RRA - Item 3 - Modification of Development Agreement Between The CRRA and Diamond Square - Internal Files Box 069. ~a, ill Ip,
ROSEMEAD REDEVELOPMENT AGENCY
TO: HONORABLE CHAIRMAN
AND MEMBERS
ROSEMEAD REDEVELOPMENT AGENCY
FROM: FRANK G. TRIPEPI, EXECUTIVE DIRECTOR
DATE: DECEMBER 5, 1991
RE: MODIFICATION OF DEVELOPMENT AGREEMENT BETWEEN THE CITY'S
REDEVELOPMENT AGENCY AND THE DIAMOND SQUARE SHOPPING CENTER.
The representatives of Diamond Square are requesting a modification
to the floor plan for Building B, the old Builder's Square.
As required in Section 2.2 of the development agreement, any changes
must be agreed upon between the Center and the Agency.
More specifically, the center is proposing to divide four spaces of
approximately 1,000 square feet in half to create eight spaces of
approximately 500 square feet. In addition, a photo processing
center of 555 square feet will be created from a larger retail space.
As stated in the attached letter, several members of the Council and
staff toured the shopping center and discussed the proposal with
Diamond square representatives. After a lenghty discussion it was
generally agreed upon that the proposal would not represent an
intensification of the center and it was suggested that the center
make a formal request for the modification.
RECOMMENDATION
It is recommended that the Rosemead Redevelopment Agency approve the
modification as shown on Exhibit "A" attached
PL:op/P
AGENCY AGENDA
DEC 1001
ITEM No.. 3.
8838 VALLEY BLVD., ROSEMEAD, CA 917700(818)288-6671 • Telecopier 8183079218
DIAMOND SQUARE SHOPPING CENTER
500 NORTH GARFIELD AVENUE, SUITE 206
MONTEREY PARK, CALIFORNIA 91754
December 2, 1991
Mr. Frank Tripepi, Director
Rosemead Redevelopment Agency
8838 E. Valley Boulevard
Rosemead, California 91770
Dear Mr. Tripepi
I want to thank you and the other Agency members for taking the
time out of your demanding schedules to meet with us at the project
site.
The meeting provided a valuable forum for an exchange of
information and perspectives; and, as a result, we are submitting
the attached floor plan for approval at the December 10, 1991
Redevelopment Agency Meeting.
I have highlighted in yellow those tenant spaces that we have
selected for change. There are a total of nine spaces including
the photo processing counter.
This floor plan change will significantly enhance the dynamics of
the project, and we thank you again for the interest and direction
you have provided.
R spectfully,
"u~
teven Z ckerman
Project Manager
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PARTICIPATION AGREEMENT
BETWEEN
R-PART.AGR/3.19.91
ROSEMEAD REDEVELOPMENT AGENCY
AND
DIAMOND SQUARE
I'
TABLE OF CONTENTS
SUBJECT OF AGREEMENT . . . . . . . . . . . . . . .
1.1 Purpose of the Agreement . . . . . . . . . . . .
1.2 The Redevelopment Plan . . . . . . . . . . . . .
1.3 The Project Area . . . . . . . . . . . . . . . .
1.4 The Site . . . . . . . . . . . . . . . . . . . .
1.5 Parties to the Agreement . . . . . . .
1.6 Prohibition Against Change in Ownership
Management and Control of Participant . . . . . .
2. DEVELOPMENT OF THE SITE BY PARTICIPANT . . . . . . . .
2.1 Scope of Development . . . . . . . . . . . . . .
2.2 Basic Concept Drawings . . . . . . . . . . . . .
2.3 Landscaping Plans . . . . . . . . . . . . . .
2.4 Construction Drawings and Related Documents . . .
2.5 Agency Approval of Plans, Drawings
and Related Documents . . . . . . . . . . . . . .
2.6 Cost of Construction . . . . . . . . . . . . . .
2.7 Construction Schedule . . . . . . . . . . . . . .
2.8 Bodily Injury and Property Damage Insurance . . .
2.9 Antidiscrimination During Construction . . . .
2.10 City and Other Governmental Agency Permits . . .
2.11 Environmental Impact Report . . . . . . . . . . .
2.12 Parcel Map . . . . . . . . . . . . . . . . . .
2.13 Certificate of Occupancy . . . . . . . . . . . .
2.14 No Agency Liability . . . . . . . . . . . . . . .
1
1
1
1
1
1
2
2
2
2
3
3
3.
4
4
4':
5:.
5
6-
6
6
6
3.
PARTICIPATION IN DEVELOPMENT OF THE SITE BY AGENCY .
. 7
3.1
Flood Control Channel . . . . . . . . . . . . .
. 7
3.2
Reports and Payment . . . . . . . . . . .
. 7
3.3
City and Other Governmental Agency Permits . .
. 8
4.
USE
OF THE SITE . . . . . . . . . .
8
4.1
Obligation to Refrain from Discrimination . . .
. 8'
4.2
Form of Nondiscrimination and
Nonsegregation Clause . . . . . . . . . . . . .
. 8
5.
DEFAULTS, REMEDIES AND TERMINATION . . . . . . . . .
. 8
5.1
Defaults - General . . . . . . . . . .
. 8
5.2
Applicable Law . . . . . . . . . . . . . . . .
. 9
6.
GENERAL PROVISIONS . . . . . . . . . . . . . . .
9
6.1
Notices, Demands and Communications . . . . . . .
9
6.2
Conflict of Interests . . . . . . . . . . . .
9
6.3
Nonliability of Agency Officials and Employees
10
6.4
Enforced Delay: Extension of Times of
Performance . . . . . . . . . . . . . . . . . . .
10
6.5
Approvals . . . . . . . . . . . . . . . . . . . .
10
R-PART.AGR/3.19.91 - i -
7. SPECIAL PROVISIONS . . . . . . . . . . . . . . . . . 11
7.1 Redevelopment Plan Amendment . . . . . . . . . 11
7.2 Real Estate Commission . . . , , , , 11.
7.3 Revenue Agreement . . , , , , . 11
7.4 Quitclaim of Rights to Prior Agreement . . . . . 14
8. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS . . . . . . . 14
9. TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY . , . . . 15
R-GART.AGR/3.19.91 - 1 1 -
PARTICIPATION AGREEMENT
THIS AGREEMENT is entered into on ~-MA.l t 0.(" 199 / , by and
between ROSEMEAD REDEVELOPMENT AGENCY (hereinafter referred to as
the "Agency") and DIAMOND SQUARE (hereinafter referred to as the
"Participant"). Agency and Participant agree as follows:
1. SUBJECT OF AGREEMENT
1.1 Purpose of the Agreement
The purpose of this Agreement is to effectuate the
Redevelopment Plan (the "Redevelopment Plan") for the Rosemead
Redevelopment Project No. 1 (the "Redevelopment Project") by
providing for the revitalization and rehabilitation of a portion
of the Redevelopment Project area owned by Participant.
1.2 The Redevelopment Plan
Said "Redevelopment Plan" has
adopted by the City Council of the City
No. 340 on June 27, 1972, which ordinanc
are incorporated herein by reference and
though fully set forth herein.
1.3 The Project Area
s been approved and
of Rosemead by Ordinance-
and Redevelopment Plan-
made a part hereof as
The "Project Area" is located in the City of
Rosemead, California (the "City") the exact boundaries of which
are specifically described in the Redevelopment Plan.
1.4 The Site
The "Site" is that portion of the Redevelopment
Project area shown generally on the Site Map attached hereto as
Attachment No. 1 and is legally described in Attachment No. 2.
The Site is presently owned by Participant.
1.5 Parties to the Agreement
1.5.1 Agency
Agency is a public body, corporate and poli-
tic, exercising governmental functions and powers, and organized
and existing under Chapter 2 of the Community Redevelopment Law
of the State of California. The principal office of Agency is
8838 E. Valley Blvd., Rosemead, CA 91770.
R-PART.AGR/3.19.91 - 1 -
1.5.2 Participant
Participant is a California general
partnership. The principal office of Participant is c/o Dr.
Alethea T. Hsu, M.D., attn: Mr. Steven B. Zuckerman, 500 North
Garfield Ave., Suite 206, Monterey Park, CA 91754.
The general partners of Participant are Shyu
Company, a California Limited Partnership, Alethea T. Hsu and
Fong-Fu Chang, and Robert C. Y. Tun and Lisa L. Tun, trustees
under trust agreement dated September 27, 1988 ("Tun"),
hereinafter collectively referred to as the "general partners".
1.6 Prohibition Aaainct rhn",o ;r
The qualifications and identity of Participant are of
particular concern to Agency. It is because of those
qualifications and identity that Agency has entered into this
Agreement with Participant. No voluntary or involuntary
successor in interest of Participant shall acquire any rights or
powers under this Agreement except as expressly set forth herein.
Except as provided in other Sections, Participant
shall not assign all or any part of this Agreement, or transfer
the Site, without the prior written approval of Agency which
approval shall not be unreasonably withheld.
Wherever the term "Participant" as used herein, such
term shall include any permitted nominee or assignee as herein
provided.
The restrictions of this Section 1.6 shall terminate
upon issuance by the City of a Certificate of Occupancy for the
minimum square footage of. new improvements required under this
Agreement issued by the City of Rosemead as described in this
Agreement.
Participant qualifies as an owner participant is that
term as used on the Redevelopment Plan and the Community
Redevelopment Law.
2. DEVELOPMENT OF THE SITE BY PARTICIPANT
2.1 Scope of Development
The Site shall be developed in accordance with and
within the limitations established in the "Scope of Development"
incorporated herein and attached to this Agreement as Attachment
No. 3.
2.2 Basic Concept Drawings
Participant has prepared and submitted Basic Concept
Drawings and related documents for the development of the Site to
R-PART.AGR/3.19.91
Agency. Agency has approved such drawings. The site shall be
substantially developed as established in the Basic Concept
Drawings and related documents except as changes may be mutually
agreed upon between Participant and Agency. Any such changes
shall be within the limitations of the Scope of Development.
2.3 Landscaping Plans
The landscaping plans shall be prepared by a
professional landscape architect, who may be the same firm as the
Participant's architect. Within the time established in the
Schedule of Performance, incorporated herein and attached to this
Agreement as Attachment No. 4, Participant shall submit to
Agency for approval the name and qualifications of its landscape
architect.
Participant shall prepare and submit to Agency for
its approval preliminary and final landscaping plans for the
Site. Those plans shall be prepared and submitted within the
times established in the Schedule of Performance.
2.4 Construction Drawings and Related Documents
Participant shall prepare and submit construction
drawings and related documents (collectively called the
"Drawings"), Preliminary and Final Construction Drawings, for the
development of the Site to Agency for review, including but not
limited to architectural review of the exterior of the buildings,
and written approval at the times established in the Schedule of
Performance. Approval of progressively more detailed drawings
and specifications will be promptly granted by Agency if
developed as a logical evolution of drawings or specifications
theretofore approved. Any items so submitted and approved by
Agency shall not be subject to subsequent approval.
If any revisions or corrections shall be required by
the City or any other official, agency, department or bureau of
the City having jurisdiction, Participant and Agency shall
cooperate in efforts to obtain a variance of such requirements or
to develop a mutually-acceptable alternative. If no such
alternative is developed, Agency shall be bound by such revisions
or corrections.
2.5 Agency Approval of Plans Drawings
and Related Documents
Agency shall approve or disapprove the plans,
drawings, and related documents referred to in this Agreement
within the times established in the Schedule of Performance.
Failure by Agency to either approve or disapprove within the
times established in the Schedule of Performance shall be deemed
a written approval. Any disapproval shall state in writing the
reasons for disapproval. Participant, upon receipt of a
disapproval based upon powers reserved by Agency hereunder, shall
revise such portions in a manner that is a logical evolution of
R-PART.AGR/3.79.97 - 3 -
previously approved Basic Concept and Construction Drawings and
related documents and resubmit to Agency as soon as possible
after receipt of the notice of disapproval.
2.6 Cost of Construction
The cost of developing the Site and constructing all
improvements thereon shall be borne by the Participant, except
for the work expressly set forth in the Agreement to be performed
by Agency or others. No third party is intended to be a
beneficiary of this Section.
2.7 Construction Schedule
Subject to provisions of Section 6.4, Participant
shall begin and complete all construction and development within
the times specified in the Schedule of Performance or such
reasonable extension of said dates as may be granted by Agency.
The Schedule of Performance is subject to revision from time to
time as mutually agreed upon in writing between Participant and
Agency.
2.8 Bodily Injury and Property Damaoe Insurance
Participant shall defend, assume all responsibility
for and hold the Agency, its officers and employees, harmless
from, all claims or suits for, and damages to, property and
injuries to persons, including accidental death (including
attorneys' fees and costs), which may be caused by any of
Participant's activities under this Agreement, whether such
activities or performance thereof be by Participant or anyone
directly or indirectly employed or contracted with by Participant
and whether such damage shall accrue or be discovered before or
after termination of this Agreement. Participant or its
contractor shall take out and maintain during the term provided
in this section 2.8, a comprehensive liability policy (excluding
automobiles and vehicles) in the amount of Two Million Dollars
($2,000,000) for bodily injury per person, Five Million Dollars
($5,000,000) for bodily injury per occurrence, Two Million
Dollars ($2,000,000) property damage per occurrence and in the
aggregate, including contractual liability, as shall protect
Participant, City and Agency from claims for such damages. As an
alternative to one comprehensive liability policy, Participant
may take out and maintain a one Million Dollar ($1,000,000.00)
comprehensive liability policy including contractual liability
with an umbrella policy (excluding automobiles and vehicles) for
not less than an additional Four Million Dollars ($4,000,000.00),
both of which shall protect Participant, City and Agency from
claims for such damages. The liability insurance for automobiles
and vehicles shall be.for not less than One Million Dollar
($1,000,000.00) per occurance.
Participant shall furnish a certificate of insurance
countersigned by an authorized agent of the insurance carrier on
a form of the insurance carrier setting forth the general
R-PART.AGR/3.19.91
provisions of the insurance coverage. This countersigned
certificate shall name City and Agency and their respective
officers, agents, and employees as additional insureds under the
policy. The certificate by the insurance carrier shall contain a
statement of obligation on the part of the carrier to notify city
and Agency of any material change; cancellation or termination of
the coverage at least thirty (30) days in advance of the
effective date of any such material change, cancellation or
termination. Coverage provided hereunder by Participant shall be
primary insurance and not contributing with any insurance
maintained by Agency or City, and the policy shall contain such
an endorsement. The insurance policy or the certificate of
insurance shall contain a waiver of subrogation for the benefit
of City and Agency. The required certificate shall be furnished
by Participant at the time set forth therefor in the Schedule of
Performance (Attachment No. 4).
Participant shall also furnish or cause to be
furnished to Agency evidence satisfactory to Agency that any
contractor with whom it has contracted for the performance of
work on the Site or otherwise pursuant to this Agreement carries
workers' compensation insurance as required by law.
The obligations set forth in this Section shall
remain in effect only until a final Certificate of Occupancy has
been issued by City for the minimum required Participant
Improvements as provided in this Agreement. If Participant
elects to construct the Phase 2 Improvements, insurance meeting
the requirements of this section shall be provided before
commencement of construction and shall be maintained in full
force and effect until completion of such construction as
evidenced by a final Certificate of Occupancy for the Phase 2
Improvements.
2.9 Antidiscrimination During Construction
Participant for itself and its successors and assigns
agrees that in the construction of the improvements on the Site
provided for in this Agreement, the Participant will not
discriminate against any employee or applicant for employment
because of race, color, religion, sex, marital status or national
origin.
2.10 City and Other Governmental Agency Permits
Before commencement of construction or development of
any buildings, structures or other work of improvement upon the
Site, Participant shall secure or cause to be secured any and all
permits which may be required by City or any other governmental
agency affected by such construction, development or work.
Agency shall provide all proper assistance to Participant in
securing these permits, including but not limited to coordination
with all on-site and off-site building plans submitted to any
public entity or public utility by Participant.
R-PART.AGR/3-19-91 - 5 -
2.11 Environmental Impact Report
An Environmental Impact Report has been prepared,
certified, approved and adopted by the Agency for the
Redevelopment Project. To the extent that a supplemental
environmental impact report or other environmental document is
required with respect to the development under this Agreement,
Agency shall prepare such report or document at Participant's
expense.
Participant shall provide information, assistance,
and cooperation, at Participant's expense, to enable Agency to
prepare such report or document.
2.12 Parcel Map
Participant shall not be required to prepare any
subdivision or parcel map.
2.13 Certificate of Occupancy
city's issuance of a Certificate of Occupancy for the
minimum required square footage under Phase 1 of the Scope of
Development shall constitute evidence of compliance with and
satisfaction of all obligations of Participant for completion of
such construction under this Agreement.
Upon request by Participant, Agency agrees to furnish
to Participant a Certificate of Completion for the improvements
completed by Participant and for which City has issued a
Certificate of Occupancy in such form as to permit it to be
recorded in the Recorder's Office of Los Angeles County
2.14 No Agency Liability
•
Agency neither undertakes nor assumes nor will have
any responsibility or duty to Participant or to any third party
to review, inspect, supervise, pass judgment upon or inform
Participant or any third party of any matter in connection with
the development or construction of the project, whether with
respect to the quality, adequacy or suitability of the plans, any
labor, service, equipment or material furnished to the project,
any person furnishing the same, or otherwise. Participant and
all third parties shall rely upon its or their own judgement with
respect to such matters, and any review, inspection, supervision,
exercise of judgment or information supplied to Participant or to
any third party by Agency in connection with any such matter is
for the public purpose of carrying out the Redevelopment Plan and
this Agreement, and neither Participant (except for the purposes
set forth in this Agreement) nor any third party is entitled to
rely thereon.
R-PART.AGR/3.19.91 - 6 -
3. PARTICIPATION IN DEVELOPMENT OF THE SITE BY AGENCY
3.1 Flood Control Channel
Participant may elect to cover the existing Flood
Control Channel (Channel) which crosses the Site in order to
provide additional parking and possible additional building area.
If Participant elects to cover the Channel and obtains all
necessary permits and agreements from the Los Angeles County
Flood Control District within the time set forth on the Schedule
of Performance, and if Agency approves of the proposed tenant
pursuant to the Scope of Development, Agency shall reimburse
Participant for one half (1/2) of the actual out of pocket
construction costs allocable to the covering of the Channel,
subject to the provisions and limitations set forth in this
section. Participant agrees that if Participant requests
reimbursement pursuant to this section 3.1, it shall comply with
all bidding procedures and contract requirements of California
law which apply to the Agency in the performance of public
improvement contracts.
The term "actual out-of-pocket construction costs"
shall include payments to third party contractors who are
unrelated to Participant or any of Participant's related business
entities, and testing. Actual out of pocket costs shall not
include supervision, engineering and design expenses, interest on
funds borrowed by Participant, overhead or profit.to Participant
or any of Participant's related business entities.
If Participant does not elect to commence
construction of the cover of the Channel within five (5) years
after the date of this Agreement, Agency shall have no further
obligation to reimburse Participant for such costs pursuant to
this section.
Reimbursement pursuant to this section 3.1 and
section 3.2 shall be made subject to the availability of funds as
reasonably determined by the Agency Members based upon
Participant's submission to Agency of the proposed construction
contract and bid received by Participant prior to the
Participant's award of the construction contract. In no event
shall reimbursement to Participant pursuant to this section 3.1
exceed the sum of Two Hundred Fifty Thousand Dollars
($250,000.00).
3.2 Reports and Payment
Participant shall provide Agency with a detailed
written report at least once every month demonstrating the
specific nature and amount of each and every such expenditure.
Payment of such reimbursement shall be made within thirty (30)
days after receipt of invoices from Participant. Any payment
which is due and not paid within thirty (30) days after receipt
of Participant's statement shall bear interest at the rate of ten
percent (10%) per annum. If not paid within such 30 day period,
R-PART.AGR/3.19.91
Agency shall pay interest on the amounts due at the rate of ten
percent (10%) per annum.
3.3 City and Other Governmental Agency Permits
Participant shall at its own expense secure or cause
to be secured any and all permits which may be required by the
Flood Control District, City, or any other governmental agency
necessary for the construction of the covering of the Channel.
4. USE OF THE SITE
4.1 Obligation to Refrain from Discrimination
Participant covenants and agrees for itself, it
successors, its assigns and every successor in interest to the
Site or any part thereof, there shall be no discrimination
against or segregation of any person, or group of persons, on
account of sex, marital status, race, color, creed, national
origin or ancestry in the sale, lease, sublease, transfer, use,
occupancy, tenure or enjoyment of the Site nor shall Participant
himself or any person claiming under or through him establish or
permit any such practice or practices of discrimination or
segregation with reference to the selection, location, number,
use or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the Site.
4.2 Form of Nondiscrimination and
Nonsegregation Clause
All deeds, leases or contracts from Participant, or
any successor or assign of the Participant, with respect to the
Site, shall contain or be subject to the nondiscrimination and
nonsegregation clauses identical to those set forth in Section
33436 of the California Health and Safety Code.
5. DEFAULTS, REMEDIES AND TERMINATION
5.1 Defaults - General
Subject to the extension of time set forth in Section
6.4, failure or delay by either party to perform any term or
provision of this Agreement constitutes a default under this
Agreement. The party who so fails or delays must immediately
commence to cure, correct, or remedy such failure or delay and
shall complete such cure, correction or remedy with reasonable
diligence.
The injured party shall give written notice of
default to the party in default, specifying the default
complained of by the injured party. Except as required to
protect against further damages, the injured party may not
institute proceedings against the party in default until thirty
R-PART.AGR/3.79.97 - 8 -
(30) days after giving such notice. Delay in giving such notice
shall not constitute a waiver of any default nor shall it change
the time of default. This Section shall only apply until
completion of Participant's Improvements.
In addition to any other rights or remedies, either
party may institute legal action to cure, correct, or remedy any
default, to recover damages for any default, or to obtain any
other remedy consistent with the purpose of this Agreement. Such
legal actions must be instituted in the Superior Court of the
County of Los Angeles, State of California, or in any other
appropriate court in that county, or in the Federal District
Court in the Central District of California.
5.2 Applicable Law
The laws of the State of California shall govern the
interpretation and enforcement of this Agreement.
5.3 Termination
If Participant is
financing on terms reasonably
diligent effort within the ti
Performance, either Agency or
Agreement upon written notice
shall have any further rights
Agreement.
unable to obtain construction
acceptable to Participant despite
ne set forth in the Schedule of
Participant may terminate this
to , in which event neither party
or obligations under this
6. GENERAL PROVISIONS
6.1 Notices, Demands and Communications
Between the Parties
Formal notices, demands and communications between
the Agency and the Participant shall be sufficiently given if in
writing and personally delivered or sent by overnight courier
(e.g. Federal Express), or by registered or certified mail,
postage prepaid, return receipt requested, to the principal
offices of the Agency and the Participant, as designated in
Sections 1.5. Such written notices, demands and communications
may be sent in the same manner to such other addressees as either
party may from time to time designate by mail as provided in this
Section.
Any written notice, demand or communication shall be
deemed received immediately if delivered by hand and shall be
deemed received on the fifth day from the date it is postmarked
if delivered by registered or certified mail.
6.2 Conflict of Interests
No member, official or employee of Agency shall have
any personal interest, direct or indirect, in this Agreement nor
R-PART.AGR/3.79.97 - 9 -
shall any such member, official or employee participate in any
decision relating to the Agreement which affects his personal
interests or the interests of any corporation, partnership or
association in which it is, directly or indirectly, interested.
Participant warrants that it has not paid or given,
and will not pay or give, any third party any money or other
consideration for obtaining this Agreement except such attorney's
and consultants' fees as it may incur in preparation of this
Agreement.
6.3 Nonliability of Agency Officials and EmploVees
No member, official or employee of Agency shall be
personally liable to Participant, or any successor in interest,
in the event of any default or breach by Agency or for any amount
which may become due to Participant or successor or on any
obligations under the terms of this Agreement.
6.4 Enforced Delay: Extension of Times of Performance
In addition to specific provisions of this Agreement,
performance by either party hereunder shall not be deemed to be
in default where delays or defaults are due to war;
insurrections; strikes; lock-outs; riots, floods; earthquakes;
fires; casualties; acts of God; acts of the public enemy;
epidemics; quarantine restrictions; freight embargoes; lack of
transportation; governmental restrictions or priority; litigation
(including unlawful detainer actions and condemnation actions);
unusually severe weather; inability to secure necessary labor,
materials and tools; delays of any contractor, subcontractor or
supplier; acts of the other party; acts or failure to act of the
City or any other public or governmental entity (other than that
acts or failure to act of Agency or City shall not excuse
performance by Agency) or any other causes beyond the control or
without the fault of the party claiming an extension of time to
perform. An extension of time for any such cause shall be for
the period of the enforced delay and shall commence to run from
the time of the commencement of the cause. Times of performance
under this Agreement may also be extended in writing by Agency
and Participant.
6.5 Approvals
Approvals required of Agency or Participant shall be
in writing and shall not be unreasonably withheld.
6.6 Attorney's Fees.
If either party to this Agreement is required to
initiate or defend or made a party to any action or proceeding in
any way connected with this Agreement, the prevailing party in
such action or proceeding, in addition to any other relief which
may be granted, whether legal or equitable, shall be entitled to
reasonable attorney's fees. Attorney's fees shall include
R-PART.AGR/3.19.91 - 10 -
attorney's fees on any appeal, and in addition a party entitled
to attorney's fees shall be entitled to all other reasonable
costs for investigating such action, taking depositions and
discovery and all other necessary costs the court allows which
are incurred in such litigation. All such fees shall be deemed
to have accrued on commencement of such action and shall be
enforceable whether or not such action is prosecuted to judgment.
7. SPECIAL PROVISIONS
7.1 Redevelopment Plan Amendment
. Any amendments to the Redevelopment Plan which change
the uses or development permitted on the Site or otherwise change
the restrictions or controls that apply to the Site shall require
the written consent of Participant so long as Participant owns
the fee ownership of the Site. Amendments of the Redevelopment
Plan applying to other property in the Redevelopment Project area
shall not require the consent of Participant or its respective
successors or assigns.
7.2 Real Estate Commission
No party to this Agreement has had any contact or
dealings regarding the Site through any licensed real estate
broker or any other person who may claim a right to commission or
finder's fee as a procuring cause of this Agreement. In the
event that any broker or finder presents a claim for a commission
or a finder's fee which is based either on this Agreement or upon
the broker's or finder's dealings or communications with any
party, then the party through whom the broker or finder bases his
claim shall indemnify, save harmless and defend the other party
from said claim, including but not limited to all costs and
expenses incurred by the other party in defending said claim.
7.3 Revenue Agreement
7.3.1 Participant agrees with Agency that the sales
taxes which are projected to be paid from retail sales within the
Site are a major reason for Agency's approval of the proposed
development of the Site and for the Agency's participation in
such development. Participant represents that the sales taxes
paid to the City from retail sales generated at the Site will
attain not less than One Hundred Five Thousand Dollars
($105,000.00) per annum commencing fiscal year July 1, 1992.
Commencing with the fiscal year 1992-1993 and continuing through
June 30, 1997, Participant agrees to pay to the City the
difference in (1) the amount that the City receives for each such
fiscal year in sales taxes each year from businesses within the
Site and (2) the sum of One Hundred Five Thousand Dollars
($105,000.00) as hereinafter adjusted by the Consumer Price Index
as hereinafter defined (the Guarantee Amount). Receipts for a
fiscal year shall mean the payments made for sales tax collected
in such fiscal year whether or not the City has received such
R-PART.AGR/3.19.91 - 11 -
amount during or after such fiscal year. If Participant is
delayed in commencing construction of Participant's Phase I
Improvements due to delays in obtaining permits for such
construction from the City which require in excess of sixty (60)
days to obtain all necessary permits for construction, the July
1, 1992 commencement date for the Guarantee Amount shall be
extended for the period of the delay provided that Participant
notifies Agency of its claim for an extension on or before July
1, 1992. If the commencement date is extended, the expiration of
the five year period of the Guarantee Amount shall be extended
for the same period. Except for delays caused by City or Agency,
Participant's obligations under this section shall not be subject
to extension pursuant to section 6.4 of this Agreement.
7.3.2 If Agency requests such payment, it shall
advise Participant as soon as sales tax reports are available to
the City following the end of each quarter for which payment is
requested and the Guarantee Amount shall be divided by four (4)
to determine the amount due for such quarter. Participant shall
pay such amount due to City within thirty (30) days following
receipt of such request. If Agency has requested such payment,
it shall provide to Participant within one hundred and eighty
days (180) after the end of each fiscal year for which the
Guarantee Amount applies a written statement of taxable sales
from the Site showing the amount of such sales, the amount
received by City from such sales on the Site, the amount
previously paid by Participant to City pursuant to requests for
quarterly payments, and the amount that Agency claims is due
pursuant to the terms of this Section 7.3. Participant shall
have the right to present its own evidence of such sales from
reports available to Participant if it disputes such statement
within thirty (30) days after receipt of Agency's report. If an
amount is owed by Participant to City based upon the prior fiscal
year Guarantee Amount, Participant shall pay such amount to City
within thirty (30) days following receipt of such statement. If
Participant has overpaid City pursuant to prior quarterly
payments, Agency shall reimburse or cause City to reimburse
Participant within thirty (30) days after delivery of such
statement to Participant.
7.3.3 The sum of $105,000.00 shall be subject to
annual adjustment based upon the following Index. For purposes
of such adjustment, the following words are hereby assigned the
following meanings:
a. "Base Month" means July, 1992
b. "Comparison Month" means the first month of the
next fiscal year for which a new Guarantee Amount is to be
calculated.
C. "C.P.I." means the Consumer Price Index of the
Bureau of Labor Statistics of the United States Department of
Labor for Urban Wage Earners and Clerical Workers, Los Angeles,
Anaheim, Riverside, California (1982-1984 base) "All Items."
R-PART.AGR/3.19.91 - 12 -
As soon as the C.P.I. is available for the Comparison
Month, the sum of $105,ooo.0o shall be multiplied by a fraction,
the numerator of which shall be the C.P.I of the Comparison Month.
and the denominator of which shall by the C.P.I for the Base
Month. The sum so calculated shall constitute the new Guarantee
Amount, but in no event shall said sum be increased by more than
eight percent (8%) in any one year.
In the event the compilation and/or publication of
the C.P.I. shall be transferred to any other governmental
department or bureau or agency or shall be discontinued, then the
index most nearly the same as the C.P.I. shall be used to make
such calculation. In the event that Agency and Participant
cannot agree on such alternative index, then the matter shall be
submitted for decision to the American Arbitration Association in
accordance with the then rules of said Association and the
decision of the arbitrators shall be binding upon the parties.
The cost of said arbitrators shall be paid equally by Agency and
Participant.
7.3.4 Participant's agreement to pay such amount to
City is based upon the existing California method of collection
and distribution of sales tax to the City. If any change is made
in the percentage of such sales tax which reduces the allocation
to the City by the State of California, the Guarantee Amount
shall be reduced by the same percentage.
7.3.5 Participant's obligation to the City pursuant
to this Agreement shall be personal to the Participant, shall not
run with the land, and shall not bind or obligate any successor
in interest to the Site or any other person than Participant and
its general partners. Participant's obligations under this
section 7.3 shall survive any transfer of the Site. The City
shall be a third party beneficiary of the Participant's
obligation pursuant to this section 7.3.
7.3.6 Agency agrees that if the Participant is
required to make any payment to City under this section 7.3,
Agency shall reimburse Participant an equal amount from property
tax increment which is payable to the Agency from the Project
Area and which is attributable to tax increment received from the
Site pursuant to Health & Safety Code section 33670(b). Tax
increment for purposes of this Section 7.3.6 shall be sixty three
percent (63%) of the property taxes levied and collected from
the increase in assessed value of the Site above the 1990-1991
fiscal year assessment of Three Million Three Hundred Eighteen
Thousand Four Hundred and Seventeen Dollars ($3,318,417) rather
than such assessed value as the Site may have had at the time of
establishment of the base year value for the Redevelopment
Project. Sixty three percent of the property taxes represents
the Agency's unrestricted share of tax increment after payment to
the County Fire District and Agency's contribution of tax
increment to the low and moderate income housing fund. Such
payment of tax increment shall be junior in priority to (1) the
Agency's existing bonded indebtedness, (2) any loans made by City
R-PART.AGR/3.19.91 - 13 -
to Agency, (3) any future bond indebtedness which may be incurred
by the Agency, and (4) any existing agreements between Agency or
the County of Los Angeles for the distribution of tax increment
between the Agency and the County. Any payment which is due and
not paid within thirty (30) days after City's receipt of
Participant's payment shall bear interest at the rate of ten
percent (10%) per annum. If Agency shall fail to reimburse
Participant for the amount due in any fiscal year, Participant
may reduce any amount due to City in the following fiscal year
pursuant to this section 7.3 by the unpaid amount due from
Agency. However, the obligation of the Agency to reimburse
Participant shall be limited to tax increment received in a given
fiscal year; any difference between the amount of such tax
increment and Participant's payment to the City under this
section 7.3 shall not be an obligation against future year's tax
increment unless Agency determines that other obligations prevent
payment of such tax increment to Participant for that fiscal
year.
7.4 Quitclaim of Rights to Prior Agreement
Agency agrees to execute and deliver to Participant a
quitclaim deed to any an all rights which it may have in the Site
by virtue of that previous Disposition and Development Agreement
dated august 23, 1978 between the Agency and Western Real Estate
Services.
7.5 Relocation Benefits
Participant represents that the Site is now vacant.
Participant waives any claim against Agency or city for
relocation benefits pursuant to Government Code section 7260 et
seq. Participant agrees to hold harmless, defend, and indemnify
the Agency and City from any claim for relocation benefits
pursuant to such code sections brought by any third party by
reason of such party moving from or vacating the Site.
8. ENTIRE AGREEMENT, WAIVERS AND AMENDMENTS
This Agreement is executed in three (3) duplicate
originals, each of which is deemed to be an original.
This Agreement includes fifteen (15) pages and four (4)
attachments, which constitute the entire understanding and
agreement of the parties. The parties acknowledge and agree that
at all times they have intended that none of the preliminary
negotiations concerning this transaction would be binding on
either party, and that they would be bound to each other only by
a single formal comprehensive document containing this paragraph
and all of the agreements of the parties, in final form, which
has been executed and delivered by Agency and Participant. The
parties acknowledge that none of the prior oral agreements
between them (and none of the representations on which either of
them has relied) relating to the subject matter of this Agreement
R-PART.AGR/3.19.91 - 14 -
shall have any force or effect whatever, except as and to the
extent that such agreements and representations have been
incorporated in this Agreement.
All waivers of the provisions of this Agreement must be in
writing and signed by the appropriate.authorities of Agency or
Participant, and all amendments hereto must be in writing and
signed by the appropriate authorities of Agency and Participant.
9. TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY
This Agreement, when executed by Participant and delivered
to the Agency, must be authorized, executed and delivered by
Agency within fifteen (15) days after date of signature by
Participant or this Agreement shall be voidable, upon notice in
writing from Participant. The date of this Agreement shall be
the date when the Agreement shall have been signed by Agency.
IN WITNESS WHEREOF, Agency and Participant have executed
this Agreement as of the dates set opposite their signatures.
ROSEMEAD REDEVELOPMENT AGENCY
Dated:
Dated:
By:
CHAIRMAN
DIAMOND SQUARE
By:
ethed T.
By:
Lisa'L. Tun
R-PART.AGR/3.19.91 - 1 G -
ATTACHMENT NO'. 1
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ATTACHMENT NO. 2
LEGAL DESCRIPTION
Parcel 1 in the City of Rosemead, County of Los Angeles, State of
California, as shown as Parcel Map No. 8821, filed in Book 105
Page 71 of Parcel Maps, in the office of the county recorder of
said county.
Except from that portion of Parcel 1 included within Lot 52 of
Tract No. 5435, recorded in Book 58 Page 73 of Maps, in the
office of the county recorder of said county.
Attachment No. 2
Legal Description
R-PART.AGR/3.19.91
ATTACHMENT NO. 3
SCOPE OF DEVELOPMENT
I. GENERAL
A. Participant's Improvement's
Participant's Improvements shall be designed as a
retail shopping center of approximately 92,000 square feet,
consistent with the Basic Concept Drawings in a two-phase
development program.
1. Phase 1 Phase 1 of Participant's Improvements
shall consist of the following:
a. Rehabilitation of the existing building to
provide a food market and retail shops of approximately 55,500
square feet, exclusive of internal pedestrian circulation areas.
Such rehabilitation may include a food service court as part of
the new retail area of the existing building.
d. Construction of new retail shops and/or
restaurant of approximately 18,377 square feet of gross leasable
area.
2. Phase 2 Phase 2 of Participant's Improvements
shall be at the option of Participant and are not required. If
Participant elects to proceed with Phase 2, such improvements may
consist of the following:
a. Construction of an additional approximately
6,000 square feet of retail shops and/or restaurant.
b. Construction of a cover over the existing
Flood Control Channel.
Participant agrees that the Phase 2 Participant's
Improvements shall not include a fast food restaurant and that no
drive through service shall be permitted. Any restaurant shall
exceed 3,000 square feet in building area and shall provide full
service with waiters and/or waitresses. Agency shall have the
right to approve the approve the exterior design as provided in
the Agreement, but shall not have the right of approval of the
particular tenant(s) if Agency does not contribute toward the
cost of construction of the cover of the Channel as provided in
section 3.1 of the Agreement. If Participant elects to construct
a restaurant on the north-easterly portion of the Site and
requests that Agency contribute toward the cost of the
construction of the cover of the Channel, such restaurant shall
Attachment No. 3
Scope of Development
R-PART.AGR/3.19.91
be a family style restaurant with the tenant subject to the
approval of Agency, which approval shall not be unreasonably
withheld.
3. Landscaping All phases of the development shall
include landscaping and all other development required,
necessary, and/or appropriate for development of the improvements
described in the Basic Concept Drawings.
4. Parking Participant shall provide parking
consistent with City codes. Participant shall not be required to
count the internal pedestrian circulation area being created
within the existing building as retail square footage for
purposes of such parking requirements.
II. PRIVATE DEVELOPMENT STANDARDS
A. Architecture and Design
Participant's plans and proposals submitted to the
Agency for approval shall describe in detail the architectural
character intended for such improvements.
B. Landscaping
Landscaping on the site, including landscaping within
public rights-of-way, shall be provided by Participant. Land-
scaping shall comply with all City codes. All landscaping shall
include sprinklers or other methods of irrigation acceptable to
the Agency. Participant shall provide landscaping within all
setback areas.
III. PUBLIC IMPROVEMENTS
Participant shall construct, or shall cause to be
constructed, the following public improvements in connection with
Participant's construction.
A. Water
Participant shall be responsible for any hook-up or
connection fees to connect water service to Participant's
Improvements, including all water meter installation charges.
B. Sewers
Participant shall be responsible for all hook-up and
connection fees for connection of Participant's Improvements to
the City sewer system.
Attachment No. 3
Scope of Development
- 2 -
R-PART.AGR/3.19.91
C. Streets and Sidewalks
Participant shall construct, or cause to be
constructed, any curbs, gutters, and any sidewalks required by
the City adjacent to the Site.
D. Street Lighting
Street lighting is presently provided within the
public rights of way. Any additions to or modifications of the
existing street lighting required by city shall be the
responsibility of Agency.
E.. Electrical System
Existing electrical service is presently provided to
the Site by the Southern California Edison Company. Participant
shall be responsible for connection of the electrical service.
F. Gas System
Southern California Gas Company lines to provide gas
service to the Site. Participant shall be responsible for
connection of the gas service.
G. Telephone System
Telephone service to serve the Site is provided by
lines within the public rights-of-way. All connections shall be
the responsibility of Participant, including any connection fees
charged by the telephone company.
If any off-site undergrounding is required by the
City for new or existing telephone lines, such undergrounding
shall be Agency's responsibility.
H. Flood Control Channel
Participant may elect to negotiate with the County of
Los Angeles Flood Control District (hereinafter referred to as
"District") to acquire an easement or license to use the air
rights over the portion of the District's flood control channel
and property which separates the Site and to construct a cover
over the Channel.
If an acceptable easement or license is obtained,
Participant shall prepare, or cause to be prepared plans and
specifications for the construction of a structure to be placed
over the flood control channel with sufficient support to permit
automobile ingress and egress and parking, any buildings if
permitted by the District. Participant shall construct such
Attachment No. 3
Scope of Development
- 3 -
R-PART.AGR/3.19.91
structure subject to reimbursement by Agency as provided in
section 3.1 of the Agreement.
Attachment No. 3
Scope of Development
R-PART.AGR/3.19.91
ATTACHMENT NO. 4
SCHEDULE OF PERFORMANCE
GENERAL
Execution of the Agreement by
Agency
Within thirty
execution of
Participant.
PHASE 1 - PARTICIPANT IMPROVEMENTS
Submission - Preliminary
Construction and Landscaping
Plan. Participant shall prepare
and submit to Agency preliminary
construction drawings, outline
specifications and landscaping
plan for Phase 1.
Completed.
Approval - Preliminary Con-
struction Drawings and Land-
scaping Plan. Agency shall
approve or disapprove the
preliminary construction
drawings, outline specifi-
cations, and landscaping plan.
Submission - Final Construction
Drawings, Landscaping and Finish
Grading Plan. Participant shall
prepare and submit to Agency
final construction drawings and
specifications, a final land-
scaping and finish grading plan.
Approval - Final Construction
Drawings, Landscaping and Finish
Grading Plan. Agency shall
approve or disapprove the final
construction drawings and
specifications and landscaping
and finish grading plan.
(30) days after
this Agreement by
Within thirty (30) days after
receipt by Agency.
Within ninety (90) days
approval by Agency of
preliminary construction
drawings and landscaping
after
plans.
Within thirty (30) days after
receipt by Agency.
Attachment No. 4
Schedule of Performance
R-PART.AGR/3.19.91 - 1 -
Construction Loan. Participant
shall have obtained a
construction loan or may
terminate this Agreement.
Submission - Evidence of
Insurance. Participant shall
submit to Agency evidence of
insurance.
Commencement of Construction.
Participant shall commence con-
struction.
Completion of Construction.
Participant shall complete
construction.
PHASE 2 - PARTICIPANT IMPROVEMENTS
Submission - Preliminary
Construction and Landscaping
Plan. Participant shall prepare
and submit to Agency preliminary
construction drawings, outline
specifications and landscaping
plan for Phase 2.
Approval - Preliminary Con- -
struction Drawings and Land-
scaping Plan. Agency shall
approve or disapprove the
preliminary construction
drawings, outline specifi-
cations, and landscaping plan.
Submission - Final Construction
Drawings Landscaping and Finish
Grading Plan. Participant shall
prepare and submit to Agency
final construction drawings and
specifications, a final land-
scaping and finish grading plan.
Within ninety (90) days after
Agency execution of this
Agreement.
Within thirty (30) days after
Agency approval of final
construction drawings but
before commencement of
construction.
Within sixty (60) days after
Agency approval of final
construction drawings.
Within three hundred sixty five
(365) days after commencement
of construction.
When and if Participant elects
to construct such Phase 2
Improvements.
Within thirty (30) days
after receipt by Agency.
When and if Participant elects
to proceed with Phase 2
Improvements.
Attachment No. 4
Schedule of Performance
R-PART.AGR/3.19.91 - 2 -
Approval - Final Construction
Drawings, Landscaping and Finish
Grading Plan. Agency shall
approve or disapprove the final
construction drawings and
specifications and landscaping
and finish grading plan.
R-PART.AGR/3.19.91
Within thirty (30) days after
receipt by Agency.
Attachment No. 4
Schedule of Performance
- 3 -