act ("CEQA") Initial Study dated October 11,2005; and
25 WHEREAS, on August 16, 2004, the Agency considered and certified Environmental
26 Impact Report SCH #2003031072 (the "EIR") in accordance with the CEQA for the Project Area,
27 and the acquisition of property contemplated within the Plan and for the Project considered with the
28 ErR; and
I
P:\Agendasl.Rcsolulio!UlJlesolution,\2006\o9.18.06 Ko OPA. Final 696 West 'lh Street CDC keso.do1::
1 WHEREAS, the Agreement contemplates the Agency acquiring or obtaining control 0
2 parcels necessary for the Plan either through purchase negotiations or alternatively, by eminent
3 domain proceedings, if necessary; and
4 WHEREAS, the Agency has acquired other real property in the Project Area; and
5 WHEREAS, the Agency retained the services of an appraiser to appraise the property and
6 the appraiser has reported an opinion of the fair market value of the improved property located at
7 696 West 5th Street, San Bernardino, CA 92410 (APN's: 0134-061-21, 22, 25 and 30) (the
8 "Property"); and
9 WHEREAS, the Property is improved with a restaurant that has been vacant for about (10)
10 years and is dilapidated, in disrepair and is another example of blight within the Project Area that is
11 an impediment to the economic rebirth of the Project Area; and
12 WHEREAS, based upon such real property appraisal report, the Commission authorized the
13 Agency to send a purchase offer and summary statement of valuation in conformity with
14 Government Code Section ~ 7626.2(b) to the owners of record, to attempt to purchase the Property
15 at the appraised value in lieu of condemnation, and on May 4, 2006, the Agency mailed a purchase
16 offer and summary statement of valuation in conformity with Government Code Section ~ 7267.2(b)
17 to the owners of record of the Property based on the appraised value of the Property described in
18 this Resolution; and
19 WHEREAS, the Agency transmitted the offer to purchase the Property situated within the
20 Project Area, based on the appraised value on May 4, 2006, to the owners of record of the Property
21 at the address on file with the office of the County Tax Assessor, as shown on the last equalized
22 county assessment roll and the owners of record, Christopher Cheng-Chyh Ko, Bruce Cheng-Hsieh
23 Ko and Henry Cheng-Ju Ko (the "Property Owners"), received the Agency's offer; and
24 WHEREAS, the Property Owners did not accept the Agency Offer, but requested additional
25 time in order to accept the Agency Offer or provide a counter offer; and
26 WHEREAS, on July 5, 2006, notice of intent to adopt a resolution was mailed to the owners
27 of record of the Property, Christopher Cheng-Chyh Ko, Bruce Cheng-Hsieh Ko and Henry Cheng-
28 Ju Ko, at the address of record on file at the office of the County Tax Collector and at the last
2
P:\Agendas\B.etolutionslJlesolulions\2006\09-IS-06 K.o orA - Final 696 Wesl Sib Street CDC RWl_doc
1 known address for the Property Owners; and
2 WHEREAS, on July 24, 2006, after not less than fifteen (15) days written notice to the
3 Property Owners of the Property, the Commission conducted a hearing for the purpose of affording
4 the Property Owners a reasonable opportunity to appear and be heard on the matters referred to in
5 Code of Civil Procedure Section 1240.030 and whether the Agency has met all other prerequisites
6 for the exercise of eminent domain to acquire the Property for the Plan and community
7 redevelopment purposes; and
8 WHEREAS, as a result of such hearing, on July 24, 2006, the Commission adopted
9 Resolution No. CDC/2006-30 entitled: "Resolution of the Community Development Commission
10 of the City of San Bernardino declaring the Public Interest and Necessity of Acquisition of Real
11 Property by the Redevelopment Agency of the City of San Bernardino for community
12 redevelopment purposes over the property located at 696 West 5th Street, San Bernardino, California
13 (APN's: 0134-061-21, 22, 25 and 30) in the Central City North Redevelopment Project Area" and
14 furthermore, directed Agency Staff to work with the Property Owners, if possible, to develop an
15 Agreement with the Property Owners concerning the development of the Property; and
16 WHEREAS, the Property Owners executed the 2006 Property Owner Participation
17 Agreement ("OPA") by and between the Agency and the Property Owners indicating a desire to
18 rehabilitate and reuse the existing structure located on the Property or cause the demolition of the
19 existing structure and construction of a new structure of not less than 5,000 square feet of building
20 space for a retail end user(s) in compliance with the approval of City of San Bernardino
21 development requirements for property zoned as CR-2 (Commercial Regional- Downtown) District
22 and in accordance with the terms and conditions in the OP A.
23 NOW, THEREFORE, BE IT RESOLVED THAT THE COMMISSION FINDS,
24 DETERMINES AND DECLARES AS FOLLOWS:
25
Section 1.
The information set forth in the above recitals of this Resolution is true and
26 correct.
27
Section 2.
The Commission hereby approves the OPA between the Agency and the
28 Property Owners in substantially the form presented at the meeting of the Commission at which this
3
P:\AcendaJ\ResoIuIKmI\ResohllioN\2006\09.18-06 Ko OPA - Final 696 West SIb Street CDC IleffIdoc
1 Resolution is adopted, subject to non-substantive changes as approved by Agency Counsel, and
2 hereby authorizes the Executive Director to execute the OP A on behalf of the Agency.
3
Section 3.
The Commission hereby finds and determines that the environmental review
4 of the OPA contemplated hereunder is "categorically exempt" for reasons noted in the Staff Report.
5 No potential adverse environmental effects are anticipated to be associated with the OP A based
6 upon its own independent review of the information provided to the Commission regarding the OPA
7 and the Commission hereby authorizes the filing of a Notice of Exemption under CEQA Section
8 15301, Class I.
9
Section 4.
The Secretary of the Commission is authorized and directed to certify the
10 adoption of this Resolution. This Resolution shall take affect upon adoption.
11 III
4
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1
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3
4
5
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7
RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION
OF THE CITY OF SAN BERNARDINO APPROVING AND AUTHORIZING
THE EXECUTIVE DIRECTOR OF THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO ("AGENCY") TO EXECUTE THE 2006
PROPERTY OWNER PARTICIPATION AGREEMENT BY AND BETWEEN
THE AGENCY AND CHRISTOPHER CHENG-CHYH KO, BRUCE CHENG-
HSIEH KO AND HENRY CHENG-JU KO ("PROPERTY OWNERS") FOR
THE DEVELOPMENT OF THE PROPERTY
PASSED, APPROVED AND ADOPTED this
day of
,2006.
I CERTIFY that the foregoing Resolution was duly adopted by the Community
8 Development Commission of the City of San Bernardino at its
19
20
21 The foregoing resolution is hereby approved this
22
23
24
meeting
, 2006 by the following vote, to wit:
Aves
Navs
Abstain
Absent
Secretary
day of
,2006.
Patrick J. Morris, Chairperson
Community Development Commission
of the City of San Bernardino
25 Approved as to Form:
26
By:
27
28
l~
Agency Counsel
5
P:\Aiendu\Resolulions\Rcrolulions\2006\09-18-06 Ko OPA. Final 696 WCSl Slh Streel CDC Reso_doc
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
2006
PROPERTY OWNER PARTICIPATION AGREEMENT
(Christopher Cheng-Chyh Ko, Bruce Cheng-Hsieh Ko and Henry Cheng-Ju Ko)
THIS 2006 PROPERTY OWNER PARTICIPATION AGREEMENT (this "OPA") is dated
as of September 18,2006, by and among Christopher Cheng-Chyh Ko, Bruce Cheng-Hsieh Ko and
Henry Cheng-Ju Ko (collectively, the "Property Owners") and the Redevelopment Agency of the
City of San Bernardino, a public body, corporate and politic (the "Agency"), and this OP A is entered
into with respect to the following facts:
RECITALS
A. WHEREAS, the Property Owners are married men, and own the lands (having APN
No. 0134-061-21, APN No. 1034-061-22, APN No. 1034-061-25 and APN No. 1034-061-30), as
their sole and separate property, situated on the northeast corner of 5th Street and "G" Street, San
Bernardino, California 92410 (the "Property"). The location of the Property is shown on a map
attached hereto as Exhibit "A" and incorporated herein by this reference. The legal description of the
Property is attached hereto as Exhibit "B" and is incorporated by this reference; and
B. WHEREAS, on November 7,2005 the Community Development Commission (the
"Commission") of the City of San Bernardino (the "City") adopted Resolution No. CDC/2005-39
approving: (I) the Central City North Downtown Mixed Use Project Concept Plan (the "Plan") and
the adoption of a Mitigated Negative Declaration in accordance with the California Environmental
Quality Act (the "CEQA"), and (2) the authorization of, and the execution by, the Interim Executive
Director of the Agency of a Redevelopment Project Study and Exclusive Rights to Negotiate
Agreement (the "Agreement") by and between the Agency and Watson and Associates Development
Co., Inc. ("Watson"); and
C. WHEREAS, the Agreement with Watson envisioned the development of thirty (30)
parcels within the Central City North Redevelopment Project Area (the "Project Area") of which
four (4) parcels are owned by the Property Owners; and
D. WHEREAS, the Property Owners have represented to the Agency that, in lieu of the
Agency immediately exercising the powers of condemnation pursuant to the Eminent Domain Law,
the Property Owners shall construct, or cause to be constructed, a new retail building space whether
within the existing structure located on the Property or a new structure; and
E. WHEREAS, the Agency and the Property Owners (the Agency and the Property
Owners are sometimes referred to herein as the "Parties") are amenable to entering into this OP A to
set forth the respective duties of the Parties regarding the construction and the development of the
Property by the Property Owners in lieu of condemnation of the Property by the Agency; and
4851-7723-7761.5
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F. WHEREAS, subject to the terms, covenants and conditions of this OP A, the Plan, as
may hereafter be undertaken by the Agency and/or Watson, or its successors or nominees, shall
exclude the Property owned by the Property Owners.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND
COVENANTS OF THE PARTIES, AND FOR SUCH OTHER GOOD AND VALUABLE
CONSIDERATION THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY
ACKNOWLEDGED, THE PROPERTY OWNERS FOR THEMSELVES AND THEIR
SUCCESSORS AND ASSIGNS, AND THE AGENCY FOR ITSELF AND ITS SUCCESSORS
AND ASSIGNS, AGREE TO THE FOLLOWING:
Section 1. Recitals. The matters set forth in the Recitals of this OP A are true and
correct, are material inducements that caused the Parties to execute and deliver this OP A, and are
incorporated herein by this reference as if fully set forth in this Section I.
Section 2. Effective Date ofthe OP A. This OP A shall take effect following its approval
by the Agency and execution by the Parties (hereinafter referred to as the "Effective Date");
provided, however, if this OPA has not been fully executed by all of the Parties on or before
September 18,2006, it shall be void and of no force or effect.
Section 3. Covenants of the Property Owners as to the Property. Subject to the
terms, covenants and conditions of this OP A, the Property Owners covenant and agree as follows:
1. General Covenants:
(a) It is the intent of the Parties that on and after the Effective Date of this OPA (and
subject to the terms, covenants and conditions of this OP A), the Property Owners
shall commence the rehabilitation, reuse, reparation, demolition, construction,
development, work and/or installation (collectively, the "Construction") of the
improvements (the "Development Improvements" which Development
Improvements are described in Exhibit "c" attached hereto and incorporated herein
by this reference) on or at the Property subject to obtaining applicable City approvals.
Further, the Property Owners shall use commercially reasonable efforts to complete
the Development Improvements on or at the Property within the time periods
described in this Section 3 (and/or in any other provision ofthis OP A). On and after
the Effective Date, the Property Owners shall commence the Construction of the
Development Improvements on the Property, and shall diligently prosecute to
completion the Construction of the Development Improvements. All construction
and development obligations and responsibilities of the Property Owners as related to
the Development Improvements shall be initiated and completed in accordance with
the terms, covenants and conditions set forth in this OP A, or within such reasonable
extensions of such time as may be granted by the Agency to the Property Owners.
For purposes of this OPA, the term "Project" shall mean the Construction and
completion of the Development Improvements.
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(b) The City's zoning ordinances, the City's building codes and all City requirements (as
amended and replaced from time to time) (collectively, the "Codes") will be
applicable to the Construction of the Development Improvements. The Property
Owners acknowledge that any changes in the plans for the Construction of the
Development Improvements as set forth in this OP A shall be subject to the Codes.
No action by the Agency or by the City with reference to this OP A, or related
instruments, documents and/or agreements, shall be deemed to constitute a wavier of
any City requirements which are applicable to the Construction, the Development
Improvements, the Property and/or to the Property Owners, any successor in interest
of the Property Owners, or any successor in interest to the Property, except by
modification or variance approved by the City consistent with this OP A.
(c) The Development Improvements include, without limitation, the rehabilitation and
reuse of the existing commercial structure or a new construction of not less than
5,000 square feet of retail space on the Property in accordance with the terms,
covenants and conditions of this OP A. The Development Improvements will
include, without limitation, various interior building demolition, repair and
improvement work as necessary or appropriate to accommodate the reuse and re-
occupancy of the building by one (I) or more retail tenants and exterior building
facade renovations and improvements to the existing building, on-site parking lot
repairs and improvements, the removal of all existing temporary fencing and/or
obstruction located on the Property, parking lot lighting improvements and on-site
landscape improvements to the existing parking lot. All work associated with the
interior and exterior components of the Development Improvements shall be
undertaken by the Property Owners in compliance with all Laws (as defined below)
and all Codes.
(d) If it is determined by the Property Owners that the existing structure is not
structurally sound, the Development Improvements will include, without limitation,
the demolition of the existing structure and the construction of a new structure
providing for not less than 5,000 square feet of new, retail building space.
(e) The Property Owners agree to allow the Agency, and/or its agents, employees or
contractors, upon prior notice at reasonable times to inspect: (I) the Design Plans (as
defined below) for the Construction of the Development Improvements on or at the
Property, and (2) the progress of the Construction of the Development Improvements
on or at the Property to ensure that the Construction of the Development
Improvements on or at the Property is occurring in a timely manner and to the
reasonable satisfaction of the Agency.
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II. Special Covenants:
(1) Within thirty (30) calendar days from the Effective Date of this OPA, the Property
Owners shall notify the Executive Director of the Agency in writing of their intended
use of the Property and the type of building, structure and facility (the "Designated
Facility") to be rehabilitated or rebuilt. The Property Owners shall also provide
written notice to the Agency whether or not the existing structure will be rehabilitated
and reused or will be demolished and rebuilt with a new structure in its place.
(g) Within ninety (90) calendar days from the Effective Date of this OP A, the Property
Owners shall deliver to the Agency all plans, designs and specifications, including,
without limitation, a site grading plan, exterior elevations (including, without
limitation, materials, colors, facade, signage, and general exterior appearance), a
conceptual landscape plan, an architectural rendering ofthe Designated Facility, and
a parking plan consistent with City requirements and the Plan (hereinafter
collectively referred to as the "Design Plans").
(h) Within ten (10) calendar days after the Property Owners have submitted the Design
Plans to the Agency pursuant to Section 3(g) above, the Agency will review the
Design Plans. The Executive Director of the Agency will use herlhis discretion to
approve or reject the Design Plans as being consistent or inconsistent with the
proposed Plan and Project, which approval shall not be uureasonably withheld,
conditioned or delayed. The Design Plans will be approved if they are in substantial
conformity with the City General Plan, the Code and the Plan. If the Agency
disapproves or rejects the Design Plans, in whole or in part, the Agency will provide
written notice setting forth in reasonable detail the specific elements of the Design
Plans that are disapproved, the nature and extent of such disapproval and what
corrective action can be taken for such element to be approved. If the Agency
disapproves or rejects the Design Plans, it will provide notice to the Property
Owners or to the Property Owner's attorney (as provided for in Section 11 of this
OPA). If the Agency disapproves or rejects the Design Plans (the "Design Plans
Rejection Letter"), the Property Owners shall have ten (10) calendars days from
receipt of the Design Plans Rejection Letter from the Agency to resubmit the Design
Plans to the Agency, for review. If the Design Plans are once again rejected by the
Agency, the Agency may enforce those rights and remedies provided for in Section
8(a) herein (including, without limitation, the right to purchase the Property pursuant
to Section 9 of this OP A, the right to file a complaint for specific performance,
and/or the right to acquire the Property by the filing of the Complaint and the filing of
the Stipulated Judgment with the Court).
(i) Within one hundred eighty (180) calendar days from the Effective Date of this OP A,
the Property Owners will provide evidence that they have funding available to
construct, develop and complete the Designated Facility. If the Property Owners
intend to finance the construction themselves, then the evidence will consist of
verification of available funds from a banking institution. If the Property Owners
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intend to obtain a loan for the Construction and completion of the Designated
Facility, then the evidence will consist of one (1) or more loan commitments
approved by an established commercial bank, subject only to the receipt of approval
of building permits. The Agency has the right, in its sole and absolute discretion, to
reject evidence of the financing. If the Agency rejects evidence of the financing, the
Agency will provide written notice (the "Notice of Rejection") setting forth in
reasonable detail the specific elements of the financing that are disapproved, the
nature and extent of such disapproval and what corrective action can be taken for
such element to be approved. The Agency will notifY the Property Owners or their
attorney (at the address and in the manner provided for in Section II of this OP A).
The Property Owners, or their attorney, shall have the opportunity to cure any defect
within ten (10) calendar days from the date that the Property Owners (or their
attorney) receive the Notice of Rejection.
(j) Ifthe Agency approves the Design Plans pursuant to Section 3(h) above, the Property
Owners must provide the Agency with fully executed binding agreements with all
general contractors, subcontractors, architects, civil engineers, landscape architects,
all consultants and all other persons and entities that are, have been, or will be, used
in connection with the Construction and completion of the Designated Facility within
ninety (90) calendar days from the approval by the Agency of the Design Plans.
(k) Within one hundred eighty (180) calendar days from the approval under Section 3(h)
above: (i) the Property Owners will prepare, file and submit to the City a completed
Development Application (the "Development Application") for a DPII Development
Permit for the Construction of the Development Improvements at the Property, (ii)
the City and/or the DesignlEnvironmental Review Commission for and/or on behalf
of the City (the "DIERC") will receive, accept and acknowledge the Development
Application, as being complete, correct and accurately completed by the Property
Owners, and (iii) the Property Owners will submit evidence satisfactory to the
Agency, to be determined by the Agency in its sole and absolute discretion as to
satisfactory compliance, that the Development Application has been delivered by the
Property Owners to the City, that the City and/or the D/ERC has received and
accepted the Development Application from the Property Owners, and that the City
and/or the DIERC has accepted and approved the Development Application as being
complete, correct and accurately completed by the Property Owners. The filing by
the Property Owners of the Development Application shall be subject to extension to
force majeure events of floods, earthquakes, fires, casualties, acts of God, epidemics
and quarantine restrictions (collectively, the "Delay Events"); provided, however,
that the maximum number of days which may be claimed as delay by the Property
Owners prior to the filing of the Development Application with the City (and/or
through the DIERC), shall not, in the aggregate, exceed ninety (90) calendar days.
An extension of time as a result of any such Delay Event shall be for the period of the
existence of the particular circumstance imposing such delay, and each particular
delay shall commence to run from the date of occurrence of such Delay Event;
provided, however, that the Property Owners have first provided the Agency with
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written notice of the occurrence of the force majeure Delay Event within ten (10)
calendar days from its commencement. A Delay Event will continue only for so long
as the circumstances giving rise to the delay continue to remain in effect, and the
Property Owners shall exercise reasonable effort to mitigate the circumstances
causing the continuance or existence of the delay.
(I) Within one hundred eighty (180) calendar days from the approval under Section 3(h)
above, the Property Owners must obtain from the City the DPII Development Permit
(the "Development Permit") to the Property Owners. The Agency will cooperate
with the Property Owners in connection with all proceedings, hearings, procedures,
policies and requirements of the City (and/or of the City through the DIERC) from
the time that the Development Application is delivered by the Property Owners to the
City (and/or to the City through the DIERC) and the receipt and acceptance by the
City (and/or by the City through the DIERC) of the Development Application
through the date that the Development Permit is issued by the City (and/or by the
City through the DIERC) to the Property Owners (collectively, the "City Approval
Process"). The City Approval Process shall be subject to extension due to the force
majeure Delay Events; provided, however, that the maximum number of days which
may be claimed as delay by the Property Owners (prior to the filing of the
Development Applications with the City (and/or through the DIERC) (as provided for
in Section 3(k) above) and prior to the issuance by the City (and/or by the City
through the DIERC) shall not, in the aggregate, exceed ninety (90) calendar days
when combined in the aggregate with Delay Event order Section 3(k). An extension
oftime as a result of any such Delay Event shall be for the period of the existence of
the particular circumstance imposing such delay, and each particular delay shall
commence to run from the date of occurrence of such Delay Event; provided,
however, that the Property Owners have first provided the Agency with written notice
of the occurrence of the force majeure Delay Event within ten (10) calendar days
from its commencement. A Delay Event will continue only for so long as the
circumstances giving rise to the delay continue to remain in effect, and the Property
Owners shall exercise reasonable effort to mitigate the circumstances causing the
delay to continue to exist.
(m) Within one hundred eighty (180) calendar days from the approval by the Agency of
the Design Plans under Section 3(h) above, the Property Owners shall submit to the
Agency a list of nationally recognized businesses that will operate in the Property if
the Property Owners intend to lease the Designated Facility to an independent
operator.
(n) Within ninety (90) calendar days from the DIERC meeting, the Property Owners shall
obtain all permits and entitlements including, without limitation, all building permits,
zoning, health and safety permits, authorizations, and certifications necessary or
required by the City or other public agency or utility company for the Construction of
the Development Improvements. If the Property Owners have submitted all
appropriate and satisfactory documents to the City and the City has not issued
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building permits for reasons beyond the Property Owners' control, the Agency will
allow a single thirty (30) calendar day extension to obtain all building permits under
this Section 3(n).
(0) Within seventy (70) calendar days from the approval by the City of all permits,
pursuant to Section 3(n) above, the Property Owners, at the Property Owners' sole
cost and expense, shall immediately commence Construction of the Development
Improvements, as approved by the City and by any other govemmental or quasi-
governmental agency or entity having jurisdiction over the approval of the
Development Improvements, or any part thereof, to the Property, including, without
limitation, all off-site public improvements, if any, as required by the City. Within
seventy (70) calendar days after the approval by the City of all permits pursuant to
this Section 3(n): (i) all equipment, supplies, and materials needed to commence the
Construction of the Development Improvements must be delivered to, and located on
or at, the Property, by, or for the benefit of, the Property Owners, (ii) all labor needed
to commence the Construction of the Development Improvements at the Property
must be hired by, or under contract with a general contractor, or for the benefit of, the
Property Owners, and (iii) the concrete foundation for the new structure to be built at
the Property (pursuant to the City General Plan, the Plan, the Code and the terms,
covenants and conditions of this OP A), must be poured by, or for the benefit of, the
Property Owners;
(P) Within two (2) years after the Effective Date of this OPA: (1) the Property Owners
shall have completed, at the Property Owners' sole cost and expense, the
Construction and the completion of the Development Improvements to the Property,
in accordance with the City General Plan, the Plan, the Code, and the terms,
covenants and conditions of this OP A, (2) the Property Owners must have obtained a
certificate of occupancy (the "Certificate of Occupancy") from the City (whether by a
written temporary or permanent certificate of occupancy), and (3) the Property
Owners shall have executed and entered into one (I) or more binding leases with one
(1) or more tenants (which tenants, including the Property Owners, must be
continuously open for business). After the Certificate of Occupancy has been issued
by the City, the Property Owners will not unreasonably withhold the leasing of the
Property, or any portion thereof, to any tenant. The Property Owners agree that after
construction has been completed and the Certificate of Occupancy has been issued by
the City, the Property Owners and/or their tenants will commence and continue to
operate their respective business operations, without interruption, within two (2)
weeks thereafter. The failure of the Property Owners and/or their tenants to
continuously operate their respective businesses for ninety (90) consecutive calendar
days shall constitute a Purchase Event as defined in Section 9 of this OP A. Further,
the Property Owners agree that they shall cause the Construction of the Development
Improvements to or at the Property, including, without limitation, all off-site
improvements, if any, required by the City, to be accomplished in a diligent manner
and within the time periods specified in Section 3 of this OPA.
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(q) The Property Owners agree that they will not abandon, terminate or substantially
suspend the Construction of the Development Improvements to or at the Property,
including, without limitation, all off-site improvements, if any, required by the City.
The Parties agree that the abandonment (the "Abandonment") ofthe Construction of
the Development Improvements to or at the Property shall mean and occur whenever
the Construction of the Development Improvements has terminated or been
suspended by the Property Owners, for a period offive (5) consecutive business days,
or seven (7) business days within any thirty (30)-day period. For the purpose of this
OP A, the Parties agree that Saturday, Sunday and recognized state and federal legal
holidays are not considered a business day. If the Abandonment occurs, the Property
Owners shall be in default under this OP A. Notwithstanding anything to the contrary
in this Section 3(q), an Abandonment shall not be deemed to have occurred
whenever: (i) such Abandonment is the direct result of a force majeure Delay Event;
provided, however, that the maximum number of days which the delay may be
extended by the Property Owners shall not, in the aggregate, exceed thirty (30)
calendar days. An extension of time as a result of any such force majeure Delay
Event shall be for the period of the existence of the particular circumstance imposing
such delay, and each particular delay shall commence to run from the date of
occurrence of such force majeure Delay Event; provided, however, that the Property
Owners have first provided the Agency with written notice of the occurrence of the
force majeure Delay Event within ten (10) calendar days from its commencement. A
force majeure Delay Event will continue only for so long as the circumstances giving
rise to the delay continue to remain in effect, and the Property Owners shall exercise
reasonable effort to mitigate the circumstances causing the continued existence of the
delay, or (ii) such Abandonment is the result of one (1) or more Construction
scheduling delays (singularly, the "Scheduling Delay" and collectively, the
"Scheduling Delays") caused by, and directly resulting from, the inability on the part
of the Property Owners to obtain labor or construction materials needed to continue
and complete the Construction of the Development Improvements, or any part
thereof, to be performed and completed at the time of the alleged abandonment (other
than from a force majeure Delay Event). Each Scheduling Delay must be beyond the
control of, and not the fault of, the Property Owners (or anyone of them), the
Property Owners must notify, identify and describe in writing and in detail each
Scheduling Delay to the Agency within ten (10) calendar days of first becoming
aware of each such Scheduling Delay, and the Agency must approve in writing to the
Property Owners (or to their attorney) each and every Scheduling Delay, in its sole
and absolute discretion. Notwithstanding anything to the contrary in this Section
3( q), no abandonment resulting from a Scheduling Delay may be extended beyond
thirty (30) calendar day from its original scheduling date (unless otherwise agreed to,
in writing, by and between the Parties).
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Ill. Post-Construction Covenants:
(r) Upon the timely Construction and completion of the Developmenthnprovements by,
or for the benefit of, the Property Owners, the Property Owners may request the
Agency to cause a Certificate of Completion to be executed and provided to the
Property Owners substantially in the form of Exhibit "D" attached hereto and
incorporated herein by this reference. The Certificate of Completion shall evidence a
conclusive determination by the Agency of the satisfaction of the obligation by the
Property Owners under this OP A to undertake and complete the Development
hnprovements.
(s) lfthe Agency seeks to withhold the execution ofa Certificate of Completion on the
grounds of an existing default or breach under this OP A, then the Agency shall
within thirty (30) calendar days from the date ofthe written request for the issuance
of a Certificate of Completion from the Property Owners, provide a written statement
to the Property Owners setting forth the reasons for the Agency's refusal or failure to
prepare and execute a Certificate of Completion. The statement shall also contain a
detailed description of any action the Property Owners must take to obtain a
Certificate of Completion. No provision of this Section 3(s) shall be deemed to
excuse the Property Owners from having to comply with all applicable Codes with
respect to the Construction of the Development hnprovements.
(t) In consideration of the terms, covenants, conditions and obligations made by the
Property Owners under this OP A, and provided no default of this OP A has occurred
by the Property Owners, the Agency hereby agrees that it shall not file proceedings to
acquire the Property for community redevelopment purposes by an exercise of the
power of eminent domain for the period provided in Section 3(P) above. Nothing in
this Section 3(t) shall be deemed to affect the power or capacity of any other public
entity, including the City, to acquire any interest in the Property Owners' Propertyby
an exercise of the power of eminent domain for a public purpose, as authorized by
law.
Section 4. Al!encv Not to Request Commission to Acquire Property. As
consideration for the terms, covenants, conditions, provisions, representations and/or warranties
made by the Property Owners in Section 3 of this OP A, the Agency agrees that for the period
described in Section 3(p) above, and provided that the Property Owners are then not in Default under
this OP A, the Agency shall not request the Commission to commence proceedings to acquire the
Property by way of the exercise of condemnation powers of the Commission pursuant to the Eminent
Domain Law, Code of Civil Procedure Section 1230.010, et~. Except as specifically provided for
in this OPA as exclusive remedies in Section 8(f) and in Section 8(g) below, the Agency and the
Property Owners hereby acknowledge that in the Event of a Default (as defined below) on the part of
the Property Owners with respect to any of the terms, covenants, conditions, provisions,
representations and/or warranties made by the Property Owners in this OP A, the Agency may
exercise and enforce any remedies, at law or in equity, and as provided for in this OP A (including,
without limitation the acquisition ofthe Property by immediate purchase and sale in accordance with
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Section 9, the filing of a complaint for specific performance, and the acquisition of the Property by
the filing of the Complaint and the filing of the Stipulated Judgment with the Court).
Section 5.
Entitlements.
Comoliance with the City Aooroval Process; Other Reauired
(a) Notwithstanding any provision ofthis OP A to the contrary, the Property Owners will
timely prepare, file and submit the Development Application to the City (and/or to the City through
the D/ERC), shall fully comply with the City Approval Process, shall fully comply with all Codes,
and shall exercise its good faith efforts to obtain from the City (and/or from the City through the
D/ERC) the Development Permit, prior to the commencement by the Property Owners of any
Construction of the Development Improvements at or to the Property.
(b) Any use of the Property that the Property Owners may hereafter propose for the
Property that is not specifically set forth in this OP A shall be subject to the separate and independent
review by the City in accordance with the applicable Codes. It is recognized that the City expressly
reserves the discretion to approve, conditionally approve or reject any such development proposal of
the Property Owners in accordance with its regulatory discretion and jurisdiction under applicable
law. Nothing contained in this OP A shall be interpreted to be a pre-approval by the City as to the
Designated Facility and the redevelopment of the Property.
Section 6. Covenant Ae:ainst Unlawful Discrimination. The Property Owners for
themselves and their successors and assigns agree that in the Construction of the Development
Improvements, the Property Owners will not discriminate against any employee or applicant for
employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry.
The Property Owners shall be responsible for carrying out the Construction of the Development
Improvement in conformity with the Laws and the Codes.
Section 7. Maintenance Condition of the Prooertv. The Property Owners for
themselves, their successors and assigns, hereby covenant and agree that:
(a) The areas of the Property that are subject to public view (including all existing
improvements, paving, walkways, landscaping, exterior signage and ornamentation)
shall be maintained in good repair and a neat, clean and orderly condition, ordinary
wear and tear excepted. If, at any time during the term of this OP A, there is an
occurrence of an adverse condition on any area of the Property that is subject to
public view in contravention of the general maintenance standard described above
(the "Maintenance Deficiency") the Agency shall notifY the Property Owners, or their
attorney, in writing, of the Maintenance Deficiency and give the Property Owners, or
their attorney, thirty (30) calendar days from receipt of such notice to cure the
Maintenance Deficiency identified in the notice. If the Property Owners fail to cure
or commence to cure the Maintenance Deficiency within the time allowed, the
Agency may conduct a public hearing following transmittal of written notice thereof
to the Property Owners, or to their attorney, at least ten (10) calendar days prior to the
scheduled date of such public hearing to verifY whether a Maintenance Deficiency
exists and whether the Property Owners have failed to comply with the provision of
this Section 7(a). If, upon the conclusion of a public hearing, the Agency makes a
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finding that a Maintenance Deficiency exists and that there appears to be non-
compliance with the general maintenance standard, described above, thereafter, the
Agency shall have the right to enter the Property and perform lIll acts necessary to
cure the Maintenance Deficiency, or to take other action at law or in equity that the
Agency may then have to accomplish the removal and/or abatement of the
Maintenance Deficiency. Any sum expended by the Agency for the removal and/or
abatement of the Maintenance Deficiency on the Property authorized by this Section
7(a) shall become a lien on the Property. If the amount of the lien is not paid within
thirty (30) calendar days after written demand for payment by the Agency to the
Property Owners, or to their attorney, the Agency shall have the right to enforce the
lien in the manner as provided in Section 7(c).
(b) Graffiti, as this term is defined in Government Code Section 38772, that has been
applied to any exterior surface of a structure or improvement on the Property and that
is visible from any public right-of-way adjacent or contiguous to the Property, shall
be removed by the Property Owners by either painting over the evidence of such
vandalism with a paint that is color-matched to the surface on which the paint is
applied, or graffiti may be removed with solvents, detergents or water, as appropriate.
If any such graffiti may become visible from an adjacent or contiguous public right-
of-way, but is not removed within 48 hours following the time of such application,
the Agency shall have the right to enter the Property and remove the graffiti, without
notice to the Property Owners or to their attorney. Any sum expended by the Agency
for the removal of graffiti from the Property authorized by this Section 7(b) by the
Agency, shall become a lien on the Property. If the amount of the lien is not paid
within thirty (30) calendar days after written demand for payment by the Agency to
the Property Owners, or to their attorney, the Agency shall have the right to enforce
its lien in the manner as provided in Section 7(c).
(c) The Parties hereto further mutually understand and agree that the rights conferred
upon the Agency under this Section 7 expressly include the power to establish and
enforce a lien or other encumbrance against the Property, or any portion thereof, in
the manner provided under Civil Code Sections 2924, 2924b and 2924c in an amount
reasonably necessary to restore the Property to the maintenance standard required
under Section 7(a) or Section 7(b), including attorneys' fees and costs of the Agency
associated with the removal and/or abatement of the Maintenance Deficiency, the
removal of graffiti and/or the collection of the costs of the Agency in connection with
such action. The provisions of this Section 7, shall be a covenant running with the
land and shall be enforceable by the Agency. Nothing in the foregoing provisions of
this Section 7 shall be deemed to preclude the Property Owners from making any
alteration, addition, or other change to any structure or improvement or landscaping
on the Property, provided that such changes comply with applicable zoning and
building regulations of the City.
Section 8. Defaults and Remedies. The failure or delay by either party to perform or
observe any term, covenant, condition or provision of this OP A, or the making of any representation
or warranty that is or becomes inaccurate or untruthful in any material manner, shall constitute an
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event of default (the "Default" or the "Event of Default") under this OP A. Should a Default occur
under this OPA (or will occur upon the giving of notice, the passage of time, or both), the non-
defaulting party shall be entitled to seek any remedy at law or in equity or as otherwise provided for
in this OP A.
I. General.
(a) Except for those remedies that are exclusive to the Agency as set forth in Section 8(t)
and 8(g) below, the Agency and the Property Owners acknowledge that in the Event
of a Default by the Property Owners with respect to any of the terms, covenants,
conditions, provisions, representations and/or warranties described in this OP A, the
Agency may exercise and enforce any remedies, at law or in equity, or as otherwise
provided for in this OP A (including, without limitation, the purchase of the Property
by the Agency from the Property Owners in accordance with Section 9, the filing of a
complaint for specific performance, or the acquisition of the Property by the filing of
the Complaint and the Stipulated Judgment with the Court (as provided for in Section
8(h) and in Section 8(i)) below.
(b) The non-defaulting party that claims a Default has occurred shall give written notice
of the Default (the "Notice of Default") to the defaulting party (in the manner and as
provided for in Section 11), specifying the alleged Default. Any delay or failure by
the non-defaulting party in giving such notice to the defaulting party shall not
constitute a waiver of any Default nor shall it change the time of Default; provided,
however, the non-defaulting party shall have no right to exercise any remedy for a
Default without delivering the Notice of Default.
(c) Any failure or delay by the non-defaulting party in asserting and enforcing any of its
rights and remedies with respect to any Default shall not operate as a waiver of any
Default or of any of the non-defaulting party's rights or remedies in connection with
and resulting from the Default. Except with respect to the remedies expressly
declared to be exclusive to the Agency in Section 8(t) and Section 8(g) below, the
rights and remedies of the Parties are cumulative and the exercise by either party of
one (I) or more of such rights or remedies shall not preclude the exercise by it, at the
same or different times, of any other rights or remedies for the same Default or any
other Default by the other defaulting party.
(d) If the Property Owners shall fail to cooperate with the Escrow Holder (as defined
below), with the title company and/or with the Agency, in the prompt purchase and
sale of the Property to the Agency, pursuant to and in accordance with Section 9
below, including, but not limited to, the refusal or the failure by the Property Owners
to execute, acknowledge and/or to deliver any and all quitclaim deeds, instruments,
documents, agreements, and/or escrow instructions needed to consummate the sale by
the Property Owners of the Property to the Agency and to close the Escrow (as
defined below), the Agency may seek and enforce all available remedies at law and in
equity (including, without limitation, the filing of a lawsuit for specific performance
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to enforce this OP A and to force, enforce and cause the sale by the Property Owners
of the Property to the Agency in accordance with this OP A and with any other
instruments, documents and/or agreements in connection therewith).
(e) A Default under this OPA shall also occur whenever a representation or warranty
made by any party is materially false or inaccurate when made, or becomes materially
false or inaccurate after such representation and/or has been made by one party to the
other party. In such event, the Agency may exercise and enforce any remedies, at law
or in equity, or as otherwise provided for in this OP A.
n. Special Remedies
(f) If the Property Owners fail to commence the Construction of the Development
Improvements under Section 3(0) above or fail to meet the times specified under
Sections 3 (f, g, h, i, j, k, I, m and n), the Agency may immediately purchase the
Property for Three Hundred Sixty Thousand Dollars ($360,000) (hereinafter referred
to as the "Pre-Construction Purchase Price"). The Pre-Construction Purchase Price is
the price to be paid by the Agency to the Property Owners for the purchase of the
Property if the Property Owners have not commenced the Construction of the
Development Improvements. The Pre-Construction Purchase Price paid by the
Agency to the Property Owners would be in lieu of the Agency exercising its
condemnation powers pursuant to the Eminent Domain Law, Code of Civil
Procedure, Section 1230.0 I 0, et ~. The Parties agree that the consummation of the
sale by Property Owners to the Agency of the Property, the purchase of the Property
by the Agency from the Property Owners, and the recording in the Official Records
of the County of San Bernardino, State of California, of the quitclaim deed conveying
the Property from the Property Owners to the Agency (the "Pre-Construction
Purchase and Sale Transaction") shall occur within sixty (60) calendar days from the
receipt by the Property Owners of the Notice of Default from the Agency (in
accordance with Section II). The Property Owners agree to cooperate with the
escrow holder, the title company and/or the Agency to promptly open and close the
escrow in connection with the consummation of the Pre-Construction Purchase and
Sale Transaction and the transactions contemplated by this OP A.
(g) If the Property Owners have commenced the Construction of the Development
Improvements at or on the Property (prior to having substantially completed the
Construction of the Development Improvements at or to the Property) and an
Abandonment of the Construction of the Development Improvements at or on the
Property has occurred, and/or if the Property Owners have breached (or there is a
default under) Section 3(h), Section 3(i), Section 3(j), Section 3(k), Section 3(1),
Section 3(m) and/or Section 3(n) above, the Agency may purchase the Property for
the post-construction purchase price (the "Post-Construction Purchase Price"). The
Post-Construction Purchase Price is the amount of Three Hundred Sixty Thousand
Dollars ($360,000) plus the costs, expenses and amounts actually paid by the
Property Owners for labor, equipment, materials, supplies, architect fees, engineering
4851-7723-7761.5 13
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fees and designer fees (collectively, the "Construction Costs") in connection with the
Construction of the Development Improvements in accordance with this OP A
(exclusive of any costs, expenses or amounts incurred by the Property Owners in
connection with matters relating to general overhead). The Property Owners must
provide the Agency with evidence and proof of payments (acceptable to the Agency
in its sole and absolute discretion) for all Construction Costs that the Property
Owners have actually paid in connection with the Construction of the Development
Improvements and that the Property Owners wish to have included as part of the
Post-Construction Purchase Price. The purchase and sale pursuant to this Section
8(g) would be in lieu of the Agency exercising its condemnation powers pursuant to
the Eminent Domain Law, Code of Civil Procedure, Section 1230.010, et~. The
Parties agree that the consummation of the sale by Property Owners to the Agency of
the Property, the purchase of the Property by the Agency from the Property Owners,
and the recording in the Official Records of the County of San Bernardino, State of
California, of the quitclaim deed conveying the Property from the Property Owners to
the Agency (the "Post-Construction Purchase and Sale Transaction") shall occur
within sixty (60) calendar days from the receipt by the Property Owners of the Notice
of Default from the Agency (in accordance with Section II). The Property Owners
agree to cooperate with the escrow holder, the title company and/or the Agency to
promptly open and close the escrow in connection with the consummation of the
Post-Construction Purchase and Sale Transaction and the transactions contemplated
by this OP A.
(h) Subject to Section 8(i) below, the Agency reserves the right to acquire the Property
by way of the exercise of condemnation powers pursuant to the Eminent Domain
Law, Code of Civil Procedure Section 1230.010, et seQ., in lieu of filing an action
for specific performance.
(i) The Parties stipulate that in the Event of a Default by the Property Owners of one (I)
or more of the terms, covenants, conditions, provisions, obligations, representations
and warranties set forth in Section 3 of this OPA, a Stipulated Judgment for
Condemnation of the Property (the "Stipulated Judgment") may be filed and entered
with the appropriate court (the "Court") havingjurisdiction thereof immediately after
the Agency has filed with the Court a Complaint for Eminent Domain (the
"Complaint"). A form of the Stipulated Judgment is attached as Exhibit "E" and
incorporated herein by this reference. The Stipulated Judgment shall specify, without
limitation, that: (i) the Agency has the right to file the Complaint and the Stipulated
Judgment with the Court, (ii) that the title to the Property shall be awarded to the
Agency and will be transferred from the Property Owners to the Agency, (iii) the
Property Owners shall execute a quitclaim deed conveying the Property from the
Property Owners to the Agency, and (iv) that the Agency will pay the Property
Owners the Pre-Construction Price if the construction has not commenced or the
Post-Construction Purchase Price if construction is not yet substantially complete.
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Section 9. Option to Purchase. If the Property Owners or their tenants cease to operate
their respective business at the Property for ninety (90) consecutive calendar days, the Agency, in its
sole and absolute discretion, shall have the option (the "Option") to purchase the Property (the
"Purchase Event"). Ifthe Agency elects to exercise this Option, the Agency must give written notice
to the Property Owners, or their attorney, ofthe exercise by the Agency of the Option within one
hundred eighty (180) calendar days after the Purchase Event has occurred and after receipt by the
Agency of written notice from the Property Owners that the Purchase Event has occurred.
(a) If the Agency timely exercises the Option pursuant to Section 9 of this OPA, the
Agency shall open an escrow (the "Escrow"), shall appoint an acceptable escrow
holder to administer the purchase of the Property by the Agency from the Property
Owners, and shall execute reasonable and customary written escrow instructions (the
"Escrow Instructions") reflecting a closing date that is no sooner than sixty (60)
calendar days nor later than ninety (90) calendar days after the date that the Agency
exercised the Option. In the event of any inconsistency or contradiction between this
OP A and the Escrow Instructions, the inconsistency or contradiction shall be resolved
in favor of this OP A. The Escrow shall provide, without limitation, for the
following: (i) a conveyance by quitclaim deed from the Property Owners of the
Property to the Agency; (ii) no representation and warranty of any kind or nature
whatsoever by the Property Owners or the Agency (except as otherwise provided for
by either party in this OP A); (iii) the Property Owners shall execute customary
escrow instructions, instruments, documents and agreements prepared by counsel for
the Agency, the title company or the Escrow Holder, in order to close the Escrow in
accordance with this OPA; (iv) no brokerage commissions shall be due by the
Property Owners or by the Agency in connection with the exercise by the Agency of
the Option and the purchase by the Agency from the Property Owners of the
Property; and (v) the Agency shall, in its sole discretion and expense, conduct and
complete such due diligence investigations, studies and inspections, relating to,
without limitation, matters involving title, surveys, environmental issues and/or the
physical condition of the Property.
(b) The purchase price to be paid by the Agency to the Property Owners in connection
with the Escrow is the Post-Construction Purchase Price. The Post-Construction
Purchase Price shall be delivered by the Agency to the Escrow Holder one (1)
business day prior to the closing of the Escrow.
Section 10. Covenants Runnin2 With the Land. The terms, covenants, conditions,
agreements and provisions of this OP A shall be covenants that run with the land and the Property
from the Effective Date of this OPA as a community redevelopment covenant. This OPA is
expressly declared by the Parties for themselves, and for their successors and assigns, to be for the
benefit of the Property and the Project Area.
Section 11. Notices. Any and all notices required or permitted to be given under this OP A
must be in writing and shall be: (i) personally delivered, or (ii) mailed certified or registered mail,
via United States Postal Service, return receipt requested, postage prepaid, or (iii) delivered by
4851-7723-776\.5
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express delivery service or messenger service, or (iv) dispatched through other electronic means or
by verified fax transmission, to the respective Parties at the addresses indicated below:
If to the Agency:
Executive Director
Redevelopment Agency of the City of San Bernardino
20 I North "E" Street, Suite 30 I
San Bernardino, California 92401
Telephone: (909) 663-1044
Fax: (909) 888-9413
With a copy to:
(For Informational
Purposes Only)
Timothy J. Sabo
Lewis Brisbois Bisgaard & Smith LLP
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Fax: (909)387-1138
If to Property Owners:
Bruce ChenfHsieh Ko
795 West 5 Street
San Bernardino, California 92410
Fax: (909) 885-4481
Or to their Attorney
Joseph Aklufi
Aklufi & Wysocki
3403 10th Street, Suite 610
Riverside, California 92501-3653
Telephone: (951) 682-5480
Fax: (951) 682-2619
The Agency may provide Notice as required by this OP A either to the Property Owners, or to
their Attorney to complete the giving of adequate Notice pursuant to this OP A.
Any party may change its address by delivery of notice to the other party in the manner set
forth above.
Section 12. Governin2 Law: Liti2ation Costs. This OP A shall be construed and
enforced in accordance with the laws of the State of California. Any legal actions arising among the
Agency and the Property Owners related to this OP A must be instituted in the Superior Court of the
State of California in and for the County of San Bernardino or any other appropriate court within the
County of San Bernardino, or in the Federal District Court for the Central District of California.
Should any such legal action be brought in any court of competent jurisdiction, the prevailing party
in such action will be entitled to reimbursement by the other party for all reasonable attorneys' fees,
court costs and any other costs related to such litigation. If any legal action is commenced by the
Property Owners against the Agency, service of process on the Agency must be made by personal
service to the Executive Director of the Agency, or in such other manner as may be allowed by law.
If any legal action is commenced by the Agency against the Property Owners, service of process on
the Property Owners shall be made by personal service on Bruce Cheng-Hsieh Ko (or such other
4851-7723-7761.5
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agent for service of process and at such address as may be specified in prior written notice to the
Agency), or in such other manner as may be allowed by law, and is valid whether made within or
without the State of California.
Section 13. Non-Liabilitv ofCitv and Al!encY Officials and Employees. No member,
official or employee of the City or of the Agency shall be personally liable to the Property Owners, or
to their successors and assigns, in the Event of any Default by the City or by the Agency under the
terms, covenants and conditions ofthis OP A.
Section 14. Delay: No Force Maieure Defense.
(a) Except as set forth in Section 3(k), 3(1) and 3(q) above, the Property Owners agree
that delays due to force majeure events including acts of war, insurrection, strikes,
lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the public
enemy, epidemics, quarantine restrictions, freight embargoes or lack of
transportation, weather caused delays, inability to secure necessary labor, materials or
tools, delays of any contractors, subcontractor or supplier, which are not attributable
to the fault of the party, does not extend the time for, or excuse, the performance of
any covenant or undertaking by the Property Owners arising under this OP A.
(b) The inability of the Property Owners to obtain a satisfactory commitment from a
lender or to satisfy any other condition of this OP A relating to the Construction of the
Development Improvements does not constitute a valid ground for a delay. Changes
in either general economic conditions or changes in the economic assumptions of any
party that may have provided a basis for entering into this OP A and that occur after
the execution of this OP A do not provide any party with grounds for asserting the
existence of a delay in the performance of any term, covenant, condition or
undertaking arising under this OP A. Each party expressly assumes the risk that
changes in general economic conditions or changes in economic assumptions relating
to the terms, covenants, conditions and undertaking of this OP A could impose an
inconvenience or hardship on the continued performance of such party under this
OP A, but that such inconvenience or hardship does not excuse the performance by
such party of its obligations under this OP A.
Section 15. Term ofOPA. Amendment: No Waiver.
(a) This OPA shall remain in effect until August 6, 2013, or the expiration date of the
Redevelopment Plan for the Project Area, whichever date shall first occur.
(b) This OP A may be amended or modified only by a written agreement duly executed
by the Parties. Modifications or amendments to this OP A must be approved by
official action of the members of the Commission. Failure on the part ofa party to
enforce any provision of this OP A shall not be construed as a continuing waiver of
the right to compel enforcement of such provision or provisions and such failure to
enforce any provision of this OP A shall never constitute nor be deemed to constitute
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an amendment to this OP A, without the official action of the Agency to specifically
approve any such amendment.
Section 16. Representations and Warranties ofthe Property Owners. The Property
Owners make the following representations and warranties to the Agency and the Property Owners
acknowledge that execution of this OP A by the Agency is made in material reliance by the Agency
on such representations and warranties:
(a) The Property Owners have the legal right, power and authority to enter into this OP A
and to the instruments, documents and agreements referenced in this OP A, and the
Property Owners have taken all requisite action and obtained all requisite consents in
connection with entering into this OP A;
(b) This OP A has been duly executed by the Property Owners and shall be enforceable in
accordance with its terms;
(c) The execution of this OP A shall not result in a breach of, nor constitute a default
under any other agreement, document, instrument or other obligation to which the
Property Owners are a party, or under law, statute, ordinance, rule, governmental
regulation or any writ, injunction, order or decree of any court or governmental body
applicable to the Property Owners, or any of them, or to the Property;
(d) The Property Owners jointly own the fee simple interest in the Property, subject only
to the matters of record disclosed to the Agency, and the Property Owners are
married men who own their respective undivided fee simple interests in the Property
as their respective sole and separate property;
(e) The Property Owners have the funds available to them to undertake and to complete
the Construction of the Development Improvements on or at the Property;
(f) The Property Owners shall perform, carry out and complete the Construction of the
Development Improvements on or at the Property inconformity with all Codes, and
shall comply with all federal, state, municipal, city and local laws, statutes,
ordinances, codes, rules, regulations, orders and policies, as amended or superseded
from time to time, applicable to the Property Owners, the Property and/or the
Construction of the Development Improvements on or at the Property (including,
without limitation, all applicable federal and state labor laws, regulations, standards
and requirements (collectively, the "Laws");
(g) The Property Owners shall, at their own cost and expense, secure or shall cause to be
secured, any and all permits that may be required by the City or any other
governmental entity having jurisdiction over the Construction and completion of the
Development Improvements;
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(h) The Property Owners warrant that they possess, or shall obtain immediately after the
execution and delivery of this OP A, and maintain and shall maintain during the term
of this OP A, a business registration certificate pursuant to Title 5 of the City of San
Bernardino Municipal Code, together with any and all other licenses, permits,
qualifications, insurance and approvals of whatever nature that are legally required to
be maintained by the Property Owners to conduct their business activities within the
City.
Section 17. Property Owners and Aeencv Indemnitv. The Property Owners agree to
indemnifY, defend, protect and hold the Agency, its officials, officers, attorneys, employees and
agents, harmless from and against all actions, causes of action, claims, costs, damages, demands,
expenses, fees, judgments, liabilities, obligations and penalties (including, without limitation,
attorneys' fees and costs) (singularly the "Claim" and collectively, the "Claims") arising from or
related to: (i) any act or omission of the Property Owners, or any of them, their agents,
representatives, executors, administrators, trustees, personal representatives, devisees, heirs,
successors and assigns (collectively, the "Other Parties"), in performing or failing to perform their
obligations hereunder, or (ii) the approval and execution of this OP A by the Agency. The Agency
agrees to indemnifY and hold the Property Owners and the Other Parties harmless from and against
all Claims arising from or related to any act or omission of the Agency in performing its obligations
hereunder. This indemnity provision shall survive the execution of this Agreement and the
expiration of the term of this OP A.
Section 18. Property Owners' Insurance. The Property Owners shall furnish and
maintain, or shall cause to be furnished and maintained, to the Agency duplicate originals or
appropriate certificates of comprehensive general liability insurance in the minimum amount of One
Million Dollars ($1,000,000.00) combined single limit, naming the Agency and the City as
additional insureds. Such insurance shall cover comprehensive general liability including, but not
limited to, contractual liability, acts of subcontractors, premises-operations, explosion, collapse and
underground hazards, if applicable, broad form property damage, personal injury including libel,
slander and false arrest, and automobile insurance for vehicles owned, hired or used by the Property
Owners. In addition, the Property Owners shall furnish, maintain and provide to the Agency
adequate proof of worker's compensation insurance coverage for its employees, as required by law.
Any and all insurance policies required hereunder shall be obtained from insurance companies
admitted in the State of California and rated at least B+/ (viii) in the most current edition of the
Best's Kev Rating Guide: ProperlY-Casualtv. All such insurance policies shall provide that they may
not be canceled unless the Agency receives written notice of cancellation at least thirty (30) calendar
days prior to the effective date of cancellation. Any and all insurance obtained by the Property
Owners hereunder shall be primary to any and all insurance which the Agency may otherwise carry,
including self insurance, which for all purposes of this OP A shall be separate and apart from the
requirements of this OP A. Any and all insurance required hereunder shall be maintained and kept in
force until end ofthe term of the construction covenants as set forth in Section 3(P) of this OP A, and
shall be occurrence based insurance policies. The Agency reserves the right to require the Property
Owners to provide and maintain other insurance policies, in such amounts as reasonably required by
the Agency and naming the Agency and the City as additional insured on each such insurance policy.
4851.7723-n61.5
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P:\Agendas\Agcnda Attadtmmts\Aprrts-Ameod 2006\09.18-06 Ko Final OPA. Development or696 West SIh Slreet.doc
Section 19. Severabilitv. Ifany of the terms, conditions, provisions or covenants of this
OP A are, to any extent, adjudged to be invalid, unenforceable, void or voidable for any reason
whatsoever by a court of competent jurisdiction, each and all of the remaining terms, conditions,
provisions and covenants of this OP A will not be affected thereby and will remain in full force and
effect and be valid and enforceable to the fullest extent permitted by applicable law.
Section 20. Notice of Memorandum of OPA. The Parties agree and declare that the
successors and assigns of each shall be bound by the terms, covenants and conditions of this OP A.
The Parties shall execute and acknowledge and the Agency shall cause to be recorded a Notice of
Memorandum of this OP A substantially in the form of Exhibit "F" attached hereto and incorporated
herein by this reference.
Section 21. Entire OPA. Except as otherwise expressly provided herein, this OPA
constitutes the entire agreement among the Parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneous agreements and understandings. The Parties intend this
OP A to be the final expression of their agreement with respect to the terms, covenants and conditions
hereof, and a complete and exclusive statement of such terms, covenants and conditions.
Section 22. Headin2s and Attachments. The headings of each section of this OP A are
provided for purposes of reference and convenience only and do not have any meaning which is
independent of the text of the section of the OP A to which they may generally correspond. The
following list of attached documents are part of this OP A:
Exhibit "A"
Map
Exhibit "8"
Legal Description ofthe Property
Exhibit "C"
Scope of the Development Improvements
Exhibit "D"
Form of Certificate of Completion
Exhibit "E"
Stipulated Judgment
Exhibit "F"
Notice of Memorandum ofOPA
Section 23. Non-discrimination. The Property Owners for themselves and their
successors and assigns agree that in the Construction and completion of the Development
Improvements, the Property Owners will not discriminate against any employee or applicant for
employment because of sex, marital status, race, color, religion, creed, national origin, or ancestry.
The Property Owners shall be responsible for carrying out, performing and completing the
Construction of the Development Improvements in conformity with all Codes and Laws.
4851-7723-7761.5
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Section 24. Third Party Beneficiaries. There are no third party beneficiaries to this
OP A. The only Parties to this Agreement are the Agency and the Property Owners and their
respective successors and assigns. This OP A is not intended, and shall not be construed, to benefit
or be enforceable by any other person, entity or governmental authority whatsoever.
Section 25. Remedies. Except as provided for in Section 8(f) and in Section 8(g) above,
in the Event of a Default under this OP A, the non-defaulting party shall be entitled to all remedies
available pursuant to the terms ofthis Agreement, at law and in equity, including, but not limited to,
specific performance ofthis OP A, the filing ofthe Complaint and the Stipulated Judgment with the
Court, and all such remedies by such party shall not be deemed an exclusive election of remedies or
waiver of any other rights conferred on that party by the terms of this OP A.
Section 26. Attornevs' Fees. If either party hereto files any action or brings any action or
proceeding against the other arising out of this OP A, or is made a party to any action or proceeding
brought by the Escrow Holder or any escrow holder or agent, then as between the Property Owners
and the Agency, the prevailing party shall be entitled to recover as an element of its cots of suit, and
not as damages, its reasonable attorneys' fees as fixed by the Court in such action or proceeding or in
a separate action or proceeding brought to recover such attorneys' fees. The costs, salary and
expenses ofthe City Attorney and members of his office in enforcing this OP A shall be considered
as "attorneys' fees" for purposes of this Section.
Section 27. Ambil!Uities. This OP A is, in all respects, intended by each party hereto to be
deemed and construed to have been jointly prepared by the Parties. The Parties hereby expressly
agree that any uncertainty or ambiguity existing herein shall not be interpreted against either of them.
Except as expressly limited by this paragraph, all ofthe applicable rules of interpretation of contract
shall govern the interpretation of any uncertainty or ambiguity.
Section 28. Counterparts. This OPA and any amendment or modification may be
executed in counterparts, each of which shall be deemed an original, but all of which shall constitute
but one (I) original agreement.
Section 29. Time is ofthe Essence. The Property OwnerS and the Agency agree that time
is of the essence in the performance and observance of the terms, covenants and conditions of this
OPA.
Section 30. Transmission bv Facsimile. A facsimile transmitted document shall
constitute an original document and facsimile transmitted signatures affixed thereto shall constitute
the original signatures and shall be deemed effective execution of such document for purposes
hereof.
[END OF PAGE]
4851-7723-7761.5
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f>:\AieDdas\AFnda Attacbments\Agnnts.Amead 2006\09..1 ~ Ko Final OP A - Development of 696 West Sib Street.doc
THIS 2006 PROPERTY OWNER PARTICIPATION AGREEMENT is dated as of
, 2006, and this OP A shall have no force or effect unless it has been approved by
the governing body of the Agency and fully executed by the Parties.
PROPERTY OWNERS
Date:
Christopher Cheng-Chyh Ko
Date:
Bruce Cheng-Hsieh Ko
Date:
Henry Cheng-Iu Ko
AGENCY
Redevelopment Agency of the City of San
Bernardino, a public body corporate and politic
Date:
By:
Maggie Pacheco
Executive Director
Approved as to Form and Legal Content:
By:
\;4
Agency ou el
4851-7723-7761.5
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P:\Agendas\Agenda Attachmenls\Agnnls-Amend 2006\09-18..()6 Ko Final OPA - Development of6% WCSl5th Smet.doc
EXHIBIT "A"
Map
4851-7723-7761.5
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EXHIBIT "8"
Legal Description of the Property
That portion of Lot 2, Block 38, City of San Bernardino, in the County of San Bernardino, as per plat
recorded in Book 7 of Maps, Page I, records of said County, described as follows:
Parcel No.1:
Conunencing at a point 139 feet west of the southeast comer of said Lot 2; thence running west 41 Yz
feet; thence north 150 feet to the north line of said Lot 2; thence east 41 Yz feet; thence south 150 feet
to the point of beginning.
Parcel No.2:
Beginning 180 Yz feet west of the southeast comer of said Lot 2; thence north to the north line of said
Lot; thence west 39 feet; thence south to the south line of said Lot; thence east 39 feetto the point of
beginning.
Parcel No.3:
Beginning at a point 219 Yz feet west of the southeast comer of said Lot 2; thence north 100 feet;
thence west 39 feet, more or less, to a point 42 feet east ofthe west line of said Lot; thence south 100
feet to the south line of said Lot; thence east 39 feet to the point of beginning.
Parcel No.4:
Conunencing at the southwest comer of said Lot 2; thence north along the west line of said Lot, 100
feet; thence east 42 feet; thence south and parallel with the west line of said Lot 2 a distance of 100
feet, to the south line of said Lot; thence west along the south line to the point of beginning.
Parcel No.5:
Conunencing at the northwest comer of said Lot 2; thence running south along "G" Street, 50 feet to
a point I 00 feet north of the southwest comer of said Lot 2; thence east 81 feet, more or less, to a
point 219 Yz feet west of the east line of said Lot; thence north to the north line of said Lot; thence
west along the north line of said Lot to place of beginning.
4851-7723-7761.5
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EXHIBIT "C"
Scope ofthe Development Improvements
Development Improvements consist of the rehabilitation and reuse ofthe existing structure on the
Property or the demolition of the existing structure and construction of a new structure on the
Property in accordance with this OP A.
Ifthe existing structure is rehabilitated and reused, the Development Improvements include, without
limitation, exterior building fa~ade renovations and improvements to the existing building, as well as
on-site parking lot repairs and improvements and the removal of all existing temporary fencing or
obstruction located on the Property, parking light improvements and on-site landscape improvements
to the existing parking lot. All work associated with the exterior components of the Development
Improvements shall be undertaken by the Property Owners in compliance with all applicable Laws
an Codes (including, without limitation, all applicable building and development regulations of the
City). The exterior components Development Improvements shall be completed by the Property
Owners not more than two (2) years from the Effective Date of the OPA.
The Development Improvements to the interior of the existing structure include various interior
building demolition, repair and improvement work as necessary or appropriate to accommodate the
reuse and reoccupancy of the building for retail use. The interior improvements shall be undertaken
by the Property Owners in compliance with all applicable Laws and Codes (including, without
limitation, all building and development regulations of the City). The interior improvements of the
Development Improvements shall be completed by the Property Owners not more than two (2) years
from the Effective Date of the OPA.
If it is determined by the Property Owners that the existing structure is not salvageable and
economically viable for reuse, the Property Owners shall cause the demolition of the existing
structure and construction of a new structure with not less than 5,000 square feet of retail building
space.
The Property Owners shall obtain all necessary permits from and provide all necessary notifications
to the appropriate City/County and/or Agency prior to the removal of asbestos and demolition of the
existing structure compatible with the CR-2 Zoning and the Agency's Plan.
Development Improvements include, without limitation, exterior signage, exterior building facades,
on-site parking lot repairs and improvements, parking lot lighting improvements and on-site
landscaping improvements to the parking lot. Further, interior improvements for the new structure
shall be those necessary and appropriate to accommodate retail and user(s). All work associated with
the development of a new structure, exterior site-improvements and interior structure improvements
shall be undertaken by the Property Owners in compliance with all applicable Laws and Codes
(including, without limitation, all applicable building and development regulations of the City). The
new structure, exterior site improvements and interior structure improvements shall be completed not
more than two (2) years from the Effective Date of the OP A.
4851-7723-7761.5
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EXHIBIT "D"
Form of Certificate of Completion
4851-7723-7761.5
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WHEN RECORDED MAIL TO: )
)
)
)
)
)
(Space above line reserved for use by Recorder)
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
CERTIFICATE OF COMPLETION
The undersigned officer of the Redevelopment Agency ofthe City of San Bernardino,
a public body, corporate and politic (the "Agency") hereby certifies as follows:
Section 1. The improvements required to be constructed in accordance with that
certain 2006 Property Owner Participation Agreement (the "OEA") dated , by and
between the Agency and Christopher Cheng-Chyh Ko, Bruce Cheng-Hsieh Ko, and Henry Cheng-Ju
Ko, married men as their sale and separate property (the "Property Owners") an Assessar Parcel
Number 0134-061-21, Assessar Parcel Number 0 134-061-22, Assessor Parcel Number 0 134-061-25
and Assessar Parcel Number 0134-061-3030 (callectively, the "Property") ruare fully described in
Exhibit "A" attached hereta and incarparated herein by this reference, have been campleted in
accardance with the terms, cavenants, canditians, agreements and provisians 'Of said OP A.
Section 2. This Certificate 'Of Campletian shall constitute a canclusive
determination of satisfaction afthe agreements and cavenants cantained in the OP A with respect to
the 'Obligations of the Property Owners, and their successors and assigns, ta canstruct and develap
the Development Impravements (as defined in the OP A), excluding any narmal and custamary tenant
impravements and minar building "punch-list" items, and including any and all buildings and any
and all parking, landscaping and related impravements necessary ta support 'Or which meet the
requirements applicable to the Project (as defined in the OP A) and its use and 'Occupancy an the
Property, whether 'Or nat said impravements are an the Property 'Or 'On ather property subject ta the
OP A, all as described in the OP A, and ta 'Otherwise camply with the Praperty Owners abligatians
under the OP A with respect ta the Property and the dates far the beginning and campletian 'Of
canstructian and completion 'Of the Development Improvements therean under the OP A; pravided,
hawever, that the Agency may enforce any cavenant surviving this Certificate 'Of Campletian in
accordance with the terms, cavenants and canditions 'Of the OP A. Said OP A is an 'Official record 'Of
the Agency and a copy 'Of said OP A may be inspected in the 'Office of the Secretary 'Of the Agency
lacated at 201 Narth "E" Street, Suite 301, San Bernardina, Califarnia, during regular business
haurs.
4851-7723-7761.5
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Section 3. The Property to which this Certificate of Completion pertains is more
fully described in Exhibit "A" attached hereto and incorporated herein by this reference.
DATED AND ISSUED this _ day of
,2006.
Redevelopment Agency ofthe City of San Bernardino
Maggie Pacheco
Executive Director
(ACKNOWLEDGMENT A IT ACHED)
4851.7723-776\.5
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EXHIBIT "A"
That portion of Lot 2, Block 38, City of San Bernardino, in the County of San Bernardino, as per plat
recorded in Book 7 of Maps, Page I, records ofsaid County, described as follows:
Parcel No.1:
Commencing at a point 139 feet west ofthe southeast corner of said Lot 2; thence running west 41 Y,
feet; thence north 150 feet to the north line of said Lot 2; thence east 41 Y, feet; thence south 150 feet
to the point of beginning.
Parcel No.2:
Beginning 180 Y, feet west of the southeast corner of said Lot 2; thence north to the north line of said
Lot; thence west 39 feet; thence south to the south line of said Lot; thence east 39 feet to the point of
beginning.
Parcel No.3:
Beginning at a point 219 Y, feet west of the southeast corner of said Lot 2; thence north 100 feet;
thence west 39 feet, more or less, to a point 42 feet east of the west line of said Lot; thence south 100
feet to the south line of said Lot; thence east 39 feet to the point of beginning.
Parcel No.4:
Commencing at the southwest corner of said Lot 2; thence north along the west line of said Lot, 100
feet; thence east 42 feet; thence south and parallel with the west line of said Lot 2 a distance of 100
feet, to the south line of said Lot; thence west along the south line to the point of beginning.
Parcel No.5:
Commencing at the northwest corner of said Lot 2; thence running south along "G" Street, 50 feet to
a point I 00 feet north of the southwest corner of said Lot 2; thence east 81 feet, more or less, to a
point 219 Y, feet west of the east line of said Lot; thence north to the north line of said Lot; thence
west along the north line of said Lot to place of beginning.
4851-7723-7761.5
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EXHIBIT "E"
Stipulated Judgment Form
(On File With Agency Counsel)
4851-7723-n61.5
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EXHIBIT "F"
Notice of Memorandum ofOPA
4851-7723-7761.5
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RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO:
Redevelopment Agency
of the City of San Bernardino
201 North "E" Street, Suite 301
San Bernardino, CA 92401
Recording Fee Exempt Pursuant to
Government Code Section 6103
Space Above Line for Use by Recorder
MEMORANDUM OF OPA
THIS MEMORANDUM OF OPA (the "Memorandum") is dated as of ,2006, by
the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic (the "Agency"), and Christopher Cheng-Chyh Ko, Bruce Cheng-Hsieh Ko and
Henry Cheng-Iu Ko (collectively, the "Property Owners").
I. Covenant to Construct Retail Buildin!! Space on the Property. Upon the terms,
covenants and conditions set forth in that certain Redevelopment Agency of the City of San
Bernardino 2006 Property Owner Participation Agreement (the "OP A") the Property Owners agree
to Construct (as that term is defined in the OPA) the Development Improvements (as that term is
defined in the OP A) on or at that certain Property located in the City of San Bernardino, County of
San Bernardino, California (and as more particularly described in Exhibit "A" attached hereto and
incorporated hereby by this reference).
2. Incorporation of OP A. This Memorandum is for informational purposes only and
nothing contained in it shall be deemed to in any way modify or otherwise affect any of the terms,
covenants, conditions, provisions, agreements, representations and/or warranties (collectively, the
"Covenants") made in the OPA. This Memorandum is subject to all of the Covenants made in the
OP A, and in the event of any inconsistency between the Covenants of the OP A and of this
Memorandum, the Covenants of the OPA shall prevail.
3. Counterparts. This Memorandum may be executed in any number of counterparts,
each of which shall constitute an original and all of which shall constitute one (I) and the same
instrument, document and/or agreement..
4. Covenants Runnin!! With the Land. The Covenants shall run with the land and be
binding on the Property Owners, their successor and assigns (including, without limitation, all
executors, administrators, trustees, personal representatives, devisees and/or heirs), and all
successors in interest to the Property Owners until August 6, 2013, or the expiration date of the
Redevelopment Plan for the Central City North Redevelopment Project Area, whichever date shall
first occur.
4851-7723-776 J.5
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IN WITNESS WHEREOF, the undersigned have executed this Memorandum ofOP A as of
the day and year first written above.
AGENCY
Redevelopment Agency
of the City of San Bernardino
Date:
By:
Maggie Pacheco
Executive Director
Approved as to Form:
Agency Counsel
PROPERTY OWNERS
Date:
Christopher Cheng-Chyh Ko
Date:
Bruce Cheng-Hsieh Ko
Date:
Henry Cheng-Ju Ko
STATE OF
COUNTY OF
)
)
On before me, , personally appeared
,personally known to me (or proved to me on the basis ofsatisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that helshe/they executed the same in hislher/their authorized capacity(ies), and
that by hislher/their signature( s) on the instrument the person( s), or the entity upon behalf of which
the person( s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
4851-7723-776\.5
33
STATE OF
COUNTY OF
)
)
On before me, , personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and
that by his/her/their signature( s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
STATE OF
COUNTY OF
)
)
On before me, , personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature( s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
STATE OF
COUNTY OF
)
)
On before me, , personally appeared
, personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in hislher/their authorized capacity(ies), and
that by hislher/their signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature
(Seal)
4851-7723-7761.5
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EXHIBIT "A"
That portion of Lot 2, Block 38, City of San Bernardino, in the County of San Bernardino, as per plat
recorded in Book 7 of Maps, Page 1, records of said County, described as follows:
Parcel No.1:
Commencing at a point 139 feet west of the southeast comer of said Lot 2; thence running west 41 y,
feet; thence north 150 feet to the north line of said Lot 2; thence east 41 Yz feet; thence south 150 feet
to the point of beginning.
Parcel No.2:
Beginning 180 Yz feet west of the southeast comer of said Lot 2; thence north to the north line of said
Lot; thence west 39 feet; thence south to the south line of said Lot; thence east 39 feet to the point of
beginning.
Parcel No.3:
Beginning at a point 219 Yz feet west of the southeast comer of said Lot 2; thence north 100 feet;
thence west 39 feet, more or less, to a point 42 feet east ofthe west line of said Lot; thence south 100
feet to the south line of said Lot; thence east 39 feet to the point of beginning.
Parcel No.4:
Commencing at the southwest comer of said Lot 2; thence north along the west line of said Lot, 100
feet; thence east 42 feet; thence south and parallel with the west line of said Lot 2 a distance of 100
feet, to the south line of said Lot; thence west along the south line to the point of beginning.
Parcel No.5:
Commencing at the northwest comer of said Lot 2; thence running south along "G" Street, 50 feet to
a point 100 feet north of the southwest comer of said Lot 2; thence east 81 feet, more or less, to a
point 219 Yz feet west of the east line of said Lot; thence north to the north line of said Lot; thence
west along the north line of said Lot to place of beginning.
4851-7723-7761.5
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