HomeMy WebLinkAboutCDC/2007-05
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17 WHEREAS, soon after the Authority adopted Resolution No. SBHA/2007-01, Mr. Alton C.
RESOLUTION NO. CDC/2007-5
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 2007
PROPERTY OWNER PARTICIPATION AGREEMENT BY AND BETWEEN
THE AGENCY AND ALTON C. GREEN AND KENNETH L. OWENS
("PROPERTY OWNERS") FOR THE DEVELOPMENT OF 3 SINGLE-
FAMILY HOMES ON THE PROPERTY LOCATED AT 100, 114 AND 122
NORTH ALLEN STREET ("PROPERTY") (MEADOWBROOK PARK
REVIT ALIZA TION AREA - IVDA REDEVELOPMENT PROJECT AREA)
WHEREAS, the San Bernardino City Housing Authority, a public body, corporate and
politic (the "Authority") adopted Resolution No. SBHA/2007-01, dated January 22,2007 entitled:
"Resolution of the San Bernardino City Housing Authority declaring the Public Interest and
Necessity of Acquisition of Real Property by the San Bernardino City Housing Authority over the
property located at 100, 114 and 122 North Allen Street, San Bernardino, California (Bonnie S.
Johnson - APNs: 0135-292-49, 50 and 51 respectively) (NDA Redevelopment Project Area -
Meadowbrook Neighborhood Restoration Area)"; and
18 Green and Mr. Kenneth L. Owens (the "Developers") expressed a desire to enter into the 2007
19 Property Owner Participation Agreement ("OPA") with the Redevelopment Agency of the City of
20 San Bernardino (the "Agency") to develop 3 single-family homes ("Homes") consisting of up to
21 2,614 square feet, 4 bedrooms, 2 Y, bathrooms, a 450 square foot attached garage, a 32 square foot
22 attached porch with front and side landscape and exterior treatments similar to the homes built by
23 Meadowbrook Park Homes, Inc. (the "Meadowbrook Builders"), in the Meadowbrook
24 Neighborhood Restoration Area, and that the Homes will be constructed by the Developers in
25 conformance with the City guidelines and approved plans and specifications, pursuant to the terms
26 ofthe OPA; and
27 WHEREAS, the individual, being the property owner immediately prior to the Developers
28 acquiring the subject properties, and the Agency have previously entered into an agreement entitled
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1 "2005 Meadowbrook Single-Family Residential Development Agreement (Meadowbrook
2 Neighborhood Restoration Area)", dated as of January 10, 2005 (the "2005 Meadowbrook
3 Agreement"), pursuant to which the said prior owner agreed to undertake construction and
4 development of new single-family homes within the area described in the 2005 Meadowbrook
5 Agreement as the "Meadowbrook Neighborhood Restoration Area" and said Agreement was
6 subsequently terminated; and
7 WHEREAS, the Property is situated in the Meadowbrook Neighborhood Restoration Area
8 and the Developers have agreed to develop 3 new single-family homes for sale and occupancy by
9 homeowners (the "Project") and to compliment the efforts of the Agency to eliminate conditions of
10 blight in the Meadowbrook Neighborhood Restoration Area.
11 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED
12 BY THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF BERNARDINO,
13 AS FOLLOWS:
14 Section 1. The Community Development Commission ("Commission") hereby
15 acknowledges receipt of the OP A by and between the Agency and the Developers dated February
16 20,2007, as it relates to the development of the Property.
17 Section 2. The Commission hereby finds and determines that the construction of the
18 Project on the Property by the Developers and the sale of the Project by the Developers to
19 homebuyers will substantially promote the goals and objectives of the Agency and the Commission
20 in achieving the redevelopment of the Meadowbrook Neighborhood Restoration Area, which shall
21 increase the supply of new single-family homes in the community and shall promote new home
22 ownership in the Meadowbrook Park Neighborhood Restoration Area by all economic segments of
23 the community. In view of the foregoing, the Commission further finds and determines that the
24 Developers shall cause the Property to be improved in compliance with the terms of the OPA, and
25 the OPA shall not be delivered to the Developers until such time as the Developers are able to
26 demonstrate that they are the owners of the Property as identified in the OPA or such OPA is
27 delivered concurrently with the closing for the acquisition ofthe Property by the Developers.
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1 Section 3. The Commission hereby finds and determines that should the Developers fail
2 to perform under the terms of the OP A, the remedies provided therein shall implement the intent of
3 the approved Authority Resolution No. SBHA/2007-1.
4 Section 4. The Commission hereby finds and determines that the environmental review
5 of the OPA contemplated hereunder is "categorically exempt" for the reasons indicated in the Staff
6 Report. No potentially adverse environmental effects are anticipated to be associated with the OPA
7 based upon its own independent review of the information regarding the OPA, and the Commission
8 hereby authorizes the filing of a Notice of Exemption under California Environmental Quality Act
9 (CEQA) Section 15332, Class 32 relating to the OPA.
10 Section 5. The Resolution shall become effective immediately upon its adoption.
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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 2007
PROPERTY OWNER PARTICIPATION AGREEMENT BY AND BETWEEN
THE AGENCY AND ALTON C. GREEN AND KENNETH L. OWENS
("PROPERTY OWNERS") FOR THE DEVELOPMENT OF 3 SINGLE-
FAMILY HOMES ON THE PROPERTY LOCATED AT 100, 114 AND 122
NORTH ALLEN STREET ("PROPERTY") (MEADOWBROOK PARK
REVITALIZATION AREA - IVDA REDEVELOPMENT PROJECT AREA)
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community
Development Commission of the City of San Bernardino at a ioint regular
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meeting
thereof, held on the 20th day of February , 2007, by the following vote to wit:
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Commission Members: Ayes Navs Abstain Absent
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ESTRADA X
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BAXTER --1L
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BRINKER .---X.-
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DERRY x
15 KELLEY
.---X.-
16 JOHNSON
---X-
17 MC CAMMACK X -~-
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Secret
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The foregoing resolution is hereby approved this o<'c2-l""-8ayof February
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Approved as to Fo
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,2007.
,
Patrick . Morris, son
nity Development Commission
of the City of San Bernardino
26 Agency C nsel
By:
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Recorded in Official Records, Counly of San Bernardino
~'~"" LARRY WALKER
;-;;~".:."'~' .:' AudRor/Controller - Recorder
':" . P Counter
""",
Doc#: 2007 - 0128026
1111111111111111
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
Attention: Executive Director
201 North "E" Street, Suite 301
San Bernardino, California 92401
TRies: 1
Fees
Taxes
Other
PAID
(Space Above Line for Use By Recorder)
Recording Fee Exempt Pursuant to Government Code Section 6103
2007
PROPERTY OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
KENNETH L. OWENS AND ALTON C. GREEN
2/28/2007
12:11 PM
MD
Pages: 43
0.00
0.00
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$0.00
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CDC/2007-5
2007
PROPERTY OWNER PARTICIPATION AGREEMENT
BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
AND
KENNETH L. OWENS AND ALTON C. GREEN
THIS 2007 PROPERTY OWNER P ARTICIP ATION AGREEMENT (this "OP A") is dated as
of February 20,2007, by and among Kenneth L. Owens ("Owens"), an unmarried man, and Alton C.
Green ("Green"), a married man (Owens and Green shall collectively be referred to as 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
WHEREAS, Owens, an unmarried man, and Green, a married man, own the lands located at 100
North Allen Street (APN: 0135-292-51) ("Parcel 51"), 114 North Allen Street (APN: 0135-292-50)
("Parcel 50'') and 122 North Allen Street (APN: 0135-292-49) ("Parcel 49;'), as their sole and separate
property, San Bernardino, California 92408 (collectively, the "Property"). The genera1location of the
Property is shown on a vicinity map attached hereto and incorporated herein by this reference as Exhibit
"A." The legal description of the Property is attached hereto and incorporated herein by this reference
as Exhibit "B"; and
WHEREAS, the Agency is in the process of identifying certain properties for acquisition and
assembly for the future development of affordable in-fill housing in the Meadowbrook Neighborhood
Restoration Area within the Inland Valley Development Agency Redevelopment Project Area (the
"Project Area") in order to help eradicate blight and provide needed affordable housing, which could
include acquisition by the San Bernardino City Housing Authority ("Authority'') on behalf of the
Agency by exercise ofits power of condemnation pursuant to the Housing Authorities Law (Health and
Safety Code Section 34240 et seq.) and Eminent Domain Law (Code of Civil Procedure Section
1230.010 et seq.); and
WHEREAS, the Agency is interested in including the Property as part of the aforementioned in-
fill housing project development; and
WHEREAS, the Authority, a public entity created pursuant to the Housing Authorities Law
(Health & Safety Code Section 34200, et seq.) is authorized pursuant to the Housing Authorities Law to
acquire and redevelop blighted properties located within the City of San Bernardino (the "City"); and
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WHEREAS, the Authority adopted Resolution No. SBHA/2007-1 (the "Resolution of
Necessity"), at a noticed regular meeting held on January 22,2007, which Resolution of Necessity
authorizes the Authority to acquire the Property through the exercise of the powers of condemnation
pursuant to the Eminent Domain Law and the Housing Authorities Law; and
WHEREAS, the Property Owners have represented to the Agency that, in lieu of the Authority
on behalf of the Agency exercising the powers of condemnation pursuant to the Eminent Domain Law
and Housing Authorities Law as immediately authorized and approved by the Authority in its adoption
of the Resolution of Necessity, the Property Owners shall construct, or cause to be constructed, three (3)
single-family residential homes with each single-family residential home to consist of: (i) up to 2,614
square feet; (ii) four (4) bedrooms; (iii) two and one-half(2 Y:z) bathrooms; (iv) one (1) fireplace; (v) one
(I) attached garage of 450 square feet; and (vi) one (I) attached porch of32 square feet (singularly, the
"SFR Home" and collectively, the "SFR Homes") (vii) front and side landscaping; (viii) vinyl fencing
on all sides and rear ofthe SFR Home; (ix) 32-inch high wrought-iron fencing, the specifications of
such fencing are described on Exhibit "c" attached hereto and incorporated herein by this reference; and
(x) all other on-site and off-site improvements constructed, developed and/or installed on the Property
must be similar to the homes built by Meadowbrook Park Homes, Inc., in the Project Area (collectively,
the "Project") subject to all applicable City approvals, with such SFR Homes to be owned and occupied
by each purchaser as its single-family residence; and
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 development of the Property by the
Property Owners in lieu of condemnation of the Property by the Authority;
WHEREAS, the Property Owners agree and understand that the Agency shall have the right and
cumulative remedy, without limitation, to request that the Authority immediately and concurrently file
an action for eminent domain (the "Eminent Domain Complaint") and a stipulated judgment (the
"Stipulated Judgment"), in the form provided for in Exhibit "E" attached hereto and incorporated hereby
by this reference, as executed by the Property Owners, with the Superior Court of the State of
California, County of San Bernardino (the "Court), should the Property Owners be in default under this
OP A subject to any applicable cure period.
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 I. 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.
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Section 2. Effective Date of the OP A. This OP A shall take effect following its approval by
the Agency and execution by the Parties and delivered simultaneously with escrow closing for the
acquisition of the Property (hereinafter referred to as the "Effective Date"); provided, however, if this
OP A has not been fully executed by all of the Parties and delivered on or before March 15, 2007, it shall
automatically be void and of no force or effect with no further notice or action required by either the
Property Owners and/or the Agency.
Section 3. Covenants ofthe Prouertv Owners as to the Prouertv. Subject to the terms,
covenants and conditions of this OP A, the Property Owners covenant and agree as follows:
General Covenants:
(a) It is the intent of the Parties that on and after the Effective Date of this OP A, and subject
to the terms, covenants and conditions of this OP A, the Property Owners shall
commence and complete the construction, development, work and/or installation
(collectively, the "Construction") of the SFR Homes, including, without limitation, the
construction, development and/or installation of the following improvements in
connection with each SFR Home: (i) up to 2,614 square feet; (ii) four (4) bedrooms;
(iii) two and one-half(2 Yz) bathrooms; (iv) one (I) fireplace; (v) one (I) attached garage
of 450 square feet; and (vi) one (1) attached porch of 32 square feet (singularly, the
"SFR Home" and collectively, the "SFR Homes") (vii) front and side landscaping; (viii)
vinyl fencing on all sides and rear of the SFR Home; (ix) 32-inch high wrought-iron
fencing, the specifications of such fencing are described on Exhibit "c" attached hereto
and incorporated herein by this reference; and (x) all other on-site and off-site
improvements constructed, developed and/or installed on the Property must be similar to
the homes built by Meadowbrook Park Homes, Inc., in the Project Area, subject to all
applicable City approvals. Further, the Property Owners shall use commercially
reasonable efforts to complete the Project within the time periods described in this
Section 3 and/or in any other provision of this OPA. On and after the Effective Date,
the Property Owners shall commence the Construction of the Project, and shall
diligently prosecute to completion the Project. All construction and development
obligations and responsibilities of the Property Owners as related to the Project shall be
initiated and completed in accordance with the terms, covenants, conditions,
representations and warranties 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
pursuant to this OP A.
(b) The Property Owners shall construct, develop and complete the Project in compliance
with all zoning ordinances, building codes and all other laws, statutes, ordinances,
codes, regulations, rules, policies, orders, procedures, conditions and/or requirements,
as amended and replaced from time to time (collectively, the "Codes") of the federal
government, the State of California, the City or any other governmental or quasi-
governmental entity having jurisdiction (collectively, the "Governing Entity") over the
construction, development, approval and/or completion of the Project, or any part
thereof. The Property Owners acknowledge that all plans, designs and/or specifications
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and modification thereto for the construction and development of the Project as set forth
in this OP A shall comply with the Codes. No action by the Agency, Authority 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 or other Governing Entity
requirements which are applicable to the construction, development and/or completion
of the Project, or any part thereof, 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 Property Owners agree to allow the Agency, and/or its agents, employees or
contractors, upon prior notice at reasonable times to inspect: (1) the Design Plans (as
defined below) for the construction and/or development of the Project at the Property,
and (2) the progress of the construction and development of the Project at the Property
to ensure that the construction and development of the Project at the Property is
occurring in a timely manner and to the reasonable satisfaction of the Agency.
Special Covenants:
(d) Within fifteen (15) calendar days from the Effective Date of this OPA, the Property
Owners shall deliver to the Agency, all plans, designs and specifications in connection
with the construction, development and/or installation of the improvements at the
Property, including, without limitation, a site grading plan, exterior elevations,
materials, colors, facade, signage, and general exterior appearance, a conceptual
landscape plan and an architectural rendering of the Project (collectively, the "Design
Plans") which shall be in compliance with the Codes, the general plan (the "City
General Plan") for the City and the plans for the redevelopment of the Project Area (the
"Project Area Plans"). For purposes of this OP A, the City General Plan and the Project
Area Plans shall collectively be referred to as the "Plans." The Property Owners agree,
acknowledge and covenant that the Property Owners have delivered to the Agency the
Design Plans that relate to the construction and development of the SFR Homes on
Parcels 49 and 50 of the Property.
(e) Within ten (10) calendar days after the Property Owners have submitted the Design
Plans to the Executive Director of the Agency pursuant to Section 3(d) above, the
Executive Director of the Agency will review the Design Plans. The Executive Director
of the Agency will use discretion to approve or reject the Design Plans as being
consistent or inconsistent with the Plans and the construction and development ofthe
Project, which approval shall not be unreasonably withheld, conditioned or delayed.
The Design Plans will be approved if they are in substantial conformity with the City
General Plan, the Project Area Plan and the Codes. If the Executive Director of the
Agency disapproves or rejects the Design Plans, in whole or in part, the Executive
Director of 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 Executive Director of the Agency disapproves or rejects the Design Plans, it will
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provide notice to the Property Owners in accordance with Section 11 of this OP A. lfthe
Executive Director of 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
Executive Director of the Agency, the Agency may enforce those rights and remedies
provided for in Section 8(a) below including, without limitation, the right to purchase
the Property pursuant to Section 8( d) of this OP A, the right to file a complaint for
specific performance, the right to file a complaint for and receive a judgment for
damages, and the right to request the Authority to file with the Court the Eminent
Domain Complaint and to contemporaneously file the Stipulated Judgment.
(f) Within ten (10) 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 Project. If the Property Owners intend to finance the construction
themselves, then the evidence will consist .of verification of available funds from a
banking institution. lfthe Property Owners intend to obtain a loan for the construction
and completion of the Project, then the evidence will consist of one (1) or more loan
commitments approved by an established commercial bank, subject only to the receipt
by the Property Owners of the Permits (as defined below). The Executive Director of
the Agency has the right, in their sole and absolute discretion, to reject evidence of the
financing. If the Executive Director of the Agency rejects evidence of the financing, the
Executive Director of 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 at
the address and in the manner provided for in Section 11 of this OP A. The Property
Owners shall have the opportunity to cure any defect within ten (l0) calendar days from
the date that the Property Owners receive the Notice of Rejection.
(g) If the Executive Director ofthe Agency approves the Design Plans pursuant to Section
3( e) 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, development and completion
of the Project (collectively, the "Construction Contracts") within ninety (90) calendar
days from the approval by the Executive Director of the Agency of the Design Plans.
The Construction Contracts must be reasonably acceptable to the Executive Director of
the Agency.
(h) Within ninety (90) calendar days from the approval under Section 3(e) above, the
Property Owners will prepare, file and submit to the City a completed Development
Application (the "Development Application") for the construction and development of
the SFR Homes on the Property. The Property Owners will submit evidence satisfactory
to the Executive Director of the Agency, to be determined by the Executive Director of
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the Agency in their sole and absolute discretion, that the Development Application has
been delivered by the Property Owners to the City, that the City has received and
accepted the Development Application from the Property Owners, and that the City has
accepted and approved the Development Application as being complete, correct and
accurately completed by the Property Owners.
Notwithstanding anything to the contrary in this Section 3(h), the Property Owners
agree, acknowledge and covenant that the Property Owners have prepared, filed and
submitted the Development Application for Parcels 49 and 50, and that the City and all
other Governing Entities have issued to the Property Owners Permit Number B0502243
and Permit Number B0503573 in connection with the construction and development of
the SFR Homes on Parcels 49 and 50, respectively.
The filing by the Property Owners of the Development Application in connection with
Parcel 51, shall be subject to extension due to force majeure events of 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, all of which are not
attributable to the fault of the Property Owners (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
in connection with Parcel 51 shall not, in the aggregate, exceed ninety (90) calendar
days. 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 Executive Director of the
Agency with written notice ofthe occurrence ofthe 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.
(i) Within ninety (90) calendar days from the approval under Section 3(e) above, the
Property Owners must obtain from the Development Services Department of the City
and from all other Governing Entities approved Design Plans, in conformance with the
Plans and with the Codes, and obtain all building and development permits for the
construction and development of SFR Homes on the Property (collectively, the
"Permits").
The Agency will cooperate with the Property Owners in connection with all
proceedings, hearings, procedures, policies and requirements of the City from the time
that the Development Application is delivered by the Property Owners to the City and
the receipt and acceptance by the City of the Development Application through the date
that the Development Permit is issued by the Development Services Department of the
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City to the Property Owners (collectively, the "City Approval Process"). The City
Approval Process as it relates to Parcel 51, 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 as provided for in Section 3(h) above, and prior to the
issuance by the City 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 Executive Director of the
Agency with written notice of the occurrence of the force majeure Delay Event within
ten (I 0) 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.
(j) Within ninety (90) calendar days from the acceptance by the Executive Director of the
Agency of the Design Plans under Section 3( e) above, the Property Owners shall obtain,
without limitation, all permits, authorizations, certificates, approvals and entitlements
from the City and/or from all other Governing Entities in connection with the
construction and development of the Project, particularly Parcel 51, including, without
limitation, all building permits, zoning, health and safety permits, authorizations and/or
certifications necessary or required by the City or each Governing Entity or utility
company for the construction and development ofthe Projects. If the Property Owners
have timely submitted all appropriate and satisfactory documents to the City and/or to
each Governing Entity, in accordance with the terms, covenants and conditions of this
OP A, and the City and/or any Governing Entity has not issued the Permits, or anyone of
them, as applicable, for reasons beyond the Property Owners' control, the Agency will
allow a single thirty (30) calendar day extension to obtain all Permits under this Section
3(j).
(k) Within fifteen (15) calendar days from the Effective Date, in connection with Parcels 49
and 50, and within ten (10) calendar days from the approval and issuance by the City
and other Governing Entities of the Permits for Parcel 51, the Property Owners, at the
Property Owners' sole cost and expense, shall immediately commence construction of
development ofthe Project, as approved by the City and by all other Governing Entities,
in compliance with the Permits and with the Codes, including, without limitation, the
construction, development and installation of all off-site public improvements, if any, as
required by the City and/or by such other Governing Entities. Within ten (10) calendar
days from the Effective Date, in connection with Parcels 49 and 50, and after the
approval and issuance by the City and/or by all Governing Entities of all Permits in
connection with Parcel 51 pursuant to Section 3(j) above: (i) all equipment, supplies,
and materials needed to commence the construction of the Project 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 and development of the Project must be
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hired by, or under contract with a general contractor, or for the benefit of, the Property
Owners; and (iii) the concrete foundation for the SFR Homes to be built at the Property,
must be poured by, or for the benefit of, the Property Owners.
(I) Within nine (9) months from and after the Effective Date of this OP A, the Property
Owners shall have completed, at the Property Owners' sole cost and expense, the
construction and development of the Project, in compliance with the approved Plans, the
Codes, the Permits, and the terms, covenants and conditions of this OP A.
(m) The Property Owners agree that they will not abandon, terminate or substantially
suspend the construction and development of the Project, including, without limitation,
the construction, development and/or installation of any and/or all off-site public
improvements, if any, required by the City or by any other Governing Entity. The
Parties agree that the abandonment (the "Abandonment") of the construction and
development of the Project shall mean and occur whenever the construction of the
Project has terminated or been suspended by the Property Owners, for a period of five
(5) consecutive business days, or seven (7) business days within any thirty (30) day
period. For purposes of thisOPA, 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(m), 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 ofthe 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 fust provided the Executive Director of 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 circumstahces 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 (I) 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 and development of the Project, 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
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them), the Property Owners must notifY, identifY and describe in writing and in
detail each Scheduling Delay to the Executive Director of the Agency within ten
(10) calendar days of first becoming aware of each such Scheduling Delay, and
the Executive Director of the Agency must approve in writing to the Property
Owners each and every Scheduling Delay, in its sole and absolute discretion.
Notwithstanding anything to the contrary in this Section 3(m)(ii), 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.
Post-Construction Covenants:
(n) Upon the timely construction, development and completion of the Project by, or for the
benefit of the Property Owners, the Property Owners may request the Executive Director
of the Agency to cause a Certificate of Completion to be executed and provided to the
Property Owners substantially in the form of Exhibit "0" attached hereto and
incorporated herein by this reference. The Certificate of Completion shall evidence a
conclusive determination by the Executive Director of the Agency of the satisfaction of
the obligation by the Property Owners under this OP A to construct, develop and
complete the Project.
(0) If the Executive Director of the Agency seeks to withhold the execution of a Certificate
of Completion on the grounds of an existing default or breach under this OP A, then the
Executive Director of the Agency shall, within thirty (30) calendar days from the date of
the 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 refusal or failure by the Executive Director of the 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(0) shall be deemed to excuse the Property Owners from
having to comply with the Plans, the Codes and the Permits in the construction,
development and completion of the Project.
(p) In consideration of the terms, covenants, conditions and obligations made by the
Property Owners under this OP A, and provided no Event of Default (as defined below)
of this OP A has occurred by the Property Owners, the Agency hereby agrees that it shall
not request the Authority to file with the Court the Eminent Domain Complaint nor the
Stipulated Judgment during the period provided for in Section 3(1) above. Nothing in
this Section 3(p), however, shall be deemed to affect the power or capacity of any other
public entity, including the City, to acquire any interest in the Property by an exercise of
the power of eminent domain for a public purpose, as authorized by law.
Section 4. Al!:encv Not to Request Authority 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(1) above,
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and provided that the Property Owners are not in Default under this OP A, the Agency shall not request
the Authority to file with the Court, the Eminent Domain Complaint nor the Stipulated Judgment. The
Agency and the Property Owners hereby acknowledge that in the Event of a Default on the part of the
Property Owners, 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 of the Property by immediate
purchase and sale in accordance with Section 8( c) and/or Section 8( d), as applicable, the acquisition of
the Property by the Authority on behalf of the Agency, by filing with the Court of the Eminent Domain
Complaint and the contemporaneous filing of the Stipulated Judgment and/or the filing of a complaint
for specific performance and/or for damages.
Section 5.
Compliance with the City Approval Process: Other Reauired Entitlements.
(a) Notwithstanding any provision of this OP A to the contrary, the Property Owners will
timely prepare, file and submit the Development Application to the City, shall fully comply with the
City Approval Process, shall exercise their good faith efforts to obtain from the City the Development
Permit, prior to the commencement by the Property Owners of any construction and development of the
Project. The Property Owners shall obtain all Permits and shall construct, develop and complete the
Project in compliance with the Plans, Permits and all Codes.
(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 and
approval by the City and/or all other Governing Entities in accordance with the applicable Codes. It is
recognized by the Property Owners that the City and all other Governing Entities shall have the right to
approve or reject, in their sole and absolute discretion, any such development proposal prepared and
submitted by or for the Property Owners.
Section 6. Covenant Al!ainst Unlawful Discrimination. The Property Owners, for
themselves and their successors and assigns agree that in the construction, development and completion
of the Project, 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 and
shall comply with all Plans, Codes and Permits.
Section 7. Maintenance Condition of the Property. 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, in writing, of the Maintenance
Deficiency and give the Property Owners fifteen (IS) 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 at least ten (10) calendar days
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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 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 all 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 fifteen
(15) calendar days after written demand for payment by the Agency to the Property Owners, 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 Goverurnent 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 forty-eight (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. 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 ofthe lien is not
paid within fifteen (IS) calendar days after written demand for payment by the Agency to the Property
Owners, 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 the Codes.
Section 8. Defaults and Remedies. The failure or delay by either party to perform or
observe any term, covenant, condition or provision ofthis OP A, or the making of any representation or
warranty that is or becomes inaccurate or untruthful in any material manner, shall constitute an event of
default (the "Default" or the "Event of Default") under this OPA. Should a Default occur under this
OP A (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.
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General.
(a) Except for those remedies that are exclusive to the Authority and/or the Agency as set
for in Section S(c), Sed) and S(e) of this OPA, the Agency and the Property Owners
acknowledge that in the Event of a Default by the Property Owners under 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 S(c) and/or Section
Sed), as applicable, the filing of a complaint for specific performance and/or for
damages, or the purchase of the Property by the Authority and filing with the Court of
the Eminent Domain Complaint and the contemporaneous filing with the Court of the
Stipulated Judgment, as provided for and subject to Section S(e) below. Except as
provided for in Section S(c), Sed) and S(e) 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.
(b) The non-defaulting party that claims that an Event of Default has occurred shall give
written notice of the Event of Default (the ''Notice of Default") to the defaulting party,
in the manner and as provided for in Section 11, specifying the alleged Event of 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 Event of Default nor shall it change the time of
the Event of Default; provided, however, the non-defaulting party shall have no right to
exercise any remedy for an Event of Default without delivering the Notice of Default.
Special Remedies.
(c) If the Property Owners fail to commence the construction and development of the
Project as provided for in Section 3(1<) above, the Agency may immediately purchase
the Property for the then as-is fair market value (the "Fair Market Value") of the
Property as determined by a qualified MAl appraiser (the "Appraiser") acceptable to the
Agency in its sole and absolute discretion having experience appraising real property
and improvements substantially similar to the SFR Homes (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 and development of the Project
within thirty (30) calendar days after the Effective Date. The Pre-Construction Purchase
Price paid by the Agency to the Property Owners would bein lieu of the filing by the
Authority at the request of the Agency with the Court of the Eminent Domain
Complaint, the contemporaneous filing of the Stipulated Judgment and the Authority's
exercise of its condemnation powers pursuant to the Housing Authorities Law and
Eminent Domain Law, Code of Civil Procedure, Section 1230.010, et seq. The Parties
agree that the consummation of the sale by the Property Owners to the Agency of the
Property, the purchase of the Property by the Agency from the Property Owners, and the
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recording in the Official Records of the County of San Bernardino, State of California,
of the grant deeds or quitclaim deeds, as required by the Agency in its sole and absolute
discretion, 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 11. 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.
(d) If the Property Owners have commenced the construction and development of the
Project at or on the Property prior to having substantially completed the construction and
development of the Project and an Abandonment of the construction and development of
the Project at or on the Property has occurred, and/or if the Property Owners have
breached, or there is an Event ofDefauIt under Section 3(e), Section 3(t), Section 3(g),
Section 3(h), Section 3(i) and/or Section 3(j) 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 Fair Market Value of the Property
at the time determined by a qualified MAl Appraiser acceptable to the Agency in its sole
and absolute discretion having experience appraising real property substantially similar
to the SFR Homes plus the costs, expenses and amounts actually paid by the Property
Owners for labor, equipment, materials, supplies, architect fees, engineering fees and
designer fees (collectively, the "Construction Costs") in connection with the
construction and development of the Project 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 and development of the Project 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(d) would be in lieu of the filing by the
Agency with the Court of the Eminent Domain Complaint, the contemporaneous filing
of the Stipulated Judgment and the Agency's request to the Authority for exercise of its
condenmation powers pursuant to the Housing Authorities Law and the Eminent
Domain Law, Code of Civil Procedure, Section 1230.010, et seq. The Parties agree that
the consummation ofthe sale by the 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 grant
deeds or quitclaim deeds, as required by the Agency in its sole and absolute discretion,
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 11). 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
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with the consummation of the Post-Construction Purchase and Sale Transaction and the
transactions contemplated by this OP A.
Upon the occurrence of an Event of Default under this OP A by the Property Owners,
the Agency may, at such time and thereafter, request the Authority to file with the Court,
the Eminent Domain Complaint and contemporaneously file the Stipulated Judgment, in
lieu of filing an action for specific performance and in lieu of the remedies provided for
in Section 8(c) and 8(d) above. The Stipulated Judgment shall specify and include,
without limitation, that: (i) the Authority, upon the request of the Agency, has the right
to file the Complaint and to contemporaneously file 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 at the time of the filing with the
Court the Eminent Domain Complaint and the Stipulated Judgment; (iii) the Property
Owners shall execute grant deeds or quitclaim deeds, as required by the Agency in its
sole and absolute discretion, conveying the Property from the Property Owners to the
Agency; (iv) 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; (v) that the Property Owners waive any and all
defenses they may have including, but not limited to, defenses with respect to the
Resolution of Necessity, to the underlying findings that formed the basis for the
Resolution of Necessity, to the position that the Authority lacks jurisdiction, power and~
authority to use the powers of eminent domain and to the position that the Agency an
Authority lack the power and authority to enter into an agreement with regard to the
Property and (vi) all other terms, covenants and conditions required by the Agency, in its
sole and absolute discretion, and/or the Codes.
Termination of the OPA.
(a) Provided that the Property Owners are not in default under this OP A, the Property
Owners may jointly terminate this OP A at their discretion for any reason within the first three (3)
months after the Effective Date by serving written notice oftermination (the "Notice of Termination")
of the Agreement to the Agency which specifically refers to this Section 9( a) of this OP A. Upon receipt
by the Agency of such written Notice of Termination, and provided the Property Owners are not then in
default, the Parties shall be mutually released from any further obligation that arises under this OP A and
the Agency shall have the discretion to cause the Property to be redeveloped for housing pmposes by
other applicable law. Notwithstanding any other provision in this Section 9( a) to the contrary, upon or
at any time after the receipt by the Agency of the Notice of Termination, the Agency shall also have the
right and remedy, without limitation, to request the Authority to file the Eminent Domain Complaint
and the Stipulated Judgment with the Court.
(b) The Agency may terminate this OP A at its discretion upon serving written Notice of
Termination of this OP A to the Property Owners that specifically refers to this Section 9(b) of the
Agreement, in the event that the construction and development of the Project has not been timely
commenced within the time period provided for in Section 3(k) above. Upon receipt by the Property
Owners of such written Notice of Termination, the Agency (but not the Property Owners) shall be
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released from any further obligation that arises under this OP A and shall have: (i) the right, without
limitation, to cause the Property to be redeveloped for housing purposes by other applicable law and (ii)
the right to enforce all rights and remedies provided for in this OP A, and at law and/or in equity,
including, without limitation, the right to request the Authority to file the Eminent Domain Complaint
and the Stipulated Judgment with the Court upon or at any time after the receipt by the Property Owners
from the Agency of the Notice of Termination.
Section 10. Covenants Runnin!! 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 OP A as a community redevelopment covenant. This OP A 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 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:
Redevelopment Agency of the City of San Bernardino
Attn.: Maggie Pacheco, Executive Director
20 I North "E" Street, Suite 30 I
San Bernardino, California 92401
Telephone: (909) 663-1044
Fax: (909) 663-2294
With a copy to:
(For Informational
Purposes Only)
Lewis Brisbois Bisgaard & Smith LLP
Attn.: Timothy J. Sabo
650 East Hospitality Lane, Suite 600
San Bernardino, California 92408
Telephone: (909) 387-1130
Fax: (909)387-1138
If to Property Owners:
Kenneth L. Owens
258 South "K" Street
San Bernardino, California 92410
Telephone: (714) 328-7104
Alton C. Green
378 South Mount View Avenue
San Bernardino, California 92408
Telephone: (909) 806-6259
Fax: (909) 886-2209
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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. Governinl! Law: Litil!ation 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 Court 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, and each of them, shall be made by personal service 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-Liability of City and Al!ency Officials and Employees. No member,
official or employee of the City or 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 of this OPA.
Section 14. Delay: No Force Maieure Defense.
(a) Except as set forth in Section 3(h), 3(i) and 3(m) 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, development and completion
of this Project 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 OPA. 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 ofthis 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.
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Section IS. Term ofOPA., Amendment: No Waiver.
(a) This OPA shall remain in effect until February 20, 2008, which is twelve (12) months
after the Effective Date.
(b) This OP A may be amended or modified only by a written agreement duly executed by
the Parties. Minor modifications or amendments of this OP A (i.e., time of performance extensions,
and/or minor, non-substantial modifications to the Design Plans) must be approved by the Executive
Director of the Agency with the concurrence of the Agency's Counsel. Major modifications or
amendments to this OP A must be approved by official action of the members of the Community
Development Commission of the City. Failure on the part of a party to enforce any provision of this
OP A shall not be construed as a continuing waiver ofthe 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 an amendment to this OP A, without the official action of the Agency to specifically
approve any such amendment.
Section 16. Representations and Warranties of the Propertv 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 OPA
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; Owens is an unmarried man and Green is
a married man each of whom owns his respective undivided fee simple interests in the
Property as his respective sole and separate property;
( e) The Property Owners have the funds available to them to undertake and to complete the
construction and development of the Project;
(f) The Property Owners shall construct, develop and complete the Project in compliance
with all Plans, Permits and Codes, including, without limitation, all applicable federal
and state labor laws, regulations, standards and requirements;
4815-7926-2977.1 17
P:lAgendaslAgenda AttachmenlslAgnnls-Amend 2()()7'()2-2()"()7 Green and Owens Final OP A.doc
CDC/2007-5
(g) The Property Owners shall, at their own cost and expense, secure or shall cause to be
secured, all Permits that may be required by the City or any other Governing Entity
having jurisdiction over the construction, development and completion of the Project;
(h) The Design Plans in connection with Parcels 49 and 50 have been approved by the City,
in accordance with the terms of the City's development and building code, covenants
and conditions of this OP A; in accordance with Section 3( d) of this OP A, the Property
Owners shall subrnit the Design Plans in connection with Parcel 51 to the City and to all
other Governing Entities and shall be subject to the approval of the Agency, pursuant to
the terms, covenants and conditions of this OP A.
(i) The Permits in connection with the construction and development of the SFR Homes on
Parcels 49 and 50, respectively, have been issued by the City and by all other Governing
Entities; in accordance with Section 3(j) of this OP A, the Permits for the construction
and development of the SFR Home on ParcelS I shall be issued by the City and by all
other Governing Entities.
(j) Prior to the execution of this OP A by the Agency and by the Property Owners, the
spouse (the "Spouse") of Green shall execute, and cause to be acknowledged, a
recordable quitclaim deed, in a form acceptable to the Agency in its sole and absolute
discretion, which quitclaim deed shall grant, convey and/or transfer from the Spouse to
Green all right, title and/or interest in the Property.
(k) The Property Owners warrant that they possess, or shall obtain immediately after the
execution and delivery ofthis 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 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 Al!encv 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 lirnitation, attorneys' fees and
costs) (singnlarly 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 provided the Property Owners, or any of
them, have not committed any willful misconduct or gross negligence. This indemnity provision shall
survive the execution of this Agreement and the expiration of the term of this OP A.
4815-7926-2977.1 18
P:lAgendaslAgenda AttachmentslAgnnts-Amend 2007'02-20-07 Green and Owens Final OP A.doc
CDC/2007-5
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) 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 Cali fomi a and rated at least B+/ (viii) in
the most current edition of the Best's Kev Rating Guide: Property-Casualty. 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 of the term of the construction covenants as set forth in Section 3(1) 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.
Section 19. Severability. If any 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 OP A. Except as otherwise expressly provided herein, this OP A
constitutes the entire agreement among the Parties pertaining to the subject matter hereof and
supersedes all prior and contemporaneons 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 exclnsive 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:
4815-7926-2977.1 19
P:lAgendaslAgenda AttachmentslAgrmts-Amend 2007'02-20.Q7 Green and Owens Final OP Adoc
CDC/2007-5
Exhibit "A"
Vicinity Map
Exhibit "B"
Legal Description of the Property
Exhibit "C"
32-mches High Wrought-Iron Fence Specifications
Exhibit "0"
Certificate of Completion
Exhibit "E"
Stipulated Judgment Form
Exhibit "F"
Memorandum of OP A
Section 23. 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 govermnental authority whatsoever.
Section 24. Remedies. Except as provided for in Section 8(c), Section 8(d) and in Section
8( e) 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 of this Agreement, at law and in equity, including, but not
limited to, specific performance ofthis OP A, damages, the filing of the Eminent Domain Complaint and
the filing of 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 ofthis OP A.
Section 25. 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 any other person or entity, then as between the Property Owners and the Agency, the
prevailing party shall be entitled to recover as an element of its costs 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 of the City Attorney
and members of his office in enforcing thisOP A shall be considered as "attorneys' fees" for purposes of
this Section.
Section 26. 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 of the applicable rules of interpretation of contract shall
govern the interpretation of any uncertainty or ambiguity.
Section 27. Counterparts. This OP A 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 (1)
original agreement.
4815-7926-2977.1 20
P:\Agendas\Agenda AttachmentslAgrmts-Amend 2007'O2-2~7 Green and Owens Final OPA.doc
CDC/2007-5
Section 28. Time is of the 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 29. 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.
Section 30. .Joint and Severable Liabilitv. The Property Owners, and each of them, shall
be jointly and severally liability to perform and observe the terms, covenants, conditions,
representations and warranties of this OP A.
TillS 2007 PROPERTY OWNER PARTICIPATION AGREEMENT is dated as of February
20, 2007, 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:
1.. -tto-o/}
By.I~~/~
~ -
By: t~
Alton C. Green
Date: 2- - .2 {? ,..e; 7
AGENCY
Date: 'j...~ ~ ]-07
Redevelopment Agency of the City of San
B:q;ll:';::'"
Maggie Pac eco, Executive Director
Approved as to Form and Legal Content:
By:
~~
Agency Coun I
4817-0574-5921.2 21
P:\Agendas\Agenda Attachments\Agrmts-Amend 2007\02-2Q..07 Green and Owens Final OPA.doc
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,
CDC/2007-5
EXHIBIT "A"
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02~S~7 22
P:\AgenIW\Ageock Anachrneots\Agrmls..Amend 2007\02-20-07 (]rem and Owens OP A~
CDC/2007-5
EXHIBIT "B"
Legal Description of the Property
All that certain real property situated in the County of San Bernardino, State of California, described
as follows:
PARCEL A:
Lot 14, Block "A" of the Daley Tract, in the City of San Bernardino, County of San Bernardino,
State of California, as per map recorded in Book 6, page( s) 34, of Maps, in the office of the County
Recorder of San Bernardino County.
PARCELB:
Lot 15, Block "A" of the Daley Tract, in the City of San Bernardino, County of San Bemardino,
State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office of the County
Recorder of San Bernardino County.
PARCEL C:
Lot 22, 23, and 24, Block "A" of the Daley Tract, in the City of San Bernardino, County of San
Bernardino, State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office of
the County Recorder of San Bernardino County.
4815-7926-2977.1
02-05-07 23
P:\Agmdas\Agmda AttacIuntnts\Agmt:$-Ammd 2007\02_20-07 Green and Owens Final OPA.doc
CDC/2007-5
EXHIBIT "e"
32-Inches High Wrought-Iron Fence Specifications
4817-0574-5921.2
02-05-07 24
P;~~AmtPdlOO'1\D2-zo.o70recnandOwca:sFinalOPA.doc
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,
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4. FINIS~ GRADE.
S. 8 0"; ~~';;.I799;V~:
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NOTE: ALL UNFINISl-IEO MET At TO RECEIVE
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PLAN VIEW
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SECTION VIEH
I. FRE-CAST CONCRETE FILASTER CAF
BY STEFSTONE PRODUCTS: FHONE · (8IZ)(z;) S12-W2~
Model :1~' X 1~' Al.P.C. (Almond Flla&ter Cap)
COLOR: TAN
, 4. NO. S.REBAR BOTH WAYS
\.
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S. NO.4 REBAR
6. GROUT SOLID ALL CELLS.
1. MORTARiBED
. . .
8. FINISH c:fAOE
~3211 l-l.igh p,ilaster wi Cap
2. 16' X S' X 16' SFLIT-FACE (8 SIDES) BLOCK
MA,t'lUFACTUReR:
.Q~ 6fl;OCK CO.
S~/413-6126
COLOR: RED BROWN
3. NO.4 VERT. REBAR CAGE WI
TIES. 24' OJ:;.
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CDC/2007-5
EXHIBIT "0"
Certificate of Completion
RECORDING REQUESTED BY,
AND WHEN RECORDED MAIL TO: )
)
Redevelopment Agency )
of the City of San Bernardino )
Attn.: Maggie Pacheco, Executive Director )
201 North "E" Street, Suite 301 )
San Bernardino, CA 92401 )
(Space above line reserved for use by Recorder)
Recording Fee Exempt Pursuant to Government Code Section 6103
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
CERTIFICATE OF COMPLETION
The undersigned officer of the Redevelopment Agency of the 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 Redevelopment Agency of the City of San Bernardino 2007 Property Owner Participation
Agreernent (the "OPA") dated February 20, 2007, by and between the Agency and Kenneth L.
Owens, an unmarried man, and Alton C. Green, a married man, as their sole and separate property
(the "Property Owners") located at 100 North Allen Street, Assessor Parcel Number 0135-292-51,
114 North Allen Street, Assessor Parcel Number 0135-292-50, and 122 North Allen Street, Assessor
Parcel Number 0135-292-49 (collectively, the "Property") as more fully described in Exhibit "A"
attached hereto and incorporated herein by this reference, have been completed in accordance with
the terms, covenants, conditions, agreements and provisions of said OP A.
Section 2. This Certificate of Completion shall constitute a conclusive
determination of satisfaction of the agreements and covenants contained in the OP A with respect to
the obligations of the Property Owners, and their successors and assigns, to construct and develop
the Project, as defined in the OP A, excluding any normal and customary tenant improvements and
minor building "punch-list" items, and including any and all buildings and any and all parking,
landscaping and related improvements necessary to support or which meet the requirements
applicable to the Project and its use and occupancy on the Property, whether or not said
improvements are on the Property or on other property subject to the OP A, all as described in the
OP A, and to otherwise comply with the Property Owners obligations under the OP A with respect to
the Property and the dates for the beginning and completion of the construction and development of
the Project thereon under the OP A; provided, however, that the Agency may enforce any covenant
surviving this Certificate of Completion in accordance with the terms, covenants and conditions 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
4815-7926-2977.1
02~5~7 25
P:\Agendas\Aienda AnadJfnents\Agrrru-Amcnd 2007\02-20-07 Green and Owens F'ma1 OPA-doc
CDC/2007-5
the office of the Secretary of the Agency located at 20 I North "E" Street, Suite 301, San Bernardino,
California, during regular business hours.
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
,2007
Redevelopment Agency of the City of San Bernardino,
a public body, corporate and politic
Maggie Pacheco, Executive Director
Approved as to Form and Legal Content:
Agency Counsel
(ALL SIGNATURES TO BE ACKNOWLEDGED)
4815-7926-2977.1
02-05-07 26
P:\AJendas\Agenda ~\Agnns-Amend 20Q7\02.2()..(l7 Green and Owens YIIIII OPA.doc
CDC/2007-5
EXHIBIT "A"
Legal Description of the Property
All that certain real property situated in the County of San Bernardino, State of California, described
as follows:
PARCEL A:
Lot 14, Block "A" of the Daley Tract, in the City of San Bernardino, County of San Bernardino,
State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office ofthe County
Recorder of San Bernardino County.
PARCELB:
Lot 15, Block "A" of the Daley Tract, in the City of San Bernardino, County of San Bernardino,
State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office of the County
Recorder of San Bernardino County.
PARCEL C:
Lot 22, 23, and 24, Block "A" of the Daley Tract, in the City of San Bernardino, County of San
Bernardino, State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office of
the County Recorder of San Bernardino County.
4815.7926-2977.1
02.()5.()7 27
P:\Agenda\Agenda AuaclunenI$\Agmu-Amc:nd 2007\02-20-07 Green II1d Owens Final OP A_doc
CDC/2007-5
EXHIBIT "E"
Stipulated Judgment Form
4815-7926-2977.1
02.05.07 28
P:\ApIdas\Agendll.Attal:brncnts\AgAmmd 2001\02-20..01 Gteen and Owens F'llIIlI OPA.doc
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CDC/2007-5
I EWIS BRISBOIS BISGAARD & SMIm LLP
N A. FELD, SB# 162773
2 50 East Hospitality Lane, Suite 600
an Bernardino, California 92408
3 elephone: (909) 381-7142
acsimile: (909) 387- 1138
4
ttorneys for Plaintiff San Bernardino City Housing Authority
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO, CENTRAL
SAN BERNARDINO CITY HOUSING) CASE NO. SCVSS
AUTHORITY, a public body corporate and politic)
) STIPULATION FOR ENTRY OF
Plaintiff, ) JUDGMENT AND PERMANENT
) INJUNCTION; AND [pROPOSED) ORDER
v. ) (CCP Section 664.6)
)
KENNETH L. OWENS, AN INDIVIDUAL;) 100 North Allen Street, San Bernardino, Calif.
ALTON C. GREEN, AN INDIVIDUAL; DOES I) Assessor Parcel Number: 0135-292-5 I
THROUGH 100; AND ALL PERSONS)
CLAIMING ANY RIGHT, TITLE OR) 114 North Allen Street, San Bernardino, Calif.
INTEREST IN OR TO THE REAL PROPERTY) Assessor Parcel Number: 0135-292-50
TO BE CONDEMNED IN THIS ACTION, )
) 122 North Allen Street, San Bernardino, Calif.
Defendants. ) Assessor Parcel Number: 0135-292-51
)
Plaintiff SAN BERNARDINO CITY HOUSING AUTHORITY ("Authority") by and through
its counsel of record, and Defendant KENNETH L. OWENS ("Owens") by and through his counsel
of record, and Defendant ALTON C. GREEN ("Green") by and through his counsel of record, hereby
stipulate that the following be ordered, adjudged and decreed subject to the approval of the Court:
I. The San Bernardino City Housing Authority ("Authority"), San Bernardino City
Housing Authority, a public body corporate and politic, created pursuant to Health &
Safety Code Section 34200, et seq. ("Housing Authorities Law") and is authorized to
acquire and redevelop blighted properties located within the City of San Bernardino,
4835-8990-7457.1
-1-
STIPULATION FOR ENTRY OF JUDGMENT
I
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CDC/2007-5
as authorized by the Housing Authorities Law, for community redevelopment purposes
through the exercise of eminent domain.
2. Defendant Owens is an unmarried man who owns an undivided fifty percent (50%) fee
simple interest in that certain real property located at 100 North Allen Street, San
Bernardino, California, Assessor Parcel Number 0 135-292-51, 114 North Allen Street,
San Bernardino, California, Assessor Parcel Number 0135-292-50, and 122 North
Allen Street, San Bernardino, California, Assessor Parcel Number 0135-292-49
(collectively, the "Property") and is an individual residing in the County of San
Bernardino, State of California.
3. Defendant Green is an unmarried man who owns an undivided fifty percent (50%) fee
simple interest in the Property and is an individual residing in the County of San
Bernardino, State of California. The Property is located in the City of San Bernardino,
County of San Bernardino, State of California. Defendant Green and Owens are
collectively referred to as the "Property Owners."
4. Plaintiff Redevelopment Agency of the City of San Bernardino ("Agency") is a public
body, corporate and politic corporation duly organized and existing under the laws of
the State of California, having its principal place of business in the City of San
Bernardino, California.
5. On January 22, 2007, the Authority adopted and approved Resolution No.
SBHA/2007-1, entitled "Resolution of the San Bernardino City Housing Authority
Declaring the Public Interest and Necessity of Acquisition of Real Property by the San
Bernardino City Housing Authority Over the Property Located at 100, 114 and 122
North Allen Street, San Bernardino, California (Bonnie S. Johnson - APNS: 0135-292-
49, 50 and 51 Respectively) (IVDA Redevelopment Project Area - Meadowbrook
Neighborhood Restoration Area)" ("Resolution of Necessity"). Pursuant to the
Resolution of Necessity, the Authority has the right to acquire by the exercise of
eminent domain the Property for community redevelopment purposes in accordance
4835-8990.7457.1
-2-
STIPULATION FOR ENTRY OF JUDGMENT
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CDC/2007-5
with the laws of the State of California including the Eminent Domain Law, the
California Community Redevelopment Law, and/or the Housing Authorities Law.
6. The Property Owners and the Agency executed and entered into the 2007 Property
Owner Participation Agreement dated February 20, 2007 ("OPA"). The Property
Owners have represented to the Agency that, in lieu of the Authority on behalf of the
Agency exercising the powers of condemnation as immediately authorized and
approved by the Authority in its adoption of the Resolution of Necessity, the Property
Owners would construct, develop and complete three (3) single-family homes, in
accordance with and pursuant to the terms, covenants and conditions of the OP A.
Pursuant to Section 30 of the OP A, the Defendants are jointly and severably liable to
perform and observe the terms, covenants, conditions, representations and/or
warranties ofthe OPA.
7. The OPA further provides that in the event the Defendants, or anyone of them, are in
default under the OP A and the Authority elects to acquire the Property through the
exercise of eminent domain, the Defendants will execute, and will have duly
acknowledged, one or more grant deeds on the date that this Stipulation for Entry of
Judgment is filed with this Court, in form and substance acceptable to the Agency in
its sole and absolute discretion, which grant deed or grant deeds shall grant, transfer
and convey fee simple interest and title in the Property from the Defendants to the
Agency.
8. The Defendants acknowledge and agree that: (i) the Defendants are in default under
the OP A, (ii) the Defendants have no rightto cure such default under the OP A, or that
the right to cure such default, if any, has expired, (iii) the Agency has all rights and
remedies available to the Agency, at law, in equity and/or under the OPA, including
the right to request the Authority to file with this Court a Complaint for Eminent
Domain and to contemporaneously file the Stipulation for Entry of Judgment, and (iv)
on the date that the Authority files with this Court this Stipulation for Entry of
Judgment, the Defendants shall execute, and cause to be acknowledged, one (I) or
4835-8990-7457.1
-3-
STIPULATION FOR ENTRY OF JUDGMENT
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4835-8990-7457.1
CDC/2007-5
9.
more grant deeds which grant deed or grant deeds shall grant, transfer and convey the
fee simple interest and title in the Property from the Defendants to the Agency.
Property Owners agree to the entry of a permanent injunction such that Property
Owners, and their spouses, agents, representatives, executors, administrators, personal
representatives, trustees, devises, heirs, successors, assigns, employees, servants,
principals, co-venturers, subsidiaries and affiliates, and all those acting under Property
Owners' control, or on Property Owners' behalf, or in concert or participation with
Property Owners, and each of them, are permanently enjoined, for all future time,
without limitation and will:
a.
Immediately execute, and have acknowledged, one or more grant deeds which
b.
grant deed or grant deeds shall grant, transfer and convey fee simple interest
and title in and to the Property from the Property Owners to the Agency.
Not destroy or damage the Property and/or any improvements located thereon,
nor destroy, damage and/or remove fixtures or personal property from the
Property or from any improvements located at the Property.
In the event that any litigation or other proceeding is brought for the
c.
interpretation of enforcement of this Stipulation for Judgment, Judgment,
Permanent Injunction and/or the OP A, the prevailing party shall be entitled to
recover reasonable attorneys' fees, as well as costs and expenses actually
incurred in connection therewith, in addition to any other reliefto which that
d.
party may be entitled.
This Court will retain jurisdiction to enforce the provisions of this Stipulation
for Judgment, Permanent Iqiunctions, and the OPA pursuant to Code of Civil
Procedure Section 664.6.
10.
The Defendants acknowledge that Agency shall have fee simple interest and title in the
Property.
II.
The parties further stipulate that Defendants waive any and all defenses they may have
-4-
STIPULATION FOR ENTRY OF JUDGMENT
CDC/2007-5
I with respect to the Resolution of Necessity, to the underlying findings that formed the
2 basis for the Resolution of Necessity, to the jurisdiction, power and authority of the
3 Authority to proceed with this Stipulation for Judgment and Complaint, to the authority
4 of the Agency to enter into an agreement with respect to the Property and to any
5 alleged procedural and substantive defects in the Complaint for eminent domain.
7 Dated:
6 IT IS SO STIPULATED:
LEWIS BRISBOIS BISGAARD & SMITH LLP
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4835.899(}-7457.1
8
,2007
By
Attorneys for Plaintiff San Bernardino City Housing
Authority
'---' 2007
By
Attorneys for Defendant ALTON C. GREEN
,2007
By
Attorneys for Defendant ALTON C. GREEN
-5-
STIPULATION FOR ENTRY OF JUDGMENT
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[PROPOSED] ORDER
2 In accordance with the Stipulation for Entry of Judgment and for good cause shown, judgment is
3 entered against Defendant Owens and against Defendant Green and all persons claiming an interest
4 in the Property.
5 In accordance with the Stipulation for Entry of Judgment and for good cause shown, the Agency
6 shall have fee simple interest and title in certain real property located at 100 North Allen Street, San
7 Bernardino, California, Assessor Parcel Number 0135-292-51, 114 North Allen Street, San
8 Bernardino, California, Assessor Parcel Number 0135-292-50, and 122 North Allen Street, San
9 Bernardino, California, Assessor Parcel Number 0135-292-49.
lOin accordance with the Stipulation for Entry of Judgment and for good cause shown, a permanent
I I injunction is issued against Defendant Owens and against Defendant Green and their spouses, agents,
12 representatives, executors, administrators, personal representatives, trustees, devises, heirs, successors,
13 assigns, employees, servants, principals, co-venturers, subsidiaries and affiliates, and all those acting
14 under Defendant Owens and/or under Defendant Green's control, or on Defendant Owens' and/or on
15 Defendant Green's behalf, or in concert or participation with Defendant Owens and/or with Defendant
16 Green, and all persons who claim an interest in the Property that they are permanently enjoined, for
17 all future time without limitation, in relation to the lawsuit entitled SAN BERNARDINO CITY
18 HOUSING AUTHORITY v. KENNETH L. OWENS, AN INDIVIDUAL; ALTON C. GREEN, AN
19 INDIVIDUAL; DOES 1 THROUGH 100; AND ALL PERSONS CLAIMING ANY RIGHT, TITLE
20 OR INTEREST IN OR TO THE REAL PROPERTY TO BE CONDEMNED IN THIS ACTION. In
21 accordance with the Stipulation for Entry of Judgment, the Defendants will:
22 a. Immediately execute, and cause to have acknowledged, one (1) or more grant deeds which
23 grant deed or grant deeds shall grant, transfer and convey fee simple interest and title in
24 the Property from the Defendants to the Agency.
25 b. Not destroy or damage the Property and/or any improvements located thereon, or destroy,
26 damage and/or remove fixtures or personal property from the Property or from any
27 improvements located at the Property.
28 c. The Authority is entitled to recover reasonable attorneys' fees, as well as costs and
4835.8990.7457.1
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STIPULATION FOR ENTRY OF JUDGMENT
CDC/2007-5
I expenses actually incurred in connection therewith, in addition to any other reliefto which
2 that party may be entitled.
3 d. This Court retains jurisdiction to enforce the provisions ofthis Stipulation for Judgment,
4 and Permanent Injunction, and the OP A.
5 IT IS FURTHER ORDERED:
6
7
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CDC/2007-5
EXHIBIT "F"
RECORDING REQUESTED BY,
AND WHEN RECORDED MAlL TO:
)
)
)
Redevelopment Agency )
of the City of San Bernardino )
Attn.: Maggie Pacheco, Executive Director )
201 North "E" Street, Suite 301 )
San Bernardino, CA 92401 )
Space above line reserved for use by Recorder
Recording Fee Exempt Pursuant to Government Code Section 6103
MEMORANDUM OF OPA
THIS MEMORANDUM OF OP A (the "Memorandum") is dated as of February 20,2007, by
the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic (the "Agency"), and Kenneth L. Owens, an unmarried man, and Alton C.
Green, a married man (collectively, the "Property Owners").
1. Covenant to Construct Three (3) Sinele-Familv Residences on the Property.
Upon the terms, covenants and conditions set forth in that certain 2007 Property Owner Participation
Agreement (the "OP A") by and between the Agency and the Property Owners, the Property Owners
agree to construct and develop the Project (as that term is defined in the OPA) 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 anyway modify or otherwise affect any of the terms;
covenants, conditions, provisions, agreements, representations andlor warranties (collectively, the .
"Covenants") made in the OP A. 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 ofthe OP A 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 (1) and the same
instrument, document andlor agreement.
4. Covenants Runnine 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 andlor heirs, and all successors
4815-7926-2977.\
02.05.07 29
P:\Agendas\Agenda Attachmmts\Agrmts-Amcnd 2007'02-20-07 GI'cen and Owens Final OP A.doc
CDC12007-5
in interest to the Property Owners until twelve (12) months after the Effective Date February 20,
2008, as defined in the OPA.
IN WITNESS WHEREOF, the undersigned have executed this Memorandum of OP A as of
the day and year fIrst written above.
AGENCY
Date: !)... - -a. 7-() 7
Redevelopment Agency of the City of San
~..,
Maggie Pac eco, Executive Drrector
Approved as to Form and Legal Content:
v~
Agency Counsel
Date:.:t- ..J.-cJ rt:J7
~ERTY OWNERS
~.-?:~/ ~-
1iIi:k
Date: 1-1.1) / ZJ1
Alton C. Green
(ALL SIGNATURES TO BE ACKNOWLEDGED)
4817-0574-5921.2
02-05-07 30
P:\AgendIs\Agenda A~Amcnd200'7'D2.20-07 Green and Owens AnalOPAdoc
CALIFORNIA ALL.PURPOSE ACKNOWLEDGMENT
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4e::w-- A -€-tA ,<7./1 h A .ei
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On J/C#CI / 0 7 before me, f Se.. r ~ crtt:<..r. ~u.1:J..I~C:..-
Date Name and Title of leer (e.g., "Jane Doe, NotarY. ublic")
personally appeared /-<"/J/le--iA..- L - 4Vt)IVr~ a"d A-f.h,^- [1'.0,1"("'1"-
-r Name(s) 01 Signer(s)
o personally known to me - OR -l,i4>roved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) ~subscribed to the within instrument
and acknowledged to me that ~executed the
same in bi&.'Ae~uthorized capacity(ies), and that by
Risthe~ignature(s) on the instrument the person(s),
or the entity upon behalf of which the person(s) acted,
executed the instrument.
State of
County of
- ~ ~ - - ~.- - ~ (
T. SELTER ~
COMM. # 1632638 n
NOTARY PUBlIC. CALIFORNIA "0'
SAN BERNAROINO COUNTY
COMM. EXPIRES JAN. 20. 2010 ..
WITNESS my hand and official seal.
~.JlrpA../
ig alure of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
fraudulent removal and reattachment of this form to another document,
Description of Attached Document
Title or Type of Document# r~ A1J/tP/ A~efl1~;^-' A7~
Document Date: d- /d)-p / c7J Number of Pages: 4.-b
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name:
Signer's Name:
o Individual
o Corporate Officer
Title(s):
o Partner - 0 Limited 0 General
o Attorney-in-Fact
o Trustee
o Guardian or Conservator
o Other: Top of thumb here
RIGHT THUf.1BPRINT
OF SIGhlER
o Individual
o Corporate Officer
Title(s):
o Partner - 0 Limited 0 General
o Attorney-in-Fact
o Trustee
o Guardian or Conservator
o Other: Top of thumb here
RIGHT THur lBPRINT
OF SIGNER
Signer Is Representing:
Signer Is Representing:
~ 1994 National Notary Association. 8236 Remmel Ave., P.O, Box 7184. Canoga Park, CA 91309-7184
Prod. No. 5907
Reorder: Call Toll-Free 1-800-876-6827
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
r
County of San Bernardino
ss.
On February 27, 2007, before me, Wasana Chantha, Notary Public, personally appeared
Maggie Pacheco.
l@- - :~:~~~2- J
i.; NotCll'( PublIc - CaIIIomIa f
j ~n~~ooC~ i
... ... ... ~:o:"'~~O:l~~
Place Notary Seal />bove
~ personally known to me
o proved to me on the basis of satisfactory
evidence
to be the person whose name is subscribed to
the within instrument and acknowledged to
me that she executed the same in her
authorized capacity, and that by her signature
on the instrur;nent e person, or the entity
upon behal of h' h the person acted,
executed th Instru nt.
WITNESS my ha
, fficial seal.
Though the Information below Is not required by law. It may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: Memorandum of OPA (Green and Owens)
Document Date: February 20, 2007
Signer(s) Other Than Names Above: None.
Capacity(ies) Claimed by Signer
Signer's Name: Maggie Pacheco
o Individual
o Corporation Officer - Tltle(s):
o Partner - 0 Limited 0 General
o Attorney in Fact
o Trustee
o Guardian or Conservator
~ Other: Executive Director
Number of Pages: 3
Top of thumb here
Signer is Representing: Redevelopment Agency of the
City of San Bernardino
1.
CDC/2007-5
.
EXHIBIT "A"
Legal Description of the Property
All that certain real property situated in the County of San Bernardino, State of California, described
as follows:
PARCEL A:
Lot 14, Block "A" of the Daley Tract, in the City of San Bernardino, County of San Bernardino,
State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office of the County
Recorder of San Bernardino County.
PARCELB:
Lot IS, Block "A" of the Daley Tract, in the City of San Bernardino, County of San Bernardino,
State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office of the County
Recorder of San Bernardino County.
PARCEL C:
Lot 22, 23, and 24, Block "A" of the Daley Tract, in the City of San Bernardino, County of San
Bernardino, State of California, as per map recorded in Book 6, page(s) 34, of Maps, in the office of
the County Recorder of San Bernardino County.
4815-7926-2977.1
02-05-07 31
P:\A,mdas\Aa;enda Attachmcms\Agmu-Ammd 2007\02-20..07 Green and Owens Final OPAdoc