HomeMy WebLinkAboutR12-Economic Development Agency
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OVELOPMENT DEPARTMO
OF THE CITY OF SAN BERNARDINO
REOUEST FOR COMMISSION/COUNCIL ACTION
FROM:
KENNETH J. HENDERSON
Executive Director
SUBJECT:
MILLER ACQUISITION
AND LEASE - PUBLIC
HEARING
DATE:
May 6,1993
SmoDolo of Prevlouo CommilolonlCoUDeUlCommlttee Aellonlo):
On April 22, 1993, the Redevelopment Committee received and filed a preliminary report regarding the negotiatioDl
undertaken by staff.
Reeommended Motlonlo):
OPEN PUBLIC HEARING
CLOSE PUBLIC HEARING
(Mavor and CODlmon CODDCin
MOTION A: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN LEASE AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND DAVID A.
MILLER AND DENYSE M. MILLER, AS HUSBAND AND WIFE, AND ALLAN SMITH, AS
POST CONFIRMATION TRUSTEE OF THE BANKRUPTCY ESTATE OF H. FRANK
DOMINGUEZ, PERTAINING TO THE LEASE OF CERTAIN REAL PROPERTY OWNED BY
THE AGENCY.
:J_w
(Motlono Continued to Nut Page...)
Contact Person(s): Ken"eth J. Henderson/John Hoe2er
Phone:
5081
Project Area(s):
Central !d!LNorth ICCNl
Ward(s):
Ooe II)
Supporting Data Attached: Staff Reoort: Resolutions
FUNDING REQUIREMENTS: Amount: $237.000
Source:
Bond Proceeds
Budget Authority:
Reauested
CommiloionlCollneU Noteo:
KJH:JBH:lag:MlrAcq.agd
COMMISSION MEETING AGENDA
Meeting Date: 05/10/1993
Agenda Item Number: /eJ...
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REQUEST FOR COMMIS~/COUNCIL ACTION
Miller Acquisition
May 5, 1993
Page Number -2-
a
Recommended Motionls) Continued:
(Community Development Commission)
MOTION B: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO APPROVING A CERTAIN LEASE AGREEMENT BY
AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND DAVID A. MILLER AND DENYSE M. MILLER, AS
HUSBAND AND WIFE, AND ALLAN SMITH, AS POST CONFIRMATION
TRUSTEE OF THE BANKRUPTCY ESTATE OF H. FRANK. DOMINGUEZ,
PERTAINING TO THE LEASE OF CERTAIN REAL PROPERTY OWNED BY THE
AGENCY.
(Community Development Commission)
MOTION C: RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE
CITY OF SAN BERNARDINO APPROVING A CERTAIN ACQUISITION
AGREEMENT BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO AND DAVID A. MILLER AND DENYSE M.
MILLER, AS HUSBAND AND WIFE, AND ALLAN SMITH, AS POST
CONFIRMATION TRUSTEE OF THE BANKRUPTCY ESTATE OF H. FRANK
DOMINGUEZ, PERTAINING TO CERTAIN REAL PROPERTY LOCATED WITHIN
THE CENTRAL CITY REDEVELOPMENT PROJECT AREA.
(Community Development Commission)
MOTION D: That the Community Development Commission authorize $160,000 plus closing costs
for the acquisition of and $75,000 for the improvement of vacant land at northwest
comer of Fourth and "E" Streets.
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COMMISSION MEETING AGENDA
Meeting Date: 05/10/1993
Agenda Item Number:
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DEVELOPMENT DEPARTMENT V
Staff Report
Miller Acouisition and Lease - Public Bearin!!:
A joint public hearing has been advertised for this meeting, May 10, 1993, to consider the lease of the
former Ritz Theater site (to be improved as surface parking) and also to consider the purchase and
improvement of vacant land formerly owned by Frank Dominguez on the northwest comer of Fourth and
"E" Streets. Both transactions would be with David D. & Denyse M. Miller, ct al., the current owners
of both the former J.C.Penny building which is leased by the County's Department of Public Social
Services (DPSS) and the Dominguez parcel. This hearing is time sensitive and has been scheduled to
allow consideration of these matters prior to May 18, 1993 when the County Board of Supervisors will
meet to consider renewing the County lease for the former J.C.Penny building.
The proposed agreements provide generally for the Agency to improve and lease the Ritz parcel to Miller,
et al.,for use as designated parking for DPSS as well as for the Agency to purchase the Dominguez parcel
from Miller, improve it, and keep it open as general public parking during the term of the DPSS lease
(ending December 31, 2009). The total cost to the Agency regarding these agreements is calculated to
be $2,236,056 which includes the acquisition and demolition of the former Ritz (Pussycat) Theater
building. At the end of the DPSS lease, both parcels will be owned by the Agency without encumbrance.
If the property is ready for development before that time, the agreements allow the parking to be moved
to a substitute location.
Because the acquisition, demolition and improvement of the Ritz site have been approved in previous
actions of the Community Development Commission and the Common Council, the only additional costs
for this budget year is the cost of acquisition of the vacant land on the northwest comer of Fourth and
"E" Street plus the cost of its improvement. These costs are estimated to be $237,000 which can be paid
from bond proceeds.
BACKGROUND
The Staff has undertaken the negotiation of proposed agreements with the Millers in support of their
efforts to renew the County's lease of the former J.C.Penny building on the southwest comer of Fifth and
"E" Streets. The lease is now expiring and a new lease is being negotiated by Miller with DPSS. During
these negotiations, DPSS raised issues regarding convenient parking for the building.
To ameliorate the parking available for DPSS, staff developed a draft proposal under which the
Dominguez parcel on the northwest comer of Fourth and "E" Streets (now owned by Miller) and land that
resulted from the demolition of the former Ritz Theater building (now owned by the Agency) would be
improved as surface parking for use during the next 16 years (until December 31, 2009) which
corresponds to the proposed new lease period for DPSS. The Dominguez property would be developed
for general public parking which would include DPSS employees. The Ritz site parking would be
designated specifically for the use of DPSS. In support of this effort to renew the DPSS lease, the
Common Council recently took action to affirm that 199 spaces of public parking in Downtown Parking
Lot No.1 would remain available as public parking and to lift the two hour parking restriction for these
spaces.
KJH:JBH:lag:MIrAcq.agd
COMMISSION MEETING AGENDA
Meeting Date: 05/10/1993
Agenda Item Number:
/;A
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DEVELOPMENT DEPAR~T STAFF REPORT
Miller Acquisition and Lease - Public Hearing
May 6, 1993
Page Number -2-
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PROPOSED DEAL POINTS
Proposed deal points are outlined in the attached summaries. The agreements provide generally for a
discounted price to be paid by the Agency for the Dominguez parcel on Fourth and "E" Streets. In return,
the lease rate for the Ritz Theater site is reduced in the early years and then pegged at a fixed level for
the balance of the lease term. Present value calculations indicate that the effective total price for the
Agency represents a reasonable market value for the purchase price of the property.
The total cost of the agreements breaks down as follows:
Ritz Site Dominwez Total
AcquirelDemo $ 1,976,000 $ 160,000 $ 2,136,000
Improvements SO,OOO 7S,000 12S,000
Maintenance 13S 000 168.7S0 303.7S0
TOTALS $ 2,161,000 $ 403,7S0 $ 2,S64,7S0
The attached summary of fmancial aspects repeats the figures for the Ritz parcel as required by State Law
when considering the lease. In the preceding table staff has added the costs for the acquisition and
improvement of the Dominguez parcel to complete the information for the entire transaction.
While this cost is high, it accomplishes a number of redevelopment purposes, several of which are now
completed. It allowed the acquisition and demolition of the Pussycat Theater to provide land assembly
for futore development in the Cornerstone Block under consideration as a Government, Law and Justice
Center. It provides the acquisition of a prime comer in downtown for futore development on the comer
of Fourth and "E" Streets (perhaps for entertainment uses as illustrated in the adopted Downtown Urban
Plan). It provides interim surface parking for downtown users until such time as the construction of a
parking structore becomes appropriate. It preserves the jobs provided by the County in the building leased
for DPSS.
The two agreements, one for the lease and one for the acquisition, are interrelated by the terms of the
lease payments for the Ritz spaces and the terms for the acquisition price of the Dominguez parcel. The
Dominguez parcel is being acquired at a price which is considerably below the ClllTCDt market value as
estimated by staff ($S.OO per square foot as opposed to a market value in the area of $10.00 per square
foot). On the other hand, the lease rate to be paid by Miller is also below market, starting at $13.10 per
space per month and rising to a fixed $26.19 per space. Given expectations for continued increases in
costs through inflation, this represents a discount for the entire term of the lease. Nevertheless, a present
value analysis shows that the discounted lease payments are offset for the Agency by the below market
purchase price being paid for the second parcel. Similarly, Miller's below market sale of land is
approximately offset by the discounted lease rates for the designated parking. The precise values vary
depending upon the discount and inflation rates used.
KJH:mH:lag:MlrAcq.agd
COMMISSION MEETING AGENDA
Meeting Date: 05/10/1993
Agenda Item Number:
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DEVELOPMENT DEPAROrrr STAFF REPORT
Miller Acquisition and Lease - Public Hearing
May 6, 1993
Page Number -3-
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Because the Ritz parcel will be designated padcing for a private party (Miller) it does not qualify for use
of bond proceeds without jeopardizing the tax exempt status of the bonds and therefore must be paid for
with direct tax increment funds. Conversely, the Domingnez parcel which is to be used as open public
parking, does qualify as a tax exempt use and can be paid for and improved with bond procoeds. Due
to its public nature, however, the Dominguez parcel may not qualify as a site that can be maintained by
the Redevelopment Agency under provisions of the State's Health and Safety Code. It may, therefore,
be finally determined by counsel for the Agency that it. will be necessary for the City to provide this
maintenance as it does for other downtown padcing lots such as the Five
Level Parking Structure. This cost is estimated at approximately $525 per month or $6,300 per year at
current rates. In such event, it is likely that the recommendation will be to lease the parcel to the City
for a nominal sum such as $lIyear after the Agency finishes the installation of the improvements. The
acquisition of the Ritz site was done with tax increment funds which is appropriate for the now proposed
use. The demolition, however, was accomplished with bond proceeds. These funds which approximate
$150,000 will need to be replaced with tax increment funds.
RECOMMENDATION
The adoption of the accompanying resolutions will provide for the release of the former J.C.Penney
building and increase surface parking in the downtown area. It will also provide for the assembly of land
for future redevelopment in and adjacent to the proposed Government, Law and Justice Center block.
Finally, it will assist in the retention of downtown County jobs now housed in the Miller building.
Staff recommends adoption of motions "A", "B", "C" and "D".
~:aERSON' Executive Director
Development Department
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COMMISSION MEETING AGENDA
Meeting Date: 05110/1993
Agenda Item Number: / ;}...
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SUMMARY REPORT OF THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO CONCERNING THE
PROPOSED LEASE AGREEMENT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO AND DAVID A. MILLER AND DENYSE
M. MILLER, AS HUSBAND AND WIFE, AND ALAN
SMITH, AS POST CONFIRMATION TRUSTEE IN THE
BANKRUPTCY ESTATE OF H. FRANK DOMINGUEZ
(HEALTH AND SAFETY CODE SECTION 33433)
This Summary Report has been prepared pursuant to Health
and Safety Code Section 33433 with respect to the lease of certain
real property (the "Premises") pursuant to a Lease Agreement (the
"Lease Agreement") by and between the Redevelopment Agency of the
city of San Bernardino (the "Agency") and David A. Miller and
Denyse M. Miller, as husband and wife, and Alan Smith, as post
confirmation trustee in the bankruptcy estate of H. Frank Dominguez
(COllectively, the "Lessee").
Backqround
The Agency has previously acquired certain real property
generally located near the intersection of Fourth and "E" Street in
the city of San Bernardino. The Premises are more particularly
described in the Lease Agreement. The Agency intends to lease the
Premises, comprising approximately 24,500 square feet, to the
Lessee. The Lessee intends to use the Premises as a public parking
lot to provide parking for the San Bernardino County Department of
Public Social Services.
Cost to the Aqencv
The original and continuing costs of this Lease Agreement
to the Agency, including costs of any improvements to be provided
by the Agency, are provided below:
Land Acquisition Costs
Land Improvement Costs
Other Costs
$1,976,056
$ 50,000
$ 135,000
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Estimated Value
The estimated value of the interest to be conveyed,
determined at the highest uses permitted, is approximately $.11
cents per square foot per month.
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Lease Rate
It is anticipated that the Premises will provide 60
parking spaces. The lease rate for the subject Premises to be paid
by Lessee is $13.10 per vehicle parking space per month for the
first 36 months; $19.05 per vehicle parking space per month for the
following 12 months; and $26.19 per vehicle parking space per month
for the remainder of the Lease.
Value of Interest Conveved
It is the Agency's belief that the fair market value of
the Premises to be leased to the Lessee, at the Premises' highest
and best use permitted under the Redevelopment Plan, is greater
than the lease rentals to be paid by Lessee. The transaction
constitutes the disposition of the Premises to the Lessee for less
than fair market value.
To the extent the interest conveyed to the Lessee under
the terms of the Lease Agreement is conveyed at less than fair
market value, the reason for the difference is as follows:
a. The Premises are to be developed in accordance
with the Redevelopment Plan, and the Lease Agreement will
help assure this result.
b. The intended use of the Premises will provide
a source of much needed public parking to employees,
patrons and visitors of the County of San Bernardino
Department of Public Social Services which is located in
an adjacent building to the Premises and thereby to
occupants of the Project Area and members of the public
generally. The Project Area residents benefit from the
provision of services by the County Department of Public
social Services.
Dated:
c. In consideration for the Agency's providing a
lease, the Agency is buying a parcel of property from
Lessee which is directly across the street and which is
to be used for public parking purposes and which
acquisition is at substantially below market value.
/f' /;U'/9~ REDEVELOPMENT AGENCY OF THE
/ / CITY OF SAN BERNARDINO
By: lJ lL6. .~
Ke~.fHenderson
Executive Director
SBEOlOOOllDOCI6n
01126\93 3:00
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RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO APPROVING A CERTAIN LEASE
AGREEMENT BY Am> BETWE~ THE REDEVELOPMENT AGENCY
OF THE CITY OF 8.AN BERNARDINO AND DAVID A. MILLER
AND DENYSE M. MILLER, AS HUSBAND AND WIFE, AND
ALLAN SMITH, AS POST CONFIRMATION TRUSTEE OF THE
BANI<RUPTCY ESTATE OF H. FRANK DOMINGUEZ,
PERTAINING TO THE LEASE OF CERTAIN REAL PROPERTY
OWNED BY THE AGENCY
WHEREAS, the City of San Bernardino, California (the
"City"), is a municipal corporation and a charter city duly
created and existing pursuant to the Constitution and the laws of
the State of California; and
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WHEREAS, the Community Development Commission of the
City of San Bernardino (the "Commission") on behalf of the
Redevelopment Agency of the City of San Bernardino (the
"Agency"), is a redevelopment agency, a public body, corporate
and politic of the State of California, organized and existing
pursuant to the Community Redevelopment Law (Part 1 of
Division 24) commencing with section 33000 of the Health and
Safety Code of the State of California (the "Act)"; and
WHEREAS, the Redevelopment Plan for the Central City
Redevelopment Project (the "Redevelopment Plan") was previously
approved and adopted by the Mayor and Common Council of the City
of San Bernardino (the "Council") by duly authorized Ordinance of
the Council; and
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WHEREAS, the Redevelopment Plan provides for the lease
of real property for redevelopment purposes both within and
outside of the redevelopment project area which is subject to the
Redevelopment Plan (the "Project Area") by the Agency; and
WHEREAS, Section 33430 of the Act provides that a
redevelopment agency may dispose of any real or personal property
within a redevelopment project area or for the purposes of
redevelopment; and
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WHEREAS, Agency has fee title to certain real property
consisting of approximately~1.~ square feet of land generally
located near the intersection of Fourth and "E" Street, in the
City of San Bernardino, County of San Bernardino, State of
California which is located within the Project Area (the
"Premises"); and
WHEREAS, the Agency and David A. Miller and Denyse M.
Miller, as husband and wife, and Allan Smith, as post
confirmation trustee for the bankruptcy estate of H. Frank
Dominguez (collectively, the "Lessee") desire to enter into a
certain Lease Agreement (the "Lease Agreement"), a copy of which
is attached hereto as Exhibit "A" and incorporated herein by
reference, pursuant to which the Lessee would lease the Premises
from the Agency; and
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WHEREAS, the Agency and the Lessee intend to cause the
Premises to be used as a pubic parking lot to provide parking and
in accordance therewith the Agency has previously caused the
development of certain parking improvements on the Premises; and
WHEREAS, the Agency Staff has prepared and made
available for public inspection a certain Summary Report (the
"Summary") concerning the proposed Lease Agreement, as required
by Health and Safety Code Section 33433, a copy of which is on
file with the Agency and is incorporated herein by reference; and
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WHEREAS, the City has duly noticed and conducted a
public hearing in accordance with the requirements of Health and
Safety Code section 33433 concerning the proposed lease of the
Premises by the Agency to the Lessee pursuant to the proposed
Lease Agreement; and
WHEREAS, the city has duly noticed and conducted a
public hearing in accordance with the requirements of Health and
Safety Code section 33431 concerning the proposed lease of the
Premises by the Agency to the Lessee pursuant to the proposed
Lease Agreement; and
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WHEREAS, based upon evidence and testimony submitted to
the Council, it is reasonable and appropriate for the Council to
approve the proposed Lease Agreement.
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NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND COMMON
COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS:
SECTION 1.
The Council finds and determines that
the lease of the Premises as described in the proposed Lease
Agreement is within the scope, terms and provisions of the
Redevelopment Plan.
SECTION 2.
The City has held a public hearing on
the disposition of the Premises in accordance with Health and
Safety Code Sections 33431 and 33433 and hereby accepts and
approves the Summary as prepared by Agency Staff.
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SECTION 3.
The Council hereby finds and determines
that the lease of the Premises to the Lessee pursuant to the
terms of the Lease Agreement is reasonable and necessary to
effectuate the purposes of the Redevelopment Plan to provide much
needed public parking to employees, patrons and visitors of the
County of San Bernardino Department of Public Social Services
which is located in an adjacent building to the Premises as well
as to occupants of the Project Area.
SECTION 4.
The Council hereby approves the proposed
Lease Agreement and the lease of the Agency's interest in the
Premises to the Lessee.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING A CERTAIN LEASE AGREEMEIIT BY AND BETWEEN THE
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO AND DAVID A.
MILLER AND DENYSE M. MILLER. AS HUSBAND ANDWZFE. AND ALLAN
SMITH, AS POST CONFIRMATION TRUSTEE OF THE BANKRUPTCY ESTATE OF
H. FRANlC DOMINGUEZ, PERTAINING TO THE LEASE OF CERTAIN REAL
PROPERTY OWNED BY THE AGENCY
SECTION 5. The findings and determinations herein
shall be final and conclusive. This Resolution shall take effect
upon the date of its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Mayor and Common Council of the City of
San Bernardino at a
meeting
thereof, held on the
day of
,
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1993, by the following vote, to wit:
Council Members:
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DAn
ABSTAIN ABSENT
ESTRADA
REILLY
HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
City Clerk
The foregoing resolution is hereby approved this
day of , 1993.
Mayor of the city of
San Bernardino
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Approved as to form and legal content:
JAMES F. PENMAN
Ci~y ~AttorneY f /)
By. __~J
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SIIEOIOOOl1DOCI675
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO )
CITY OF SAN BERNARDINO )
I, City Clerk of the City of
San Bernardino, DO HEREBY CERTIFY that the foregoing and attached
copy of Mayor and Common Council of the City of San Bernardino
Resolution No. is a full, true and correct copy of that
now on file in this office.
ss
IN WITNESS WHEREOF, I have hereunto set my hand
affixed the official seal of the Mayor and Common Council of
City of San Bernardino this day of
1993.
and
the
,
City Clerk
City of San Bernardino
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING A CERTAIN LEASE AGREEMENT BY AND
BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF
'SAN BERNARDINO AND DAVID A. MILLER AND DENYSE M.
MILLER, AS HUSBAND AND WIFE, AND ALLAN SMITH, AS
POST CONFIRMATION TRUSTEE OF THE BANKRUPTCY
ESTATE OF H. FRANK DOMINGUEZ, PERTAINING TO THE
LEASE OF CERTAIN REAL PROPERTY OWNED BY THE
AGENCY
WHEREAS, the City of San Bernardino, California (the
"City"), is a municipal corporation and a charter city duly
created and existing pursuant to the Constitution and the laws of
the State of California; and
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WHEREAS, the Community Development Commission of the
city of San Bernardino (the "Commission") on behalf of the
Redevelopment Agency of the City of San Bernardino (the
I
"Agency"), is a redevelopment agency, a public body, corporate
and politic of the State of California, organized and existing
pursuant to the Community Redevelopment Law (Part 1 of
Division 24) commencing with section 33000 of the Health and
Safety Code of the State of California (the "Act)"; and
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WHEREAS, the Redevelopment Plan for the Central City
Redevelopment Project (the "Redevelopment Plan") was previously
approved and adopted by the Community Development Commission of
the City of San Bernardino (the "Council") by duly authorized
Ordinance of the Council; and
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WHEREAS, the Redevelopment Plan provides for the lease
of real property for redevelopment purposes both within and
outside of the redevelopment project area which is subject to the
Redevelopment Plan (the "Project Area") by the Agency; and
WHEREAS, Section 33430 of the Act provides that a
redevelopment agency may dispose of any real or personal property
within a redevelopment project area or for the purposes of
redevelopment; and
WHEREAS, Agency has fee title to certain real property
consisting of approximately t'/soo square feet of land generally
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located near the intersection of Fourth and "E" Street, in the
City of San Bernardino, County of San Bernardino, State of
California which is located within the Project Area (the
"Premises"); and
WHEREAS, the Agency and David A. Miller and Denyse M.
Miller, as husband and wife, and Allan Smith, as post
confirmation trustee for the bankruptcy estate of H. Frank
Dominguez (collectively, the "Lessee") desire to enter into a
certain Lease Agreement (the "Lease Agreement"), a copy of which
is attached hereto as Exhibit "A" and incorporated herein by
reference, pursuant to which the Lessee would lease the Premises
from the Agency; and
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WHEREAS, the Agency and the Lessee intend to cause the
Premises to be used as a pubic parking lot to pr~vide parking and
in accordance therewith the Agency has previously caused the
development of certain parking improvements on the Premises; and
WHEREAS, the Agency Staff has prepared and made
available for public inspection a certain Summary Report (the
"Summary") concerning the proposed Lease Agreement, as required
by Health and Safety Code Section 33433, a copy of which is on
file with the Agency and is incorporated herein by reference; and
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WHEREAS, the Agency has duly noticed and conducted a
public hearing in accordance with the requirements of Health and
Safety Code section 33433 concerning the proposed lease of the
Premises by the Agency to the Lessee pursuant to the proposed
Lease Agreement; and
WHEREAS, the Agency has duly noticed and conducted a
public hearing in accordance with the requirements of Health and
Safety Code section 33431 concerning the proposed lease of the
Premises by the Agency to the Lessee pursuant to the proposed
Lease Agreement; and
WHEREAS, based upon evidence and testimony submitted to
the Agency, it is reasonable and appropriate for the Agency to
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approve the proposed Lease Agreement.
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NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION,
ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
FOLLOWS:
section 1. The Aqency finds and determines that the
lease of the Premises as described in the proposed Lease
Aqreement is within the scope, terms and provisions of the
Redevelopment Plan.
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section 2. The Aqency has held a public hearinq on
the lease of the Premises in accordance with Health and Safety
Code Sections 33431 and 33433 and hereby accepts and approves the
Summary as prepared by Aqency Staff.
section 3. The Aqency hereby finds and determines
that the lease of the Premises to the Lessee pursuant to the
terms of the Lease Aqreement is reasonable and necessary to
effectuate the purposes of the Redevelopment Plan to provide much
needed public parkinq to employees, patrons and visitors of the
County of San Bernardino Department of Public Social Services
which is located in an adjacent buildinq to the Premises as well
as to occupants of the Project Area.
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section 4. The Aqencyhereby approves the proposed
Lease Aqreement and the lease of the Aqency's interest in the
Premises to the Lessee. The Aqency Chairman and Secretary are
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hereby authorized to execute the Lease Agreement on behalf of the
Agency with such non-substantive changes as may be approved by
the Agency Chairman and Agency Counsel.
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RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF
SAN BERNARDINO APPROVING A CERTAIN LEASE AGREEMENT BY AND BETWEEN
THE REDEVELOPMENT AGENCY OF '!'HE CITY OF SAN BERNARDINO AND DAVID
A. MILLER AND DENYSE M. MILLER, A$ HUSBAND AND WIFE, AND ALLAN
SMITH, AS POS1' CONFIRMATION TRUSTEE OF THE BANRRUPTCY ESTATE OF
H. FRANKDOHINGUEZ, PERTAINING TO THE LEASE OF CERTAIN REAL
PROPERTY OWNED BY THE AGENCY
Section 5. The findings and determinations herein
shall be final and conclusive. This Resolution shall take effect
upon the date of its adoption.
I HEREBY CERTIFY that the foregoing Resolution was duly
adopted by the Community Development Commission of the City of
San Bernardino at a
meeting
thereof, held on the
day of
,
1993, by the following vote, to wit:
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Commission Members:
AXn
BAn
ABSTAIN ABSENT
ESTRADA
REILLY
HERNANDEZ
MAUDSLEY
MINOR
POPE-LUDLAM
MILLER
day of
Secretary
The foregoing resolution is hereby approved this
, 1993.
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Approved as to
form and legal content:
By: ~.J
-Agency Co el
SBEOIOOOIIDOCI619
W. R. HolCOmb, Chairman
community Development
Commission of the
City of San Bernardino
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STATE OF CALIFORNIA }
COUNTY OF SAN BERNARDINO} ss
CITY OF SAN BERNARDINO )
I, Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
CERTIFY that the foregoing and attached copy of Community
Development Commission of the city of San Bernardino Resolution
No. is a full, true and correct copy of that now on
file in this office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Community Development Commission,
of the City of San Bernardino this day of
, 1993.
Secretary of the
Community Development Commission
of the City of San Bernardino
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EXHIBIT -A-
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LEASE AGREEMENT
LEASf
This Lease, dated for reference purposes only, as of ,
1993. is made by end between the Redevelopment Agency of the City of San
Bernardino ("Lessor") and David A. Miller end Denyse M. Miller, as husband and wife,
and Alan Smith, as post-confirmation trustee of the bankruptcy estate of H. Frank
Dominguez (hereinafter collectively, "Lessee").
RECITALS
WHEREAS, Lessor has fee title to certain real property consisting of
approximately Twenty Four Thousand Five Hundred (24,500) square feet of land
generally located at [address], in the City of
San Bernardino, County of San Bernardino, State of California, as described In
Exhibit" A" attached hereto and Incorporated herein by this reference (the
"Premises"); and
WHEREAS, Lessee wishes to lease the Premises from Lessor and to
thereafter sublease the Premises in accordance with the terms hereinafter set forth;
and
WHEREAS, the Parties intend to cause the Premises to be used as a
parking lot and in accordance therewith the Lessor shall cause the development of
certain parking improvements on the Premises; and
WHEREAS, the Premises, throughout the term of the Lease shall be used
as a parking lot and shall provide parking for at least sixty (60) vehicles; and
WHEREAS, the Lessor and the City of San Bernardino (the "City") have
previously adopted and approved the Redevelopment Plan for the Central City
Redevelopment Project (the "Redevelopment Plan") in accordance with the
Community Redevelopment Law of the State of California, Health and Safety Code
Section 33000, JU ag.; and
WHEREAS, the Premises is located within the Redevelopment Project
Area subject to the Central City Redevelopment Project (the "Project Area"); and
WHEREAS, pursuant to Health and Safety Code Section 33430, the
Lessor may lease property within the Project Area in furtherance of redevelopment
purposes; and
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WHEREAS, it is the intent of the parties that the development of certain
parking facilities and improvements on the Premises will provide much needed parking
for staff and visitors of the County of San Bernardino (the -County-' and its various
departments, including but not limited to the Department of Public Social Services
(-DPSS-' which occupy a building near the Premises located at 494 North -E- Street
(the -County Building-'; and
WHEREAS, the parties to this Lease are willing to enter into this Lease
upon the terms hereinafter set forth.
NOW, THEREFORE, in consideration of the terms and conditions
hereinafter set forth, and of other good and valuable consideration, receipt of which
is hereby acknowledged, Lessor and Lessee agree as follows:
1. CONTINGENCY.
Lessor and Lessee agree that this Lease and the force and effect of every
provision hereof are strictly subject to the condition precedent that Lessee and the
County enter into a valid and binding agreement extending the term of that certain
County of San Bernardino Lease Agreement dated effective May 1, 1988, designated
as County Contract No. 88-292 (the -County Lease-', through December 31, 2009.
If such agreement is not entered into by the County, this Lease and each and every
provision hereof shall be null and void. In such event, Lessee shall not be liable to
lessor for any cancellation penalties, costs, fees, damages or reimbursements of any
kind. In the event such an extension to County Contract No. 88-292 is
consummated, and that subsequently thereto there occurs a breach or a change in
conditions pertaining to said extension which affects the terms of this lease in a
manner which is adverse to the interests of the lessor, then at such time the Lessor
shall have the option to terminate this Lease and exercise any of its rights under
Section 11 hereof.
2. PREMISES.
Subject to Section 1 above, Lessor hereby leases to lessee and lessee
leases from lessor the Premises for the term, at the rental, and upon all of the
conditions set forth herein.
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3.
TERM.
3.1 IiJ:m. The term of this Lease shall commence on the later of
either 1II the date the County approves the extension of County Contract No. 88-292
to December 31, 2009, or (Ii) May 18, 1993. This Lease shall terminate on
December 31, 2009, unless sooner terminated or extended pursuant to any provision
hereof.
3.2 Surrender. On the last day of the term hereof, or on any sooner
termination, Lessee shall surrender the Premises to Lessor in the improved condition,
ordinary wear and tear exCepted, clean and free of debris.
4. RENT.
4.1 Bin1. Lessee shall pay to Lessor as rent for the Premises, the
following amounts:
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$13.10 per vehicle parking space per month for the first 36
months;
$19.05 per vehicle parking space per month for the following 12
months; and
$26.19 per vehicle parking space per month for the remainder of
the Lease.
lb} The rental rate for any holding over period shall be the prevailing
rate for parking in the downtown area of the City of San Bernardino, expressed as the
median rate for parking facilities located in the downtown area.
lc} Rental payments shall be made on a monthly basis with payments
due on the first day of each month.
4.2 Rent Payment to be Made to Lessor. All rent due during the Term
or any extension thereof shell be payable to The Redevelopment Agency of the City
of San Bernardino, 201 North wE- Street, Third Floor, San Bernardino, California
92401, or to such other payee, and/or at such other address, as Lessor may specify
to Lessee, in writing, from time to time.
4.3 Insurance. EXDenses for Maintenance of the Premises. Lessor shall
be responsible for, and shall promptly payor cause to be paid, without limitation, all
expenses, costs and surcharges associated with the use of the Premises, including
without limitation insurance, maintenance and repairs.
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4.4 Taxes. and As.essments on the Premises. Lessor shall be
responsible for, and shall promptly payor cause to be paid, without limitation, all
taxes and assessments associated with and levied against the Premises.
5. USE OF THE PREMISES.
5.1 Parklna facilities. LesSQr shall construct or cause construction of
a parking lot on the Premiset! containing at least sixty (60) automobile parking spaces
designated for the exclusive use of the County Staff and visitors, In accordance with
applicable law. Said construction shall be completed on or before October 1, 1993.
5.2 Aooroved Use. The Premises shall be utilized by Lessee as a
automobile parking lot for the exclusive use of County Staff and visitors (the
wApproved UseW).
5.3 Covenant Not Tp Eliminate. Restrict or Imoalr Use. Subject to
Section 25 hereof, throughout the term of this Lease and any extension hereto,
Lessor, its successors and assigns shall not, in any manner, Including but not limited
to, sale, lease, assignment or other transfer of the Premises, eliminate, restrict or
Impair the sixty (60) space parking lot or its exclusive use by County Staff and
visitors.
Throughout the term of this Lease, Lessee, its successors and assigns,
shall not restrict the use by the general public for purposes of ingress, egress and
a.ccess to and from other parcels so long as such use does not unreasonably interfere
with the County's ability to use the designated parking spaces in accordance with the
intent of this Lease.
6. IMPROVEMENT OF PREMISES.
6.1 Construction of Imorovements Permitted. Subject to the
provisions of Section 5.1 above and 6.2 below, Lessee alone, or in conjunction with
Approved Sublessee (as hereinafter defined), may, upon the written consent of Lessor
construct or add to the PremiseS any improvement necessary to use the Premises for
the Approved Use by Lessee or Approved Sublessee. As used hereinafter, the term
wlmprovementsW shall refer to those additions to the Premises and construction on the
Premises permitted by this Section 6.1.
6.2 PIBIllS and Soeclficatlons Shall Be at Sole Cost to Lessee or
Aooroved Sublessee IIndUndertaken Without Prior Aooroval of Lessor. Lessee and
Approved Sublessee (collectively hereinafter the wlmproversW), at the sole cost and
expense of either or both as they may agree, may as determined in their sole
discretion, without liability of Lessor, engage consultants, including without limitation
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as the Improvers or either of them determine, contractors and/or engineers, to prepare
plans and specifications for the Improvements.
6.3 Title to Imorovements. Improvements placed upon the Premises
and all other alterations, additions and improvements, made or placed on the Premises
by Lessee or Approved Sublessee shall become a part of the Premises and title
thereto shall immediately vest in Lessor subject to a right of use by Lessee or
Approved Sublessee for the Term of the Lease.
7. MAINTENANCE. REPAIRS AND ALTERATIONS.
7.1 Lessee's Oblloatlons. Lessor shall keep in good order, condition
and repair the Premises throughout the term of this Lease and any extensions thereof.
Lessee shall assist in any manner appropriate in order to enable Lessor to fulfill this
obligation.
7.2 Alterations and Additions.
(a) Subject to Section 23, below, Lessee shall not, without Lessor's
prior wrinen consent, make any alterations, improvements or additions in, on or about
the Premises, except for non-structural alterations not exceeding One Thousand
Dollars ($1,000.00) in cumulative costs during the term of this Lease.
(b) Any alterations, improvements or additions in, on or about the
Premises that Lessee shall desire to make and which require the consent of Lessor
shall be presented to Lessor in wrinen form, with proposed detailed plans. If Lessor
shall give its consent, the consent shall be deemed conditioned upon Lessee acquiring
a permit from an appropriate governmental agency or agencies if required by law and
the furnishing of a copy thereof to Lessor prior to the commencement of the work.
8. INSURANCE
8.1 Liability Insurance. Lessor, in accordance with Lessor's normal
procedures, shall self-insure against any liability arising out of the ownership, use or
maintenance of the Premises and all areas appurtenant thereto. Any assignee or
successor in interest of Lessor shall, at such assignee's or successor's expense,
obtain and keep in force during the term of this Lease a policy of Combined Single
limit, Bodily Injury and Property Damage insurance, insuring such assignee or
successor and Lessee against any liability arising out of the ownership, use or
maintenance of the Premises and all areas appurtenant thereto. Such insurance shall
be a combined single limit policy in an amount not less than $1,000,000 per
occurrence.
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8.2 PrODertv Insurance. Lessor shall self insure against loss or damage
to the Premises. Any assignee or successor In Interest to Lessor shall obtain and keep
In force during the term Of this Lease a policy or policies of Insurance covering loss
or damage to the Premises in the amount of the full replacement value thereof, as the
same may exist from time to time, but in an amQunt not less than .1,000,000. Such
insurance shall insure against all perils Included within the classification of fire,
extended coverage, vandalism, malicious mischief, earthquake damage and special
extended perils (-all-risk-, as such term is used in the insurance Industry). Such
insurance shall provide for payment of loss thereunder to such assignee or successor.
8.3 Indemnity. Except as caused by'the wilful or negligent acts or
omissions of Lessor or Lessor's agents, employees, representatives or contractors,
Lessee shall indemnifY and hold harmless LesSQr from and against any and all claims
arising from Lessee's use of the Premises, or from the conduct of Lessee's business
or from any activity, work or things, permitted or suffered by Lessee In or about the
Premises, and shall further indemnifY and hold harmless Lessor from and against any
and a" claims arising from any breach or default in the performance of any obligation
on Lessee's part to be performed under the terms of this Lease, or arising from any
negligence of the Lessee, or any of Lessee's agents, contractors, or employees, and
from and against all costs, attorneys' fees, expenses and liabilities Incurred in the
defense of any such claim, or any action or proceeding brought thereon. In any case
or proceeding brought against Lessor by reason of any such claim, Lessee upon notice
from Lessor shall defend the same at Lessee's expense by counsel satisfactory to
Lessor.
8.4 Exemotlon of Lessor from Liabilitv. Lessee hereby agrees that
Lessor shall not be liable for injury to Lessee, or the person of Lessee's employees,
agents or contractors unless such injury is caused by the willful or negligent act or
omission of Lessor or Lessor's agents, representatives, employees or contractors.
9. DAMAGE OR DESTRUCTION OF PREMISES.
In the event that the Premises are partially damaged or totally destroyed,
through no fault of Lessor or Lessee, Lessor shall be entitled to the proceeds of any
insurance policy covering such damage or destruction and shall, to the extent feasible,
rebuild the Premises. During the period of time that any portion of the Premises is
eliminated, restricted or impaired by such damage or destruction, Lessor shall use best
efforts to provide comparable parking to the County in accordance with Section 25
below. During any period of time between the date the Premises are partially
damaged or totally destroyed, and the time comparable parking Is provided In
accordance herewith, Lessee's rental obligation in this Lease shall be reduced in
proportion to the number of parking spaces denied to the County as a result of such
destruction.
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10. REAL PROPERTY TAXES.
10.1 Pavment of Taxes. In the event that real property taxes are
assessed or assessable against the Premises Lessor shall pay said property tex.
10.2 Definition of .R.al ProDertv Tax.. As used herein, the term .real
property tax. shall include any form of real estete tax or assessment, general, special,
ordinary or extraordinary, and eny Hcense fee, commercial rental tex, Improvement
bond or bonds, levy or tax (other than Inheritance, ~rsonal income or estate texes),
imposed on the Premises by any authority having the direct or indirect power to tex,
including any city, state or federal government, or any school, agricultural, sanitary,
fire, street, drainage or other Improvement district thereof, as against any legal or
equitable Interest of Lessor in the Premises, as against Lessor's right to rent or other
Income therefrom, and as against Lessor's business of leasing the Premises. The term
.real property tax. shall also include any tax, fee, levy, assessment or charge (I) In
substitution of, partially or totally, any tax fee, levy, assessment or charge
hereinabove included within the definition of .real property tax., or (ii) the nature of
which wes hereinabove included within 'the definition of .real property tax., or
(iii) which is imposed for a service or right not charged prior to the execution date
hereof, or (iv) which is Imposed as a result of a transfer, either partial or total, of
Lessor's interest in the Premises or which is added to a tax or charge hereinabove
Included within the definition of real property tax by reason of such transfer, or
(v) which is imposed by reason of this transaction, any modifications or changes
hereto or any transfers hereof.
11. SUBLESSEES.
11.1. APPROVED SUBLESSEE. Lessor specifically grants to Lessee,
without any further approval by, or notiCe to, Lessor, the right to sublease the
Premises to the County (the. Apptoved Sublessee.) for use as a parking lot under the
same terms and conditions as this Lease. Lessee shall provide Lessor with a copy of
any sublease by and between Lessee and Approved Sublessee and any amendments
thereto.
11.2. ASSIGNMENT AND SUBLETTING. Except as provided in
Section 11.1 hereof, Lessee shall not volunterily or by operation of law assign,
transfer, mortgage. sublet, or otherwise transfer or encumber any or all of Lessee's
interest in this Lease or in the Premises, without Lessor's prior written consent, which
Lessor shall not unreasonably withhold and which shall be given or withheld within
30 days of receipt by Lessor of written notice of such proposed transfer or
encumbrance. Consent to one assignment or subletting shall not be deemed to be
consent to any subsequent assignment or subletting.
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12. DEFAULT: REMEDIES.
11 .1 Default. The occurrence of anyone or more of the following
events shall constitute a material default and breach of this Lease by the Lessee:
(al The vacating or abandonment of the Premises by Lessee.
(bl The failure by Lessee to make any payment of rent or any other
payment required to be made by Lessee hereunder as and when due, where such
failure shall continue for a period of seven (71 days after written notice thereof from
Lessor to Lessee.
(cl The failure by Lessee to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Lessee, other
than described in Paragraph (bl above, where such failure shall continue for a period
of thirty (301 days after written notice thereof from Lessor to Lessee; provided,
however, that if the nature of Lessee's default is such that more than thirty (301 days
are reasonably required for its cure, then Lessee shall not be deemed to be in default
if Lessee commences such cure within said thirty (301 day period and thereafter
diligently prosecutes such cure to completion.
12.2 Remedies of Lessor. In the event of any such material default or
breach by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor in the exercise of any right or remedy which
Lessor may have by reason of such default or breach:
(a) Terminate Lessee's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Lessee shall immediately
surrender possession of the Premises to Lessor. In such event, Lessor shall be entitled
to recover from Lessee all damages incurred by Lessor by reason of Lessee's default,
including, but not limited to: the cost of recovering possession of the Premises;
expenses of re-Ietting, including necessary renovation and alteration of the Pcemises;
reasonable attorneys' fees; the worth at the time of award by the court having
jurisdiction thereof of the amount by which the unpaid rent for the balance of the term
after the time of such award exceeds the amount of such rental loss for the same
period that Lessee proves could be reasonably avoided.
(bl Maintain Lessee's right to possession in which case this Lease
shall continue in effect whether or not Lessee shall have abandoned the Premises. In
such event, Lessor shall be entitled to enforce all of Lessor's rights and remedies
under this Lease, including the right to recover the rent as it becomes due hereunder.
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(cl Pursue any other remedy now or hereafter available to Lessor
under the laws or judicial decisions of the State of California. Unpaid installments of
rent or other unpaid monetary obligations of Lessee under the terms of this Lease shall
bear interest from the date due at the maximum rate then allowed by law.
12.3 Default bv Lessor. Lessor shall be in default under this Lease if
Lessor fails to perform obligations required of Lessor within a reasonable time, but in
no event later than' thirty (301 days after written notice by Lessee to Lessor. If the
nature of Lessor's obligation is such that more than thirty (301 days are required for
performance, then Lessor shall not be in default if Lessor commences performance
within such thirty (30) day period and thereafter diligently prosecutes the same to
completion. Lessee shall have all remedies available at law or in equity for any default
or breach of this Lease by Lessor.
12.4 Late Charaes. Lessee hereby acknowledges that lat! payment by
Lessee to Lessor of rent, or any other sums due hereunder will cause Lessor to incur
costs not contemplated by this Lease. the exact amount of which will be extremely
difficult to ascertain. Accordingly, if any installment of rent or any other sum due
from Lessee shall not be received by Lessor or Les,sor's designee within ten (10) days
after such amount shall be due, then, without any requirement for notice to Lessee.
Lessee shall pay to Lessor a late charge equal to six percent (6%) of such overdue
amount. The parties hereby agree that such late charge represents a fair and
reasonable estimate of the costs Lessor will incur by reason of the late payment by
Lessee.
13. CONDEMNATION.
If the Premises or any portion thereof are taken under the power of
eminent domain, any award for the taking of all or any part of the Premises under the
power of eminent domain shall be the property of Lessor, whether such award shall
be made as compensation for diminution in value of the leasehold or for the taking of
the fee, or as severance damages; provided, however, that Lessee shall be entitled to
any award for loss or damage to Lessee's trade fixtures and removable personal
property .
14. SEVERABILITY.
The invalidity of any provision of this Lease as determined by a court of
competent jurisdiction shall in no way affect the validity of other provisions hereof.
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15. ADDITIONAL RENT.
Any monetary obligations of Lessee to Lessor under the terms of this
Lease shall be deemed to be rent.
16. INCORPORATION OF PRIOR AGREEMENTS: AMENDMENTS.
This Lease contains all agreements of the parties with respect to any
matter mentioned herein. No prior agreement or understanding pertaining to any such
matters shall be effective: This Lease may be modified only in writing, signed by the
parties in interest at the time of the modification.
17. NOTICES.
Any notice required or permitted to be given hereunder shall be in writing
and may be given by personal delivery or by certified mail, and if given personally or
by mail, shall be deemed sufficiently given if addressed to Lessee or to Lessor at the
address as follows:
If to Lessor:
Redevelopment Agency of the City of San Bernardino
Attn: Executive Director
201 North "E" Street, Third Floor
San Bernardino, California 92401
If to Lessee:
David D. Miller and Denyse Miller
Kodash, Inc.
5250 West Century Boulevard
Suite 307
Los Angeles, California 90045
and to:
Alan Smith, Esq.
Perkins Coie
1999 Avenue of the Stars
Ninth Floor
Los Angeles, California 90067
Either party may, by written notice to the other party specify a different address for
notice purposes, except that Lessee's address for notice purposes shall remain as
above stated, so long as Lessee is in the possession of the Premises.
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18. WAIVERS.
No waiver by Lessor of any provision hereof shall be deemed a waiver
of any other provision hereof or of any subsequent breach by Lessee of the same or
any other provision. Lessor's consent to. or approval of, any act shall not be deemed
to render unnecessary the obtaining of Lessor's consent to or approval of any
subsequent act by Lessee. The acceptance of rent hereunder by Lessor shall not be
a waiver of any preceding breach by Lessee of any provision hereof, other than the
failure of Lessee to pay the particular rent so accepted, regardless of Lessor's
knowledge of such preceding breach at the time of acceptance of such rent.
19. HOLDING OVER.
If Lessee, with Lessor's consent, remains in possession of the Premises
or any part thereof after the expiration of the term hereof, such occupancy shall be
a tenancy from month to month upon all the provisions of this Lease pertaining to the
obligations of Lessee, but all options and rights of first refusal, if any, granted under
the terms of this Lease shall be deemed terminated and be of no further effect during
said month to month tenancy. Said month to month tenancy may be terminated by
either party upon thirty (30) days' written notice.
20. SUBORDINATION.
This Lease is subordinate to any ground lease, mortgage, deed of trust
or any other hypothecation or security now placed upon the real property of which the
Premises are a part and to any and all obligatory advances made on the security
thereof. Notwithstanding such subordination, Lessee's right to quiet possession of
the Premises shall not be disturbed if Lessee is not in default and so long as Lessee
shall pay the rent and observe and perform all of the provisions of this Lease, unless
this Lease is otherwise terminated pursuant to its terms.
21. ATTORNEYS' FEES.
If either party to this Lease brings an action to enforce the terms hereof
or declare rights hereunder, the prevailing party in any such action, on trial or appeal,
shall be entitled to its reasonable cost and attorneys' fees to be paid by the losing
party as fixed by the court.
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22. LESSOR'S ACCESS.
Lessor and Lessor's agents shall have the right to enter the Premises at
reasonable times for the purpose of inspecting the same, showing the same to
prospective purchasers, lenders or lessees, and making such alterations, repairs,
Improvements or additions to the Premises or to the building of which they are a pan
as Lessor may deem necessary or desirable.
23. SIGNS.
Lessee shall not place any sign upon the Premises without Lessor's prior
written consent.
24. MERGER.
The voluntary or other surrender of this Lease by Lessee, or a mutual
cancellation thereof, or a termination by Lessor,' shall not work a merger, and shall,
at the option of Lessor, terminate all or any existing subtenancies or may, at the
option of Lessor, operate as an assignment to Lessor of any or all of such
subtenancies.
25. REMOVAL OF LESSEE.
In the event that the Premises are taken under the power of eminent
domain and Agency is compensated therefor, or Lessor should find it necessary to
utilize the Premises for Its own purposes or for any purpose deemed by It to be
necessary, or if Lessor sells, assigns, leases or otherwise transfers or encumbers any
interest It has in the Premises and such taking, use, transfer or encumbrance causes
the elimination, restriction or impairment of all or any pan of the Premises by Lessee,
or the exclusive use of the same by the County as a 60-space parking lot, Lessor
shall, prior to such elimination, restriction or Impairment, procure for Lessee and the
exclusive use by the County comparable parking spaces within a 1,000 foot radius
of the County Building or shall cause an equal number of spaces as those eliminated
to be made available to the County within a reasonable distance of the County
Building In accordance with any approved downtown parking plan as established by
the City or other appropriate jurisdiction governing parking. In the event that such a
plan is Implemented, Lessor shall use reasonable efforts to provide comparable parking
in accordance with the parking plan within a 1000 foot radius of the County Bui/ding.
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The parties acknowledge and agree that the Lessor's obligation to provide
replacement parking within 1,000 feet of the County Building as set forth in this Lease
shall be Interpreted such that at least the outer boundary of the replacement parking
lotls), and not necessarily all of the spaces, is within 1,000 feet of the County
Building.
26. PARKING. REGULATIONS.
Lessor and Lessee agree that neither the Lessor nor the Lessee, nor any
Sublessee, If any, or any users of the Premises will contaminate or in any other way
abuse the premises, and both the Lessor and the Lessee, and any Sublessee, if any,
and any users of the Premises will abide by all laws and regulations applicable to
parking facilities.
27. AUTHORITY TO ACT FOR LESSOR.
It is understood and acknowledged that Lessor shall act by and through
the authority of, and actions taken on behalf of Lessee shall be exercised by, the
Executive Director of the Redevelopment Agency of the City of San Bernardino.
28. APPROVAL OF LEASE.
It is understood and agreed that this Lease is subject to the approval of
the legislative body of the Lessor.
29. ACKNOWLEDGEMENTS.
The parties acknowledge that this Lease has been negotil!ted by
authorized representatives of each party, and both parties hereby consent to this
Lease having been drafted by Sabo & Green, a Professional Corporation, as counsel
to Lessor.
30. COUNTERPARTS.
This Lease may be executed in original counterparts, each of which shall
be deemed to be an original for all purposes and such counterparts shall constitute
one and the same instrument.
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WHEREFORE, the parties hereto, in consideration of the conditions,
covenants and promises contained herein, have executed this Agreement as indicated
below.
ATTEST:
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D VID D. MILLER
ALAN SMITH, as post-confirmation
trustee of the bankruptcy estate
of H. Frank Dominguez
ATTEST:
Secretary
APPROVED AS TO FORM:
SABO & GREEN
Agency Counsel
SBEO\OOO1\DOCI874
4127183 416
REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO
By:
Kenneth J. Henderson
Executive Director
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RESOLUTION NO.
RESOLUTION OF THE COMMUNITY DEVELOPMENT
COMMISSION OF THE CITY OF SAN BERNARDINO
APPROVING A ACQUISITION AGREEMENT BY AND BETWEEN
TH.E REDEVELOPMENT AGENCY OF THE CITY OF SAN
BERNARDINO AND DAVID A. MILLER AND DENYSE M.
MILLER, AS HUSBAND AND WIFE, AND ALLAN SMITH, AS
POST CONFIRMATION 'l'RUSTEE OF THE BANKRUPTCY
kSTATE OF H. FRANK DOMINGUEZ, PERTAINING TO
CERTAIN REAL PROPERTY LOCATED WITHIN THE CENTRAL
CI'l'Y REDEVELOPM1!:NT PROJECT AREA
WHEREAS, the City of San Bernardino, California (the
"City"), is a municipal corporation and a charter city duly
created and existing pursuant to the Constitution and the laws of
the State of California; and
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WHEREAS, the Community Development Commission of the
City of San Bernardino (the "Commission") on behalf of the
Redevelopment Agency of the City of San Bernardino (the
"Agency"), is a redevelopment agency, a public body, corporate
and politic of the State of California, organized and existing
pursuant to the Community Redevelopment Law (Part 1 of
Division 24) commencing with Section 33000 of the Health and
Safety Code of the State of California (the "Act)"; and
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WHEREAS, the Redevelopment Plan for the Central city
Redevelopment Project (the "Redevelopment Plan") was previously
approved and adopted by the Community Development Commission of
the City of San Bernardino (the "Council") by duly authorized
Ordinance of the Council; and
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WHEREAS, the Redevelopment Plan provides for the
acquisition of real property for redevelopment purposes within
the redevelopment project area which is subject to the
Redevelopment Plan (the "Project Area") by the Agency; and
WHEREAS, Section 33391 of the Act provides that a
redevelopment agency may acquire real property within a
redevelopment project area for the purposes of redevelopment; and
WHEREAS, Agency is seeking to acquire certain real
property consisting of approximately 2.8.300 square feet of land
.
generally located near the intersection of Fourth and "E" Street,
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in the city of San Bernardino, County of San Bernardino, State of
California which is located within the Project Area (the
"Property"); and
WHEREAS, the Agency and David A. Miller and Denyse M.
Miller, as husband and wife, and Allan Smith, as post
confirmation trustee for the bankruptcy estate of H. Frank
Dominguez (collectively, the "owner") desire to enter into a
certain Acquisition Agreement (the "Acquisition Agreement"), a
copy of which is attached hereto as Exhibit "A" and incorporated
herein by reference, pursuant to which the Agency would acquire
the Property from the Owner; and
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WHEREAS, the Agency intends to cause the Property to be
used as a pubic parking lot to provide parking and in accordance
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therewith, the Agency proposes to cause the development of
certain parking improvements on the Property; and
WHEREAS, the acquisition and development of the
Property will enable the Agency to provide public parking to
residents and occupants of the Project Area and the City
generally and would also provide additional parking for use by
visitors and patrons of the County of San Bernardino Department
of Public Social Services; and
WHEREAS, it is reasonable and appropriate for the
Agency to approve the proposed Acquisition Agreement.
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NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION,
ACTING ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS
FOLLOWS:
section 1.
The Agency finds and determines that the
acquisition of the Property as described in the proposed
Acquisition Agreement is within the scope, terms and provisions
of the Redevelopment Plan.
Section 2.
The Agency hereby finds and determines
that the acquisition of the Property pursuant to the terms of the
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Acquisition Agreement is reasonable and necessary to effectuate
the purposes of the Redevelopment Plan to provide much needed
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pul:llicparkinq to employees, patrons and visitors of the County
of San Bernardino Department of Pul:llic Social Services which is
located in an adjacent buildinq to the Property as well as to
occupants of the Project Area and the pul:llic qenerally.
Section 3. The Aqency hereby approves the proposed
Acquisition Aqreement and authorizes the Aqency Chairman and,
Secretary to execute the Acquisition Aqreement with such non-
substantial chanqes as may be deemed necessary by the Aqency
Chairman and Aqency Counsel.
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STATE OF CALIFORNIA )
COUNTY OF SAN BERNARDINO) ss
CITY OF SAN BERNARDINO )
I, Secretary of the Community
Development Commission of the City of San Bernardino, DO HEREBY
CERTIFY that the foregoing and attached copy of Community
Development Commission of the City of San Bernardino Resolution
No. is a full, true and correct copy of that now on
file in this office.
IN WITNESS WHEREOF, I have hereunto set my hand and
affixed the official seal of the Community Development Commission
of the City of San Bernardino this day of
, 1993.
Secretary of the
Community Development Commission
of the City of San Bernardino
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EXHIBIT "A"
ACQUISITION AGREEMENT
IIIIlOOOOIIIlClCII'7JI.r
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PROPERTY ACOUISITION AGREEMENT
This Agreement is entered into this
day of
, 1993, by and between the Redevelopment Agency of the
City of San Bernardino (the "Agency"), a public body, corporate and
politic, duly organized and existing pursuant to the Community
Redevelopment Law of the State of California, and David D. Miller
and Denyse M. Miller, as Husband and Wife, and Alan smith, as post-
confirmation trustee of the bankruptcy estate of H. Frank Dominguez
(hereinafter collectively referred to as "Seller").
RECITALS
WHEREAS, the Agency and the City of San Bernardino (the
"City") have previously adopted and approved the Redevelopment Plan
for the Central City Redevelopment Project (the "Redevelopment
Plan") in accordance with the Community Redevelopment Law of the
State of California, Health and Safety Code Section 33000, n"~.;
and
WHEREAS, the Seller owns certain real property comprising
approximately .65 acres located generally on the northwest corner
of Fourth and "E" Street, which real property is within the
boundaries of the Project Area subject to the Redevelopment Plan
(the "Project Area") and is more fully described in Exhibit "A"
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"Property"); and
WHEREAS,
pursuant
to
Health
and
Safety
Code
Section 33391, the Agency may, for the purposes of redevelopment,
acquire property including, but not limited to, the Property,
located within a redevelopment project area; and
WHEREAS, the Agency desires to purchase from the Seller,
and the Seller desires to sell to the Agency, the Property,
together with any and all improvements thereon so that the Agency
may cause the development thereon of certain parking improvements
and facilities in order to provide public parking and thereby
<:: facilitate development of the Property in a manner consistent with
the redevelopment objectives of the Agency; and
WHEREAS, it is the intent of the parties that the
development of public parking facilities and improvements on the
Property will provide much needed public parking for the County of
San Bernardino (the "County") and any of its departments, including
but not limited to the Department of Public Social Services
("DPSS"), which occupies a nearby building located at 494 "E"
Street (the "County Building") as well as to occupants of the
Project Area and members of the public generally.
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AGREEMENT
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS
AND PROVISIONS SET FORTH HEREINAFTER, THE PARTIES HERETO AGREE AS
FOLLOWS:
section 1.
IncorDoration of Recitals. The foreqoinq
recitals are incorporated herein by reference. Any and all facts
set forth therein shall be deemed to be accurate and truthful and
in the event of any dispute between the parties hereto, neither
party shall contest the accuracy or truthfulness of any or all such
facts set forth in the recitals.
section 2.
Continaencv.
Seller and Aqency aqree
that this Aqreement and the force and effect of each and every
provision hereof are strictly subject to the condition precedent
that Seller and County enter into a valid and bindinq aqreement
extendinq the term of that certain County of San Bernardino Lease
Aqreement dated effective May 1, 1988, and desiqnated as County
Contract No. 88-292 throuqh December 31, 2009.
If such an
extension is not entered into by the Seller and County, this
Aqreement and each and every provision hereof shall be null and
void. In such event, Seller shall not be liable to the Aqency for
any cancellation penalties, costs, fees, damaqes or reimbursement
of any kind.
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section 3.
Purchase and Sale of the'Pronertv. The
Seller hereby agrees to sell the Property to the Agency, and the
Agency hereby agrees to purchase the Property from the Seller on
the terms and conditions as herein provided.
section 4.
Purchase Price. The purchase price for
the Property shall be One Hundred Sixty Thousand Dollars ($160,000)
(the "Purchase Price"). The Purchase Price shall be payable in
cash in accordance with the close of Escrow as hereinafter
described.
section 5.
Parkina. As
additional
material
consideration given by the Agency to the Seller for the Property,
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(a) The Agency agrees to construct on the Property a
parking lot comprised of at least seventy (70) public
parking spaces. (without parking time limits). Said
construction shall be completed on or before october 1,
1993. The parkinq lot shall be con.tructed 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 through December
31, 2009.
(b) Subject to Subsection 5.(c) below, the Agency and
its successors and assiqns shall not, in any manner,
including, without limitation, sale, lease, assignment or
other transfer of an interest in the Property, cause the
elimination, restriction or impairment of the above-
referenced parking lot or any of the parking spaces
therein prior to January 1, 2010.
(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
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lonqer an occupant of the County Buildinq or (ii) the
Aqency provides Seller, for the use by County and the
qeneral public, the same number of public parkinq spaces
(without parkinq time limitations) so eliminated,
restricted or impaired, within a 1,000 foot radius of the
County Buildinq or in the event a parkinq plan for the
downtown area of San Bernardino is validly approved by
the City or another public entity havinq jurisdiction
over parkinq in downtown San Bernardino, provides
appropriate parkinq within a reasonable distance of the
County Buildinq in accordance with such plan. In the
event such a plan is approved, the Aqency shall use
reasonable efforts to provide such parkinq within a 1000
foot radius of the County Buildinq. To the extent that
replacement parkinq is provided, the Aqency shall
maintain or cause to be maintained such replacement
parkinq spaces in qood repair throuqh and includinq
December 31, 2009.
(d) Notwithstandinq any provision in this Aqreement
which may be interpreted to the contrary, neither Seller
nor the County shall be, at any time, charqed any fee of
any kind for parkinq in the public parkinq spaces so
provided in this Section 5, includinq, 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, throuqh eminent domain,
Aqency shall provide pUblic parkinq for County and the
qeneral public in accordance with Subsection 5. (c) above,
as if the Aqency itself eliminated the parkinq spaces so
taken.
The parties acknowledqe and aqree that the obliqation to
provide replacement parkinq within 1000 feet of the County Buildinq
as set forth in this Aqreement shall be interpreted such that at
least the outer boundary of the replacement parkinq lot(s), and not
necessarily all of the spaces, is within 1000 feet of the County
Buildinq.
Section 6.
ocenina of Escrow. In order to consummate
the conveyance of the Property pursuant to this Aqreement, an
escrow (the "Escrow") shall be opened by the parties hereto with an
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escrow agent mutually acceptable to the parties hereto (the "Escrow
Agent") within five (5) business days following the date of
execution of this Agreement.
section 7.
Escrow Period. Subject to Section 13
below, the Escrow shall close and all obligations of the parties
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hereunder to satisfy the terms. and conditions of the close of
Escrow shall be performed and completed no later than sixty (60)
calendar days following the date the Escrow is opened.
section 8.
Conditions of Escrow.
The close of the
Escrow and the Agency's obligation to purchase the Property shall
be expressly conditioned upon satisfaction by the Seller or waiver
C by the Agency of each of the following;
(a) The conveyance to the Agency, or its nominee, of
good and marketable fee title to the Property, as
evidenced by a standard form ALTA Title Insurance Policy
in the amount of the Purchase Price, issued by a title
insurance company approved by Seller and the Agency,
subject only to such liens and encumbrances of record as
approved in writing by the Agency, within 30 days of
receipt of a preliminary title report of the Property;
(b) Delivery of possession of the Property to the
Agency, or its nominee, immediately on the close of the
Escrow, free and clear of all uses and occupancies,
except those as may be approved in writing by the
Executive Director of the Agency;
(C) The deposit into Escrow by the Seller of all
necessary deeds or other documentation necessary to
transfer title to the Property to the Agency within ten
(10) days prior to the date that the Escrow is scheduled
to close;
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(d) Payment by Seller of all taxes and liens which may
be due and owing on the Property.
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(e) The delivery to the Agency of copies of all studies
(geologic, planning, architectural, soils conditions,
etc.) in possession of the Seller that could impact upon
Agency's use and development of the Property.
(f) The preparation and completion of Seller's sole cost
and expense of a Phase I toxic contamination report and
if deemed necessary by the Agency, in good faith, upon
review of the Phase I toxic contamination study, a Phase
II toxic contamination study.
(g) The approval by the Agency within fifteen (15) days
of receipt thereof of a toxic contamination report or
similar report as prepared by the Seller.
(h) The execution of an extension to the existing lease
arrangement as described in section 2 hereof.
(i) The deposit by the Seller into Escrow of any and all
sums required to be deposited into the Escrow pursuant to
this Agreement.
The Seller's obligation to convey title to the Property
to the Agency at the close of escrow shall be expressly conditioned
upon satisfaction by the Agency or waiver by the Seller of the
following:
(a) The deposit by the Agency into Escrow of the
Purchase Price within three (3) days of notification to
the Agency by the Escrow Agent that the Escrow is
otherwise in a condition to close.
(b) The deposit by the Agency into Escrow of any and all
other sums required to be deposited by it into the Escrow
pursuant to this Agreement.
(c) The execution of an extension to the existing lease
arrangement as described in Section 2 hereof.
Section 9.
Failure of Conditions. In the event that
any of the conditions to the close of Escrow as set forth in this
Agreement should fail to occur and are not otherwise waived by the
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parties for whose benefit the condition is set forth, or any of the
obligations of the parties required to be completed prior to the
close of Escrow pursuant to this Agreement should fail to have been
performed and completed, within sixty (60) calendar days after the
opening of the Escrow as provided in Section 6 of this Agreement,
then either party shall have the power, to be exercised by giving
a written notice to the Escrow Agent and to the other party, to
cancel the Escrow, to terminate this Agreement, and to recover any
and all moneys or documents deposited by that party into the Escrow
hereunder. The exercise of such power by either party shall not,
however, constitute a waiver by that party of any other right which
that party may have against the other party for any breach of this
Agreement. The Escrow Agent shall be, and is hereby, irrevocably
instructed by the parties to refund or return immediately to the
appropriate parties, on any such failure of conditions and receipt
of such notice from any party, all moneys and instruments deposited
by the parties into the Escrow pursuant to this Agreement.
section 10. Joint Escrow Instructions. Sections 6
through 18 of this Agreement shall constitute joint escrow
instructions of the Seller and the Agency for the conveyance of the
Property. The Seller and the Agency agree to execute any and all
reasonable and appropriate additional escrow instructions and to
perform any and all reasonable and appropriate acts as may be
necessary in order to expedite and facilitate the close of the
Escrow hereunder.
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section 11.
Escrow Funds.
All funds in the Escrow
shall be deposited with other escrow funds in a general escrow
trust account and may be transferred into any other such general
escrow trust account in any state or national bank doing business
in the state of California. All disbursements shall be made by
check from such account. Any and all interest accruing on funds
deposited into the escrow shall be due and payable to the party
which made such deposits.
section 12.
Close of Escrow.
The term "close of
escrow" herein shall mean the date on which necessary instruments
of conveyance are recorded in the office of the County Recorder of
San Bernardino County, California. The Escrow Agent is authorized
<:) and directed to record a grant deed or deeds to the Property from
the Seller to the Agency, and any and all other appropriate
documents hereunder, in order to close the Escrow hereunder.
Section 13.
Extension of Time. All time limits within
which any matter herein specified is to be performed including,
without limitation, the close of Escrow, may be extended by mutual
agreement of the Seller and the Agency.
Any amendment of, or
supplement to, the escrow instructions hereunder or any other
provisions of this Agreement shall be in writing.
Section 14.
Authoritv of Escrow Aaent.
The Escrow
Agent is authorized to and shall:
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(a) Pay and charge the
and/or delinquent taxes
thereon, and for any
assessments or bonds;
Seller for any and all current
and any penalties and interest
delinquent or non-delinquent
(b) Pay and charge the Seller and Agency for all escrow
fees, costs and charges which might arise in this escrow,
as set forth herein;
(c) Record deeds, disburse funds and deliver deeds
between the Seller and the Agency, when conditions of the
Escrow have been fulfilled or otherwise waived.
Section 15.
Proration of Taxes.
There shall be
prorated between the Seller and the Agency on the basis of thirty
(30) day months, as of 12:00 midnight San Bernardino, California
Time on the date of the close of Escrow, any and all real property
taxes levied or assessed against the Property, as shown on the
latest available tax bills.
Section 16.
Assessments.
Any bonds or improvement
assessments which are a lien on the Property and which are due and
payable as of the date for close of Escrow shall, on the close of
Escrow, be paid by the Seller.
Section 17.
Commissions. Any and all commissions due
to real estate brokers or other brokers as a result of the
conveyance of the Property by the Seller to the Agency hereunder
shall be paid by the party that has employed the broker. Seller
has employed C.B. Commercial as its broker with respect to the
purchase and sale contemplated herein and Seller has agreed to pay
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C.B. Commercial a commission equal to six percent (6%) of the
Purchase Price.
section 18.
Costs of Escrow. The expenses of Escrow
described in this Agreement shall be paid in the following manner:
(a) The full cost of securing the title insurance policy
described in Section 5 of this Agreement shall be paid by
the Seller;
(b) The cost of preparing, executing and acknowledging
any deeds, or other instruments required to convey title
to the Agency, or its nominee, in the manner described in
Section 6 shall be paid by the Seller;
(c) The cost of recording a grant deed(s) required to
convey title to the Property to the Agency, or its
nominee, as described in section 8 of this Agreement
shall be paid by the Agency;
(d) Any tax imposed under the Documentary Transfer Tax
Act upon the conveyance to the Agency, or its nominee, of
title to the Property shall be paid by the Agency; and
(e) The costs of causing the completion of a toxic
contamination report shall be paid by the Seller.
(f) Any escrow fees charged by the Escrow Agent shall be
paid one half (1/2) by the Agency and one half (1/2) by
the Seller.
Section 19.
Notices. Any and all demands, notices or
other communications ("Communications") required or permitted by
this Agreement or by law to be served on or given to any party
hereto and/or to the Escrow Agent, as applicable, . by any other
party hereto and/or by the Escrow Agent, as applicable, (a) shall
be in writing and (b) shall be deemed duly served and given when
personally delivered to the parties and the Escrow Agent, as
applicable, to whom it is addressed, or in lieu of such personal
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C service, when deposited in the United states mail, first-class
postaqe prepaid, addressed to the parties and to the Escrow Aqent,
as applicable, at the followinq addresses:
To Aqency:
Executive Director
Redevelopment Aqency of
the City of San Bernardino
201 "E" Street, Third Floor
San Bernardino, California 92401-1507
David D. Miller
Denyse M. Miller
Kodash, Inc.
5250 West Century Boulevard
Suite 307
Los Anqeles, California 90045
Alan Smith
Perkins Coie
1999 Avenue of the Stars
Ninth Floor
Los Angeles, California 90067
To Seller:
and to:
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and to:
C.B. Commercial
3750 University Avenue
suite 250
Riverside, California 92501
ATTN: William T. Corridan
and to:
Marjorie Steinberg
Tuttle and Taylor
355 S. Grand Avenue
40th Floor
Los Angeles, California 90071-3101
Christie Gunkel
Chicaqo Title Insurance Company
625 Carnegie Drive, suite 200
San Bernardino, California 92403
To Escrow Agent:
Any and all demands, notice or other communication shall be deemed
to have been received by the party and the Escrow Agent, as
applicable, to whom such demand, notice or communication is
addressed on the day that any such demand, notice or communication
c:: is personally delivered to the addressee, or three calendar days
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<:; following the date any such demand, notice or other communication
is deposited in the United States mail in the manner set forth
herein.
Any party and the Escrow Agent, as applicable, may change
it's address for purposes of this Section by given written notice
of such change to the other parties and the Escrow Agent, as
applicable, in the manner provided herein.
section 20. ~. This Agreement and the
obligations hereunder shall endure from the date of execution of
this Agreement by the parties hereto until and through December 31,
2009, provided, however, that in the event the lease transaction
<:: referenced in section 2 hereof is not consummated and implemented,
then at such time this Agreement may be terminated upon the written
request of either party.
Section 21. Non-Meraer. This Agreement shall not be
subject to the doctrine of merger. Each and every provision
hereunder shall survive the close of Escrow and the transfer of
title to the Property from the Seller to the Agency.
Section 22. Severabili tv. Every provision of this
Agreement is and shall be construed to be a separate and
independent covenant. If any provision of this Agreement or the
application of the same is, to any extent, found to be invalid or
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unenforceable, then the remainder of this Agreement or the
application of such provision to circumstances other than those to
which it is invalid, or unenforceable, shall not be affected by the
same and each provision of this Agreement shall be valid and shall
be enforced to the extent permitted by law. In that event, the
Seller and the Agency will cooperate with one another in
negotiating such amendments to this Agreement as may be necessary
to give effect to this Agreement, notwithstanding the severance of
the invalid or unenforceable provision.
Section 23. Entire Aareement. This Agreement
integrates all of the terms and conditions applicable to the
matters set forth herein and supersedes all negotiations and prior
agreements between the parties with respect to the matters set
forth therein. Any and all waivers of the terms and conditions of
this Agreement and all amendments hereto must be in writing and
must be executed by the parties hereto.
section 24. InterDretation. Interpretation of the
validity and enforcement of this Agreement shall be governed by and
construed under the laws of the state of California.
Section 25. Attornevs' Fees. If either party hereto
files any action or proceeding against the others arising out of
this Agreement, the prevailing party shall be entitled to recover
its costs and reasonable attorneys' fees.
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section 26.
Effect.
This Agreement shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, executors, administrators, legal representatives,
successors and assigns.
section 27.
CounterDarts. This Agreement may be
executed in original counterparts, each of which shall be deemed to
be an original for all purposes and such counterparts shall
constitute one and the same instrument.
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Agreement to be executed as of the date first above written.
IN WITNESS WHEREOF, the parties hereto have caused this
ATTEST:
By:
"AGENCY"
REDEVELOPMENT AGENCY OF THE
CI~Y OF SAN BERNARDINO
By
Executive Director
Secretary
APPROVED AS TO FORM AND LEGAL CONTENT:
By:
Counsel to the Agency
"SELLER"
DAVID D. MILLER
DENYSE M. MILLER,
as Husband and Wife
~~Mi~r01L
By:
By:
ALAN SMITH, as post-confirmation
trustee of the bankruptcy estate of
H. Frank Dominguez
By:
Alan Smith
IBEOIOOOI1Il<lCW73
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