HomeMy WebLinkAbout1998-292
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RESOLUTION NO.
98-292
2
3
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF
THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING AND AUTHORIZING THE EXECUTION OF A
CERTAIN SECOND AMENDMENT TO MUTUAL RELEASE AND
SETTLEMENT AGREEMENT [FELDKAMP]
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5
6
WHEREAS, the City of San Bernardino is a municipal
7 corporation and charter city duly organized and existing pursuant
8 to the laws of the State of California, (the "City"); and
9
10
WHEREAS, on June 18, 1990, the City created Community
11 Facilities District No. 995 ("District") and in December, 1990, the
12 City issued the $7,440,000 Special Tax Bonds ("Bonds"); and
13
14 WHEREAS, the City refunded the Bonds in 1994, with the
15 issuance of the $3,315,000 Community Facilities District No. 995 of
16 the City of San Bernardino (Verdemont Area) Special Tax Refundlng
17 Bonds ("Refunding Bonds"); and
18
19
WHEREAS, Irving M. Feldkamp III (the "Developer") owns
20 certain unimproved property within the District (the "Property");
21 and
22
23
WHEREAS, on or about January 14, 1994, the City commenced
24 an action for judicial foreclosure of special tax liens in the
25 Superior Court of the State of California for the County of San
26 Bernardino, against certain named defendants therein, including
27 Developer, bearing Case No. SCV09593 (the "Action"); and
28
1
.,
?8-292
1
WHEREAS, in an effort to resolve their differences and to
2 avoid the expense and inconvenience of any future litigation,
3 including without limitation, litigation of the Action, the City
4 and Developer entered into that certain Mutual Release and
5 Settlement Agreement dated as of August 29, 1994 (the "Original
6 Settlement Agreement"); and
7
8 WHEREAS, pursuant to the Original Settlement Agreement,
9 the Developer agrees to make payments to the City for delinquent
10 special taxes, school fees, interest, penalties and costs thereon
11 as provided in said Original Settlement Agreement; and
12
13
WHEREAS, the Original Settlement Agreement was amended by
14 that certain First Amendment to Mutual Release and Settlement
15 Agreement dated October 21, 1997 (the "First Amendment"); and
16
17
WHEREAS, the First Amendment modified the terms of
18 payment and amounts due to the City under the Original Settlement
19 Agreement and provided for the concurrent execution of a Purchase
20 and Sale Agreement under which the Developer purchased certain real
21 property from the City as legally described therein; and
22
23
WHEREAS, the City and Developer desire to further amend
24 the Original Settlement Agreement to revise certain terms
25 concerning the performance obligations of the Developer as set
26 forth in the Second Amendment to Mutual Release and Settlement
27 Agreement attached hereto as Exhibit "A" (the "Second Amendment") ;
28 and
2
",
98-;:292
1 WHEREAS, the City desires, at this time, to approve and
2 authorize the execution of the Second Amendment.
3
4 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
5 OF SAN BERNARDINO DO HEREBY RESOLVE, DETERMINE AND ORDER AS
6 FOLLOWS:
7
8 Section 1. The Recitals hereinabove are true and
9 correct and are incorporated herein by this reference.
10
11 Section 2. The Mayor and Common Council of the City
12 hereby approves the Second Amendment in the form attached hereto as
13 Exhibit "An together with such changes as the Mayor and City
14 Attorney deem necessary and desirable and further authorizes and
15 directs the Mayor or such other authorized officer of the City to
16 execute the Second Amendment.
17
18 Section 3. The Mayor, the City Clerk, and City
19 Administrator and any and all other officers or agents of the City
20 are hereby authorized and directed, for and in the name and on
21 behalf of the City, to do any and all things and take any and all
22 actions, including execution and delivery of any and all
23 assignments, agreements, notices, consents, instruments of
24 conveyance, warrants and other documents, which they, or any of
25 them may deem necessary or advisable to complete the transaction
26 contemplated hereby.
27 / / /
28 / / /
3
. 98-292
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING AND AUTHORIZING THE EXECUTION OF A
CERTAIN SECOND AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT
AGREEMENT [FELDKAMP]
SECTION 4. The authorization granted hereunder shall expire and be void and of no
2 further effect if the second amendment to release and settlement agreement is not executed by both
3 parties and returned to the Office of the City Clerk within sixty (60) days following the effective
4 date of the resolution.
S I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a
7 thereof, held on the 5th day of October
reqular
meetin
8 COUNCIL MEMBERS:
AYES
NAYS
, 1998, by the following vote, to wit
ABSTAIN ABSENT
9 ESTRADA
10 LIEN
11 ARIAS
12 SCHNETZ
13 DEVLIN
14 ANDERSON
15 MILLER
16
17
x
y
x
--
x
x
--
y
x
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CI!Y C _ .RK
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19
20
21
22
Approved as to form and
23 legal content:
The foregoing Resolution is hereby approved
day of O"t-nh..r
__ , 1998.
--..
24 JAMES F. PENMAN,
City Attorney
25
26 By: ilc~ 7-,
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27
28
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Recorded in Official
San Bernardino, Errol
No Fee
Doc No.
09
Records, County of
J. Mackzum, Recorder
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CITY CLEB:' S OPI'XCE
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19980527166
14am 12/11/98
CITY CLEB:'S OPI'XCE
POBOX 1318
SAIl BERlUKDDIO CA 92402
Attn: M. Miller
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Recorded in Official Records, County of
San Bernardino, Errol J. Mackzum, Recorder
RBG~ ~~.CII BY:
crn OF SA. -"'1mDlO
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AIm wtEN REG- -.,.. 1MB. 10:
CITY ~'S OPPICE
POBOX 1318
SAIl BERlWlDDIO CA 92402
Attn: M. Miller
Doc No. 19980472163
3:00pm 11/03/98
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Resolution No. 98-292
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. .
, ~8-292
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RECORDING REQUESTED BY:
CITY OF SAN BERNARDINO
WHEN RECORDED RETURN TO:
SABO & GREEN,
A PROFESSIONAL CORPORATION
201 NORTH "En STREET, SUITE 206
SAN BERNARDINO, CALIFORNIA 92401
Recordation Fee Not Applicable
Pursuant to Government Code Section 6103
(Space Above For Recorder's Use Only)
SECOND AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT
98-292 .
SECOND AMENDMENT TO MUTUAL RELEASE
AND SETTLEMENT AGREEMENT
This Second Amendment to Mutual Release and Settlement
Agreement (the "Second Amendment") is entered into this sA day of
October, 1998, by and between the CITY OF SAN BERNARDINO, a
California municipal corporation ("City") and IRVING M. FELDKAMP
III, an individual ("Developer").
RECITALS
On or about January 14, 1994, the City commenced an
action for judicial foreclosure of special tax liens in the
Superior Court of the State of California for the County of San
Bernardino, against certain named defendants therein, including
Developer, bearing Case No. SCV09593 (the "Action").
In an effort to resolve their differences and to avoid
the expense and inconvenience of any future litigation, including
without limitation, litigation of the Action, the City and
Developer entered into that certain Mutual Release and Settlemc~r
Agreement dated as of August 29, 1994 (the "Original Settlement
Agreement"). Unless otherwise defined herein, capitalized terms
shall have the meanings given in the Original Settlement Agreement.
Pursuant to the Original Settlement Agreement, the
Developer has agreed to make payments to the City for delinquent
special taxes levied on certain unimproved property located within
Communi ty Facilities District No. 995 (the "District") in which
Developer owns, and school fees, interest, penal ties and costs
thereon as provided in said Original Settlement Agreement.
The Original Settlement Agreement was amended by that
certain First Amendment to Mutual Release and Settlement Agreement
dated October 21, 1997 (the "First Amendment"). Whenever used
herein, the "Original Settlement Agreement" shall refer to the
Original Settlement Agreement as amended by the First Amendment.
The First Amendment modified the terms of payment and
amounts due to the City under the Original Settlement Agreement and
provided for the concurrent execution of the Purchase and Sale
Agreement attached thereto as Exhibit "E" for the purchase by th~
Developer from the City of certain real property located within the
District described therein as Parcel 2; and
SBEO/0121/00C/273.5
10/1/98 gis
-1-
98-,-2'.l?
The parties hereto now mutually desire to further amend
the Original Settlement Agreement to revise certain terms
concerning the performance obligations of Developer as hereinafter
set forth.
This Second Amendment shall be recorded against all real
property contained in Exhibit "A" attached to the First Amendment
(the "Property").
NOW,
conditions and
agree to amend
THEREFORE, in consideration of the covenants,
promises herein contained, the City and Developer
the Original Settlement Agreement as follows:
Section 1.
Section 2.2, relating to Settlement Terms and Conditions,
is amended to read:
"Any construction or sales contract executed by Developer
for construction on the Property or sale of the Property shall be
entered with a licensed contractor or a developer who, between the
period of January 1994 through June 30, 1998: (i) has constructed
or is scheduled to construct at least one hundred (100) single
family housing units, (ii) has developed at least 100 parcels of
real property or (iii) has achieved any combination of (i) and (ii)
totaling 100."
Section 2.
Section 3, relating to Events of Default and Remedies;
Indemnification, is hereby amended as follows:
a.
Subsection
3.1(iii)
is
renumbered
subsection
3.1 (iv) .
b. Subsection 3.1 (i v) is renumbered subsection 3.1 (vi)
c. Subsections 3.1(iii), (iv), (v) and (vi) shall read:
"(iii) Failure to apply to the City for a grading permit
for the development of Phase I on the Property on or before January
1, 1999;
(iv) Failure to record the Final Map for Tract No. 14193
on or before December 29, 1998;
SBEO/0121/DOC/273.5
10/1/98 gis
-2-
98-292
(v) Failure to
building lots for Phase I
activities and installation
February 28, 1999; or
commence construction of on-site
by the initiation of on-site grading
of other lot improvements on or before
(vi) Failure to commence construction of housing units
for Phase I on or before sixty (60) days after the final approval
and written certification of each finished lot by the City, but in
no event later than June 30, 1999."
d. Amend the first sentence of Section 3.3, to read:
(iii) ,
default
City."
"Developer shall not be in default under subsections
(iv), (v) or (vi) of Section 3.1 in the event that such
is the result of unlawful or unreasonable actions by the
Section 3.
The number of lots referenced in Section 4.1, relating to
the purchase of Parcel 2, shall be changed from "76" to "42."
Section 4.
With the exception of the foregoing revisions, each and
every term of the Original Settlement Agreement remains in full
force and effect and survives this Second Amendment. The Original
Settlement Agreement, as amended by the First Amendment, is
incorporated herein by this reference. This Second Amendment, read
in conjunction with the Original Settlement Agreement, contains the
entire understanding of the parties with respect to the subject
matter hereof, and no modification or waiver of any of the
provisions hereof shall be valid unless in writing and executed by
the parties to be bound.
Section 5.
This Second Amendment shall be governed in accordance
with the laws of the State of California. Any action brought to
enforce or interpret this Second Amendment or any part hereof,
shall be brought in the State of California, in the County of San
Bernardino.
SBEO/0121/DOC/273.5
10/1/98 gis
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~
98-2<)2
Section 6.
Each party hereto certifies that he, she or it has read
all of this Second Amendment and fully understands all of the same.
Section 7.
This Second Amendment shall be recorded in the
appropriate real property records of San Bernardino County,
California, and shall constitute a lien on the Property described
in Exhibit "A" attached to the First Amendment for the amounts set
forth therein.
Section 8.
The effective date of this Second Amendment shall be
deemed to be the date of recording hereof.
Section 9.
This Second Amendment has been duly ratified, accepted
and consented to by the City through the action of its Mayor ana
Common Council. The representatives signing this Second Amendment
on behalf of the City expressly represent that he, she or they do
so with the full authority and consent of the City.
SBEO/0121/DOC/273.5
10/1/98 gis
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98:"2~~
IN WITNESS WHEREOF, the City and Developer have executed
this Second Amendment as of the date first written above.
Dated: October 7J7~, 1988
corporation
By:
APPROVED AS TO FORM AND CONTENT:
Dated: October 1998
By:
I-.~
torneys for the City
f San Bernardino
DEVELOPER
By:
M\M'~ ~
Irvirlg M. Feldkamp II ......-
[PLEASE NOTE THAT SIGNATURES OF ALL PARTIES
TO THIS SECOND AMENDMENT MUST BE NOTARIZED]
SBEO/0121/00C/273.5
10/1/98 gis
-5-
Dated
October 9, 1998
STATEOFCALFORNIA
COUNTY OF San Bernardioo~ S.S.
On _October 9.1998
before me,
Lori Yamell
a Notary Public in and for and County and State, personally appeared
_Irving Feldkamp, Developer
Personally know to me (or proved to me on the basis of satisfactory evidence)
to be tbe person(s) wbose name (s) islare subscribed to tbe witbin instrument
and acknowledge to me that belsbe/tbey executed signature(s) on tbe
instrulDent the person(s), or the entity upon behalf ofwbich the person (5)
acted, executed the instrument.
Signature
l-~~~~:;;~-~~l
_ @ ea,=14AI ;
i ,.,,; Notcrv PubIc -CaIfamIa !
j' R_~ t
_ _ ~_ _My_eo:~_~~~~~