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HomeMy WebLinkAbout1994-200 DAB:ca [ParkAgr.Res June 28, 1994 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RESOLUTION NO. 94-200 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A SECOND AMENDMENT TO PARKING AGREEMENT AND ASSIGNMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, DAVID D. MILLER AND DENYSE M. MILLER, HUSBAND AND WIFE, ALAN D. SMITH, POST CONFIRMATION TRUSTEE OF THE BANKRUPTCY ESTATE OF H. FRANK DOMINGUEZ, DOMINGUEZ/MILLER, A CALIFORNIA GENERAL PARTNERSHIP AND THE CITY OF SAN BERNARDINO BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City a second amendment to Parking Agreement and Assignment with the Redevelopment Agency of the City of San Bernardino, David D. Miller and Denyse M. Miller, husband and wife, Alan D. Smith, Post Confirmation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Dominguez/Miller, a California General Partnership and the City of San Bernardino relating to public parking spaces, a copy of which is attached hereto, marked Exhibit "I" and incorporated herein by reference as though set forth at length, subject to such nonsubstantive changes as may be approved by the City Attorney. SECTION 2. The authorization to execute the above- referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution. I HEREBY CERTIFY that the foregoing Resolution was duly 25 adopted by the Mayor and Common Council of the City of San Bernardino at a regular meeting thereof, held on the 26 27 28 18th day of July , 1994, by the following vote, to-wit: 1 DAB:ca [ParkAgr.Re June 28, 1994 94~200 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A SECOND AMENDMENT TO PARKING AGREEMENT AND ASSIGNMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, DAVID D. MILLER AND DENYSE M. MILLER, HUSBAND AND WIFE, ALAN D. SMITH, POST CONFIRMATION TRUSTEE OF THE BANKRUPTCY ESTATE OF H. FRANK DOMINGUEZ, DOMINGUEZ/MILLER, A CALIFORNIA GENERAL PARTNERSHIP AND THE CITY OF SAN BERNARDINO Council Members: AYES NAYS NEGRETE x CURLIN x HERNANDEZ x OBERHELMAN x DEVLIN x POPE-LUDLAM x MILLER x 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ABSTAIN ABSENT C1~~ July The foregoing Resolution is hereby approved this 20th day of , 1994. Approved as to form and legal content: JAMES F. PENMAN, City Attorney /~/ 2 ~)$4~ Tom Minor, Mayor City of San Bernardino n4 '~':'~ vEVELOPMENT DEPARTMEN.' OF THE CITY OF SAN BERNARDINO RF..oUEST FOR COMML'>SION/COUNCll. ACTION FROM: KENNETII J_ HENDERSON Executive Director SUBJECf: Mll.LER BUll.DING (DPSS) REQUESTED AMENDMENTS DATE: July 13, 1994 SynQpsis of PreviOU!li Commission/Council/Committee Action(s): On May 10, 1993, the Mayor and Common Council, together with the Community Development Commission approved leases and acquisition agreement between the City, the Agency, and the Millers for the puIpOSe of providing parking for the Southwest comer of Fifth and "E" Streets. On July 8, 1994, the Redevelopment Committee reviewed this item and recommended approval to the Community Development Commission. Recommended MotionCs}: (Community Develo,pment Commission) MOTION A: That the Community Development Commission approve certain changes, further specified in the attached staff report reganling the parking lot agreements by and hetween the Agency and County in order to enable and facilitate the owners ref"mancing of the fonner J. C. Penney's building, located on the south west corner of Fifth and "E" Streets and authorize the Executive Director to draft and execute the necessary documents upon approval of Agency Counsel. (Mavor and Common Counci)) MOTION B: RESOLUI10N OF TIlE MAYOR AND COMMON COUNCIL OF TIlE CITY OF SAN BERNARDINO AUI1IORIZING AND APPROVING A SECOND AMENDMENT TO PARKING AGREEMENT AND ASSIGNMENT BY AND BETWEEN TIlE REDEVELOPMENT AGENCY OF TIlE CITY OF SAN BERNARDINO, DAVID D. MILLER AND DENYSE M MILLER, HUSBAND AND WIFE, ALLAN D. SMI1H, POST CONFIRMATION TRUSTEE, OF TIlE BANKRUPTCY ESTATE OF H. FRANK DOMINGUEZ, DOMINGUEZ/MILLER, A CALIFORNIA GENERAL PARlNERSHIP OF TIlE CITY OF SAN BERNARDINO ~ KENN~~l~JsoN Executive Director Contact Pel8on(s): Kenneth J. HenrlPnnnDohn Hoe~er Phone: 5081 0ne(J) Project Area(s): Central City North Supporting Data Attached: Staff Report: Resolution FUNDING REQUIREMENTS: Amount N/A Budget Authority: Ward(s): Source: N/A N/A Commission/Council Notes: KJH:JBH:Imp:dpssblcicdc COMMISSION MEETING AGENDA MEETING DATE: 07118/94 Agenda Item Number: J.j ) -' !M !ao DEVELOPMENT DEPARTMENT STAFF REPORT MIl ,LER BUILDING (DPSSl - REQUESTED AMENDMENTS Agreements were approved last year which provided for the improvement and leasing of a parking lot built on the site of the former Ritz Theater (the Ritz Lot) plus the acquisition and building of a public parking lot on the Northwest comer of Fourth and E Streets (the Miller Lot). These agreements were designed to acconunodate the County who leases the former J.C.Penney's building on the Southwest comer of Fifth and E Streets from David and Denyse Miller and the trustee of the bankruptcy estate of H. Frank Dominguez (the Miller's). These agreements were required by the County as conditions to be met prior to their approval of a renewal of their lease of the building. After the agreements were approved, the County approved the renewal. Now the Millers wish to refmance their building and have sought a loan from a New York bank. After considerable negotiation, the bank is reported to remain ftnn on a request for certain changes in the adopted agreements. The changes are: 1) To recognize that the County has extended the lease and to remove that contingency from the agreements. 2) To recognize that the construction of the parking lots has been completed. 3) To assign the agreement rights to a partnership made up of the same people who are the current individual owners. 4) To change the term of the agreements to match the County's lease and option tenns. 5) To grant a "terminating" easement over the new public parking lot created on the Miller Lot. The fust two changes are essentially housekeeping items. Agency Counsel indicates that the third change appears to create no legal problems for the Agency. The fourth change deals with the termination dates of the agreements and is in accordance with the basic intention of the actions that adopted the agreements. The Agency's agreements used a termination date of December 31, 2009 while the County's lease terminates its initial teml on December 31, 2003 with optional extensions to December 31, 2015. The City's Parking Agreement amendment contained a calculation of the number of years involved which does not exactly match the fmallease. The requested changes would synchronize all of the dates to match the County's. KJH:JBH:lmp:dpssbldcdc COMMISSION MEETING AGENDA MEETING DATE: 07/18/94 Agenda Item Number: 4 l"ft, v'I-.:... ~~o 94 200 DEVELOPMENT DEPARTMENT STAFF REPORT Miller Building (DPSS) - Requested Amendments July 12, 1994 Page 2 --------------------------------------------------------------------------------------------.--------------------- The fifth change creates a document of record that will allow for title insurance. The proposed easement contains language that says it will terminate at the end of the County's lease or upon relocation of the parking. This was not in the scope of the original agreements but may not be greatly different provided that both the courts and the title companies recognize the termination provision at the appropriate time. Staff and Agency Counsel have been negotiating the specific language of the changes that would be involved and final drafts are now under reviewing. Meanwhile the loan commitment obtained by the Miller's will soon expire. They have requested expedited action. On July 8, 1994, the Redeveloprnent Committee reviewed this matter and recommended approval to the Community Developoment Commission. RECOMMENDATION To accommodate the refmancing, and in recognition of the short time remaining on the loan commitment, it is the recommendation of staff that the Commission and Council approve execution of documents to carry out these changes. Staff recommends adoption of the form motions "A" and "B". ~ KENNETH J~ENDERSON, Executive Director Development Department KJH:JBH:lmp:dpssbld.cdc COMMISSION MEETING AGENDA MEETING DAlE: 07/18/94 ~ Agenda Item Number: 94 200 DAB:ca [ParkAgr.Res June 28, 1994 j 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A SECOND AMENDMENT TO PARKING AGREEMENT AND ASSIGNMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, DAVID D. MILLER AND DENYSE M. MILLER, HUSBAND AND WIFE, ALAN D. SMITH, POST CONFIRMATION TRUSTEE OF THE BANKRUPTCY ESTATE OF H. FRANK DOMINGUEZ, DOMINGUEZ/MILLER, A CALIFORNIA GENERAL PARTNERSHIP AND THE CITY OF SAN BERNARDINO BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: SECTION 1. The Mayor of the City of San Bernardino is hereby authorized and directed to execute on behalf of said City a second amendment to Parking Agreement and Assignment with the Redevelopment Agency of the City of San Bernardino, David D. Miller and Denyse M. Miller, husband and wife, Alan D. Smith, Post Confirmation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Dominguez/Miller, a California General Partnership and the City of San Bernardino relating to public parking spaces, a copy of which is attached hereto, marked Exhibit "I" and incorporated herein by reference as though set forth at length, subject to such nonsubstantive changes as may be approved by the City Attorney. SECTION 2. The authorization to execute the above- referenced Agreement is rescinded if the parties to the Agreement fail to execute it within sixty (60) days of the passage of this Resolution. I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of 25 San Bernardino at a meeting thereof, held on the 26 27 28 day of , 1994, by the following vote, to-wit: 1 q, 94 200 DAB:ca [ParkAgr.Re June 28, 1994 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING A SECOND AMENDMENT TO PARKING AGREEMENT AND ASSIGNMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, DAVID D. MILLER AND DENYSE M. MILLER, HUSBAND AND WIFE, ALAN D. SMITH, POST CONFIRMATION TRUSTEE OF THE BANKRUPTCY ESTATE OF H. FRANK DOMINGUEZ, DOMINGUEZ/MILLER, A CALIFORNIA GENERAL PARTNERSHIP AND THE CITY OF SAN BERNARDINO Council Members: AYES NAYS ABSTAIN ABSENT NEGRETE CURLIN HERNANDEZ OBERHELMAN DEVLIN POPE-LUDLAM MILLER City Clerk The foregoing Resolution is hereby approved this day of , 1994. Tom Minor, Mayor City of San Bernardino Approved as to form and legal content: JAMES F. PENMAN, City Attorney /~./ 2 4 .\ 94 200 GRESHAM. VARNER. SAVAGE. NOLAN & TILDEN ALLEN B.OBESHAX BRUCE D. VAllNEB PHILIP K. SAVAGE,III .JOHN C. NOUN M. WIlJ.IAN TILDEN JAMES E. 0000 KARl[ A OsroJCB THOMAS N. JACOBSON STEPHAN O.SALESON ROBERT W. BITIER. JR. ROBIN BRAMLETT COCBBAN DUKE D. ROUSE JOHN B.McCAULEY ERNEST E. RIFFEN8UBOB KICHAEL DUANE DAVIS 8ABT W. BlllZZEE CRAIG O. DOBLER RICHARD D. KABCA PATRICK O. MITCHEll DARYL R. CARLSON MICHAEL O. WOLP JAY C. EOEMES PENEIDPE ALEXAJrlDER TAU RElLLY KICBAEL O. BAXSEY BRENDAN W. BRAJlDT RONALD D.OETCBEY SAUL JAl'PE ELIZAllETH ASHLEY BlANCO GEORGE LASKO LAW OPl"ICES POST OFFICE BOX 1148 RIVERSIDE, CALIFORNIA 92002 Wlu.u.x GUTBmE {1886'1941) DONALD W. JORDAN (1901.1989) JOHN B. LONERGAN (RETIRED 19781 3737 MAIN STREET, SUITE 800 RIVERSIDE. CALIFORNIA 92~01 (909) 214-7777 TELECOPIER (909) 274.7770 SAN BERNARDINO OFFICE 600 NORTH ARROWHEAD AVENUE:. SUITE 000 SAN BERNARDINO. CALIFORNIA Q2401 TELEPHONE (909) 864-21n VICTOBVILLE OFFICE 14011 PABK AVENUE. SUITE 140 VICTORVILLE. CAUFOHNlA 92392 TELEPHONE (619} 243-2889 June 8, 1994 VIA HAND DELIVERY Dennis A. Barlow, Esq. Deputy City Attorney City of San Bernardino 300 North "D" Street San Bernardino, CA 92418 Re: DominguezlMilIer-DPSS Building Parking Agreement Amendments and Related Documents Dear Dennis: Enclosed please find final drafts of the following: 1. Consent and Agreement; 2. Grant of Easement; 3. First Amendment to Lease and Assignment; 4. First Amendment to Property Acquisition Agreement and Assignment; 5. Second Amendment to Parking Agreement and Assignment; 6. Memorandum of Amendment to Lease and Assignment; and 7. Memorandum of Amendment to Property Acquisition Agreement and Assignment. There are two minor substantive changes to the Second Amendment to Parking Agreement and Assignment. First, the thirty-seven year period indicated on page 2 of the last draft has been changed to thirty-eight years. The thirty-seven year period would be too short in the unlikely event that the County exercises all of its extension options through December 31, 4 94 200 GHEsHAM. VARNER. SAVAGE. NOLAN & TILDEN LAW OFFICES Dennis A. Barlow, Esq. Deputy City Attorney City of San Bernardino June 8, 1994 Page 2 to 2015. Second, paragraph l.c. has been added pursuant to the request of Bruce Varner to clarify that the County will not be charged for its use of the parking provided under the Agreement. Although this understanding has been clear over the past 15 years of the Agreement, he felt it would be prudent to restate it. Please call me if you have any questions. Otherwise, it would be most appreciated if the enclosed could be calendared for hearing as soon as possible. Thank you for your help. Very truly yours, 7>7,.A"t? //.Ik,~ Michael G. Ramsey of Gresham, Varner, Savage, Nolan & Tilden MGR:a1 Enclosures cc: Bruce D. Varner, Esq. (w/enc.) Mr. David D. Miller (w/enc.) Alan D. Smith, Esq. (w/enc.) Amy H. Wells, Esq. (w/enc.) O:\WPDA TA \I83\002\BARLOW.LTR q 94 200 J RECORDING REQUESTED BY AND WHEN RECORDED, MAIL TO: Cox, Castle & Nicholson 2049 Century Park East Twenty-Eighth Floor Los Angeles, California 90067 Attn: Amy H. Wells, Esq. CONSENT AND AGREEMENT (Redevelopment Agency) THIS CONSENT AND AGREEMENT ("Agreement") is made as of the day of , 1994, between and among THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("Redevelopment Agency"), and PNC MORTGAGE BANK, N.A., a national association ("Lender"), with reference to the following facts: A. Sears Savings Bank, a California corporation ("prior Lender"), made a loan (the "Loan") to DOMINGUEZ/MILLER, a California general partnership ("Borrower"), evidenced by that certain Note Secured by Deed of Trust, dated May 24, 1984, in the original principal amount of $4,000,000 (the "Existing Note"). The Existing Note is secured by, among other things, that certain Deed of Trust executed by Borrower as "Trustor", to Trans-Coast Services, Inc., as "Trustee", in favor of Prior Lender as "Beneficiary", recorded on the June 4, 1984, as Instrument No. 84-129640 in the Official Records of San Bernardino County, California (the "Existing Deed of Trust"). The Existing Deed of Trust encumbers the property described in Exhibit "A" attached hereto which is improved with an office building (the "Property") . B. Borrower and Prior Lender entered into that certain Assignment of Lessor's Interest in Lease, recorded April 5, 1984, as Instrument No. 84-129641 in the Official Records of San Bernardino County, California (the "Existing Assignment") in connection with that certain San Bernardino Lease Agreement Dated Effective May 1, 1988 & Designated As County Contract No. 88-292, as amended (the "County Lease"), of the Property by and between the Borrower, as lessor, and the County of San Bernardino (the "County"), as lessee. C. The Existing Note, the Existing Deed of Trust, the Existing Assignment and certain other documents relating to the Loan have been modified by that certain Loan Modification Agreement, dated January 1, 1989, a memorandum of which was recorded January 31, 1991, as Instrument No. 91-037469 in the Official Records of San Bernardino County, California (the "Existing Loan MOdification"). The Existing Note, the Existing Deed of Trust, the Existing Assignment and all other currently existing documents evidencing, securing or executed in connection with the Loan, as modified by the Existing Loan Modification, are AHWELLS 23899 145613 2 -1- q 94 2QO J hereinafter collectively referred to as the "Existing Loan Documents". D. Borrower and the County have entered into that certain First Amendment To That certain County Lease (the "County Lease Amendment"), a memorandum of which was recorded September 15, 1993, as Instrument No. 93-396258 in the Official Records of San Bernardino County, California. Pursuant to the county Lease Amendment, Borrower has agreed, among other things, to provide to the County staff and visitors access to a minimum of three hundred forty-three (343) parking spaces, as more particularly described therein. E. H. Frank Dominguez, David D. Miller and Denyse M. Miller, the general partners of Borrower (individually and collectively, the "General Partners") (with H. Frank Dominguez doing business as Vanir Research Company) and the Redevelopment Agency have entered into that certain (i) Parking Agreement dated November 8, 1978, recorded December 6, 1978 in Book 9574, Page 20, in the Official Records of San Bernardino county, California; and (ii) First Amendment to Agreement dated November 14, 1980. The General Partners, with Alan smith as post-confirmation trustee of the bankruptcy estate of H. Frank Dominguez, and the Redevelopment Agency have entered into that certain (iii) First Amendment To Parking Agreement, dated July 6, 1993; (iv) Lease, dated May 10, 1993; and (v) Property Acquisition Agreement, dated May 10, 1993. The General Partners, with Alan smith as post- confirmation trustee of the bankruptcy estate of H. Frank Dominguez, the Redevelopment Agency and Borrower, as assignee, have entered into that certain (vi) Second Amendment to Parking Agreement and Assignment, undated; (vii) First Amendment to Lease and Assignment, undated; and (viii) First Amendment to Property Acquisition Agreement and Assignment, undated. The foregoing documents (i) through (viii) are attached hereto as Exhibit B'... and are individually and collectively referred to herein as the "Parking Agreements". The Parking Agreements concern certain property more particularly described therein, to be used as parking facilities for the use of County staff and visitors (the "Parking Property") as required by the County Lease Amendment. F. Prior Lender assigned to Lender all of Prior Lender's right, title and interest in and to the Loan and the Existing Loan Documents. I G. Borrower has requested that Lender extend the maturity of the Loan and modify the provisions of the Existing Loan Documents, and Lender is willing to do so provided, among other things, Lender obtains this Agreement from the Redevelopment Agency. AHWELLS 23899 145613 2 -2- 1.\ ) 94 200 AGREEMENT In consideration of the covenants and agreements contained herein, and for other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agrees as follows: 1. In the event that Lender or any other purchaser ("Acquiring Party") shall take possession of the Property pursuant to any provision of the Deed of Trust or shall acquire fee title to the Property, whether through foreclosure proceedings or deed in lien thereof, Redevelopment Agency agrees: (i) From and after such event, to recognize Acquiring Party as the lessee under the Parking Agreements, and as the party benefiting by the parking provided thereunder; (ii) All rights and obligations under the Parking Agreements shall continue in full force and effect in accordance with the terms thereof; provided, however, that the Acquiring Party shall not: (A) be liable for any act or omission or obligations of Borrower or the General Partners occurring or arising prior to such acquisition of title; (B) be liable for any damages or other relief attributable to any breach by Borrower or the General Partners of any representation or warranty under the Parking Agreements existing as of the date of such acquisition of title. (iii) If requested by Acquiring Party, Redevelopment Agency shall enter into a new agreement with Acquiring Party upon the same terms and provisions as the Parking Agreements. 2. In the event of any default on the part of Borrower under the Parking Agreements, Redevelopment Agency will give notice by registered or certified mail to Lender and to any holder of a deed of trust encumbering the Property and shall offer Lender or such holder of a deed of trust encumbering the Property a reasonable opportunity to cure the default, including time to obtain possession of the Property by power of sale or a judicial foreclosure, if such should prove necessary to effect a cure. 3. Redevelopment Agency hereby consents to the assignment of all of Borrower's right, title and interest under and pursuant to the Parking Agreements to Lender and acknowledges and agrees that Lender shall have no obligation or liability with respect to the Parking Agreements unless and until Lender AHWELLS 23899 \45613 2 -3- q 94 200 , ~. J acquires all of Borrower's right, title and interest thereunder. 4. All notices which it may be desirable or necessary for either party to give to the other hereunder shall be in writing and delivered by hand or mailed, by registered or certified mail, return receipt requested, or by reputable overnight courier service, addressed to the parties at their respective addresses set forth below or to any other address as to which any party hereto may hereafter give notice to the others in the same manner. All notices shall be deemed to have been given when received or receipt is refused by the party hereto to whom they are addressed: Redevelopment Agency: Redevelopment Agency Lender: PNC Mortgage Bank, N.A. c/o PNC Realty Holding Corp Fifth Avenue and Wood street pittsburgh, Pennsylvania 15265 Attention: Loan Administration Supervisor 5. the benefit of and assigns. This Agreement shall be binding upon and inure to the parties hereto and their respective successors 6. Redevelopment Agency represents and warrants to Lender that (al Borrower is in possession of the Parking Property, (bl the Parking Agreements have been duly authorized, executed and delivered by the Redevelopment Agency and are in full force and effect, (cl neither Borrower nor the General Partners are in default under the terms of the Parking Agreements and no condition exists which, with the passage of time or the giving of notice or both, would constitute such a default. AHWELLS 23899 145613 2 -4- ) 942QO 7. The Parking Agreements contain the entire agreement between the Redevelopment Agency and Borrower and the General Partners with respect to the Parking Property. IN WITNESS WHEREOF, this Agreement has been executed as of the day and year first above written. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Its: PNC MORTGAGE BANK, N.A., A NATIONAL ASSOCIATION BY: PNC REALTY HOLDING CORP, A PENNSYLVANIA CORPORATION, ITS AUTHORIZED AGENT BY: CHRISTOPHER MILNER, ASSISTANT VICE PRESIDENT AHWELLS 23899 145613 2 -5- 4 u J 9 A ,,:!,\ () Q: ,,..I \i PARCEL A All that portion of Lot 6, Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per Map recorded in Book 7 of Maps, Page 1, in the Office of the County Recorder of said County, and more particularly described as follows: Parcell: Commencing at a point on the west line of "E" Street, 57-112 feet north of the southeast corner of said lot; thence north to the northeast corner of said lot; thence west along the north line of said lot 150 feet to the middle of the north line of said lot; thence south to a point 57-1/2 feet north of the south line of said lot; then east to the point of beginning. Parcel 2: Beginning at the northeast corner of the west one-half of Lot 6; thence south 150 feet, more or less, to the southeast corner of the west one-half of said lot; thence west 50 feet; thence north 150 feet, more or less, to the north line of said lot; thence east 50 feet to the point of beginning. PARCEL B That portion of the East one-half of Lot 6, Block 28, in the County of San Bernardino, State of California, as per Map Recorded in Book 7 of Maps, Page(s) 1, in the Office of the County Recorder of said County, described as follows: Beginning at the Southeast corner of said Lot 6; thence North along the West line of "E" Street, 57.15 feet; thence West 150 feet, more or less, to a point in the West line of the East one-half of said Lot, 57.5 feet North of the South line of said Lot; thence South 57.5 feet to the South line of said Lot 6; thence East along the South line of said Lot 6 to the point of beginning. 1\R\M183\002\Exlub;t,B EXHIBIT" A" 4 94 200 RECORDING REQUESTED BY i __- AND WHEN RECORDED MAIL TO: Mr. David D. Miller and Alan D. Smith, Esq. c/o Bruce D. Varner, Esq. GRESHAM, VARNER,SAVAGE,NOLAN & TILDEN 600 North Arrowhead Avenue Suite 300 San Bernardino, CA 92401 ) (For Recorder's Use Only) GRANT OF EASEMENT The undersigned Grantor declares: Documentary transfer tax is $0.00 and For valuable consideration, receipt of which in hereby acknowledged, The Redevelopment Agency of the City of San Bernardino, a body corporate and politic ("Grantor") hereby grant( s) to DominguezlMiller, a California general partnership ("Grantee") the following described real property in the City of San Bernardino, County of San Bernardino, State of California: A non-exclusive easement over and across that certain real property described in Exhibit "A" attached hereto and incorporated herein by reference ("Servient Tenement") and appurtenant to that certain real property described in Exhibit "B" attached hereto and incorporated herein by reference ("Dominant Tenement") for purposes of ingress, egress and parking by Grantee and Grantee's successors and assigns as fee owner(s) of the Dominant Tenant and the County of San Bernardino as lessee of the Dominant Tenement. Said easement shall automatically terminate on the earlier date of (i) the termination of that certain County of San Bernardino Lease Agreement, dated effective May 1, 1988, designated County Contract No. 88-292, as is now and as may be hereinafter amended and (ii) the relocation of all public parking spaces to be constructed on the Servient Tenement in accordance with the replacement parking provisions of that certain Property Acquisition Agreement between the above-referenced Grantor and Grantee, dated effective May 10, 1993, as may be hereinafter amended. The Redevelopment Agency of the City of San Bernardino, a body corporate and politic ,1994 By: Its: Dated: MAIL TAX STATEMENTS TO: Los Angeles, CA 90045 David D. Miller c/o Kodash, Inc., 5250 West Century Boulevard, Suite 307, 4 '--_/ ) 94 200 Parcell: All that portion of Lots 1 and 8, Block 28, City of San Bernardino, in the City of San Bernardino, as per plat recorded in Book 7 of Maps, Page 1, Records of the County of San Bernardino, State of California, described as follows: Beginning at a point 140 feet South of the Northeast corner of said Lot 8; thence West 143 feet; thence South SO feet; thence East 143 feet; thence North to the point of beginning. Parcel 2: The North 62 feet of the South 109.55 feet of the East 153.74 feet of Lot 1 and the North 40 feet of the West 10.74 feet of the East 153.74 feet of Lot 1; and the South 10 feet of the West 10.74 of the East 153.74 feet of Lot 8; all in Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 7 of Maps, Page 1, records of said County. Excepting therefrom that portion embraced within the following described property VIZ: Commencing at a point 140 feet South of the Northeast corner of said Lot 8; thence West 143 feet; thence South 50 feet; thence East 143 feet; thence North 50 feet to the point of beginning. Parcel 3: A portion of Lot 1, Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 7 of Maps, Page 1, records of said County, described as follows: Beginning at the Southeast corner of said Lot I; thence North 50 feet along the East side of said Lot; thence West parallel with the South side of said Lot for a distance of 155 feet, more or less, to a point 145 feet East of the West line of said Lot; thence South to the South line of said Lot; thence East 155 feet, more or less, to the point of beginning. Excepting therefrom that portion thereoflying within the North 62 feet ofthe South 109.55 feet of the East 153.74 feet of said Lot 1. Also excepting therefrom, the South 26 feet of the East 153.74 feet of said Lot 1. Parcel 4: Those portions of Lot 8, Block 28, City of San Bernardino, in the City of San Bernardino, as l\R\MI83\OO2\Exhtllit.A EXHmIT "A" 4 94 200 ) per plat recorded in Book 7 of maps, Page 1, Records of the County of San Bernardino, State of California, described as follows: (A) Beginning 80 feet South of the Northeast corner of Lot 8; thence South 60 feet; thence West 200 feet; thence North 60 feet; thence East 200 feet to the point of beginning. (B) Beginning at a point 80 feet South and 200 feet West of the Northeast corner of said Lot 8; thence South 59.3 feet, more or less, to a point which is 10 feet North of South line of said Lot 8; thence West 99.1 feet, more or less, to West line of said Lot 8; thence North along the West line of said Lot 8, 59.3 feet, more or less, to a point due West of the point of beginning; thence East 99.1 feet, more or less, to the point of beginning. Excepting therefrom the Westerly 145 feet of above described property. l\R\MI83\OO2\E.xhibit.A EXHIBIT "A" 4 , ~~ ) 94 200 PARCEL A All that portion of Lot 6, Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per Map recorded in Book 7 of Maps, Page 1, in the Office of the County Recorder of said County, and more particularly described as follows: Parcell: Commencing at a point on the west line of "E" Street, 57-112 feet north of the southeast corner of said lot; thence north to the northeast corner of said lot; thence west along the north line of said lot ISO feet to the middle of the north line of said lot; thence south to a point 57-112 feet north of the south line of said lot; then east to the point of beginning. Parce12: Beginning at the northeast corner of the west one-half of Lot 6; thence south 150 feet, more or less, to the southeast corner of the west one-half of said lot; thence west 50 feet; thence north 150 feet, more or less, to the north line of said lot; thence east 50 feet to the point of beginning. PARCEL B That portion of the East one-half of Lot 6, Block 28, in the County of San Bernardino, State of California, as per Map Recorded in Book 7 of Maps, Page(s) 1, in the Office of the County Recorder of said County, described as follows: Beginning at the Southeast corner of said Lot 6; thence North along the West line of "E" Street, 57.15 feet; thence West 150 feet, more or less, to a point in the West line of the East one-half of said Lot, 57.5 feet North of the South line of said Lot; thence South 57.5 feet to the South line of said Lot 6; thence East along the South line of said Lot 6 to the point of beginning. 1\R\M183\lI02\Ellub~,B EXHIBIT "B" 4 94 200 ~ ) STATE OF CAUFORNIA COUNTY OF ) ) ) SS. On this _ day of 1994, before me , a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State 4 ) 94 200 FIRST AMENDMENT TO LEASE AND ASSIGNMENT This First Amendment to Lease and Assignment ("Amendment") is entered into effective June _, 1994 ("Effective Date") by and among the Redevelopment Agency ofthe City of San Bernardino, a body public, corporate and politic organized and existing pursuant to the Community Redevelopment Law of the State of California ("Lessor") and David D. Miller and Denyse M. Miller, husband and wife and Alan D. Smith, Post-Confmnation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California (collectively "Lessee") and Dominguez/Miller, a California general partnership ("Assignee"). RECITALS A. Lessor and Lessee entered into that certain Lease dated effective May 10, 1993 ("Lease") for which a Memorandum of Lease was recorded on September 15, 1993 in the Official Records of the San Bernardino County Recorder as Instrument No. 93-396258, whereunder Lessor leased to Lessee certain real property located in the City of San Bernardino, State of California, as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference ("Property"). B. Lessor and Lessee desire to amend the terms of this Lease as set forth below and further desire to effectuate the assignment of Lessee's rights and delegation of Lessee's obligations under the Lease, as amended below, to Assignee. OPERATIVE PROVISIONS Now, therefore, for valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties agree as hereto follows: 1. Amendment. The Lease is hereby amended as follows: a. Section 1. of the Lease is deleted in its entirety. b. Subsection 3.1 of the Lease is deleted in its entirety and replaced with the following language: 3.1 Term. The term of this Lease shall commence on September 14, 1993. This Lease is coterminous with that certain County of San Bernardino Lease Agreement dated effective May 1, 1988, designated as County Contract No. 88-292, as first amended on or about September 14, 1993 and as may be extended in accordance with its terms ("County Lease") and shall terminate concurrently with the expiration or other termination of the County Lease. R:IM183\OOOIMILLER.lST 1 4 94 200 :) ~~ J c. Subsection 5.1 ofthe Lease is deleted in its entirety and replaced with the following language: 5.1 Parking Facilities. Lessor shall construct or cause construction of a parking lot on the Premises containing at least sixty (60) automobile parking spaces designated for the exclusive use of the County Staff and visitors, in accordance with applicable law. Such construction shall be completed on or before June 24, 1994. d. The remaining terms of the Lease shall remain in full force and effect except to the extent conflicting with this Amendment, in which case, this Amendment shall control. 2. Assignment. Lessee hereby assigns all of its rights and delegates all of its obligations under the Lease, as herein amended, to Assignee who hereby accepts such rights and assumes such obligations and agrees to be bound by all terms of the Lease, as herein amended, as of the Effective Date of this Amendment. Lessor hereby approves, consents and agrees to such assignment. Lessor agrees that this Amendment serves as Lessor's valid and binding written consent to such assignment for all purposes. IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the Effective Date. LESSOR Redevelopment Agency of the City of San Bernardino, a body public, corporate and politic By: Kenneth J. Henderson Its: Executive Director ATTEST: Secretary Approved as to form and legal content By: Counsel to Agency [SIGNATURES FOLLOW] R:IMI83\OOOIMILLER.1ST 2 4 94 200 R:IMI83\OOOIMILLER,IST } LESSEE David D. Miller Denyse M. Miller Alan D. Smith, Post-Confmnation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California ASSIGNEE Dominguez/Miller, a California general partnership By: David D. Miller, partner By: Denyse M. Miller, partner By: Alan D. Smith, Post-Confmnation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA- 88-01375-WL, United States Bankruptcy Court for the Central District of California, partner 3 4 ~' ) ~~2~~ All that portion of Lots 3 and 4, Block 29, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded-in Book 7 of Maps, Page 1, records of said County, described as follows: Commencing at a point on the West line of said Lot 4, and said line also being the East line of "E" Street, 50 feet South of the Northwest corner of said Lot 4; thence South along the West line of said Lot 4, 130 feet, more or less, to a point 120 feet North of the South line of said Lot 4; thence East and parallel to the North line of said Lot 4, 90 feet, more or less, to a point, said point being the Northeast comer of said property conveyed to Ralph E. Swing, by Deed recorded in Book 589, Page 189, of Deeds; thence South along the East line of said property conveyed to Swing, 2 feet, more or less, to a point 118 feet North of the South line of said Lot 4; thence East along a line which is parallel to and 118 feet North of the South line of Lots 3 and 4, 95 feet, more or less, to a point 35 feet East of the West line of said Lot 3; thence North 132 feet, more or less, to a point which is 50 feet South and 35 feet East of the Northwest corner of said Lot 3; thence West and parallel to the North lines of said Lots 3 and 4, a distance of 185 feet, more or less, to the point of beginning. EXlllBIT "A" l\R\MlS3\OOO\Exhibit.A f ~ ~Q-~ '> FIRST AMENDMENT TO PROPERTY ACQUISITION AGREEMENT AND ASSIGNMENT This First Amendment to Property Acquisition Agreement and Assignment ("Amendment") is entered into effective June _, 1994 ("Effective Date") by and among the Redevelopment Agency of the City of San Bernardino, a body public, corporate and politic, organized and duly existing pursuant to the Community Redevelopment Law of the State of California ("Agency"), David D. Miller and Denyse M. Miller, husband and wife, Alan D. Smith, Post-Confrrmation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California (collectively "Seller") and DominguezlMiller, a California general partnership ("Assignee"). RECITALS A. Agency and Seller entered into that certain Property Acquisition Agreement, dated effective May 10, 1993 ("Agreement") for which a Memorandum of Property Acquisition Agreement was recorded on September 15, 1993 in the Official Records of the San Bernardino County Recorder as Instrument No, 93-396385, whereunder Seller sold to Agency certain real property located in the City of San Bernardino, State of California, as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference ("Property"). B. Agency and Seller desire to amend the terms of the Agreement as set forth below and further desire to effectuate the assignment of Seller's rights and delegation of Seller's obligations under the Agreement, as amended below, to Assignee. OPERATIVE PROVISIONS Now, therefore, for valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: 1. Amendment. The Agreement is hereby amended as follows: a. Section 2. of the Agreement is deleted in its entirety. b. Section 5. of the Agreement is deleted in its entirety and replaced with the following language: Section 5. Parkin!!. As additional material consideration given by the Agency to the Seller for the Property, the Agency agrees as follows: (a) The Agency agrees to construct on the Property a parking lot comprised of at least seventy (70) public parking spaces (without parking time limitations). Said construction shall be completed on or before June 24, 1994. The parking lot shall be constructed in accordance with all applicable laws. The Agency shall maintain the parking lot in good repair and make it available for the use of the County and the general public throughout the term of that certain County of San Bernardino Lease Agreement dated effective May 1, 1988, designated as County Contract RIM183\OOOIMILLER,PAA 1 4 94 2(lO ) No. 88-291, as fIrst amended on or about September 14, 1993 ("County Lease"), including any and all extensions of the term as may be exercised by the County of San Bernardino thereunder. (b) Subject to Subsection 5.(c) below, the Agency and its successors and assigns shall not, in any manner, cause the elimination, restriction or impairment of the above-referenced parking lot or any of the parking spaces therein including, without limitation, by sale, lease, assignment or transfer of an interest in the Property, prior to the expiration of the term of the County Lease, including any and all extensions of the term as may be exercised by the County of San Bernardino thereunder. (c) Notwithstanding the foregoing Subsection 5.(b), the Agency may eliminate, restrict or impair the above-referenced parking lot or any of the parking spaces therein if, and only if, prior to such elimination, restriction or impairment, (i) the County terminates its lease arrangement for the County Building and is no longer an occupant of the County Building or (ll) the Agency provides Seller, for the use by County and the general public, the same number of public parking spaces (without parking time limitations) so eliminated, restricted or impaired, within a one thousand (l,ooo) foot radius of the County Building or, in the event a parking plan for the downtown area of San Bernardino is validly approved by the City or another public entity having jurisdiction over parking in downtown San Bernardino, provides appropriate parking within a reasonable distance of the County Building in accordance with such plan. In the event such a plan is approved, the Agency shall use reasonable efforts to provide such parking within a one thousand (1,000) foot radius of the County Building. To the extent that replacement parking is provided, the Agency shall maintain or cause to be maintained such replacement parking spaces in good repair throughout the term of the County Lease, including any and all extensions of the term as may be exercised by the County of San Bernardino thereunder. (d) Notwithstanding any provision in this Agreement which may be interpreted to the contrary, neither Seller nor the County shall be, at any time, charged any fee of any kind for parking in the public parking spaces so provided in this Section 5, including, without limitation, those spaces which may be provided in accordance with Subsection 5.(c). (e) In the event the Property or any portion thereof is taken, directly or indirectly, through eminent domain, Agency shall provide public parking for County and the general public in accordance with Subsection 5.(c) above, as if the Agency itself eliminated the parking spaces so taken. RIM183\OOOIMILLER,PAA 2 4 "(\0 94 ;:.u 'I '.........." J The parties acknowledge and agree that the obligation to provide replacement parking within one thousand (1,000) feet of the County Building as set forth in this Agreement shall be interpreted such that at least the outer boundary of the replacement parking 10t(s), and not necessarily all of the spaces, is within one thousand (1,000) feet of the County Building. c. Section 20 of the Agreement is deleted in its entirety and replaced with the following language: Section 20. Term. This Agreement and the obligations hereunder shall endure from the date of execution of this Agreement by the parties hereto until the expiration or other termination of the term of the County Lease, as amended, including any and all extensions of the term as may be exercised by the County of San Bernardino thereunder. d. The remaining terms of the Agreement shall remain in full force and effect except to the extent conflicting with this Amendment, in which case, this Amendment shall control. 2. Assi~ment. Seller hereby assigns all of its rights and delegates all of its obligations under the Agreement, as herein amended, to Assignee, which hereby accept such rights and assume such obligations and agrees to be bound by all terms of the Agreement, as herein amended, as of the Effective Date. Agency hereby approves, consents and agrees to such assignment. Agency agrees that this Amendment serves as Agency's valid and binding written consent to such assignment for all purposes. IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the Effective Date. AGENCY Redevelopment Agency of the City of San Bernardino, a body public, corporate and politic By: Kenneth J. Henderson Its: Executive Director ATTEST: Secretary [SIGNATURES FOLLOW] RIM 1 83\OOOIMILLER,P AA 3 ..... ~~ ", (' ._ ~V 94 200 Approved as to form and legal content By: Counsel to Agency RIM183\OOOIMILLER.PAA } SELLER David D. Miller Denyse M. Miller Alan D. Smith, Post-Confmnation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California ASSIGNEE Dominguez/Miller, a California general partnership By: David D. Miller, partner By: Denyse M. Miller, partner By: Alan D. Smith, Post-Confmnation Tru~eeoftheBankrupocyEstareof H. Frank Dominguez, Case No. LA- 88-01375-WL, United States Bankruptcy Court for the Central District of California, partner 4 1 94 ?QQ '-1 ...._~' J Parcell: All that portion of Lots 1 and 8, Block 28, City of San Bernardino, in the City of San Bernardino, as per plat recorded in Book 7 of Maps, Page 1, Records of the County of San Bernardino, State of California, described as follows: Beginning at a point 140 feet South of the Northeast corner of said Lot 8; thence West 143 feet; thence South 50 feet; thence East 143 feet; thence North to the point of beginning. Parcel 2: The North 62 feet of the South 109.55 feet of the East 153.74 feet of Lot 1 and the North 40 feet of the West 10.74 feet of the East 153.74 feet of Lot 1; and the South 10 feet of the West 10.74 of the East 153.74 feet of Lot 8; all in Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 7 of Maps, Page 1, records of said County. Excepting therefrom that portion embraced within the following described property VIZ: Commencing at a point 140 feet South of the Northeast corner of said Lot 8; thence West 143 feet; thence South 50 feet; thence East 143 feet; thence North 50 feet to the point of beginning. Parce13: A portion of Lot 1, Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 7 of Maps, Page 1, records of said County, described as follows: Beginning at the Southeast corner of said Lot 1; thence North 50 feet along the East side of said Lot; thence West parallel with the South side of said Lot for a distance of 155 feet, more or less, to a point 145 feet East of the West line of said Lot; thence South to the South line of said Lot; thence East 155 feet, more or less, to the point of beginning. Excepting therefrom that portion thereof lying within the North 62 feet of the South 109.55 feet of the East 153.74 feet of said Lot 1. Also excepting therefrom, the South 26 feet of the East 153.74 feet of said Lot I. Parcel 4: Those portions of Lot 8, Block 28, City of San Bernardino, in the City of San Bernardino, as 1\R\MI83\002\Exhibit.A EXHIBIT "A" 4 94 200 I per plat recorded in Book 7 of maps, Page 1, Records of the County of San Bernardino, State of California, described as follows: (A) Beginning 80 feet South of the Northeast corner of Lot 8; thence South 60 feet; thence West 200 feet; thence North 60 feet; thence East 200 feet to the point of beginning. (B) Beginning at a point 80 feet South and 200 feet West of the Northeast corner of said Lot 8; thence South 59.3 feet, more or less, to a point which is 10 feet North of South line of said Lot 8; thence West 99.1 feet, more or less, to West line of said Lot 8; thence North along the West line of said Lot 8, 59.3 feet, more or less, to a point due West of the point of beginning; thence East 99.1 feet, more or less, to the point of beginning, Excepting therefrom the Westerly 145 feet of above described property. IIRIM18ll002IExlubil.A EXHIBIT "A" 4 r- 94. 20u , I '-_../ ) RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Bruce D. Varner, Esq. Gresham, Varner, Savage, Nolan & Tilden 3737 Main St., Ste. 800 Riverside, CA 92501 (For Recorder'. Use Only) SECOND AMENDMENT TO PARKING AGREEMENT AND ASSIGNMENT This Second Amendment to Parking Agreement and Assignment ("Second Amendment") is entered into June _' 1994 ("Effective Date") by and among the Redevelopment Agency of the City of San Bernardino, a body public, corporate and politic, organized and duly existing pursuant to the Community Redevelopment Law of the State of California ("Agency"), the City of San Bernardino, a municipal corporation ("City"), David D. Miller and Denyse M. Miller, husband and wife, Alan D. Smith, Post-Confmnation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California (collectively "Developer") and Dominguez/Miller, a California general partnership ("Assignee"). RECITALS A. The Agency, the City, H. Frank Dominguez, dba Vanir Research Company and David D. Miller and Denyse M. Miller, husband and wife, entered into that certain Parking Agreement dated November 8, 1978 and recorded December 6, 1978 in the Official Records of the San Bernardino County Recorder as Book 9574, Page 204 ("Agreement"). The Agreement relates to parking for certain improved real property located at 494 North "E" Street, San Bernardino, California ("County Building") now owned by Assignee and leased to the County of San Bernardino, ("County"). B. The Agreement was fIrst amended pursuant to that First Amendment to Parking Agreement dated July 6, 1993 and recorded September 15, 1993 in the Official Records of the San Bernardino County Recorder as Instrument No. 93-396257 ("First Amendment"). C. Agency, City and Developer desire to amend the Agreement, as amended by the First Amendment and effectuate the assignment of Developer's rights and delegation of Developer's obligations thereunder to Assignee. OPERATIVE PROVISIONS Now, therefore, for valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto agree as follows: RIM183\OOOIMILLER.2ND 1 4 , ~ 91\ '!.ClCl J 1. Amendment. The Agreement, as amended by the First Amendment, is hereby amended as follows: a. Section 9.(a) of the Agreement, as amended by the First Amendment, is hereby deleted in its entirety and replaced with the following language: (a) At any time after, and only after, the fIrst thirty eight (38) years of the term of this Agreement, City and the Agency may determine, for whatever reason, that the public parking should be discontinued and a portion or portions of the block. In this event, the City and Agency shall provide Developer with 199 comparable public parking spaces (without parking time limitations), for use by the County and the general public, within the block or at a location within a 400 foot radius of the block, or a combination thereof, throughout the remaining term of this Agreement. b. The phrases "public parking spaces, "parking spaces" or any other phrase in this Agreement referring to parking to be provided to Developer shall mean free public parking spaces (Le., not metered or otherwise requiring payment for use). c. The remaining terms of the Agreement shall remain in full force and effect except to the extent conflicting with this Amendment, in which case, this Amendment shall control. 2. Assignment. Developer hereby assigns all of its rights and delegates all of its duties under the Agreement, as amended by the First Amendment and as herein amended, to Assignee and Assignee hereby accepts all such rights and assumes all such obligations of Developer. Agency and City hereby approve, consent and agree to such assignment. Agency and City further agree that this Second Amendment shall, for all purposes, constitute their lawful and binding written consent to such assignment as of the Effective Date. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment on the Effective Date. AGENCY Redevelopment Agency of the City of San Bernardino, a body public, corporate and politic By: Kenneth J. Henderson Its: Executive Director [SIGNATURES FOLLOW] RIM183\OOOIMILLER,2ND 2 4- 94 200 _f\ '-~' ) ATTEST: Secretary Approved as to form and legal content By: Counsel to Agency CITY City of San Bernardino, a municipal corporation By: Its: ATTEST: City Clerk Approved as to form and legal content By: Counsel to City DEVELOPER David D. Miller Denyse M. Miller Alan D. Smith, Post-Confmnation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California [SIGNATURES FOLLOW] RIM 183\OOOIMILLER.2ND 3 ~ !t41 ''>0-{t) 94 200 RIMI83\OOOIMILLER.2ND \ ) ASSIGNEE Dominguez/Miller, a California general partnership By: David D. Miller, partner By: Denyse M. Miller, partner By: Alan D. Smith, post-confrrmation trustee of the bankruptcy estate of H. Frank Dominguez, Case No. LA-88- 01375-WL, United States Bankruptcy Court for the Central District of California, partner 4 4: 94 200 ~' ) STATE OF CALIFORNIA ) ) ) SS. COUNTY OF On this day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA ) ) ) SS. COUNTY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State RIM 1 83\OOOIMILLER,2ND 4 94 200 '\ '-/' J STATE OF CALIFORNIA ) ) ) SS. COUNTY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA ) ) ) SS. COUNTY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State RIM 1 83\OOOIMILLER.2ND . 94 200 -j ) STATE OF CALIFORNIA ) ) COUNTY OF ) SS. On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State COUNTY OF ) ) ) SS. STATE OF CALIFORNIA On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State RIM183\OOOIMILLER.2ND ~ 94 200 . , ~ STATE OF CALIFORNIA ) ) ) SS. COUNTY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CALIFORNIA ) ) ) SS. COUNTY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State RIM183\OOOIMILLER.2ND 4 94 200 , '-- ) RECORDING REQUESTED BY WHEN RECORDED MAIL TO: Bruce D. Varner, Esq. Gresham, Varner, Savage, Nolan & Tilden 3737 Main St., Ste. 800 Riverside, CA 92501 (For Recorder's Use Only) MEMORANDUM OF FIRST AMENDMENT TO LEASE AND ASSIGNMENT This Memorandum of Amendment to Lease ("Memorandum") is made and entered into effective June _' 1994, among the Redevelopment Agency of the City of San Bernardino, a body public, coIporate and politic, duly organized and existing pursuant to the Community Redevelopment Law of the State of California ("Lessor") and Dominguez\Miller, a California general partnership ("Lessee"), and David D. Miller and Denyse M. Miller, husband and wife, and Alan D. Smith, as Post-Confumation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No, LA-88-01375-WL, United States Bankruptcy Court ofthe Central District of California (collectively "Prior Lessee"). 1. On May 10, 1993, Prior Lessee entered into that certain Lease whereby Lessor leased to Prior Lessee that certain real property described in Exhibit "A" attached hereto and incOlporated herein by reference for a term ending December 31, 2009 ("Lease"). 2. On June _' 1994, Lessor, Prior Lessee and Lessee entered into that certain First Amendment to Lease and Assignment whereunder Prior Lessee assigned all of its right, title and interest in and to the Lease to Lessee and among other modifications, the initial Lease term was modified to end on December 31, 2003 with four three-year extension options thereafter ("Amendment and Assignment"). 3. Terms, covenants and conditions of the Lease, as modified by the Amendment and Assignment, are incorporated herein by reference. 4. This Memorandum may be executed in counteIparts, each of which shall be deemed an original for all pUIposes and such counteIparts shall constitute one and the same instrument. [SIGNATURES FOLLOW] 1\R\M183\OOO\AmLcase.mcm 1 4 94 ZOO ATIEST: By: I \R\Ml83\OOO\AmLease.mcm ,." ) , '-' LESSOR REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a body public, corporate and politic By: Its: LESSEE DOMINGUEZ\MTT .T ,ER, a California general partnership By: By: David D. Miller, partner By: Denyse M. Miller, partner By: Alan D. Smith, Post-Confmnation Trustee of the Bankrnptcy Estate of H. Frank Dominguez, Case No. LA-88-0l375-WL, United States Bankrnptcy Court for the Central District of California, partner [SIGNATURES FOLLOW] 2 4 9~ I\R\Ml83\OOO\AmLcase.mcm ;. ~ 111 -~J '-.> J PRIOR LESSEE By: David D. Miller, partner By: Denyse M. Miller, partner By: Alan D. Smith, Post-Confmnation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California, partner 3 ~ r--------- ) ',.., /' 94 200 All that portion of Lots 3 and 4, Block 29, City of San Bernardino, in the. City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 7 of Maps, Page 1, records of said County, described as follows: Commencing at a point on the West line of said Lot 4, and said line also being the East line of "E" Street, 50 feet South of the Northwest comer of said Lot 4; thence South along the West line of said Lot 4, 130 feet, more or less, to a point 120 feet North of the South line of said Lot 4; thence East and parallel to the North line of said Lot 4, 90 feet, more or less, to a point, said point being the Northeast comer of said property conveyed to Ralph E. Swing, by Deed recorded in Book 589, Page 189, of Deeds; thence South along the East line of said property conveyed to Swing, 2 feet, more or less, to a point 118 feet North of the South line of said Lot 4; thence East along a line which is parallel to and 118 feet North of the South line of Lots 3 and 4, 95 feet, more or less, to a point 35 feet East of the West line of said Lot 3; thence North 132 feet, more or less, to a point which is 50 feet South and 35 feet East of the Northwest comer of said Lot 3; thence West and parallel to the North lines of said Lots 3 and 4, a distance of 185 feet, more or less, to the point of beginning. EXIllBIT "A" 1 \R\MI83\OOO\ExbJbilA if 94 200 \ j ..~ ) STATE OF CAUFORNIA ) ) COUNfY OF ) SS. On this day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State 1 \R\M183\000\AmLcase.mem if 94 200 J STATE OF CAliFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State 1 \R\Ml83\OOO\AmLeasc.mem q.' _____J 94 200 ! .~ J STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CAUFORNIA COUNfY OF ) ) ) SS. On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State l\R\Ml83\OOO\AmLcasc.mem q. 94 200 ) STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State 1 \R\M183\OOO\AmLeasc.mem q '.~ ) 94 200 RECORDING REQUESTED BY WHEN RECORDED MAIL TO: Bruce D. Varner, Esq. Gresham, Varner, Savage, Nolan & Tilden 3737 Main St., Ste. 800 Riverside, CA 92501 (For Recorder's Use Only) MEMORANDUM OF FIRST AMENDMENT TO PROPERTY ACQUISITION AGREEMENT AND ASSIGNMENT 1. This Memorandum of Amendment to Property Acquisition Agreement and Assignment ("Memorandum") is made and entered into effective June _' 1994, among the Redevelopment Agency of the City of San Bernardino, a body public, corporate and politic, duly organized and existing pursuant to the Community Redevelopment Law of the State of California ("Agency"), Dominguez\Miller, a California general partnership ("Dominguez\Miller") and David D. Miller and Denyse M. Miller, husband and wife, and Alan D. Smith, Post- Confirmation Trustee of the Bankruptcy Estate ofH. Frank Dominguez, Case No. LA-88-01375- WL, United States Bankruptcy Court for the Central District of California (collectively" Seller"). Seller sold to Agency that certain real property described in Exhibit "A" attached hereto and incorporated herein by reference ("Property") pursuant to the terms, covenants and conditions of that certain Property Acquisition Agreement between Agency and Seller, dated May 10, 1993 (" Agreement"). 2. On June _' 1994, Agency, Dominguez\Miller and Seller entered into that certain First Amendment to Property Acquisition Agreement and Assignment ("Amendment") whereunder Seller's rights under the Agreement were assigned to Dominguez\Miller and certain terms of the Agreement were modified, including, without limitation, modification of the initial term of the Agreement to extend through and be coterminous with the term of that certain County of San Bernardino Lease Agreement between the County of San Bernardino and Vanir Research Company, dated effective May 1, 1988 and designated as County Contract No. 88-292 as amended on September 14, 1993 by that certain First Amendment to That Certain County of San Bernardino Lease Agreement Dated Effective May 1, 1988 & Designated as County Contract No. 88-292 including, without limitation, any and all term extension options thereunder. 3. The terms, covenants, and conditions of the Agreement, as amended by the Amendment, are incorporated herein by reference. 4. This Memorandum may be executed in counterparts, each of which shall be deemed to be an original for all purposes and such counterparts shall constitute one in the same instrument. [SIGNATURES FOLLOW] 1 4- 1\R\M183\OOO\amacqui.mem J 94 200 LESSOR Redevelopment Agency of the City of San Bernardino, a body public, corporate and politic By: Kenneth J. Henderson Its: Executive Director ATTEST: Secretary Approved as to form and legal content By: Counsel to Agency LESSEE David D. Miller Denyse M. Miller Alan D. Smith, Post-Confirmation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California [SIGNATURES FOLLOW] 1 \R\Ml83\OOO\amacquLmem. 2 q. 94 200 l\R\MI83\OOO\amacqui.mem ) ASSIGNEE Dominguez/Miller, a California general partnership By: David D. Miller, partner By: Denyse M. Miller, partner By: Alan D. Smith, Post-Confrrmation Trustee of the Bankruptcy Estate of H. Frank Dominguez, Case No. LA-88-01375-WL, United States Bankruptcy Court for the Central District of California, partner 3 q . I ) 94 200 Parcell: All that portion of Lots 1 and 8, Block 28, City of San Bernardino, in the City of San Bernardino, as per plat recorded in Book 7 of Maps, Page 1, Records of the County of San Bernardino, State of California, described as follows: Beginning at a point 140 feet South of the Northeast comer of said Lot 8; thence West 143 feet; thence South 50 feet; thence East 143 feet; thence North to the point of beginning. Parcel 2: The North 62 feet of the South 109.55 feet of the East 153.74 feet of Lot 1 and the North 40 feet of the West 10.74 feet of the East 153.74 feet of Lot 1; and the South 10 feet ofthe West 10.74 of the East 153.74 feet of Lot 8; all in Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 7 of Maps, Page 1, records of said County. Excepting therefrom that portion embraced within the following described property VIZ: Commencing at a point 140 feet South of the Northeast comer of said Lot 8; thence West 143 feet; thence South 50 feet; thence East 143 feet; thence North 50 feet to the point of beginning. Parcel 3: A portion of Lot 1, Block 28, City of San Bernardino, in the City of San Bernardino, County of San Bernardino, State of California, as per plat recorded in Book 7 of Maps, Page I, records of said County, described as follows: Beginning at the Southeast comer of said Lot 1; thence North 50 feet along the East side of said Lot; thence West parallel with the South side of said Lot for a distance of 155 feet, more or less, to a point 145 feet East ofthe West line of said Lot; thence South to the South line of said Lot; thence East 155 feet, more or less, to the point of beginning. Excepting therefrom that portion thereof lying within the North 62 feet of the South 109.55 feet of the East 153.74 feet of said Lot 1. Also excepting therefrom, the South 26 feet of the East 153.74 feet of said Lot 1. Parcel 4: Those portions of Lot 8, Block 28, City of San Bernardino, in the City of San Bernardino, as 1\R\M183\002\ExhibilA EXHIBIT "A" cf 94 200 ) per plat recorded in Book 7 of maps, Page 1, Records of the County of San Bernardino, State of California, described as follows: (A) Beginning 80 feet South of the Northeast comer of Lot 8; thence South 60 feet; thence West 200 feet; thence North 60 feet; thence East 200 feet to the point of beginning. (B) Beginning at a point 80 feet South and 200 feet West of the Northeast comer of said Lot 8; thence South 59.3 feet, more or less, to a point which is 10 feet North of South line of said Lot 8; thence West 99.1 feet, more or less, to West line of said Lot 8; thence North along the West line of said Lot 8, 59.3 feet, more or less, to a point due West of the point of beginning; thence East 99.1 feet, more or less, to the point of beginning. Excepting therefrom the Westerly 145 feet of above described property. 1\R\M183\002\ExbJbit.A EXHIBIT "A" 4 ) 94 200 STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State 1 \R\Ml83\OOO\amacqui.mem if 94 2CO J STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CAliFORNIA COUNfY OF ) ) ) SS. On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State 1 \R\Ml83\OOO\amacqui.mem q 94 ""0 /'v ) STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State 1 \R\M183\OOO\amacqui.mem cJ 94 200 ) STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State STATE OF CAUFORNIA ) ) ) SS. COUNfY OF On this _ day of 1994, before me a Notary Public in and for said County and State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that he/she executed the same in his/her authorized capacity, and that by his/her signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said County and State l\R\Ml83\OOO\amacqui.mem