Loading...
HomeMy WebLinkAboutBen Trainer/Aloha Grill - 2006-07-171 _ R C 2006 JUL -6 Ali 8: 26 zq,,. IV c Council/Agency Meeting Held: His;' i ING TC Deferred/Continued to: IAI � proved ❑ Conditional) Approved ❑ Denied a Cit a ign re Council Meeting Date: 7/17/2006 Department ID Number: ED-06-13 CITY OF HUNTINGTON BEACH REQUEST FOR REDEVELOPMENT AGENCY ACTION SUBMITTED TO: AGENCY6C�.H�AIRMAN AND NCY MEMBERS SUBMITTED BY: P ELOPE CULBRETH-GRA T, DPA, EXECUTIVE DIRECTOR PREPARED BY: STANLEY SMALEWITZ, DEPUTY EXECUTIVE DIRECTOR a�` SUBJECT: Approve the First Amendment to the Commercial Rehabilitation Program OPA between the Redevelopment Agency of the City of Huntington Beach and Ben Trainer (221 Main Street) Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s) Statement of Issue: The Commercial Rehabilitation Program Owner Participation Agreement (OPA) between the Redevelopment Agency and Ben Trainer, dated May 7, 1990, was part of the successful program for the "Demonstration Block" that maintained many of the facades of existing buildings or allowed for new construction. The First Amendment to the OPA (Attachment 1) will allow for the Participant to enter into a Parking In -Lieu Fee Agreement (Attachment 1, Exhibit C) for a restaurant expansion project and the Agreement to Terminate the OPA (Attachment 1, Exhibit D). Funding Source: Unappropriated Redevelopment Agency Capital Projects Fund Balance. Recommended Action: Motion to: 1. Approve First Amendment to the Commercial Rehabilitation Program Owner Participation Agreement between the Redevelopment Agency of the City of Huntington Beach and Ben Trainer (Attachment 1) and authorize the Chairman and Agency Secretary to execute the agreement and attachments. 2. Appropriate $16,000 from the Unappropriated Redevelopment Agency Capital Projects fund balance to business unit 30580101 and approve the expenditure of $16,000 to the In -Lieu Parking Fund. Alternative Action(s): Do not approve the Agreements. E - - '-f V� " 'rh,CH IfREQUEST OR REDEVELOPMENT AGENCY ACTION MEETING DATE: 7/17/2006 DEPARTMENT ID NUMBER: ED-06-13 Analysis: The Owner Participation Agreement (OPA) between the Redevelopment Agency and Ben Trainer, dated May 7, 1990, was part of the successful Commercial Rehabilitation Program for the "Demonstration Block" that maintained many of the facades of existing buildings or allowed for new construction. Through the program, the Agency provided a $93,750 grant for new construction of a commercial building located at the corner of Main and Olive in downtown Huntington Beach at 221 Main Street (APN 024-147-39). The OPA allowed the participant to pay an in -lieu parking fee of $6,000 per space that was a 50% reduction of the $12,000 in -lieu parking fee established at that time. The recent expansion of the Aloha Grill Restaurant located at 221 Main Street provided for the conversion of 350 square feet of office space to restaurant use. As required through Conditional Use Permit #05-30, this additional square footage required an additional four parking spaces. Under the existing OPA, the participant's in -lieu fees for the four spaces would total $24,000; thereby, cost prohibitive for an expansion of 350 square feet. To assist this business with the expansion project, the Department of Economic Development recommends the approval of the First Amendment to the OPA (Attachment 1) that allows for the approval of the In -Lieu Parking Agreement (Attachment 1, Exhibit C) and the Agreement Terminating the OPA (Attachment 1, Exhibit D). Through the In -Lieu Parking Fee Agreement the terms of the payment program are established as the participant paying $2,000 per space, totaling $8,000 for four parking spaces payable over a five-year period at no interest, and the Agency paying the $4,000 gap for a total allocation of $16,000 to the In -Lieu Parking Fund. The Redevelopment Agency shall pay the $16,000 as one lump -sum through the approval of this action. Lastly, the Agreement Terminating the Owner Participation Agreement formally terminates the OPA. A Fiscal Impact Statement (Attachment 2) is prepared showing that if this action is approved, the fund balance of the Redevelopment Agency Capital Project Fund as of September 30, 2006 will be reduced to $16,304,000. Environmental Status: Not applicable. Attachment(s): List attachment(s) below. G:\Carol\Administration\RCA\ED06-13.doc -2- 6/23/2006 3:44 PM ATTACHMENT #1 OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Redevelopment Agency of the City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attn: Agency Secretary Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder 1111111111111111111111111111111111111111illillllll11111111i1llllll111111111 NO FEE 200600052330912fpm 08104106 212 50 Al2 11 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Space Above This Line For Recorder's Use FIRST AMENDMENT TO COMMERCIAL REHABILITATION PROGRAM OWNER PARTICIPATION AGREEMENT This First Amendment to Commercial Rehabilitation Program Owner Participation Agreement ("First Amendment") is entered into as of July 17 , 2006 by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), and BEN TRAINER ("Participant"). RECITALS A. Participant is the owner of certain real property located in the City of Huntington Beach, California, more commonly known as 221-227 Main Street ("Property"). The Property is shown and legally described on the attached Exhibits A and B, respectively, which exhibits are incorporated herein by reference. B. The Agency and Participant entered into that certain Commercial Rehabilitation Program Owner Participation Agreement dated May 7, 1990 pertaining to the Property ("OPA"). The OPA is hereby incorporated by reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the OPA. C. Participant has leased a portion of the Property located at 221 Main Street, Huntington Beach, California ("Leased Premises"). The Leased Premises are currently being used as an Aloha Grill restaurant. The tenant of the Leased Premises is intending to expand the restaurant dining room area ("Expansion"). As a condition of approval of Conditional Use Permit (2 S - 3() [DESCRIBE CUP] ("CUP"), the City of Huntington Beach DADocuments and Settings\vonHolIOLocal Settings\Temporary Internet Fi1es\0LK559\0PA Arndt (3-20-06).doc ("City") will require the tenant to provide four (4) on -site parking spaces or pay an in -lieu parking fee in order to permit the Expansion. D. Section 10 of the OPA, which pertains to parking requirements for the Property (including the Leased Premises), provides that any additional square footage created through rehabilitation or new construction must meet then -current City code parking requirements or pay an in -lieu parking fee. The in -lieu parking fee was established in Section 10 of the OPA. E. Agency and Participant intend through this First Amendment to provide for the payment of the in -lieu parking fee necessitated by the proposed Expansion of the Aloha Grill restaurant and to thereafter to terminate the OPA. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: TERMS Representation Regarding Property Ownership. Participant represents and warrants to the Agency, which representation and warranty Participant acknowledges and agrees the Agency is materially relying upon in entering into this First Amendment, that Participant is the owner of the Property. Payment of In -Lieu Parking Fee. a. Pursuant to Section 10 of the OPA, Agency and Participant agree that the in -lieu parking fee created by the Expansion is $24,000 ("In -Lieu Payment"). The In - Lieu Payment is calculated by multiplying the $6,000 per parking space fee set forth in Section 10 of the OPA by the four (4) on -site parking spaces required by the CUP to permit the Expansion. b. The parties agree that notwithstanding the last sentence of Section 10 of the OPA, the In -Lieu Payment shall be paid pursuant to an In -Lieu Parking Fee Agreement, substantially in the form attached hereto as Exhibit C and incorporated herein by reference. Agency and Participant agree to execute the In -Lieu Parking Fee Agreement within thirty (30) days following the Agency's approval of this First Amendment. The In -Lieu Parking Fee Agreement shall provide for a portion of the In -Lieu Payment to be paid by the Participant and a portion to be paid by the Agency. The In -Lieu Parking Fee Agreement shall also provide that the Participant's portion of the In -Lieu Payment shall be amortized over a five (5) year period at a zero percent (0%) interest rate. The In -Lieu Parking Fee Agreement shall be recorded against the Property. DADocuments and Settings\VonHo11C\Loca1 SettingMemporary Internet Fi1es\0LK559\0PA Amdt (3-20-06).doc 2 r 3. Termination of OPA. a. The purpose of the OPA to provide for the commercial rehabilitation of the Project Site (including the Property) has been fulfilled. Accordingly, the parties now desire to terminate the OPA in its entirety. b. Concurrently with the parties' execution of the In -Lieu Parking Fee Agreement, Agency and Participant agree to execute the Agreement Terminating Owner Participation Agreement, substantially in the form attached hereto as Exhibit D. Exhibit D is incorporated herein by reference. The Agreement Terminating Owner Participation Agreement shall provide for the immediate termination of the OPA and shall be recorded against the Property. It is the parties intent that the Agreement Terminating Owner Participation Agreement shall not be effective unless and until the In -Lieu Parking Fee Agreement is first effective and first recorded against the Property. 4. Integration. This First Amendment constitutes the entire understanding and agreement between the Agency and Participant with respect to the matters herein discussed. It supersedes, cancels and controls over any and all other prior agreements, understandings, or communications between them. 5. Interpretation of First Amendment. This First Amendment has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters addressed in this First Amendment. In addition, each party has been given the opportunity to consult with experienced and knowledgeable legal counsel. Accordingly, any rule of law (including Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this First Amendment against the party that has drafted it is not applicable and is waived. The provisions of this First Amendment shall be interpreted in a reasonable manner to effect the purpose and intent of the parties to this First Amendment. 6. Time of the Essence. Time is of the essence of this First Amendment. 7. No Third Party Beneficiaries. The parties to this First Amendment acknowledge and agree that the provisions of this First Amendment are for the sole benefit of Agency and Participant, and not for the benefit, directly or indirectly, of any other person or entity. 8. Authority to Sign. The individual executing this First Amendment on behalf of Participant hereby represents that he has full authority to do so and to bind Participant to perform pursuant to the terms and conditions of this First Amendment. 9. Attorneys Fees. If any action or proceeding is brought by either party against the other under this First Amendment, whether for interpretation, enforcement or otherwise, the prevailing party shall be entitled to recover all costs and expenses, including the fees of its attorney and any expert witnesses in such action or proceeding. This provision shall D 1Documents and Settings\VonHo11C\Loca1 Settings\Temporary Internet Fi1es\0LK559\0PA Arndt (3-20-06).doc 3 also apply to any postjudgment action by either party, including, without limitation, efforts to enforce a judgment. 10. Governing Law, This First Amendment shall be interpreted, governed and enforced in accordance with California statutory and case law, without regard to conflict of laws principles. 11. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this First Amendment. 12. Binding on Successors. This First Amendment shall be binding upon and shall inure to the benefit of the Agency and Participant and their respective successors and assigns and to the successors and assigns of the Property or any portion thereof. IN WITNESS WHEREOF, the Agency and Participant have signed this First Amendment as of the date set forth above. Ben Trainer [remainder of page left intentionally blank] [signatures continue on following page] DADocuments and Settings\vonHollC\Local Settings\Temporary Internet Fi1es\0LK559\0PA Arndt (3-20-06).doc 11 E STATE OF CALIFORNIA COUNTY OF If 5-M before ss. me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA ) �q )ss. COUNTY OF On N/.Yw Levb before me, kJ4,,a, _ -, (7-/Pc . hvj7%-.-r,o A` fcr, personally appeared 0'� A . ��k--AI t,,,,, ' , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/ er/their authorized capacity(ies), and that by ,3islher/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS in a d and official seal. Signature \ J ATTEST: Ff' Agency Secretary REVIEWED AND APPROVED AS TO FORM: Agency General Counsel Kane, Ballmer & Berkman Agency Special ounsel K:\CG\HB\Aloha Grill\OPA Amdt (3-20-06).doc Agency REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Chairman 5 EXHIBIT A MAP OF PROPERTY [behind this page] Exhibit A li X 9 • 1• EXHIBIT B LEGAL DESCRIPTION OF PROPERTY [behind this page] Exhibit B Legal Description Lots 21, 23, 25, & 27 in block 204 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorded of said county. • 10 STATE OF CALIFORNIA ) ss. COUNTY OF 0 Cn ) On�QD before me, personally appeared �_ ��I�lUGr1 personally known to me (i- to be the person(sl whose nameN) is/are subscribed to the within instrument and acknowledged to me thane/she/they executed the same in his/her/their authorized capacity(tefi), and that by..his/her/their signature(-) on the instrument the person(, or the entity upon behalf of which the personW acted, executed the instrument. WITNESS my hand and official seal. Signature ,PJ'-QdROBIN ROBER-TS Comm. 8 t5S2700 ` (� NOTARYMC•CALIFORMIA UI 0n* 1� STATE OF CALIFORNIA ) ss. COUNTY OF Ol g099= ) On before me, Pobn Rost personally appear - personally known to me (iw-, Me e) to be the person(.) whose names)-is/are subscribed to the within instrument and acknowledged to me that tw/she/they executed the same in his/her/their authorized capacity(ie4 and that by+is/her/tiiek signatures) on the instrument the personK or the entity upon behalf of which the personN acted, executed the instrument. WIT SS my h d a d official seal. Signature ROBIN ROBERTS N Comm.11552700 NOTARY PUlUC•CALIFORmA N AI Y CrMnm. Feb. t1,2oo9� EXHIBIT C FORM OF IN -LIEU PARKING FEE AGREEMENT [behind this page] 9 0 1 OFFICIAL BUSINESS Recorded in Official Records, Orange County Document entitled to free Tom Daly, Clerk -Recorder recording per Government Code 111111111111111111111111111111111111111111111111111111111111111111111111111 NO FE E Sections 6103 and 27383 200600052331012:17pm 08/04/06 RECORDING REQUESTED BY 212 50 Al2 14 AND WHEN RECORDED MAIL TO: 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Redevelopment Agency of the City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attn: Agency Secretary Space Above This Line For Recorder's Use IN -LIEU PARKING FEE AGREEMENT This In -Lieu Parking Fee Agreement ("Agreement') is entered into as of July 17 2006 by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), and BEN TRAINER ("Participant'). RECITALS A. Participant is the owner of certain real property located in the City of Huntington Beach, California, more commonly known as 221-227 Main Street ("Property"). The Property is shown and legally described on the attached Exhibits A and B, respectively, which exhibits are incorporated herein by reference. B. The Agency and Participant entered into that certain Commercial Rehabilitation Program Owner Participation Agreement dated May 7, 1990, as amended by that certain First Amendment to Commercial Rehabilitation Program Owner Participation Agreement dated July 17 , 2006, pertaining to the Property (collectively, the "OPA"). The OPA is hereby incorporated by reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the OPA. C. Participant has leased a portion of the Property located at 221 Main Street, Huntington Beach, California ("Leased Premises"). The Leased Premises are currently being used as an Aloha Grill restaurant. The tenant of the Leased Premises is intending to expand the restaurant dining room area ("Expansion"). As a condition of approval of Conditional Use Permit 06; 36) [DESCRIBE CUP] ("CUP"), the City of Huntington Beach ("City") will require the tenant to provide four (4) on -Property parking spaces or pay an in -lieu parking fee in order to permit the Expansion. DADocuments and Settings\vonHo11C\Loca1 Settings\Temporary Internet Files\OLK559\Parking Agmt (3-20-06).doc D. Section 10 of the OPA, which pertains to parking requirements for the Property (including the Leased Premises), provides that any additional square footage created through rehabilitation or new construction must meet then -current City code parking requirements or pay an in -lieu parking fee. The in -lieu parking fee was established in Section 10 of the OPA. E. The OPA, as amended by the First Amendment, provides for the payment of the in -lieu parking fee necessitated by the proposed Expansion of the Aloha Grill restaurant. F. The parties intend through this Agreement to implement the provisions of the OPA providing for such in -lieu parking fee payment and to agree to such other terms and conditions as are mutually desirable to the parties. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: TERMS 1. Amount of In -Lieu Payment. Pursuant to Section 10 of the OPA, Agency and Participant agree that the in -lieu parking fee created by the Expansion is $24,000 ("In -Lieu Payment"). The In -Lieu Payment is calculated by multiplying the $6,000 per parking space fee set forth in Section 10 of the OPA by the four (4) on -site parking spaces required by the CUP to permit the Expansion. 2. Payment of In -Lieu Payment. a. (1) In lieu of providing four (4) on -site parking spaces on the Property, Participant hereby covenants and agrees on behalf of itself and any successors and assigns in the Property or any portion thereof or any improvements thereon or any interest therein that Participant and such successors and assigns shall pay to the City a fee equal to Two Thousand Dollars ($2,000.00) per parking space, for a total of Eight Thousand Dollars ($8,000.00) ("Participant's In -Lieu Payment"). (2) Notwithstanding the last sentence of Section 10 of the OPA, Participant hereby covenants and agrees on behalf of itself and any successors and assigns in the Property or any portion thereof or any improvements thereon or any interest therein that Participant and such successors and assigns shall pay Participant's In -Lieu Payment over a five (5) year period at a zero percent (0%) interest rate in equal annual installments of One Thousand Six Hundred Dollars ($1,600.00). The first annual installment of One Thousand Six Hundred Dollars ($1,600.00) shall be made to the City Treasurer and shall be due on ZYI&4 1 �[i .2006. Each subsequent annual installment of Onsand Six Hundred Dollars ($1,600.00) shall be made to the City Treasurer annually on the anniversary date of the first payment. Payment must be received no later DADocuments and Settings\VonHOUC\Local Settings\Temporary Internet Files\OLK559\Parking Agmt (3-20-06).doc 2 than thirty (30) days after the due date. Failure to pay in a timely manner may result in revocation of the CUP, foreclosure upon the lien herein described or other penalties or interests. (3) Participant may prepay the Participant's In -Lieu Payment, in whole or in part, at any time and from time to time without penalty. b. (1) Agency hereby covenants and agrees to pay to the City a fee equal to Four Thousand Dollars ($4,000.00) per parking space, for a total of Sixteen Thousand Dollars ($16,000.00) ("Agency's In -Lieu Payment"). (2) Notwithstanding the last sentence of Section 10 of the OPA, Agency hereby covenants and agrees to pay Agency's In -Lieu Payment over a five (5) year period at a zero percent (0%) interest rate in equal annual installments of Three Thousand Two Hundred Dollars ($3,200.00). The first annual installment of Three Thousand Two Hundred Dollars ($3,200.00) shall be made to the City Treasurer and shall be due on A U 4 u, s f , 1 , 2006. Each subsequent annual installment of Three'417housand Two Hundred Dollars ($3,200.00) shall be made to the City Treasurer annually on the anniversary date of the first payment. Payment must be received no later than thirty (30) days after the due date. (3) The Agency may prepay the Agency's In -Lieu Payment, in whole or in part, at any time and from time to time without penalty. (4) The Agency's obligation to pay the Agency's In -Lieu Payment shall constitute an indebtedness of the Agency for the purpose of carrying out the Redevelopment Plan (defined below in Section 3.e.). The indebtedness of the Agency created by this Agreement is and shall be subordinate to the Agency's existing bonded indebtedness and bond issuance(s) and the refunding or refinancing thereof and any future bonds the Agency may issue and the bonded indebtedness incurred in connection therewith. Bonded indebtedness includes any indebtedness incurred by the Agency for bonds, notes, interim certificates, debentures, certificates of participation or other obligations issued by the Agency. The Agency's obligation to pay the Agency's In -Lieu Payment under this Agreement is not and shall not be construed as a "pledge" of property tax revenues for purposes of Section 33671.5 of the Community Redevelopment Law. 3. Maintenance. Participant hereby covenants and agrees on behalf of itself and any successors and assigns in the Property or any portion thereof or any improvements thereon or any interest therein that Participant and such successors and assigns shall maintain, repair and operate the Property and all improvements constructed or to be constructed thereon (including landscaping, lighting and signage) in a first quality condition, free of debris, waste and graffiti, and in compliance with the terms of the Redevelopment Plan, the City of Huntington Beach Municipal Code, and the following: DADocuments and Settings\VonHo11C\Loca1 Settings\Temporary Intemet Files\OLK559Tarking Agmt (3-20-06).doc 3 a. The Property and all improvements on the Property shall be maintained, repaired and operated in good condition in accordance with the custom and practice generally applicable to comparable first quality developments in Orange County, and in conformance and compliance with all plans, drawings and related documents approved by the City for the Property, and all conditions of approval of land use entitlements adopted by the City or the Planning Commission in connection with the Property, including painting and cleaning of all exterior surfaces of all private improvements and public improvements to the curbline. b. Landscape maintenance shall include, without limitation, watering/irrigation; fertilization; mowing; edging; trimming of grass; tree and shrub pruning, trimming and shaping of trees and shrubs to maintain a natural and healthy appearance, road visibility, and irrigation coverage; replacement, as needed, of all plant materials; control of weeds in all planters, shrubs, lawns, ground covers, or other planted areas; and staking for support of trees. C. Clean-up maintenance shall include, without limitation, maintenance of all sidewalks, paths and other paved areas in a clean and weed -free condition; maintenance of all such areas clear of dirt, mud, trash, debris or other matter which is unsafe or unsightly; removal of all trash, litter and other debris from improvements and landscaping; clearance and cleaning of all areas maintained prior to the end of each day on which maintenance operations are performed to ensure that all cuttings, weeds, leaves and other debris are properly disposed of by maintenance workers. d. If the Agency or City gives written notice to Participant that the maintenance or condition of the Property or any portion thereof or any improvements thereon does not comply with this Agreement and such notice describes the deficiencies, Participant shall correct, remedy or cure the deficiency within thirty (30) days following the submission of such notice, unless the notice states that the deficiency is an urgent matter relating to public health and safety in which case Participant shall cure the deficiency with all due diligence and shall complete the cure at the earliest possible time. In the event Participant fails to maintain, repair or operate the Property or. any portion thereof or any improvements thereon in accordance with this Agreement and fails to cure any deficiencies within the applicable period described above, the Agency and/or the City shall have, in addition to any other rights and remedies available at law or in equity either hereunder or elsewhere, the right to maintain, repair or operate the Property and the improvements thereon, or portion thereof, or to contract for the correction of any deficiencies, and Participant shall be responsible for payment of all such costs incurred by the Agency and/or City. e. "Redevelopment Plan" as used herein shall mean the redevelopment plan for the Main -Pier Redevelopment Project, which was approved and adopted by Ordinance No. 2578 of the City Council of the City of Huntington Beach, DADocuments and Settings\VonHo11C\Loca1 Settings\Temporary Internet Files\OLK559\Parking Agunt (3-20-06).doc 2 n amended by Ordinance No. 2634, and merged with certain other redevelopment projects in the City by the adoption of Ordinance No. 3343 on December 16, 1996 to form the Huntington Beach Redevelopment Project, as amended from time to time. 4. Indemnification. Participant hereby agrees that Participant shall have the obligation to provide any and all disclosures, representations, statements, rebidding, and/or identifications which may be required by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law. Participant hereby agrees that Participant shall have the obligation to provide and maintain any and all bonds to secure the payment of contractors (including the payment of wages to workers performing any public work) which may be required by the Civil Code, Labor Code Section 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law. Participant shall indemnify, protect, defend and hold harmless the Agency, City and their respective officers, employees, contractors and agents, with counsel reasonably acceptable to Agency and City, from and against any and all loss, liability, damage, claim, cost, expense, and/or "increased costs" (including labor costs, penalties, reasonable attorneys fees, court and litigation costs, and fees of expert witnesses) which, in connection with the development, construction (as defined by applicable law) and/or operation of the Expansion, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (a) the noncompliance by Participant of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay state prevailing wages); (b) the implementation of Chapter 804, Statutes of 2003; ( c) the implementation of Sections 1726 and 1781 of the Labor Code, as the same may be enacted, adopted or amended from time to time, or any other similar law; (d) failure by Participant to provide any required disclosure representation, statement, rebidding and/or identification which may be required by Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, or any other provision of law; and/or (e) failure by Participant to provide and maintain any and all bonds to secure the payment of contractors (including the payment of wages to workers performing any public work) which may be required by the Civil Code, Labor Code Section 1781, as the. same may be enacted, adopted or amended from time to time, or any other provision of law. Participant hereby expressly acknowledges and agrees that neither City nor Agency has ever previously affirmatively represented to the Participant or its contractor(s) for the Expansion in writing or otherwise, that the work to be covered by the bid or contract is not a "public work," as defined in Section 1720 of the Labor Code. It is agreed by the parties that, in connection with the development, construction (as defined by applicable law) and operation of the Expansion, including, without limitation, any public work (as defined by applicable law), if any, Participant shall bear all risks of payment or non- payment of state prevailing wages and/or the implementation of Chapter 804, Statutes of 2003 and/or Labor Code Sections 1726 and 1781, as the same may be enacted, adopted or amended from time to time, and/or any other provision of law. "Increased costs" as used in this Section shall have the meaning ascribed to it in Labor Code Section 1781, as the D:\Documents and Settings\vonHo11C\Loca1 SettingsUemporary Internet Files\OLK559Tarking Agmt (3-20-06).doc 5 same may be enacted, adopted or amended from time to time. The foregoing indemnity shall survive any termination of this Agreement. 5. Running With the Land. It is the intent of the parties that each and all of the covenants, conditions, and restrictions set forth in this Agreement are for the benefit of the Agency and the City. Each and all of the covenants, conditions, and restrictions set forth in this Agreement shall run with the land, and shall bind the respective successors -in -interest to the Property and each portion thereof, for the benefit of the Agency and the City. Each and all of the covenants, conditions, and restrictions set forth in this Agreement are imposed on the Property and each portion thereof as mutual equitable servitudes in favor of the Agency and the City, and constitute covenants running with the land pursuant to applicable law, including, without limitation, Section 1468 of the California Civil Code. 6. Recordation. This Agreement shall be recorded against the Property. Rights and Remedies Are Cumulative. The rights and remedies of the parties and the City are cumulative, and the exercise by either party or the City of one 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 any party. 8. No Cancellation. No breach of any provision of this Agreement shall entitle Participant to cancel, rescind, or otherwise terminate this Agreement or the obligations created thereby. 9. Security. As security for the performance of the obligations of Participant as stated herein, Participant stipulates that this Agreement shall constitute a lien on and against the Property under California Civil Code Section 2881, in the amount of Eight Thousand Dollars ($8,000.00), and shall have priority over any and all junior liens. Said lien shall be by Participant to the Agency and the City. 10. Integration. This Agreement constitutes the entire understanding and agreement between the Agency and Participant with respect to the matters herein discussed. It supersedes, cancels and controls over any and all other prior agreements, understandings, or communications between them. 11. Interpretation of Agreement. This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters addressed in this Agreement. In addition, each party has been given the opportunity to consult with experienced and knowledgeable legal counsel. Accordingly, any rule of law (including Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purpose and intent of the parties to this Agreement. 12. Time of the Essence. Time is of the essence of this Agreement. DADocuments and Settings\VonHollC\Local SettingsUemporary Internet Files\OLK559\Parking Agmt (3-20-06).doc 71 13. Authority to Sign, The individual executing this Agreement on behalf of Participant hereby represents that he has full authority to do so and to bind Participant to perform pursuant to the terms and conditions of this Agreement. 14. Attorneys Fees. If any action or proceeding is brought by either party against the other under this Agreement, whether for interpretation, enforcement or otherwise, the prevailing party shall be entitled to recover all costs and expenses, including the fees of its attorney and any expert witnesses in such action or proceeding. This provision shall also apply to any postjudgment action by either party, including, without limitation, efforts to enforce a judgment. 15. Governing Law. This Agreement shall be interpreted, governed and enforced in accordance with California statutory and case law, without regard to conflict of laws principles. 16. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Agreement. 17. Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the City, Agency and Participant and their respective successors and assigns and to the successors and assigns of the Property or any portion thereof. 18. Partial Invalidity. Should any provision of this Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of the Agreement shall remain in full force and effect unimpaired by the holding. 19. Deeds. Each and every deed conveying Participant's fee interest in the Property or any portion of the Property to a grantee shall specifically reference this Agreement and its date of recordation and shall specifically recite that the grantee takes its fee contained herein, which shall be covenants running with such grantee's interests for the benefit or burden of such grantee's interest. 20. Amendments. This Agreement may only be amended, modified, and/or supplemented by the written agreement of the Participant, Agency and City. IN WITNESS WHEREOF, Agency and Participant has executed this Agreement as of the date first written herein above. 4 lefo Ben Trainer WDocuments and Settings\vontiolIOLocal Settings\Temporary Internet Files\OLK559Tarldng Agmt (3-20-06).doc 7 • CJ STATE OF CALIFORNIA COUNTY OF Con before ss. me, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA ) ss. COUNTY OF On M A , before me, /��. �, /�• Yee, A 1414 I-Wt4e personally appeared Ce,r 0, 14rL! c n te- ` , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in ,}his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature 0 E Agency REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Chairman ATTEST: Afy Secretary REVIEWED AND APPROVED AS TO FORM: Agency General Counsel Kane, Ballmer & Berkman Agency Special Ounsel K:\CG\HB\Aloha Grill\OPA Term (3-20-06).doe 5 STATE OF CALIFORNIA ) ss. COUNTY OF 0frA ) On � aO 006 before me, �jbl� R0 5 , personally appeare :_�>CA Wh"cJl , personally known to me (ate to be the person(s)�_ whose name(u) is/we subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in his/htr/their authorized capacity(ies), and that by his/herfkheir signature(s)-on the instrument the person(,, or the entity upon behalf of which the persons) acted, executed the instrument. WI S my hand and official seal. Signature ROBIN ROSERT5 Comm. X 1552700 NOTAItr=WICIt. aJ8LjAC•cAI*M1A �1 COW,20".4 STATE OF CALIFORNIA ) ss. COUNTY OF��C, ) On � I obefore me, personally appeared �-in personally known to me (e+., ac ory ) to be the person(s) whose name(s) is/ate subscribed to the within instrument and acknowledged to me that h executed the same in+is/her/their authorized capacity(ies), and that by his/her/th6r signature* on the instrument the person(,, or the entity upon behalf of which the person(s ; acted, executed the instrument. WITNESS my hand and official seal. Signature w� K, a -A ROBIN ROBERTS Comm. # 1552700 N NOTARY PUBLIC•CALI MIA UI Cam E et 14, ML! • 0 EXHIBIT A MAP OF PROPERTY [behind this page] 0 Exhibit A EXHIBIT B LEGAL DESCRIPTION OF PROPERTY [behind this page] Exhibit B Legal Description Lots 21, 23, 25, & 27 in block 204 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorded of said county. EXHIBIT D FORM OF AGREEMENT TERMINATING OWNER PARTICIPATION AGREEMENT [behind this page] This DocurnentAps electronically recorded by Cert Mail A OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Redevelopment Agency of the City of Huntington Beach 2000 Main Street Huntington Beach, California 92648 Attn: Agency Secretary Recorded in Official Records, Orange County Tom Daly, Clerk -Recorder �91�I�p1IVll����ll� NO FEE 2006000559525 10:46am 08/22/06 227 92 Al2 11 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 Space Above Mis Line For Recorder's Use This dowment Issokty for fM amdaM AGREEMENT TERMINATING bueirteasa o€ a rally of Hunikplon Beech, as cont under OWNER PARTICIPATION AGREEMENT Governownt Code Sec. 8103 &A should b s recorded free of dtsrpe. This Agreement Terminating Owner Participation Agreement ("Agreement") is entered u y into as of /4u 5T D' , 2006 by and between the REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH, a public body, corporate and politic ("Agency"), and BEN TRAINER ("Participant'). RECITALS A. Participant is the owner of certain real property located in the City of Huntington Beach, California, more commonly known as 221-227 Main Street ("Property"). The Property is shown and legally described on the attached Exhibits A and B, respectively, which exhibits are incorporated herein by reference. B. The Agency and Participant entered into that certain Commercial Rehabilitation Program Owner Participation Agreement dated May 7, 1990, as amended by that certain First Amendment to Commercial Rehabilitation Program Owner Participation Agreement dated July 17 , 2006, pertaining to the Property (collectively, the "OPA"). The OPA is hereby incorporated by reference. Reference herein to the OPA shall include any and all attachments thereto. Any capitalized term not defined herein shall have the meaning ascribed to it in the OPA. C. The purpose of the OPA to provide for the commercial rehabilitation of the Project Site (including the Property) has been fulfilled. Accordingly, the parties now desire to terminate the OPA in its entirety. DADocuments and Settings\vonHollC\Local Settings\Temporary Intemet Fi1es\0LK559\0PA Term (3-20-06).doc 0 0 NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: TERMS 1. Termination of OPA. Upon the "Effective Date" of this Agreement, the OPA shall be } terminated, canceled and voided in its entirety. All covenants, terms and conditions set forth in the OPA shall be forever relinquished, released and discharged without need of further act or document, including, without limitation, Section 10 of the OPA establishing parking rates and in -lieu parking fees. The "Effective Date" of this Agreement shall be the date on which both of the following have occurred: (a) both parties have duly executed this Agreement in recordable form; and (a) the In -Lieu Parking Fee Agreement is first effective and first recorded against the Property. 2. Recordation. This Agreement shall be recorded against the Property but only after the recordation of the In -Lieu Parking Fee Agreement. 3. Release. The Agency and Participant each understand that by their entry into this Agreement they are releasing the other party from all claims, demands, liabilities, and causes of action which are or which could be founded upon their respective rights and obligations under the OPA. The Agency and Participant further understand that such release and waiver applies to claims, demands, obligations and liabilities both known and unknown, foreseeable or unforeseeable, current, retrospective or prospective. The Agency and Participant each declare that it is their intent that any and all such claims, demands, obligations and liabilities of parties, whether known or unknown, foreseeable or unforeseeable, current, retrospective or prospective, be fully discharged, released and excused. The parties have been advised by their legal counsel concerning the content and effect of California Civil Code Section 1542, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in its favor at the time of executing the release, which if known by him must have materially effected his settlement with the debtor. The Agency and Participant each hereby waive the benefits of Civil Code Section 1542 and all other state or federal statutes or judicial decisions of similar affect. 4. Warranty and Representation re No Assignment or Transfer. The Agency and Participant each hereby respectively represent and warrant to the other that they have not assigned, transferred, conveyed, or hypothecated any of their respective rights, remedies, and obligations under the OPA. Each party hereto shall defend and indemnify and hold the other party harmless from any and all alleged damages, liabilities, costs and expenses (including reasonably reasonable attorneys' fees and costs of litigation) incurred by the DADocuments and Settings\VonHo11C\Loca1 Settings\Temporary Internet Fi1es\0LK559\0PA Term (3-20-06).doc 2 0 0 other as a result of the intentionally or unintentionally falsity of any portion of the foregoing representation and warranty. 5. Integration. This Agreement constitutes the entire understanding and agreement between the Agency and Participant with respect to the matters herein discussed. It supersedes, cancels and controls over any and all other prior agreements, understandings, or communications between them. 6. Interpretation of Agreement. This Agreement has been negotiated at arm's length and between persons sophisticated and knowledgeable in the matters addressed in this Agreement. In addition, each party has been given the opportunity to consult with experienced and knowledgeable legal counsel. Accordingly, any rule of law (including Civil Code section 1654) or legal decision that would require interpretation of any ambiguities in this Agreement against the party that has drafted it is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effect the purpose and intent of the parties to this Agreement. 7. Time of the Essence. Time is of the essence of this Agreement. 8. No Third Party Beneficiaries. The parties to this Agreement acknowledge and agree that the provisions of this Agreement are for the sole benefit of Agency and Participant, and not for the benefit, directly or indirectly, of any other person or entity. 9. Authority to Sign. The individual executing this Agreement on behalf of Participant hereby represents that he has full authority to do so and to bind Participant to perform pursuant to the terms and conditions of this Agreement. 10. Attorneys Fees. If any action or proceeding is brought by either party against the other under this Agreement, whether for interpretation, enforcement or otherwise, the prevailing party shall be entitled to recover all costs and expenses, including the fees of its attorney and any expert witnesses in such action or proceeding. This provision shall also apply to any postjudgment action by either party, including, without limitation, efforts to enforce a judgment. 11. Governing Law. This Agreement shall be interpreted, governed and enforced in accordance with California statutory and case law, without regard to conflict of laws principles. 12. Further Assurances. The parties agree to execute such other documents and to take such other action as may be reasonably necessary to further the purposes of this Agreement. 13. Binding on Successors. This Agreement shall be binding upon and shall inure to the benefit of the Agency and Participant and their respective successors and assigns and to the successors and assigns of the Property or any portion thereof. DADocuments and SettingsNontioHOLocal Settings\Temporary Intemet Files\OLK559\OPA Term (3-20-06).doc 3 0 0 IN WITNESS WHEREOF, the Agency and Participant have signed this Agreement as of the date set forth above. 44(11 2\:'�-� Ben Trainer [remainder of page left intentionally blank] [signatures continue on following page] DADocuments and Settings\VonHo11C\Loca1 Settings\Temporary Internet Fi1es\0LK559\0PA Term (3-20-06).doc El 0 • STATE OF CALIFORNIA ) ss. COUNTY OF ) On before me, , personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature STATE OF CALIFORNIA ) ss. COUNTY OF On M!9?1 �W before _me, A" 7., Vee, h�lrn, personally appeared flea, 4, , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in ,b /her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature NANCY F. YEE Cornn*Mon # 1388443 Notary Pubic - Confomfo Monterey County My Cam. Exphn 4an 2 2007 `'1 • 0 Agency REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH Gib � Chairman ATTEST: -?'�ecretary D AND APPROVED AS TO FORM: Agency General Counsel y r APPROVED AS TO FORM: Kane, Ballmer & Berkman Agency Speciat Counsel K:\CG\HB\Aloha GrillTarking Agmt (3-20-06).doc 0 0 STATE OF CALIFORNIA ) ss. COUNTY OF__.(:) �Gfl& ) On t �� before me, �tn peare personally apd Q personally known to me (of, e on sa is ) to be the person(s. whose name( is/ae subscribed to the within instrument and acknowledged to me that he/s� executed the same in his/h4W4hQir authorized capacity(ies-), and that by his/hcrMwk signature(4 on the instrument the person(s),, or the entity upon behalf of which the person( -,+acted, executed the instrument. WITNESS my harLdad official seal. Signature Comm.#05�21�00 N . NOTARY vueuc•cALwcRNt� N y conNM. E� 0. 0,m09'' STATE OF CALIFORNIA ) ss. COUNTY OF (D ) On before me, �rkoto , personally appeared � (1 personally known to me { is ac or e) to be the person(4 whose name() is/ate subscribed to the within instrument and acknowledged to me that ire/she/they executed the same in hiss/her/their authorized capacity), and that by iris/her/their signatures) on the instrument the person(s), or the entity upon behalf of which the persorr(s) acted, executed the instrument. W my h Xandfficial seal. Signature �J �l EXHIBIT A MAP OF PROPERTY [behind this page] L� 0 ,5 Exhibit A EXHIBIT B LEGAL DESCRIPTION OF PROPERTY [behind this page] Exhibit B Legal Description Lots 21, 23, 25, & 27 in block 204 of Huntington Beach Tract, County of Orange, as per map recorded in Book 3, page 36 of Miscellaneous Maps in the Office of the County Recorded of said county. 0 ATTACHMENT #2 0 0 CITY OF HUNTINGTON BEACH INTERDEPARTMENTAL COMMUNICATION TO: PENELOPE CULBRETH-GRAFT, DPA, CITY ADMINISTRATOR FROM: DAN T.VILLELLA, CPA, FINANCE DIRECTOR SUBJECT: FIS 2005-06 - 24 APPROVE THE FIRST AMENDMENT TO THE COMMERCIAL REHABILITATION PROGRAM OPA BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF HUNTINGTON BEACH AND BEN TRAINER (221 MAIN STREET) DATE: JUNE 9, 2006 As required by Resolution 4832, this Fiscal Impact Statement has been prepared for "Approve the First Amendment to the Commercial Rehabilitation Program OPA between the Redevelopment Agency of the City of Huntington Beach and Ben Trainer (221 Main Street)" If the City Council approves this action (total appropriation $16,000, the estimated Redevelopment Agency Capital Project Fund (Merged Project Area) fund balance at September 30, 2006 will be reduced to $16,304,000. Dan Villella, Finance Officer 0 0 RCA ROUTING SHEET INITIATING DEPARTMENT: Economic Development SUBJECT: Approve the First Amendment to the Commercial Rehabilitation Program OPA between the Redevelopment Agency of the City of Huntington Beach and Ben Trainer (221 Main Street) COUNCIL MEETING DATE: I July 17, 2006 RCA ATTACHMENTS STATUS Ordinance (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Resolution (w/exhibits & legislative draft if applicable) Attached ❑ Not Applicable Tract Map, Location Map and/or other Exhibits Attached ❑ Not Applicable Contract/Agreement (w/exhibits if applicable) Attached (Signed in full by the City Attome Not Applicable ❑ Subleases, Third Party Agreements, etc. Attached ❑ (Approved as to form by City Attorney Not Applicable Certificates of Insurance (Approved by the City Attorney) Attached ❑ Not Ap licable Fiscal Impact Statement (Unbudget, over $5,000) Attached Not Ap licable ❑ Bonds (If applicable) Attached ❑ Not Applicable Staff Report (if applicable) Attached ❑ Not Applicable Commission, Board or Committee Report (If applicable) Attached ❑ Not Applicable Findings/Conditions for Approval and/or Denial Attached ❑ Not Applicable EXPLANATION FOR MISSINGATTACHMENTS REVIEWED RETURNED FOTWDED Administrative Staff Assistant City Administrator (Initial) ( ( P� ) City Administrator Initial City Clerk ( ) RCA Author: Runzel 0 0 a "I 00 CITY OF HUNTINGTON BEACH 2000 MAIN STREET OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK August 17, 2006 Tom Daly O. C. Clerk — Recorder 12 Civic Center Plaza, Rm. 101 Santa Ana, CA 92701-4057 Attn: Document Examiner CALIFORNIA 92648 Enclosed please find the Agreement Terminating Owner Participation Agreement By and Between the Redevelopment Agency of Huntington Beach and Ben Trainer entered into on 8/4/06 to be recorded and returned to the City of Huntington Beach, Office of the City Clerk, 2000 Main Street, Huntington Beach, CA 92648. Please return a conformed copy of the Agreement when recorded to this office in the enclosed self-addressed stamped envelope. tL.n Flynn erk JF:pe Enclosure — Ben Trainer — Aloha Grill G:/followup/deed s/deedletter2002.doc Procedure #18 4 Telephone: 714-536-5227) C • CITY OF HUNTINGTON BEACH 2000 MAIN STREET OFFICE OF THE CITY CLERK JOAN L. FLYNN CITY CLERK August 1, 2006 Tom Daly O. C. Clerk — Recorder 12 Civic Center Plaza, Rm. 101 Santa Ana, CA 92701-4057 Attn: Document Examiner CALIFORNIA 92648 Enclosed please find (1) First Amendment to Commercial Rehabilitation Program Owner Participation Agreement and (2) In -Lieu Parking Fee Agreement to be recorded and returned to the City of Huntington Beach, Office of the City Clerk, 2000 Main Street, Huntington Beach, CA 92648. Please return a conformed copy of each of the Agreements when recorded to this office in the enclosed self-addressed stamped envelopes. oan L. Flynn City Clerk Enclosures JF: pe Re: Ben Trainer — Aloha Grill, 221 Main Street g:/foliowup/misclmiscrecordeddoc-letter (Telephone: 714536-5227 )