HomeMy WebLinkAbout1997-308
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97-308
RESOLUTION NO.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF
THE CITY OF SAN BERNARDINO APPROVING THAT
CERTAIN AMENDMENT TO SETTLEMENT AGREEMENT AND
THAT CERTAIN PURCHASE AND SALE AGREEMENT AND
DIRECTING EXECUTION THEREOF.
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WHEREAS, the City of San Bernardino (the "City") is a
7 municipal corporation and charter city organized under the laws of
8 the State of California; and
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WHEREAS, on June 18, 1990, the City created Community
11 Facilities District No. 995 ("District") and in December, 1990, the
12 City issued the $7,325,000 Special Tax Limited Obligation Bonds
13 ("Bonds"); and
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15 WHEREAS, the City refunded the Bonds in 1994, with the
16 issuance of the $3,315,000 Community Facilities District No. 995 of
17 the City (Verdemont Area) Special Tax Refunding Bonds (the
18 ~Refunding BondsH); and
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WHEREAS, the City entered into Mutual Releases and
21 Settlement Agreements (the ~Original Settlement AgreementsH) with
22 the various developers, and foreclosed on 42 lots owned by SB Five
23 (the ~SB Five LotsH); and
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WHEREAS, Dr. Irving Feldkamp and Ruth Newbury (the
26 ~OwnersH) are the owners of 34 lots within the District (the
27 ~Feldkamp LotsH) and like the City, they also acquired their
28 parcels by foreclosure; and
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1 WHEREAS, the City and said Owners desire to enter into an
2 amendment to the Original Settlement Agreement (the "Amendment")
3 and enter into a purchase and sale agreement (the "Purchase and
4 Sale Agreement") under which the Owners will purchase the SB Five
5 Lots from the City; and
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7 WHEREAS, the City has duly considered such transactions
8 and has determined to approve the Amendment and the Purchase and
9 Sale Agreement in the public interests of the City.
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11 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
12 OF SAN BERNARDINO DO HEREBY RESOLVE, DETERMINE AND ORDER AS
13 FOLLOWS:
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15 Section 1. Determinations. The City hereby finds and
16 determines that the amended settlement and sale of the SB Five
17 Parcels under the terms and conditions set forth in the respective
18 documents are in the best interests of the City and will result in
19 significant public benefits.
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21 Section 2. Approval of Final Form of Amendment. The
22 City hereby authorizes and approves the form Amendment presently on
23 file with the City Clerk together with any changes therein or
24 additions thereto as may be approved by the Mayor when such terms
25 and conditions have been ascertained. The City hereby further
26 authorizes and directs that the form of Amendment presently on file
27 with the City Clerk be converted into the final form thereof,
28 together with such changes or modifications as deemed necessary or
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1 desirable by the Mayor upon the recommendation of Special Counsel
2 to the City. The Mayor or such other authorized officer of the
3 City is hereby authorized and directed to execute and deliver, and
4 the City Clerk is hereby authorized and directed to attest to, the
5 final form thereof when the same has been prepared.
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7 Section 3. Sale of SB Five Parcels: Aooroval of Final
8 Form of Purchase and Sale Aareement. The City hereby authorizes
9 the sale of the SB Five Parcels to Irving Feldkamp and Ruth
10 Newbury. The City hereby approves the form of Purchase and Sale
11 Agreement presently on file with the City Clerk together with any
12 changes therein or additions thereto as may be approved by the
13 Mayor when such terms and conditions have been ascertained. The
14 City hereby further authorizes and directs that the form of
15 Purchase and Sale Agreement presently on file with the City Clerk
16 be converted into the final form thereof, together with such
17 changes or modifications as deemed necessary or desirable by the
18 Mayor upon the recommendation of Special Counsel to the City. The
19 Mayor or such other authorized officer of the City is hereby
20 authorized and directed to execute and deliver, and the City Clerk
21 is hereby authorized and directed to attest to, the final form of
22 the Purchase and Sale Agreement when the same has been prepared and
23 such execution and deli very shall be deemed to be conclusive
24 evidence of the approval thereof.
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26 Section 4. Official Action. The Mayor, the City
27 Clerk, and City Administrator and any and all other officers or
28 agents of the City are hereby authorized and directed, for and in
97-308
1 the name and on behalf of the City, to do any and all things and
2 take any and all actions, including execution and delivery of any
3 and all assignments, agreements, notices, consents, instruments of
4 conveyance, warrants and other documents, which they, or any of
5 them, may deem necessary or advisable in order to consummate the
6 transaction contemplated hereby.
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97-308
1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO APPROVING THAT CERTAIN AMENDMENT TO SETTLEMENT
2 AGREEMENT AND THAT CERTAIN PURCHASE AND SALE AGREEMENT AND
DIRECTING EXECUTION THEREOF.
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5
Section 5.
Effective Date.
This Resolution shall take effect from and after the date
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of its passage and 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 joint regular
meeting thereof,
, 1997, by the following vote, to wit:
NAYS
ABSTAIN ABSENT
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~~C~
11k! October
The foregoing Resolution is hereby approved this ~ day of _______
)t <
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~~ '{~~
TO MINoR: Mayor
City of San Bernardino
,1997.
Approved as to form and
25 legal content:
26 JAMES F, PENMAN,
City Attorney
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By: ~1'?V? Z
f:'
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I L/VL-1ilU'L-,
97-308
PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is
made and entered into as of the 21st day of October, 1997, by and
between Irving M. Feldkamp III, an individual ("Buyer") and City of
San Bernardino, a municipal corporation and charter city
("Seller") .
WIT N E SSE T H
WHEREAS, the Buyer is an individual who resides in the
City of Redlands, County of San Bernardino; and
WHEREAS, the Seller is
charter city, organized and validly
State of California; and
a municipal corporation and
existing under the laws of the
WHEREAS, Seller owns certain property totaling 10.4 acres
located in the City of San Bernardino, County of San Bernardino,
California, more particularly described in Section 1.01 hereof (the
"Property"); and
WHEREAS, the Seller and Buyer has duly approved the
transactions contemplated by this Agreement and in order to set
forth the terms and conditions of such purchase and sale, the Buyer
and Seller desire to enter into this Agreement.
WHEREAS,
into an Amendment
execution of which
this Agreement.
Seller and Buyer are simultaneously entering
to Mutual Release and Settlement Agreement the
is a condition precedent to the effectiveness of
NOW, THEREFORE, for and in consideration of the foregoing
premises and the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sUfficiency of
which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.01. Purchase and Sale. Subject to the terms
and conditions of this Agreement, Seller hereby agrees to sell, and
convey to the Buyer, and the Buyer hereby agrees to purchase from
Seller, all of Seller's right, title and interest in and to the
following described property (collectively, the "Property"):
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All mineral rights, non-public water rights, tenements,
hereditaments, easements, rights-of-way and appurtenances, riparian
rights and drainage rights in connection with the beneficial use
and enjoyment of the vacant real property described in Exhibit "A"
hereto and Seller's rights in and to streets, alleys, public ways,
areas, easements, common or greenbelt areas (collectively,
"Appurtenances") in, on or adjacent thereto.
ARTICLE II
PURCHASE PRICE
Section 2.01. Purchase Price. The purchase price (the
"Purchase Price") for the Property shall be Four Hundred Thirty
Thousand Dollars ($430,000), and shall be paid by the Buyer to
Seller, as follows:
a. Deposit. Buyer has deposited with the Seller
Buyer's check in the amount of Forty Three Thousand Dollars
($43,000) (the "Deposit"). Seller shall deliver said deposit to
First American Title Insurance Company (the "Escrow Agent") within
three (3) days after executing this Agreement. The Deposit is to
be invested by the Escrow Agent in an interest-bearing account for
the benefit of the Buyer. On the Closing Date, the Escrow Agent
shall apply the deposit towards the payment of taxes and
assessments as provided in Section 4.02(e) hereof.
b. RemaininG PaYments. The remaining consideration of
Three Hundred Eighty Seven Thousand Dollars ($387,000) shall be
paid as follows: One Hundred Fifty Four Thousand, Four Hundred
Twenty Seven Dollars and Fifteen Cents ($154,427.15) of the
purchase price shall be paid upon the sale of each lot to an
individual purchaser as set forth in Section 2 of the Amendment.
The remainder of Two Hundred Thirty Two Thousand, Five Hundred
Seventy Two Dollars and Eighty Five Cents ($232,572.85) shall be
deemed to be paid by Buyer upon development of street improvements
(including, but not limited to curbs, gutters, sidewalks, fill-in
street paving and lighting) by Buyer on Ohio, Olive and Walnut
Avenues.
ARTICLE III
TITLE INSURANCE
Section 3.01. Seller's ObliGation to Provide Title
Insurance. Seller has delivered, and Buyer has approved a
preliminary title report for an owner's title policy issued by
First American Title Insurance Company, together with legible
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copies of all restrictive covenants, easements and other items
listed as title exceptions therein (each a "Title Defect"). The
title policy to be issued to the Buyer pursuant to this section
shall be a CLTA policy and shall ensure fee simple title to the
Buyer in the amount of the Purchase Price, subject only to the
exceptions shown therein as set forth in Exhibit "D") hereof (the
"Permitted Exceptions") to which the Buyer has agreed in writing.
ARTICLE IV
CLOSING
Section 4.01. Closina Throuah Escrow. Subj ect to the
provisions of this Agreement, the Buyer and Seller shall consummate
and close the purchase and sale of the Property contemplated by
this Agreement when all of the conditions of closing for the
benefit of the parties hereto have been satisfied or waived, but in
no event later than five (5) business days after the execution of
this Agreement, or at such other time as the parties hereto may
agree upon in writing (the "Closing"). SUbject to the provisions
of this Agreement relating to the extension of the Closing, if the
Closing does not occur as a result of the failure of a condition,
then the party hereto for whose benefit the condition exists may
terminate this Agreement, in which event the parties hereto shall
have no further rights or obligations pursuant to this Agreement
and the Escrow Agent shall return to the Buyer the Deposit and any
other funds placed in the escrow by the Buyer.
The parties hereto agree to be bound by the Escrow
Agent's supplemental instructions which are attached to this
Agreement as Exhibit "B" and also agree to be bound by any other
escrow instructions or escrow agreement required by the Escrow
Agent to perform escrow and title services customarily performed
within San Bernardino County, California. The Buyer and Seller
agree to provide the Escrow Agent with executed copies of any such
escrow instructions or escrow agreement within two (2) days after
receipt thereof from the Escrow Agent. Any escrow instructions or
escrow agreement executed by the parties hereto shall be in
accordance with the terms and provisions of this Agreement, and any
conflict between such escrow instructions or escrow agreement and
this Agreement shall be resolved in favor of this Agreement.
The parties hereto agree that the condition precedent to
the effectiveness of this Agreement is the execution by both
parties of an Amendment to the Mutual Release and Settlement
Agreement between the parties.
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Section 4.02. Seller's Obligations at Closina. At
Closing, Seller shall do the following and shall deliver the same,
as applicable, to the Escrow Agent:
a. ~. Execute and deliver a grant deed in
substantially the form attached to this Agreement as Exhibit "C",
conveying the Property to the Buyer, subject to no exceptions other
than the Permitted Exceptions.
b. Title Policv. Provide an owner's title policy in
CLTA standard form, naming the Buyer as the insured in the amount
of the Purchase Price, insuring that the Buyer owns fee simple
title to the Property, subject only to the Permitted Exceptions.
(The Buyer, at his option, may elect to cause the title company to
endorse the owner's title policy in any manner the Buyer deems
appropriate, at the Buyer's sole expense. Further, the Buyer, at
his sole election, may require that the title policy be in an ALTA
standard form, in which case the Buyer shall be responsible for the
amount by which the cost for such ALTA policy exceeds the cost for
a CLTA policy) .
c. Foreian Person. Execute and deliver an affidavit of
Seller in the form described by Treasury Regulation Section 1.1445-
2 certifying that Seller is not a "foreign person" as defined in
the Federal Foreign Investment in Real Property Tax Act of 1980,
and the 1984 Tax Reform Act, as amended.
d. Evidence of Authoritv. Provide to Escrow Agent a
copy of the duly adopted Resolution of the Mayor and Common Council
of the Seller, authorizing the execution, delivery and performance
by the Seller of this Agreement and the documents required hereby.
e. Taxes and Assessments. Payor cause the payment by
Escrow Agent of delinquent County of San Bernardino ad valorem
property taxes and Assessment District 987 assessments on the
Property up to Forty Three Thousand Dollars ($43,000).
f. Mutual Release. Execute and deliver the Amendment
to Mutual Release and Settlement Agreement (the "Amendment").
Section 4.03. The Buver' s Obliaation at Closina. At
Closing, the Buyer shall execute and deliver the Amendment to the
Escrow Agent (duly executed and acknowledged by the Buyer) for
recording in the San Bernardino County records against all parcels
described therein.
Section 4.04. Closina Costs. Seller shall pay the
following closing costs: one half of the fees and costs due to the
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Escrow Agent for services rendered as escrow agent; all premiums
and charges related to the issuance of the owners title policy,
except as provided in Section 5.02(b) above, and all abstract and
title examination and other costs related to the issuance of the
title policy.
The Buyer shall pay the following closing costs: the
Buyer's attorneys fees and costs, one half of the fees and costs
due to the Escrow Agent for services rendered as escrow agent, and
any changes relating to the issuance of an ALTA title policy, if
any, pursuant to Section 4.02(bl above. Any additional fees and
charges shall be divided between the Buyer and Seller in accordance
wi th the customary practice in the County of San Bernardino,
California.
Section 4.05. Deliverv of Possession. Subject to the
provisions of this Agreement relating to the Closing occurring no
later than October 27, 1997, as that date may be extended as
provided herein, upon the satisfaction by Seller of all of Seller's
obligations as set forth hereinabove, and upon the satisfaction by
the Buyer of all of his obligations as set forth hereinabove, and
upon the satisfaction of any and all other conditions precedent to
this Agreement, if any, the Escrow Agent shall distribute to the
Buyer and Seller the items and documents described in this
Article IV, respectively, and the purchase and sale transaction
contemplated in this Agreement shall be finally consummated.
Delivery of possession of the Property to the Buyer shall be made
at Closing.
ARTICLE V
RISK OF LOSS
Section 5.01. Casualty. Seller assumes all risks and
liability for damage to or injury occurring to the Property by
fire, storm, accident, or any other casualty or cause until the
Closing has been consummated. If the Property, or any substantial
portion thereof, suffers any damage prior to the Closing from fire
or other casualty, Seller shall serve written notice thereof on the
Buyer within two (2) days of the occurrence of the event causing
such damage, upon which the Buyer may either (a) terminate this
Agreement by delivering written notice to Seller of such
termination within three (3) days after Seller notifies the Buyer
of the casualty, or (b) consummate the Closing, in which later
event Seller shall deliver to the Buyer, at Closing, any insurance
proceeds actually received by Seller in respect to such casualty or
assign to the Buyer, at Closing, all of Seller's right, title and
interest in any claim to proceeds of any insurance covering such
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damage, provided that in no event shall the Buyer be entitled to
receive payment or assignment of insurance proceeds in an amount
greater than the Purchase Price. If the Buyer fails to timely
deliver to Seller written notice of termination of this Agreement
as described in (a) above, then the Buyer shall be deemed to have
elected to proceed in accordance with (b) above.
Section 5.02. Disoosition of Deoosit. If the Buyer
elects to terminate this Agreement pursuant to Section 5.01 (a)
above, then contemporaneously with such termination the Escrow
Agent shall immediately return the Deposit, together with all
interest accrued thereon, to the Buyer, and upon the Buyer's
receipt thereof, except as may be expressly otherwise provided
herein and in the Amendment, neither party hereto shall have any
further rights against or obligations to the other under this
Agreement.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.01. Default and Remedies.
a. Buver' s Defaul t. If the Buyer refuses or fails to
consummate the purchase of the Property pursuant to this Agreement
for any reason other than termination hereof pursuant to a right
granted hereunder to do so, or breach by Seller of his agreements
hereunder, then Seller as his sole and exclusive remedy shall have
the right to terminate this Agreement by giving the Buyer written
notice thereof, in which event neither party hereto shall have any
further rights, duties or obligations hereunder except as may be
otherwise provided herein and in the Amendment or original Mutual
Release and Settlement Agreement (as defined in the Amendment) .
b. Seller Default. If Seller fails to perform any of
his obligations hereunder, either prior to or at Closing, the Buyer
may terminate this Agreement by notifying Seller thereof, at which
time the Deposit, together with all interest earned thereon, shall
be returned to the Buyer. The Buyer shall have such other remedies
as may be available to it under law or equity, including specific
performance of this Agreement.
Section 6.02. Fees and Exoenses. If either party hereto
brings suit to enforce this Agreement, then the prevailing party
shall be entitled to recover from the other party reasonable
attorneys fees and costs incurred by the prevailing party and to
receive an award therefor from a court of competent jurisdiction.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Notices. All notices, demands or requests
required or permitted to be given pursuant to this Agreement shall
be in writing. If not otherwise provided hereunder, all notices,
demands or requests to be sent to any party hereto shall be deemed
to have been properly given or served by delivering the same
personally to each party, by sending the same through a nationally
recognized overnight courier service, or by depositing the same in
the United States mail, addressed to such party, postage prepaid,
and registered or certified with return receipt requested, at the
following addresses:
As to the Buyer:
Irving M. Feldkamp III
P.O. Box 6649
San Bernardino, CA 92412
With a copy to:
Naomi Silvergleid, Esq.
Singer & Silvergleid
3750 University Avenue, Suite 550
Riverside, CA 92501
As to Seller:
City of San Bernardino
300 North "D" Street, 6th Floor
San Bernardino, CA 92418
Attn: City Administrator
With a copy to:
SABO & GREEN, A Professional Corporation
23801 Calabasas Rd., Suite 1015
Calabasas, CA 91302-1595
Attn: Alexis G. Crump, Esq.
As to Escrow Agent: First American Title Insurance Company
323 Court Street
San Bernardino, CA 92401
All notices, demands and requests shall be effective when
personally delivered to the addressee or received by overnight
courier, or by the United States mail in accordance with the
foregoing.
Section 7.03. BindinG Effect. This Agreement shall bind
and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors
and assigns.
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Section 7.04. Counterparts. This Agreement may be
executed in several counterparts, each of which shall be deemed an
original, and all of such counterparts together shall constitute
one agreement, binding on all parties hereto.
Section 7.05. Meraer of Agreement. Unless otherwise
specified in this Agreement, all the terms and conditions of this
Agreement shall not survive the Closing and shall be merged into
the Grant Deed from Seller to the Buyer.
Section 7.06. Severability. If all or any portion of
any of the provisions of this Agreement shall be declared invalid,
illegal or unenforceable by laws applicable thereto, then the
performance of said offending provision or provisions shall be
excused by the parties hereto, and such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement.
Section 7.07. Captions. The titles or captions of the
provisions of this Agreement are merely for convenience of
reference and are not representations of matters included or
excluded from such provisions.
Section 7.08. Time: Entire Aareement. Time is of the
essence of this Agreement. The parties hereto expressly
acknowledge and agree that, with regard to the sUbject matter of
this Agreement except as provided in the Amendment, and the
transactions contemplated herein, (a) there are no oral agreements
between the parties hereto, and except as provided in the
Amendment, (b) this Agreement, including the defined terms and all
exhibits and addenda, if any, attached hereto, embodies the final
and complete agreement between the parties and supersedes all prior
and contemporaneous negotiations, offers, proposals, agreements,
commitments, promises, acts, conduct, course of dealing,
representations, statements, assurances and understandings, whether
oral or written and may not be varied or contradicted by evidence
of any such prior or contemporaneous matter or by evidence of any
subsequent oral agreement of the parties hereto.
Section 7.09. No Modifications Except in Writina. No
modification or amendment of this Agreement shall be binding unless
set forth in writing and signed by the party or parties to be bound
by such modification or amendment.
Section 7.10. Further Assurances. In addition to the
acts and deeds recited herein and contemplated to be performed,
executed andlor delivered by either Seller or the Buyer, Seller and
the Buyer shall perform, execute and/or deliver or cause to be
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performed,
necessary,
assurances
consummate
executed andlor delivered at the Closing, or
after the Closing, any and all further acts, deeds
as may, from time to time, be reasonably required
the transactions contemplated in this Agreement.
if
and
to
Section 7.11. No Existina Leases. Seller hereby
warrants that, upon Closing there will be no oral or written leases
affecting the Property, and hereby covenants to, and shall, deliver
to the Buyer at Closing, exclusive possession of the Property, free
and clear of all tenants andlor other occupants and rights of any
such parties.
Section 7.12. Calendar
specified, all references to days in
to be references to calendar days.
Days. Unless otherwise
this Agreement shall be deemed
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IN WITNESS WHEREOF, the parties hereto have executed this
Purchase and Sale Agreement to become effective as of the Effective
Date.
"!L" ~
.' w.
IrvingVM. Feldkamp II ,
an individual
"SELLER"
CITY OF SAN BERNARDINO,
a municipal corporation and
charter city
~Dt~{4~
Tom Minor, Mayor
SBEO\0121\DOC\263-2
10\13\97 420 cg
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EXHIBIT "A"
LEGAL DESCRIPTION
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EXHIBIT "A"
THE NORTHWESTERLY 1/4 OF BLOCK 55 OF THE LANDS OF IRVINGTON LAND AND WATER
COMPANY, IN THE COUNTY OF SAN BERNARDINO, Sf ATE OF CAUFORNlA. AS PER PLAT
RECORDED IN BOOK 3 OF MAPS, PAGE 9. RECORDS OF SAID COUNTY. DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT IN THE NORTHERLY UNE OF SAID BLOCK 55, LOCATED MIDWAY
BETWEEN THE NORTHEASTERLY CORNER AND THE NORTH-WESTERLY CORNER OF SAID
BLOCK; THENCE WESTERLY ALONG THE NORTHERLY UNE OF SAID BLOCK 55 TO THE
NORTHWESTERLY CORNER THEREOF; THENCE SOUTHERLY ALONG THE WESTERLY UNE OF
SAID BLOCK 55 TO A POINT MIDWAY BETWEEN THE NORTHWESTERLY CORNER AND TFE
SOUTHWESTERLY CORNER OF SAID BLOCK 55; THENCE AT RIGHT ANGLES EASTERLY ALONG
THE EASTERLY AND WESTERLY CENTER I.lNES OF SAID BLOCK 55 TO A POINT MIDWAY
BETWEEN THE EASTERLY AND WESTERLY LINES OF SAID BLOCK; THENCE NORTHERLY
ALONG THE NORTHERLY AND SOUTHERLY CENTER LINES OF SAID BLOCK 55 TO THE POINT
OF BEGINNING.
SAID TRACT OF LAND CONSISTING OF LOT 2 AND PORTIONS OF LOTS 1 AND 3 OF SAID
BLOCK 55.
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EXHIBIT "B"
SUPPLEMENTAL ESCROW INSTRUCTIONS
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.z~
First American Title Insurance Company
323 COURT STREET (P.O. BOX 6327) SAN BERNARDINO. CALIF. 92412 . (909) 669-0311
I I>scnow INSTlWCI'IONS I
Marcia T....Y.rrell
Escrow Ollicer
Escrow No. 93917MT
Dale: J OCTOBER 7, 1997
Notwithslanding a"yother provisions oflhese instructions it is underslood that this escrow is entered inlo pursuant 10
Ihe lermsand provisions of thai certain Pllrr.haRp. .<In(1 RA1E": Af'rF!Rmpnt Ann Tnint J;'~rrnt.J Tn"'trllrtlnnf:i
daled September 30. 1997 ,by and between Ci rv
corno{ation .<and cbnrtpr ~~r~
Irvill~ M. Feldkamn III ^ kliil.lh::;wbulvf1, .Y.
hereinafter referred 1089 "Agreemenl", -'f- ..--,
o! pSln
I
)~'/i /
Hern,qrdinnr SI
m,mlripJll
(buyer),
(seller),
o
To Ihe extenllhatlhe "Agreement" contains any provision inconsistent with or contrary 10 the provisions ofl)aragraph
Seven (7) oflhe General Provisions altaehed as Schedule "AUto these illstrueliolls, such "Agreement" shall remain
Ihe agreement orlhe parties thereto but lhe provisiolls ofParugraph (7) shall specify Iheobligaliolls of Escrow J loldcr
relative to the cancellation oflhis Escrow.
TilE GENEI<AL PROVISIONS SET OUT IN SCIIEIlULE "A" AITACIIEIlIIERETO IIAVE IIEEN
IlEAIl ANIl AilE IIEREIIY AI'PIlOVEIl IIY TilE UNIlEIlSIGNEIl.
A copy oflhe aforesaid "Agreement" has been deposited wilh the Escrow Holder and Ihe same is hereby incorporated
by reference 10 same, Each oflhe parlies orlhis escrow specifically acknowledges Ihat lhe cOllslllnmalioll oflhis
escrow is contingent upon compliance wilh some or all of the execulory lerms and provisions due 10 be perfof'lllc/J
prior 10 Ihe close of escrow have been complie/J wllh prior 10 sllch close of escrow,
Thele escrow Instruction., and amendment. thereto, may be executed III one or more counterparfs, cnch
ofwllleh Independently .halllaave tllc SAllie effect as If It were tho orlglllal, and all of which taltclI togolbcr
,'mll constitute one alld the ume Instruction.
Accordingly, the parlles hereby agree Ihat prior 10 close ofescrow.lhe parlies shall deposit wriltcll inslructions with
Escrow Holder ackyowlcdglng lhat alllhe executory (erms and provisiolls oflhe IIAgreemeul", Insofar as Ihe some
pertain to each said party respectively and any obligation of Escrow Holder relative thereto, have been fully lIIet or
complie/J wilh, or are waived.
Further, each said party shall specUically release Escrow Holder from any and allliabilily, irony, which it may have In
conneclion with Ihis escrow because of any party's failure to lIIeet or comply with any sllch executory terln or
(Jrovlslon of the "Agreement" prior 10 close:of escrow. Deposit of such written Inslruclion or Buyer's deposit of
closing funds, absent any wrillen inslruclion from either party 1I0t to proceed wilh Ihe close of escrow, shnll cOlIsllltlle
each said party's slJecific aulhorizallon to close this escrow.
Seller I
'_.J.;-'-
Bernardino, a municipal
and chaD r c~ty
.~...('#I/{t \.
BUyerl
fb\M.~~@
rv~n{ H. Feldk~mp; 1,.,
Ci ty of San
corporatioll,-
'.,:.."..
By.
I ,. j l ; I ,i j I \ '.~' , ' ; i' {j I
,,'
',,:.i,'. I
R..tI. U~wh~~.1
lit, t
"
"
By.
"
CoPy DO
NOr RETURN
97-308
SCHEDULE 'A'
GENERAL PROVISIONS
I. DEPOSIT OF FUNDS'" DISUURSEMEf'ITS
Escrow Ilolder shaJI deposU all Cuulls received In this escrow in any linanclallnslltullon Insured by" CelleraJ sgellcy of
Ihc Uultell Stales Govermuelll, luclulllng lillBuclallflSlllulions ofmialell wllh Escrow Ilolder', COOlI)81IY, In Dlle or more
general escrow delllalltlaccouuls. Unless Escrow Holder Is Ilamled a W.9 Corm anti specific lllveshllellllnslrucllolls
fromlhe Duyer aud SClller, all funds delivered 10 Escrow Holder pur,u811110 IheSIl Inslruc:t1olu wlll be deJloslled III 8
1I0n-lnleresl bearing nduclary accounl. AU dlsbursemenls shall be lIIade by Escrow Holder's check unless olherwlse
Inslrucled In wrlllug. Escrow 1I0lder Is aulhorized 1101 fo close escrow or disburse uulll collected Cuutls Ilave been
cOlllirllletl In escrow.
2. GOOD FUNDS lAW
TIle IIarlles undersland IIlal ALl.. fUllds 10 close escrow and/or to be released early must be deJloslled inlo escrow JlIior
tu Ihe dale of closing or early release to allow sufficlentllllle Cor clearance of the fuuds prior 10 disbursement. Inlhe
event such Cund, are not bl Ihe Conu oC a cashier's. certlned or leller check lIrawn alia Cbl8llcJaJ 1I1.slllUlloII, sufndeul
lime Illust be allowed Cor clearance 10 comply with any ~Bood fUllds~ law which Is In eerecl. (For e,crow. conducted In
California. Ihe ~gooll Cunds.law Is Seclloll124tJ.1 of the Callrornla Insurance Code.) Ilunds may be wired dlrecUy lulo
Firsl American's deposilory bank account to avoid walllllg for clearance.
3. PRORATIONS AND ADJUSIlliENTS
The expression ~c1o.se oC escro} used In this escrow means Ihe dale on which documenls reCerred 10 heieln 8re
recorded 81ld relales only 10 (lroraliolls and/or adjuslments unless olherwise specified.
AlIlJrOraliolls pnd/or adjustmenls are 10 be lIIade on the basi, of n JO-day lIIonlh unless olherwlse Inslrucletl In wrlllug.
4. RECOllUATION OF DOCUMEf'ITS
Escrow Uolder Is aulhorlzed 10 record any documeuls delivered Ihrough thl. escrow, Ihe recording DC which Is lIecesslUY
or proper Inlhe issuance DC Ihe re1luesled policy DC tllle Illsurance.
5. AlfTlIOltlZAHON TO FUItNISII COI'IES
Escrow Ilolder is 10 Cumlsh B COI)Y of Ihese Iuslruclloll.s, o.lllendlllculs Ihereln, closlug slnlelllellls Rlld/or 8ny oilier
documenl' deposlletl In Ihls escrow 10 lhe lender(s), Ihe real eslate broker(s), Ihe allorney(s) aud/or Ihe nccoulltRnl(s)
Involved III Ihis Iransacllon upon request of the lenders, brokers, allorneys, or accounlanl,.
6. PERSONAL PROPERlY TAXES
No examlllalloll, UCC Search or huurallce as 10 Ilersonalllcollerly aud/or Ihe amounl or payment DC persollallUOlle(ly
taxes Is required unleu otherwise bulrucled III wrlling.
7. IlIGIIT OF CANCELlATION
julY party InstrucUng Escrow Holder 10 carlcel this escrow shall file nollee of cancellallon In Escrow J lolder's uUice, ill
writing. Wllldn a reuonable lime, n'crow Holder shall maU, by certified and regular maU, Due copy oC Iile nollce to
each oC Ihe other parlle, allhe addresses slated In this escrow. Unless a wrlllen objecllonli;' cancellallonls filed In
Escrow Ilolder's office by a parlywlUun len (10) da)'l aller dale oCmalllllB, Escrow Holder Is authorized 01 Its opllolllo
comply with Ihe nollce and demand paymenl of Escrow Holder's cancellallon charges as provided Inlhese General
Provisions. If a WIlllen objecllon Is filed, Escrow Holder Is authcirlied at )!scrow Holder's opllolllo hold aUlhe moiley
and documenl. conlaIned In lids escrow and fake 110 (urlher action uulll olherwlse dlrecled, ellller by the parlles' mutual
wrIuelllnstrucllons, or final order oC a courl of compeleulJurlsdJcllon.
B. ACTION IN II'ITIlRPLEADER
The parlie' herelo expressly agree Ihal EscrolV Holder luts Ihe ab.solulo rlghlal Escrow Holder's eleclloulo file nil
acllon III Interpleader requiring Ibe parlles 10 answer anti Illlgale Ihelr several claims anti rlghls belweeulllelllselves PIllI
Escrow Ilolder is aulhorlzed 10 deposit all documenls and fuuds lu~ltl In lids escrow wllllllle clerk oC the courl. In Ihe
event such 811 Bcllon Is DIed, Ibe parUes jolnlly alld severally agree 10 pay Escrow Ilobler's cancellaliou cllarges Ami
cosls, expenses and reasonable aUorneys lees wldch Escrow Holder Is required 10 expentl or Incur In the Interpleader
aCllon, Ihe amount (hereor (0 be fIXed andJudgmen( therefore to be rendered by Ihe court. Upon the filing of lhe
aClion, Escrow Holder sballll1ereupon be fully released and discharged frolll all obligations 10 further perform 811Y
duties or obligations olherwlse imposed by Ihe lerms or this escrow.
97-308
9. lERAIINATION OF AGIlNCY OBLIGATIONS
If there Is 110 acllon laken au lids escrow wltldllslx (6) 1II01llhs ruler Ule -limo limit lIale- as set forlh In the escrow
Inslrucllons or wrillen eXlenslonlhereof, Escrow Uolller's "gellcy obllgatlonshalllermlnale al ESCfOW Holder's option
and a1lllocullIeuls, Ino.des or olher Ilems held by Escrow Holder shall be relurned 10 Ihe parUes deJ)Qslllug lhe same.
In Ihe even( of lermlnallon of 11th! escrow, whelher allho reque,S! of any of Ule parlles or olherwlse, all fees pud charges
due In couuedloll wilh Ihls escrow Jllclulllllg eXlleudUures incurred ami/or authorized shall he I)ald by the )Iarlles herelo,
10. CONFLICTING INSTRUCTIONS
Should Escrow Ilolder heforo or afler close of escrow receive or hecolllo nware of IUIY conlllcllllg delll81ltls or clrums
wilh respedlo (hi, escrow or Ule righi' of 8ny of Ihe paclles herelo, or any 11I01ley or Ilrollerly lIeposlled Itereln or
alfecled hereby, Escrow Ilolder sflall Itavelhe right 10 dlsconllnue auyor all rurlher ad, 011 Escrow Ilolder's l'all until
Ihe conOid Is resolved (0 Escrow Holder's sallsfaclloll, aud Escrow Holder shall have Ihe furlher rlglallo COllllllence ur
defend auy acllon or proceedings for Ihe determlnRllon of lhe cOIlUlcl as J)rovhledlnthe -RJghl of Cancelllllioll- aud
. Acllou iu Inlerpleader- paragraphs of Ihese Oeneral Provisions.
Il. USURY
Escrow Ilolder Is nollo be concerned wllh any quesllon of usury In any 108ns or encumbrances luvblved lnllle
Ilrocesslllg of lIa1s escrow and Escrow lIolder Is hereby released of ouy reSIJOlulblllly Dnd/or liability Iherefor.
12. INDEMNllY FOR ATI'ORNEYS FilES AND COSTS
In the evenl sull Is brought by '11Y parly 10 this escrow, Indudlug IIle Escrow Ilolller or any other Ilarly, againsl ead,
olher, or olhers,lndudlng, Ihe Escrow Holder, claiming any rlgldlhey llIay have oglllllSI eoch aliter ar ..galnst the Escrow
Jlolder. Ihen IlIlhat eWIII. with Ihe exception of gross negligence by IheEscrow Hollier, Ihe parlles herelo agree 10
ludemlllry and hold the Escrow Holder harmless agalnsl any atlorney's fees Wid cosls Jncurred by U.
13. AlIII!NIlMENTS TO ESCROW INSTRUCTIONS
Auy nmemhllelll or supplelllenllo Ihese escrow inslruclloll.ll musl belli wrlllug. 'fllese escrow luslrucllOlu Rud allY
wrlllell Dfllendmellls, ,upplemellls or exhlblls allached therelo cOllslitule IIle eullre escrow agrcemellllUlIong the
Escrow Holder Wid Ibe pactles herelo wilh resped 10 Ule subJecl mailer Ilereor and supersedes allJlrlor uuderslamllllgs,
willi respecllJlerelo.
14. PROrllRlYTAXI!S SUDSEQUENT TO CLOSIl OF I!Scnow
Duyer ami Seller herein acknowledge Iltat lllere may be suwlelllclllal mid/or addillonal laxes which lIIay lie IUsessed by
rellSOIl or a change iu ownelshlp or complelion of cOllSlruc!ioll. This will be renecled Jullle polley of IIl1e lusurauce
Issued alllle close of e.lcrow. Escrow Holder shali nol be concemed wJlh auy alljuslllleul(s) of IUl'plemelllallaxes
bel ween thelJarlles for bills received by Iho parlles aHer Ihe close or eSClOW. Inlhe event Seller hnJ received
Su,l,J'eUlelllnl Tu JJlJls(s) I"lor (0 close of escrow, Seller wlllllrovldo (hem 10 Escrow 1I0lder wlth all eXldRuatloll of
IIl11e Ilerlods covered by Ule lax bill(s) ror prorallon purposes. (In California Ihe alJpllcable provisions are fOUlll.l in
Calirornla Ilevenue allLl Taxation Code Secllons 75 wid rollowing.)
In Ihe evenl Duyer or Seller has applied, or applies for a reduced assessmenl, Ilnd a refund of taxes Is received by First
American Tille Insurance Company as Agent, Escrow Holder is 10 retain IlIe funds In olle or more of Escrow lIolder's
general escrow demand accounls unllll!scrow Holder heu received mulua! wrltlell InstrucliolLs from lhe par lies dlrecllng
Escrow Ilolller as to Ihe properly dlspositJon or Ule lax refund.
15. CIIANGIl OF OWNERSIIIP FORMS
Duyer will furnish Escrow Holdee willi a compleled Preliminary Change or OwnershIp RelJOrl wldch Escrow Ilolder Is
Inslrucled 10 submil alUme of recorda II 011 pUllldaullo Secllou 480.3 of Ihe Calirornla Revenue alld TuaUol1 Colle. III
lite evenl IItls escrow I, olherwlse ready to close Wid Buyer lias nol provldell the above reporl, Escrow Holder Is
illslruc(elllo c10selhls escrow Wid collect fcom Duyer for the Counly Hecorder any addlllonal ree rerluhed for
recorllalloll wlten a Preliminary Chnuge or OwnershlJ) Reporl does nol ftCCOIIIJIWIY Ihe documents being recurded.
Duyer is aWare Ihallr Ihe above eelJOrt Is not subJUIUed alUmo of record81101185 required. n Challge of OwuershlJJ
Slalement musl be filed by Ihe Duyer direclly with ilia County Auc:ssor nol laler Iban 4S days afler recordallon WIIJ
(allure 10 do so will resull In addlUonal pellallles, Buyer acknowledges thai Escrow I'older s'lall'lDV'IlIIO n!spollslbJl/ly
and/or 118bIJily for the Counly Recorder's acceplance or reJecllou or UIO Preliminary Chwlge of OWllersltl,1 Heporl. For
escrow.llluvolving properly In ,~IBle, oilier Ulan Callrornla parlles will provide Escrow Holder wllh 8J'l'llcable doclllllenls
as lIlay be required by Ihe coullly recorder or laxing authority 10 dose litis Iransaclloll.
16. INSUIlANCE POLlCII!S OTIIER 1'IIAN TllLll INSUIlANCIl
When dealing wJIlI real J'roperfy Dud/or Improvemenls localed Ihereollllls advisable to oblnln flre.'loZ8nl or liab/Jily
Insurancll coverage. In allacls Jullds escrow relatlllg to Insurance. Including adjustments, If any, Etcrow Ilolder may
assume 1I1al each policy Is In force and thaI IItll necessary premlulIl has been paid. Escrow Haidee .ballnol be
1
97-308
responsible for obtainIng Ore, hazard or lIabUlly Jusurauce. unless Escrow Holder has received wlllleu lnslruclioululor
10 close of escrow from the lIar lies or Il1elr respecllvo Icnders.
17. FACSIMILE INSTRUCTIONS
In the event Ihe patlle. ullllze -facsimile. InuLSllIlUed signed document., Duyer Bud Seller hereby agreela acecpl and
Inslrucllhc Escrow Holder Co rely UpOIl such documenls as If they had orl811181 signatures. Duyer Bud Seller hereby
nckllowledgo aud agree 10 provide 10 Escrow Holder, wUJun .evenly-two (72) hOUri of transmission. .uch documenls
bearing lite orlglnal,'gnalufu. Duyer Bud Seller furlher acknowledge Wid _gceelh.1 documenl. necesslU)' for recording
willi olher than original signatures (I.e., faCSimiles) wlllnol be accepted for rcconJJng by the County ReconJer Ihereby
delayluG (he close of e.erow.
lB. EXECllfE IN COUN11!RPART
These escrow InstrucllolLs and any lubsequenl amendments may be exeeuled In aile or 1II0re coulllerparls, ench of which
Jlldependenlly shallllava the lame elreel as Jf Jt were Ihe original, and all of which lakelllogellJer shall conslitule one
aud the same InslrucfJolI.
IPTHE TRANSACTION WHICIlIS TIlESUBIECT OP TillS ESCROW IS A SALE, TilE PARTIES TO TIllS
TRANSACflON MAY HAVE CERTAIN TAX REPORTING AND WmUIOLDING OBLIGATIONS
PURSUANT TO STATE LAW OR FEDERAL LAW REFERRED TO IN GENERAL PROVISIONS 19-21
BELOW.
19. REPORTING TO TilE IN11!RNAL REVENUE SERVICE
The Tax Reform Ad of 1986 provide. Ihal Escrow Holder musl rellod cerlaln InformRllon regarding cerlaln real eslale
IrBlURcllons 10 the Inlermd Revenue Service. This Informalion Includes, amoug olher things, Ihe Seller's social securlly
number aud/or lax Identll1callon number and forwarding address, and the Bross .ales price of Ibe Iransactloll. This Is
not a requiremenl generaled by &crow Holder, but ralber a meaus DC complying wilh Ihe tax law. This Jllformallon
must be provided 10 flrat American Tille Insurance Company upon Ihe opening DC escrow Bnd nellller can escrow be
closed, nor can 8 deed or any oUter docuntenls be recoreded unUllllCormaUon ISllrowed and Ihe Seller cerllOes IlIe
accuracy of Ihe Informallonln wrUlug. Dy execullon of Ihese escrow Instrucllons, Ibe parlles acknowledge receipt of this
1I01ice.
20. 1M REPORTING AND WlTlllIOLDING OBLIGATIONS OF TilE PARTIES
CALIFORNIA LAW: In accordance wilh SecUonsl8662 alld 18668 of Ihe, Callfonda Revenue and Taxalloll Code, a
Duyer lIIay be required fo wUldlold an amount equal Co IInee and one.lItlrd (3.113) percenl of Ihe sales I'rlce, in the case
of a dLsposllloll of California real properly Inlerest byellher: (1) A Seller who Is an bldivldual willi Q lase known ,Ireel
address outside of CalJfornla or when Ihe disbursemenl IJLslrucl!o'Lf aUlhorlz.e Ihe l)rOceeds 10 be senllo a financial
Inlermedlary of Ihe SeUerj OR (2) A corporale Seller whlcll has "0 p.ermanenl pla~e of ~usll1eSJ in California. For
failure to Wllhhold,lhe Duyer may becolUe lubJecllo a penallY in 811 amounl equal 10 Che grealer of len(lO) 'Iercenl of
Ihe amount required 10 be wllhheld or fiw hundred doUar. ($SOO). llowever, Ilolwllhslandlng any other provision
Included blllle California .Iaeules referenced herein, 110 Duyer will be required 10 withhold allY amount or be subJeclla
penally for failure 10 wllldlold If: (a) The sales price oC Ihe California real property conveyed does nat exceed one
hundred Ihousand dollar. ($100,000); OR (b) The SeUer execules a wrlllen certificate, under Ihe penally of perjury,
cerlifylng Ihat the Seller Is a resldenl of CallConda, or if a corporallon, has a permanenl place of buslllessl" Callrofllla;
OR (c) The Seller, who Is an Individual. execute. a wrlUen cerUncale, under Ihe penalty of perJury, thallhe California
real prollerly being conveyed Islbe SeUer's prhlcJpal residence (as denned In SeelloR 1034 of IheluternaJ Ihvellue
Code). The Seller Is .ubJect to penally for knoWhlg1y flI1ng a fraudulent cerUncate ror Ihe I)urpose of awllIlng lhe
wilhholdlng requirement. The California statutes referenced bereb, hlclude provisions which aulholiz.e Ihe Franchise
Tax. Doard 10 grant reduced wllhholdlng and waivers froDl Withholding 011 a case.by.case basis.
The Seller may requesl a reduction In withholding or waIWlr and Ihe Duyer and Seller may oblaIn addltlonallnformalloll
by conlacllllg Ihe Franchise Tax Board. Withhold 01 Source Unll, P.O. Dox 651, Sacramento, CA 95812-0651 (9J6/845-
49(0).
LAW OF STATES OTIIER TIIAN CALIFORNIA
If the l18rUes aUI required to withhold by Ihe law of aslale other than CRllfornla. IIlc pnrlles understand Ihut IlIe
wllhholdlng obligation I. Ihe exclusive obllgallon of Ihe parUe. 10 tllll tralLsacllon and Ihal Elcrow J 'older Is 1101
obllgaled 10 wllldlOld or nollfy Ihe parties oC any wllbboldlng obligation t~ley may have.
fEDERAL LAW: Internal Revenue Code Section 1445 places .peclal requlremeuls for 1ft)( reporllug and withholding 011
fhe portles 10 a leal eslale Cransacfloll where the Seller (Transferor) is a 1I01l-resldenl allell, a lIou-domestlc corporallon
or parluers.d,J. a domcsllc corporaUon or parlnersldp controlled by nOIl.resldellls or 1I0u-resldent corllorDllon! or
partnerships.
Wllh resllecllo Callfomla law, Ihe Jaws DC slales other than California and federal law referred Co above, file ,lIulles 10
Ihis lransactlon should seek an allome)"" accoulllalll'., or olher lax SIJeclaUst's opinion cOllcertdug Ihe effect of lhese
laws on this transacUon. The parlleslo Ihls transacllon .hould NOT act 011 or rely 011 allY .Ialements made Dr omit led by
97-308
Ihe escrow onicer,lIl1e officer, or olher dosing officer with re.pectlo lax reporllng or wlthhohJlI1& requirement.. Dy
excculloll of the.e escrow Inslructlons, Ihe 11111 lies atknowJedge reeedl)( of Ihls lIollce.
21. DISCLOSURE OFTAXrAYER IDENTIFICATION NUMBERS
lulernnl Revenue Code SeclloIl6109(h) Impose. requlremenls for furnlshlnB, disclosing, and Including hUI,ayer
Idcullncallon numbers In lax returns on the]llUlle. 10 a lCsldcullal real eslale lIansBcllonlllvolvlllg seller'l,rovltJetl
nUBllcllli;. Tile parlles undersland Ihnllhe disclosure reporllug requhemenls are exclusive obllgollolu bel ween the
parlle. 10 Ihl. IrBluaclloll and thai Escrow Holder Is nol obUgaled 10 IralumU the laxpayer Idellllficallon lIumbers 10 Ihe
Inlernal ltevcnue Service or 10 Ihe parUes. Escrow Holder IS 1I0t rendering 8n oplnloll concerning IIle erfecl of Ihls Jaw
onlhb IrBlLlacllo.., and Ihe parlle. arc not acllng 011 any slalell1enl. made or onllUed by Ihe escrow or dosing orncer.
Dy excculloll of Ihese escrow Instructlolls,lhe parlles acknowledge receipt of Ihb 1I01lce.
To faclUlale cOlllpllance wllh Ihls Jaw,lhe parUes to Ihls escrow hereby aulhorlze Escrow Ilolder 10 release BUY IIarly's
IMpayer Iden'lOcallon nUlUberslo any requeslbll parlywho J. a parly 10 Ulls CrBlLlacllon. The reqLieillng pari, s'lall
d'eliver a wIIUell requesllo escrow. The par lie. herelo waive all dghls or conlldenllaJily regarding Ihelr resl)ecllve
IMpayer IdenllOcaUon numbers and agree 10 Ilold Escrow lIolder harmless agabLlI BlIY fees, cusls, or Judgmenls
Incuned and/or awarded bl cOlulecllou wJlb the release DC laxpayer IdentIficallon nUIDbers.
rURSUANl'TO CIVIL CODE SECTION 1057.7, FIRST AMERICAN TITLE INSURANCE COMrANY
CONDUCTS ESCROW BUSINESS UNDER CEIITIFICA:11l OF AUTIIORnY NO. 2787 ISSUED BY'mE
STATE OF CALIFORNIA BErAlIThlENT OF INSURANCE.
FUNDS HELD FEll AGREEMENT
If funds reroaln In escrow on the date widell Is 90 days aller close of escrow (or In the event escrow has 1101 c1osell, 90
days aller the eSllmated dOling dale lei forlh bllhele blSlrucllous) Ihen a monthly funds held fee of $25.00 shall accrue
for each monlh or frBcllon of a month Ihereaf'ler Ihallbo funds, or any porllon tbereof, remain In escrow. Escrow l..s
aulltorlz.ed to deducllho monthly funds held fee directly Crom the fuuds held on alDoRlhly, or olher periodic basis (I.e.
qUMCedy, seml.arulually, elc.). By bdllallng below,lbe parties acknowledge and agree 10 pay Ihese sums 10 compensale
you ror your admlnlslralloll, monilorlng, accounlhlC, reminders aud other uollficatlons and processing of Ihe funds so
held In. accordance willi tbl. funds held fee agreement.
Buyer',/nillalS: c621:: ;-,
Seller"/Iollals: ;j:/fC!
97-308
EXHIBIT "e"
GRANT DEED
\
,
REQUESTED BY AND
WHEN RECORDED "".IL 7D:
. FiILST ~E7Zt,~ TiT/./;
CITY CLERK
CITY HALL
300 North "D" Street
San Bernardino, CA 92418
97-308
Recorded in Official Records County of
San Bernardino, Errol J. Mackzum, Recorder
Doc No. 19970392688
08:00am 10/27/97
First American ritle # o~l
)P1 Sf 7 /:2/2- cAf.'
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, The CITY OF
SAN BERNARDINO, a municipal corporation, hereby grants to IRVING M. FELDKAMP, III
the real property in the City of San Bernardino, County of San Bernardino, State of California, described as
follows:
NON S1 LII
APN: 261-082-01
M
GRANT DEED
:=:tl-'f\\..-t: l-\OUVt: r-Vf"\ "'='-'U,",U't;;.r\ ~ v.......
~~T. ~~\:~.~(J
LEGAL DESCRIPTION ATTACHED AS EXHIBIT "A"
CITY OF SAN BERNARDINO,
a municipal corporation
Dated: 10/2...1../ 191--_
~~L~
tOM MIN R, Mayor
ACKNOWLEDGEMENT OF GRANTOR(S):
STATE OF CALIFORNIA )
c.: '"D J ) S.S.
COUNTY OF ~ ('\ 1)c If V\u. V" c(, '" 0 )
an(Qt\- =<1) \~q'l before me, \'Ylu~~ L rl'frn'I(\~ , personally appeared
,
1~~1<B6~ '::~~roved to me on the basis of satisfactory evidence) to be the person~ whose name(fl is/_ subscribed
to the within instrument and acknowledged to me that he/sjte/t~ executed the same in hisn.r/tIwir authorized capacity(ies), and that
by hisJI.o/tMir signature~ on the instrument the person(lp , or the entity on behalf of which person(fJ acted, executed the instrument
WITNESS my hand and offi ials~al. .. ~ ~ "~ . . . . . ~ . . -. I
J ., '." "', MARSHA L FlEMING
i t <.'.'.'~";l"\ COMM.#l055911 I
~ ,-,;" r.; : Noto;y PlbIIc - CaIlfamla ~
. J_ ~. .~.~~~.~~~~ i
~-~-~ ~ ~ - ~ - - - - - Ql
MftIL TAll ST";~,s AS DIREC,ro ASOVE
97-308
EXHIBIT "A"
TIlE NORTHWESTERLY 1/4 OF BLOCK 55 OF THE LANDS OF IRVINGTON LAND AND WATER
COMPANY, IN THE COUNTY OF SAN BERNARDINO, Sf ATE OF CAUFORNlA, AS PER. PLAT
RECORDED IN BOOK 3 OF MAPS, PAGE 9. RECORDS OF SAID COUNTY. DESCRIBED AS
FOll.OWS:
BEGINNING AT A POINT IN TIlE NORTHERLY UNE OF SAID BLOCK 55. LOCATED MIDWAY
BETWEEN THE NORTHEASTERLY CORNER. AND THE NORTII.WESTERLY CORNER. OF SAID
BLOCK; THENCE WESTERLY ALONG THE NORTHERLY UNE OF SAID BLOCK 55 TO TIlE
NORTHWESTERLY CORNER THEREOF; THENCE SOUTHERLY ALONG TIlE WESTERLY UNE OF
SAID BLOCK 55 TO A POINT MIDWAY BETWEEN THE NORTHWESTERLY CORNER. AND TPE
SOUTHWESl'ERLY CORNER OF SAID BLOCK 55; TIlENCE AT RIGHT ANGLES EASTERLY ALONG
TIlE EASTERLY AND WESTERLY CENTER. LINES OF SAID BLOCK 55 TO A POINT MIDWAY
BETWEEN THE EASTERLY AND WESTERLY LINES OF SAID BLOCK; THENCE NORTIlERLY
ALONG THE NORTHERLY AND SOUTHERLY CENTER LINES OF SAID BLOCK 55 TO TIlE POINT
OF BEGINNING.
SAID TRACT OF LAND CONSISTING OF LOT 2 AND PORTIONS OF LOTS 1 AND 3 OF SAID
BLOCK 55.
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97-308
I
EXHIBIT "D"
PERMITTED EXCEPTIONS
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L
GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1997-98, NOW A UEN NOT YET PAYABLE.
2.
TAX-DEFAULTED GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR. 1990-91, AND
SUBSEQUENT YEARS.
AMOUNT TO REDEEM PRIOR TO AUGUsr 30,1997, $36,737.16.
(APN: 261-082-01)
Preliminary Report
PAGE 2
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219587
3.
THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO CHAPTER 3.5
COMMENCING WITH SECTION 75 OF THE CALIFORNIA REVENUE AND TAXATION CODE.
4.
THE LIEN OF AN ASSESSMENT FOR IMPROVEMENTS FOR CITY OF SAN BERNARDINO DISTRICT NO.
987, EVIDENCED BY NOTICE OF ASSESSMENT RECORDED AUGUST 1, 1991. IN BOOK 63, PAGES 53
TO 72. INCLUSIVE, OF ASSESSMENT MAPS.
AN ACTION STARTED JANUARY 24, 1994. IN THE SUPERIOR COURT OF THE COUNTY OF SAN
BERNARDINO, CASE NO. SCV 10177.
PLAINTIFF: CITY OF SAN BERNARDINO, A CALIFORNIA MUNICIPAL CORPORATION VS.
DEFENDANT: SAN BERNARDINO S.B. FIVE, LIMITED PARTNERSHIP.
ET AL
TO FORECLOSE A LIEN ON DELINQUENT SPECIAL TAXES LEVIED WITHIN THE CITY OF SAN
BERNARDINO ASSESSMENT DISTRICT NO. 987.
NOTICE OF PENDENCY OF SAID ACTION WAS RECORDED FEBRUARY 10,1994, INSTRUMENT NO.
94-056850. OFFICIAL RECORDS.
5.
RIGHTS OF THE PUBLIC OVER ANY PORTION OF SAID LAND LYING WITHIN THE BOUNDARIES OF
ANY ROAD, STREET OR HIGHWAY.
6.
AN EASEMENT FOR THE HEREINAFTER SET FORTH SPECIFIC PURPOSE AND INCIDENTAL
PURPOSES, RECORDED IN BOOK 34, PAGE 196, OF DEEDS.
SAID EASEMENT IS FOR PIPE LINES AND CANNOT BE LOCATED FROM THE RECORD.
SAID EASEMENT WAS RESERVED BY JOHN HANCOCK BY SUCH DOCUMENT.
REFERENCE IS HEREBY MADE TO THE RECORD OF SAID DOCUMENT FOR FURTHER AND OTHER
PARTICULARS.
Preliminary Report
PAGE 3
_ 97-308
,
. P.EGORDING REQUESTED BY:
.
CITY OF SAN BERNARDINO
WHEN RECORDED RETURN TO:
SABO & GREEN,
A PROFESSIONAL CORPORATION
23801 CALABASAS ROAD, SUITE 1015
CALABASAS, CALIFORNIA 91302
Recordation Fee Not Applicable
Pursuant to Government Code Section 6103
(Space Above For Recorder's Use Only)
FIRST AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT
97-308
SBEO\0121\DOC\256.6
10\13\97 400 cg
FIRST AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT
This First Amendment to Mutual Release and Settlement
Agreement (this "Amendment") is entered into this 21st day of
October, 1997, by and between the CITY OF SAN BERNARDINO, a
California municipal corporation ("City") and Irving M. Feldkamp
III ("Developer"). The City and the Developer are collectively
referred to as the "Parties". Unless otherwise defined herein,
capitalized terms shall have the meanings given in the Original
Settlement Agreement (as defined in Section 1.3 hereof).
1. RECITALS
1.1. On June 18, 1990, the City created Community
Facilities District No. 995 ("District") pursuant to the Mello-Roos
Community Facilities Act of 1982, codified at Government Code
Section 53311 ~. ~. ("Act"). Pursuant to the Act, in December,
1990, the City issued $7,440,000 Special Tax Bonds ("Bonds"), which
were secured by the special taxes authorized to be levied against
all parcels within the District. The Bonds were then refunded with
the $3,315,000 Community Facilities District No. 995 of the City of
San Bernardino (Verdemont Area) Special Tax Refunding Bonds (the
"Refunding Bonds") .
1.2. The Developer owns or has an interest in unimproved
property located within the District as more fully described in
Exhibit "A" attached hereto ("Property"). 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 ("Action").
1.3. The Parties desired to resolve their differences and
to avoid the expense and inconvenience of any future litigation,
including without limitation, litigation of the Action, and thus
entered into a Mutual Release and Settlement Agreement dated as of
August 29, 1994 (the "Original Settlement Agreement") under which
the Developer agrees to make payments to the City for delinquent
special taxes, school fees, interest, penalties and costs thereon
as provided in said Original Settlement Agreement.
1.4. The Parties now desire to
Settlement Agreement as herein provided in
terms of payment, amounts due to the City and
terms and conditions as herein set forth.
amend the Original
order to modify the
to add certain other
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1.5. At the time of execution of the Original Settlement
Agreement, Developer owned that certain property described as
Parcell of Exhibit nA" (nparcel 1"). Pursuant to a Purchase and
Sale Agreement and Joint Escrow Instructions (the npurchase and
Sale Agreement"), which shall be executed simultaneously herewith,
the Developer has agreed to purchase from the City property
described as Parcel 2 of Exhibit nA" (nparcel 2").
1.6. This Amendment shall be recorded against all
Property contained in Exhibit nA" and shall be recorded after the
recordation of the Grant Deed attached to the Purchase and Sale
Agreement.
1.7. In consideration of the covenants, conditions and
promises herein contained, the Parties agree as set forth.
2. SETTLEMENT TERMS AND CONDITIONS
2.1. (a) The Parties hereto agree that the maximum
amount of delinquent special tax, interest, penalties and costs due
to the City with respect to the Property for the period from Fiscal
Year 1991-92 to Fiscal Year 97-98 shall be Eight Hundred Twenty Two
Thousand, Four Hundred Ninety Three Dollars and Eighty Eight Cents
($822,493.88) (the nDebt"). This amount represents $10,822.29 per
lot for the 76 lots existing on the Property (the "Home Release
Payment"). This amount shall be paid by Developer from two (2)
sources:
(1) Developer shall make semi-annual installments
of $32,300.00. The first payment shall be due on June 1, 1998, and
thereafter payments shall be due on December 1 and June 1 of each
year until paid in full; and
(2) Developer shall be required to pay a fee equal
to $10,822.29 per home due and payable upon final inspection and
clearance of utilities prior to authorizing occupancy for each lot
whether or not the home is sold, or upon the close of escrow of the
home, but in no event later than two (2) months after final
inspection and clearance of utilities.
Notwithstanding the foregoing, Developer shall not be
required to pay the $10,822.29 fee for four (4) model homes until
the earlier of (i) the sale of such home or (ii) two (2) years from
the date of construction.
The payments to be made by the Developer pursuant to
subsections (1) and (2) above shall be timely made until payment of
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the Debt in full. The payments made pursuant to subsection (1)
hereof shall be credited in inverse order to the payments otherwise
required to be made under subsection (2) hereof commencing with the
76th lot. All payments made hereunder shall be delivered or sent
by mail to the Finance Department of the City.
(b) Late charges shall accrue in the event the payment
required hereunder is not paid within thirty (30) days of its due
date and shall bear interest at the rate of ten percent (10%) per
annum until paid.
(c) Developer may not sell all or any portion of the
Property unless and until they have remitted the Home Release
Payment of $10,822.29 per lot as provided in Section 2.1(a)(2)
hereof. Upon payment of said Home Release Payment, the City shall
execute a notice of satisfaction of lien which shall be recorded to
release the lot from this Amendment and the Original Settlement
Agreement.
Notwithstanding the above, with the consent of the City,
which consent shall not be unreasonably withheld, the Developer may
sell all of the 76 Lots to a licensed contractor which (i) meets
the requirements of Section 2.2 hereof; and (ii)assumes all of the
duties and obligations under this Agreement.
2.2. Any construction contract executed by Developer for
construction on the Property shall be entered with a licensed
contractor who between the period of January 1994 through September
1997 (i) has constructed, or is scheduled to construct, at least
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.
2.3. A portion of the fees due to the San Bernardino City
Unified School District (the "School District") have been included
in the calculation of the $10,822.29 Home Release Payment. The
City shall not require the Developer to pay additional school fees
to the extent that the school fees included in the calculation of
the Debt are sufficient to compensate the School District for all
school fees. The Developer shall have the sole responsibility to
obtain any and all consents or other waivers as may be required by
the School District acknowledging that the Mello-Roos fees set
forth herein are the only school fees applicable to the Property.
2.4. In addition to being within the District, the
Property is also subject to Verdemont Infrastructure Fees ("VI
Fees"). The Developer shall not be required to pay any VI Fees on
the Property.
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97-308
2.5. The Developer shall not be required to pay any storm
drain construction fees or sewer plant capacity fees to the City in
connection with development of the Property. On behalf of the
Developer, the City shall pay Three Hundred Thousand Dollars
($300,000) to the State of California Department of Water Resources
("State") for the construction of the improvement of Bailey Creek
between Walnut Avenue and the debris basin. The Developer shall
pay Seventy Five Thousand Dollars ($75,000) towards said
construction. The City Staff shall use its best efforts to
negotiate with the State to cap the amount due for said
construction at Three Hundred Seventy Five Thousand Dollars
($375,000). However, in no event shall the City be required to pay
more than Three Hundred Thousand Dollars ($300,000) hereunder.
Except as expressly provided herein, nothing contained in
this Section 2.5 or the preceding Section 2.4 shall waive any other
City fees applicable to the Developer, including but not limited
to, City Water Department fees, City Public Works fees, Parks and
Recreation fees, building permits, inspection fees or other
exactions, and fees of any other government agency. Developer
shall be responsible for any and all other street improvements not
specifically mentioned herein.
2.6. The Developer has requested down payment assistance
be made available to their buyers from the Mortgage Assistance
Program ("MAP") of the Redevelopment Agency of the City of San
Bernardino ("Agency"). The City hereby confirms that it has
entered into a letter agreement in the form attached hereto as
Exhibit "B" with the Agency directing the Agency to use its best
efforts to provide MAP assistance on a first come first serve basis
to all of the Developer's buyers who qualify for MAP assistance.
Under the MAP, the buyers shall receive no more than the following
amounts in the following years: 1998/99 - $50,000; 1999/2000 -
$100,000; 2000/01 - $50,000.
In the event the foregoing amounts are not used by
Developer's buyers in the years granted, said amounts shall not be
carried forward and thus shall not be available to the Developer's
buyers in any subsequent year. The foregoing grants shall be
subject to all of the terms, conditions and qualifying criteria as
may be specified in the MAP as such terms, conditions and criteria
exist at such time and consistent with the requirements imposed by
the funding source and other discretionary criteria as may be
established by the Agency. Developer shall not receive any waivers
of terms in connection with this Amendment.
4
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97-308
2.7. All special assessments levied after the 1997-98
Fiscal Year shall be paid by the Developer at the times, in the
manner and as provided in the Notice of Levy and related documents.
2.8 The Developer shall pay Eight Thousand Five Hundred
Dollars ($8,500) to city as compensation for certain attorneys fees
incurred by City for the negotiation of this Amendment.
3. EVENTS OF DEFAULT AND REMEDIES: INDEMNIFICATION
3.1. The following shall constitute events of default by
the Developer under this Amendment:
(i) Failure to remit any payment to the City pursuant to
section 2.1 hereof within forty five (45) days of its due date;
(ii) Failure to pay the State as provided in Section 2.5
hereof;
(iii) Failure to file the final Map
on or before October 9, 1997, or if the final
recordation of the final Map for Tract No.
failure to file said Map prior to February 1,
for Tract No. 14193
expiration date for
14193 is extended,
1998; or
(iv) Failure to commence construction of the number of
homes funded for Phase I by the construction lender within ten (10)
months of recordation of the final Tract Map No. 14193, but in no
event later than ten (10) months after February 1, 1998.
Upon the happening of an event of default, Developer
shall immediately, upon written request of the City, execute a
quitclaim deed to the Property, and deliver said quitclaim deed and
the Property to the City. Upon deli very to the City and
recordation of a quitclaim deed to the Property, the City shall
release Developer from any and all obligations arising from the
Debt or any other assessments or Special Taxes assessed against the
Property.
3.2. In the event the Developer fails to execute a
quitclaim deed and deliver the Property to the City as provided in
3.1 above, the City may enter the Stipulation for Entry of
Judgment ("Stipulation") (a copy of which is attached hereto as
Exhibit "C" and is incorporated herein by this reference), and the
City may cause entry of the Judgment (in the form attached hereto
as Exhibit "D" and incorporated herein by this reference) against
Developer.
5
97-308
Notwithstanding Code of Civil Procedure Section 583.310
and any applicable statute of limitations, the City shall have the
right to cause entry of judgment in the form attached to the
Original Settlement Agreement as Exhibit "D" without penalty should
this Amendment not be consummated. The Parties expressly agree to
waive Code of Civil Procedure Section 583.310 and any applicable
statute of limitations to the extent necessary to allow the City to
cause entry of Judgment in the Action in the event the settlement
contemplated within this Amendment is not consummated.
3.3. Developer shall not be in default under subsections
(iii) or (iv) of Section 3.1 in the event that such default is the
result of unlawful or unreasonable actions by the City.
"Unreasonable actions" shall not include any discretionary action,
taken by the City in its standard process of approving the final
Tract Map No. 14193 for the Property or other discretionary
approval of the City in connection with completion of the homes on
the Property.
4. PURCHASE OF PARCEL 2
4.1. The Developer shall purchase Parcel 2 from the City
for a total consideration of Four Hundred Thirty Thousand Dollars
($430,000), as follows: One Hundred Ninety Seven Thousand, Four
Hundred Twenty Seven Dollars and Fifteen Cents ($197,427.15) of the
purchase price shall be paid upon the sale of each lot to an
individual purchaser as set forth in Section 2 hereof. The amount
due per lot shall equal Four Thousand Dollars and Sixty Five Cents
($4,700.65) for each of the 76 lots for a total of ($197,427.15/42
lots). This amount is included in the Eight Hundred Twenty Two
Four Hundred Ninety Three Thousand Dollars and Eighty Eight Cents
($822,493,88) set forth in Section 2.1 hereof. The remainder of
Two Hundred Thirty Two Thousand, Five Hundred Seventy Two Dollars
and Eighty Five Cents ($232,572.85) shall be deemed to be paid by
the Developer upon development of street improvements (including
but not limited to curbs, gutters, sidewalks, fill-in street paving
and lighting) by the Developer on Ohio, Olive and Walnut Avenues.
The Parties shall enter into a purchase and sale agreement in the
form attached hereto as Exhibit "E", which shall reflect the terms
and conditions set forth in this Section 4.
4.2. The Developer shall pay a down payment of Forty
Three Thousand Dollars ($43,000) towards the purchase of Parcel 2.
The City shall apply said down payment or cause the same to be
applied to pay delinquent County property taxes and delinquent
assessments for Assessment District No. 987 owed for Parcel 2 at
closing. The City shall provide a credit of said Forty Three
6
97-308
Thousand Dollars ($43,000) towards the purchase price of Parcel 2
as described in Section 4.1 above. To the extent
delinquent County property tax and assessments
District 987 exceed Forty Three Thousand Dollars
Ci ty shall not be responsible for the payment
amounts.
that the total
for Assessment
($43,000), the
of additional
5.
REVISION TO TRACT MAP
The
14193 shall be
Amendment.
parties hereto agree that the final Tract Map No.
amended as necessary to conform to the terms of this
6.
MISCELLANEOUS PROVISIONS
6.1. Except as otherwise provided herein and with respect
to Sections 2.1,2.2,2.3,2.4,2.6,2.7,2.8 and 2.10 of the
Original Settlement Agreement which provisions are hereby
superseded, this Amendment hereby restates and affirms the Original
Settlement Agreement and said Original Settlement Agreement remains
in full force and effect. This 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.
6.2. This Amendment shall be governed in accordance with
the laws of the State of California. Any action brought to enforce
or interpret this Amendment, or any part thereof, shall be brought
in the State of California, in the County of San Bernardino.
6.3. Each Party hereto certifies that he, she or it has
read all of this Amendment and fully understands all of the same.
6.4. This 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"
for the amounts set forth in this Amendment.
6.5. The effective date of the Amendment shall be deemed
to be the date of recording hereof.
6.6. This Amendment has been duly ratified, accepted and
consented to by the City, through the action of its Mayor and
Common Council. The representatives signing this Amendment on
behalf of the City expressly represent that he, she or they do so
with the full authority and consent of the City.
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97-308
6.7. This Amendment has been duly ratified, accepted and
consented to by each of the Developer, through action of their
respective authorized representatives. The representatives signing
this Amendment on behalf of the Developer expressly represents that
he, she or they do so with the full authority and consent of the
Developer.
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97-308
[PLEASE NOTE THAT SIGNATURES OF ALL PARTIES
TO THIS AMENDMENT MUST BE NOTARIZED]
DATED: October 71 , 1997
CITY OF SAN BERNARDINO,
a California municipal corporation
B~J4//V~
/
APPROVED AS TO FORM AND CONTENT:
DATED: october~, 1997
SABO & GREEN,
A Professional Corporation
By:
{]Y?~
Attorneys for
the City of San Bernardino
DEVELOPER
By: /2 .lvt. ~~
Irvin~ M. Feldkamp I
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97-308
STATE OF CALIFO~IA
COUNTY OF '5'4fJ-l:5e~flUJ.'/1C>
On \O-JI-tf/ before me, /Y\li rd [, /---;'f'n7//J C;
(here insert name and title of the officer), personally appeared
'TOm YY'i I" 0 te , pGESB1.ally ]mB;/l. to me (or proved to
me on the basis of satisfactory evidence) to be the person(~) whose
name(~) is/~ subscribed to the within instrument and acknowledged
to me that he/~/t~ executed the same in his/~/t~r
authorized capacity(i~), and that by his/~/~ signature(~) on
the instrument the person(~), or the entity upon behalf of which
the person(') acted, executed the instrument.
Signature
I.... ...... ..... .... .... ..... ~ ... ..... "-
. ......:.:. ". MARSHA L FLEMING f
:t ;' ""),f,' ~ "'. COMM. # 1055911 I
~ 'i"~' .. : Nota;y Public - Collfomla ~
,... .. . SAN BERNARDINO COUNTY
J :.., My Comm. Explr... APR 16. 19991
~~~ ~ ~ ~ ~ ~ ~ ~ - ~(
WITNESS my hand and official seal.
10
97-308
STATE OF CALIFORNIA d
COUNTY OF~ f\~,en"V ,'11'10
On \ 0 -;) I- q 7 before me, yna tf <.. L. L. ~ I'f'ffl; r? q
(here inser~name and title of the officer), personally appeared
T'n\\,~ \YOl. reld Ktmp j.l.L.. , rrersonally known -to me (or proved to
me on We basis of satisfactory evidence) to be the person(~) whose
name(~) is/~ subscribed to the within instrument and acknowledged
to me that he/~/~~ executed the same in his/ftef/tl~~L
authorized capacity(1ee), and that by his/~/t~ signature~) on
the instrument the person(~), or the entity upon behalf of which
the person (lJ acted, execufed the instrument. I ~ ,:. ,~,. ~ - ~ ~ ~ . - - -
, '''''' " MARSHA L FlE~
WITNESS my hand and official sea,].. :;: /',"'%'~':" COMM,#lC16f
z : -~ '. ':. Noto;y PlbI1c - CI
~ " ':'" < ' SAN BERNARDlNOl
^ ~ JJ ~< .-' My Comm, Expi'''' Af
Signature~ d. ~. , meriT) ~ . . - ~
u Ji................. ~.......................................
J ,''';:i:' <', MARSHA L FLEMING t
:;; :' ""I;!<'\ COMM,#I055911 ~
~ ; ~';" Z;,' Nota;y PlbIic - California s:
J"" ' SAN BERNARDINO COUN1Y:J-
.,. '., ,,,' My Comm, Expi,...APR 16. 1999
~.'~ ~ ~ _ ~ _ ...... .... ..... .... ................0-
11
97-308
EXHIBIT "A"
[DESCRIPTION OF PROPERTY]
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97-308
EXHIBIT "A"
THE NORTHWESTERLY 1/4 OF BLOCK 55 OF THE LANDS OF IRVINGTON LAND AND WATER
COMPANY. IN THE COUNTY OF SAN BERNARDINO. STATE OF CALIFORNIA, AS PER. PLAT
RECORDED IN BOOK 3 OF MAPS. PAGE 9. RECORDS OF SAID COUNTY. DESCRIBED AS
FOllOWS:
BEGINNING AT A POINT IN THE NORTHERLY LINE OF SAID BLOCK 55. LOCATED MIDWAY
BETWEEN THE NORTHEASTERLY CORNER. AND THE NORTII-WESTERLY CORNER. OF SAID
BLOCK; THENCE WESTERLY ALONG TIlE NORTHERLY LINE OF SAID BLOCK 55 TO THE
NORTHWESTERLY CORNER THEREOF; THENCE SOUTHERLY ALONG TIlE WESTERLY LINE OF
SAID BLOCK 55 TO A POINT MIDWAY BETWEEN THE NORTHWESTERLY CORNER. AND TPE
SOUl1lWESTERLY CORNER. OF SAID BLOCK 55; THENCE AT RIGHT ANGLES EASTERLY ALONG
THE EASTERLY AND WESTERLY CENTER LINES OF SAID BLOCK 55 TO A POINT MIDWAY
BETWEEN THE EASTERLY AND WESTERLY LINES OF SAID BLOCK; THENCE NORTIlERLY
ALONG TIlE NORTIlERLY AND SOUTHERLY CENTER. LINES OF SAID BLOCK 55 TO THE POINT
OF BEGINNING.
SAID TRACT OF LAND CONSISTING OF LOT 2 AND PORTIONS OF LOTS 1 AND 3 OF SAID
BLOCK 55.
::
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97-308
EXHIBIT "B"
[FORM LETTER AGREEMENT WITH CITY]
[City of San Bernardino Letterhead]
Redevelopment Agency of the
City of San Bernardino
201 North "E" street, 3rd Floor
San Bernardino, CA 92401
Re: Mortgage Assistance for Feldkamp Properties
Dear Mr. Steinhaus:
By this letter the City of San Bernardino ("City") and the
Redevelopment Agency of the City of San Bernardino ("Agency")
hereby agree that pursuant to the First Amendment to Mutual Release
and Settlement Agreement between the City and Irving M. Feldkamp
III ("Developer") dated September _, 1997, the Agency shall use
its best efforts to provide mortgage assistance to all buyers of
the subject lots who qualify for the Agency's Mortgage Assistance
Program ("MAP"). However, MAP funds will be available on a first
come first serve basis. Under the MAP, the Developer's buyers will
receive assistance, if available, of no more than the following
amounts in the following years: 1998/99 - $50,000; 1999/2000 -
$100,000; 2000/01 - $50,000. These amounts shall not be carried
over to subsequent years.
Very truly yours,
CITY OF SAN BERNARDINO
By:
Tom Minor,
Mayor
AGREED AND ACCEPTED:
REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO
By:
Timothy C. Steinhaus,
Agency Administrator
97-308
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EXHIBIT "en
[STIPULATION]
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97-308
1 James C. Feda1en, Esq. (SB #89184)
SABO & GREEN,
2 A Professional Corporation
23801 Calabasas Road, Suite 1015
3 Ca1abasas, California 91302
Telephone: (818) 704-0195
4
Attorneys for Plaintiff
5 CITY OF SAN BERNARDINO
6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
10
FOR THE COUNTY OF SAN BERNARDINO
11 CITY OF SAN BERNARDINO,
a California Municipal
12 Corporation,
Case No. SCV09593
13 Plaintiff,
AMENDED STIPULATION FOR
ENTRY OF JUDGMENT
14 v.
15 SAN BERNARDINO S.B. FIVE,
Limited Partnership,
16 a California Limited Partnership,
ill;,. li.,
17
Defendants.
18
19
20
IT IS HEREBY STIPULATED by and between Plaintiff CITY OF
21 SAN BERNARDINO, a California municipal corporation ("City") and
22 Defendant Irving M. Feldkamp, III, as follows:
23
24
25
1.
Defendant
waives
all
under
the
rights
Soldiers' and Sailors' Civil Relief Act of 1940, as
amended.
26
2.
Defendant is the owner of the real property
27
described in Paragraph 2 of the Complaint on file
28
herein, which real property is located within
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
97-308
3 .
Community Facilities District No. 995 in the City
of San Bernardino, California ("CFD No. 995"), and
is identified as County Assessor's Parcel No. 0261-
082-02; and Defendant is also the owner of real
property identified as County Assessor's Parcel No.
0261-082-01 (collectively the "Property"). On or
about August 29, 1994, the City and Defendant
entered into a Mutual Release & Settlement
Agreement ("Agreement") as amended by the First
Amendment to Mutual Release and Settlement
Agreement ("Amendment") in settlement of this
action. This Stipulation is entered into pursuant
to Section 3.2 of the Amendment and is attached to
the Amendment as Exhibit "Cu.
Defendant acknowledges that the special taxes
alleged to be attributable to the Property are
delinquent and continue to accrue interest and
penal ties. Ci ty and Defendant hereby stipulate
that as of October 21, 1997, the amount which
Defendant must pay to City in order to cure the
delinquent special taxes, penal ties, interest and
costs associated with the Property for tax years
1991-92 through 1997-98 is Eight Hundred Twenty Two
Thousand, Four Hundred Ninety Three Dollars and
Eighty Eight Cents ($822,493.88).
This Stipulation may be filed by the City
immediately upon execution hereof. The parties
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stipulate that a judgment may be entered in this
action in favor of the City and against Defendant
for judicial foreclosure, and an Order of Sale
issue on the Property in the event that any payment
due under the Amendment is not received within
fifteen (15) days of its due date.
5. By execution of this Stipulation, Defendant
hereby stipulates that he and the Property
described in Section 2 above are within and subject
to this Court's jurisdiction.
6. Upon event of default under the Amendment and
failure to deliver a quitclaim deed to the City, it
is stipulated that the judgment will include the
following relief:
6.1 That this Court adjudge and decree liens
against the Property for the amount set forth in Section 3 hereof;
6.2 That this Court order the immediate foreclosure
sale of the Property without the right of redemption;
6.3 That this Court order that all special tax
installments within CFD No. 995 becoming delinquent after the date
of the delinquencies referred in Section 3 hereof, but before the
date of judgment, be included in the amount of the judgment, along
with all interest, penalties, costs, and other fees and charges
pertaining thereto;
6.4 That this Court order that the Property shall
continue to be subject to the lien of special taxes within CFD
No. 995 for the payment of all special taxes levied securing the
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1 bonds issued by the City, including interest, penalties, costs and
2 other fees and charges pertaining thereto, remaining to be levied
3 or paid subsequent to the entry of judgment;
4 7. If Defendant fails to pay any payment due
5 under the Amendment within 15 days of its due date,
6 City shall thereafter be entitled to immediately
7 apply to this Court ex Darte, without notice of any
8 kind to Defendant or to his counsel, and to enter
9 judgment herein against Defendant in the total
10 delinquent amount, less any credit for payments
11 received, and pursue its legal remedies as are more
12 particularly set forth in Section 6 of this
13 Stipulation.
14 8. Upon full satisfaction and receipt by the City
15 of the total amounts due under the Amendment, and
16 upon occurrence of the terms and conditions set
17 forth in the Amendment, the City shall cause to be
18 entered a Request For Dismissal of the action
19 without prejudice to be filed with the above-
20 enti tled court.
21 9. Defendant shall bear his own attorney's fees
22 and costs incurred in the defense of this action,
23 if any.
24 10. Each of the parties have been represented, or
25 had the opportunity to consult with counsel of
26 their own choosing, prior to executing this
27 Stipulation. Each of the parties affirms to the
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other that it has consulted and discussed the
provisions of this Stipulation with its counsel, or
freely waived its right to do so, and fully
understands the legal effect of each such
provision.
11. This Stipulation shall be binding upon and
inure to the benefit of the parties hereto and
their respective successors, legal representatives
and assigns.
12. This Stipulation is entered into by each of
the parties without reliance upon any statement,
representation, agreement, arrangement or
understanding, oral or written, between and among
the parties hereto, relating to the subject matter
contained in this Stipulation, which are not fully
expressed herein or the Exhibits attached thereto.
This Stipulation and the Exhibits attached thereto,
constitute the entire agreement between the parties
hereto and supersedes any prior written or oral
agreement between said parties concerning the
settlement of all claims between the Parties.
13. This Stipulation shall not be amended or
modified except in writing signed by each of the
Parties affected by such amendment or modification.
14. The parties agree to execute any and all
additional documents reasonably necessary to
complete and document this transaction.
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1
15.
The
drafting
and
negotiation
of
this
2
Stipulation has been shared by the parties.
For
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all purposes, this Stipulation shall be deemed to
have been drafted jointly by each of the parties.
16.
The signature pages of this Stipulation may be
executed in counterparts, each of which shall be
deemed to be an original, but such counterparts,
8
9
when taken together, shall constitute but one
Stipulation.
10
IT IS SO STIPULATED.
11 Dated: October 21, 1997
CITY OF SAN BERNARDINO,
a California municipal
corporation
12
13 By:
Tom Minor,
14 Mayor
15 SABO & GREEN
A Professional Corporation
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17 By:
Alexis G. Crump
18 Attorneys for Plaintiff
CITY OF SAN BERNARDINO,
19 a California municipal corporation
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21 Dated: October 21, 1997
Irving M. Feldkamp, III
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23 SINGER & SILVERGLEID
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25 By:
Naomi Silvergleid, Esq.
26 Attorneys for Defendant
27 SBEO/0121/DOC/261-1
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EXHIBIT D
JUDGMENT
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1 James C. Fedalen (SB#089184)
SABO & GREEN
2 A Professional Corporation
23801 Calabasas Road, Suite 2039
3 Calabasas, California 91302
Telephone: (818) 704-0195
4
Attorneys for Plaintiff
5 CITY OF SAN BERNARDINO
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO
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11 CITY OF SAN BERNARDINO,
a California municipal
12 corporation,
Case No. SCV09593
JUDGMENT ON STIPULATION FOR
ENTRY OF JUDGMENT
13 Plaintiff,
14 vs.
15 SAN BERNARDINO S.B. FIVE,
Limited Partnership,
16 a California Limited
Partnership, et al.
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Defendants
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In the above-captioned action,
Plaintiff City of
21 San Bernardino, a California municipal corporation ("City") and
22 Defendant Irving M. Feldkamp, III ("Defendant") having stipulated
23 that judgment be entered in favor of the City and against Defendant
24 adjudging and decreeing that: (i) liens exist against certain real
25 property described in Paragraph 2 of the Complaint on file herein
26 and certain other property as described in Exhibit" 1" hereto
27 ( collectively the "Property"), which real property is located
28 within Community Facilities District No. 995 in the City of San
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1 Bernardino, California ("CFD No. 995"), and is identified as County
2 Assessor's Parcel Nos. 0261-082-02 and 0261-082-01 for delinquent
3 principal installments of the above described special taxes,
4 including interest, penalties, costs, fees and other charges,
5 including attorney fees for the 1991-92 through 1997-98 fiscal
6 years; (ii) the immediate foreclosure sale of the Property shall
7 occur forthwith without the right of redemption; (iii) all special
8 tax installments on the Property for CFD No. 995 becoming
9 delinquent after the date of the First Amendment to Mutual Release
10 and Settlement Agreement dated October 21, 1997 between the City
11 and Defendant, but before the date of judgment, be included in the
12 amount of the judgment, along with all interest, penalties, costs,
13 and other fees and charges pertaining thereto; (iv) the Property
14 shall continue to be subject to the lien of special taxes within
15 CFD No. 995 for the payment of all special taxes levied securing
16 the bonds issued by the City, including interest, penalties, costs,
17 and other fees and charges pertaining thereto, remaining to be
18 levied or paid subsequent to the entry of judgment; and
19 (v) reasonable attorney's fees and costs incurred in the
20 prosecution and settlement of this action incurred after October
21 21, 1997 shall be awarded to City.
22 IT IS HEREBY ADJUDGED, ORDERED AND DECREED that Plaintiff
23 receive judgment against Defendant that:
24 1. Liens exist against the Property in the amount of
25 Seven Hundred Ninety Five Thousand, Four Hundred Six Dollars and
26 Eighty Eight Cents ($795,406.88) representing installments of the
27 above described special taxes, including interest, penalties,
28 costs, fees and other charges, including attorney fees;
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1
2.
Foreclosure sale of the Property shall occur
2 forthwith without the right of redemption;
3
3.
All special tax installments wi thin CFD No. 995
4 becoming delinquent after October 21, 1997, but before the date of
5 judgment, be included in the amount of the judgment, along with all
6 interest, penalties, costs, and other fees and charges pertaining
7 thereto;
8
4 .
The Property shall continue to be subject to the
9 lien of special taxes within CFD No. 995 for the payment of all
10 special taxes levied securing the bonds issued by the City,
11 including interest, penalties, costs, and other fees and charges
12 pertaining thereto, remaining to be levied or paid subsequent to
13 the entry of judgment;
14
5.
The City shall recover its reasonable attorney's
15 fees and costs incurred in the prosecution and settlement of this
16 action incurred subsequent to October 21, 1997.
17
18 Dated:
JUDGE OF THE SUPERIOR COURT
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SBEO/0121/DOC/262-1
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EXHIBIT E
PURCHASE AND SALE AGREEMENT
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PURCHASE AND SALE AGREEMENT AND
JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is
made and entered into as of the 21st day of October, 1997, by and
between Irving M. Feldkamp III, an individual ("Buyer") and City of
San Bernardino, a municipal corporation and charter city
("Seller") .
WIT N E SSE T H
WHEREAS, the Buyer is an individual who resides in the
City of Redlands, County of San Bernardino; and
WHEREAS, the Seller is
charter city, organized and validly
State of California; and
a municipal corporation and
existing under the laws of the
WHEREAS, Seller owns certain property totaling 10.4 acres
located in the City of San Bernardino, County of San Bernardino,
California, more particularly described in Section 1.01 hereof (the
"Property"); and
WHEREAS, the Seller and Buyer has duly approved the
transactions contemplated by this Agreement and in order to set
forth the terms and conditions of such purchase and sale, the Buyer
and Seller desire to enter into this Agreement.
WHEREAS,
into an Amendment
execution of which
this Agreement.
Seller and Buyer are simultaneously entering
to Mutual Release and Settlement Agreement the
is a condition precedent to the effectiveness of
NOW, THEREFORE, for and in consideration of the foregoing
premises and the mutual covenants contained herein, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.01. Purchase and Sale. Subject to the terms
and conditions of this Agreement, Seller hereby agrees to sell, and
convey to the Buyer, and the Buyer hereby agrees to purchase from
Seller, all of Seller's right, title and interest in and to the
following described property (collectively, the "Property"):
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All mineral rights, non-public water rights, tenements,
hereditaments, easements, rights-of-way and appurtenances, riparian
rights and drainage rights in connection with the beneficial use
and enjoyment of the vacant real property described in Exhibit "A"
hereto and Seller's rights in and to streets, alleys, public ways,
areas, easements, connon or greenbelt areas (collecti vely,
"Appurtenances") in, on or adjacent thereto.
ARTICLE II
PURCHASE PRICE
Section 2.01. Purchase Price. The purchase price (the
"Purchase Price") for the Property shall be Four Hundred Thirty
Thousand Dollars ($430,000), and shall be paid by the Buyer to
Seller, as follows:
a. Deoosi t. Buyer has deposited with the Seller
Buyer's check in the amount of Forty Three Thousand Dollars
($43,000) (the "Deposit"). Seller shall deliver said deposit to
First American Title Insurance Company (the "Escrow Agent") within
three (3) days after executing this Agreement. The Deposit is to
be invested by the Escrow Agent in an interest-bearing account for
the benefit of the Buyer. On the Closing Date, the Escrow Agent
shall apply the deposit towards the payment of taxes and
assessments as provided in Section 4.02(e) hereof.
b. Remainina PaYments. The remaining consideration of
Three Hundred Eighty Seven Thousand Dollars ($387,000) shall be
paid as follows: One Hundred Fifty Four Thousand, Four Hundred
Twenty Seven Dollars and Fifteen Cents ($154,427.15) of the
purchase price shall be paid upon the sale of each lot to an
individual purchaser as set forth in Section 2 of the Amendment.
The remainder of Two Hundred Thirty Two Thousand, Five Hundred
Seventy Two Dollars and Eighty Five Cents ($232,572.85) shall be
deemed to be paid by Buyer upon development of street improvements
(including, but not limited to curbs, gutters, sidewalks, fill-in
street paving and lighting) by Buyer on Ohio, Olive and Walnut
Avenues.
ARTICLE III
TITLE INSURANCE
Section 3.01. Seller's Obliaation to Provide Title
Insurance. Seller has delivered, and Buyer has approved a
preliminary title report for an owner's title policy issued by
First American Title Insurance Company, together with legible
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copies of all restrictive covenants, easements and other items
listed as title exceptions therein (each a "Title Defect"). The
title policy to be issued to the Buyer pursuant to this section
shall be a CLTA policy and shall ensure fee simple title to the
Buyer in the amount of the Purchase Price, subject only to the
exceptions shown therein as set forth in Exhibit "D") hereof (the
"Permitted Exceptions") to which the Buyer has agreed in writing.
ARTICLE IV
CLOSING
Section 4.01. Closina Throuah Escrow. Subj ect to the
provisions of this Agreement, the Buyer and Seller shall consummate
and close the purchase and sale of the Property contemplated by
this Agreement when all of the conditions of closing for the
benefit of the parties hereto have been satisfied or waived, but in
no event later than five (5) business days after the execution of
this Agreement, or at such other time as the parties hereto may
agree upon in writing (the "Closing"). Subject to the provisions
of this Agreement relating to the extension of the Closing, if the
Closing does not occur as a result of the failure of a condition,
then the party hereto for whose benefit the condition exists may
terminate this Agreement, in which event the parties hereto shall
have no further rights or obligations pursuant to this Agreement
and the Escrow Agent shall return to the Buyer the Deposit and any
other funds placed in the escrow by the Buyer.
The parties hereto agree to be bound by the Escrow
Agent's supplemental instructions which are attached to this
Agreement as Exhibit "B" and also agree to be bound by any other
escrow instructions or escrow agreement required by the Escrow
Agent to perform escrow and title services customarily performed
within San Bernardino County, California. The Buyer and Seller
agree to provide the Escrow Agent with executed copies of any such
escrow instructions or escrow agreement within two (2) days after
receipt thereof from the Escrow Agent. Any escrow instructions or
escrow agreement executed by the parties hereto shall be in
accordance with the terms and provisions of this Agreement, and any
conflict between such escrow instructions or escrow agreement and
this Agreement shall be resolved in favor of this Agreement.
The parties hereto agree that the condition precedent to
the effectiveness of this Agreement is the execution by both
parties of an Amendment to the Mutual Release and Settlement
Agreement between the parties.
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Section 4.02. Seller's Obliaations at Closina. At
Closing, Seller shall do the following and shall deliver the same,
as applicable, to the Escrow Agent:
a. ~. Execute and deliver a grant deed in
substantially the form attached to this Agreement as Exhibit "C",
conveying the Property to the Buyer, subject to no exceptions other
than the Permitted Exceptions.
b. Title Policy. Provide an owner's title policy in
CLTA standard form, naming the Buyer as the insured in the amount
of the Purchase Price, insuring that the Buyer owns fee simple
title to the Property, subject only to the Permitted Exceptions.
(The Buyer, at his option, may elect to cause the title company to
endorse the owner's title policy in any manner the Buyer deems
appropriate, at the Buyer's sole expense. Further, the Buyer, at
his sole election, may require that the title policy be in an ALTA
standard form, in which case the Buyer shall be responsible for the
amount by which the cost for such ALTA policy exceeds the cost for
a CLTA policy) .
c. Foreian Person. Execute and deliver an affidavit of
Seller in the form described by Treasury Regulation Section 1.1445-
2 certifying that Seller is not a "foreign person" as defined in
the Federal Foreign Investment in Real Property Tax Act of 1980,
and the 1984 Tax Reform Act, as amended.
d. Evidence of Authority. Provide to Escrow Agent a
copy of the duly adopted Resolution of the Mayor and Common Council
of the Seller, authorizing the execution, delivery and performance
by the Seller of this Agreement and the documents required hereby.
e. Taxes and Assessments. Payor cause the payment by
Escrow Agent of delinquent County of San Bernardino ad valorem
property taxes and Assessment District 987 assessments on the
Property up to Forty Three Thousand Dollars ($43,000).
f. Mutual Release. Execute and deliver the Amendment
to Mutual Release and Settlement Agreement (the "Amendment").
Section 4.03. The Buyer' s Obligation at Closina. At
Closing, the Buyer shall execute and deliver the Amendment to the
Escrow Agent (duly executed and acknowledged by the Buyer) for
recording in the San Bernardino County records against all parcels
described therein.
Section 4.04. Closina Costs. Seller shall pay the
following closing costs: one half of the fees and costs due to the
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Escrow Agent for services rendered as escrow agent; all premiums
and charges related to the issuance of the owners title policy,
except as provided in Section 5.02(b) above, and all abstract and
title examination and other costs related to the issuance of the
title policy.
The Buyer shall pay the following closing costs: the
Buyer's attorneys fees and costs, one half of the fees and costs
due to the Escrow Agent for services rendered as escrow agent, and
any changes relating to the issuance of an ALTA title policy, if
any, pursuant to Section 4.02(b) above. Any additional fees and
charges shall be divided between the Buyer and Seller in accordance
wi th the customary practice in the County of San Bernardino,
California.
Section 4.05. Deliverv of Possession. Subject to the
provisions of this Agreement relating to the Closing occurring no
later than October 27, 1997, as that date may be extended as
provided herein, upon the satisfaction by Seller of all of Seller's
obligations as set forth hereinabove, and upon the satisfaction by
the Buyer of all of his obligations as set forth hereinabove, and
upon the satisfaction of any and all other conditions precedent to
this Agreement, if any, the Escrow Agent shall distribute to the
Buyer and Seller the items and documents described in this
Article IV, respectively, and the purchase and sale transaction
contemplated in this Agreement shall be finally consummated.
Delivery of possession of the Property to the Buyer shall be made
at Closing.
ARTICLE V
RISK OF LOSS
Section 5.01. Casual tv. Seller assumes all risks and
liabili ty for damage to or injury occurring to the Property by
fire, storm, accident, or any other casualty or cause until the
Closing has been consummated. If the Property, or any substantial
portion thereof, suffers any damage prior to the Closing from fire
or other casualty, Seller shall serve written notice thereof on the
Buyer within two (2) days of the occurrence of the event causing
such damage, upon which the Buyer may either (a) terminate this
Agreement by delivering written notice to Seller of such
termination within three (3) days after Seller notifies the Buyer
of the casualty, or (b) consummate the Closing, in which later
event Seller shall deliver to the Buyer, at Closing, any insurance
proceeds actually received by Seller in respect to such casualty or
assign to the Buyer, at Closing, all of Seller's right, title and
interest in any claim to proceeds of any insurance covering such
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damage, provided that in no event shall the Buyer be entitled to
receive payment or assignment of insurance proceeds in an amount
greater than the Purchase Price. If the Buyer fails to timely
deliver to Seller written notice of termination of this Agreement
as described in (a) above, then the Buyer shall be deemed to have
elected to proceed in accordance with (b) above.
Section 5.02. DisDosi tion of DeDosi t. I f the Buyer
elects to terminate this Agreement pursuant to Section 5.01 (a)
above, then contemporaneously with such termination the Escrow
Agent shall immediately return the Deposit, together with all
interest accrued thereon, to the Buyer, and upon the Buyer's
receipt thereof, except as may be expressly otherwise provided
herein and in the Amendment, neither party hereto shall have any
further rights against or obligations to the other under this
Agreement.
ARTICLE VI
DEFAULT AND REMEDIES
Section 6.01. Default and Remedies.
a. Buver' s Default. If the Buyer refuses or fails to
consummate the purchase of the Property pursuant to this Agreement
for any reason other than termination hereof pursuant to a right
granted hereunder to do so, or breach by Seller of his agreements
hereunder, then Seller as his sole and exclusive remedy shall have
the right to terminate this Agreement by giving the Buyer written
notice thereof, in which event neither party hereto shall have any
further rights, duties or obligations hereunder except as may be
otherwise provided herein and in the Amendment or original Mutual
Release and Settlement Agreement (as defined in the Amendment) .
b. Seller Default. If Seller fails to perform any of
his obligations hereunder, either prior to or at Closing, the Buyer
may terminate this Agreement by notifying Seller thereof, at which
time the Deposit, together with all interest earned thereon, shall
be returned to the Buyer. The Buyer shall have such other remedies
as may be available to it under law or equity, including specific
performance of this Agreement.
Section 6.02. Fees and EXDenses. If either party hereto
brings suit to enforce this Agreement, then the prevailing party
shall be entitled to recover from the other party reasonable
attorneys fees and costs incurred by the prevailing party and to
receive an award therefor from a court of competent jurisdiction.
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ARTICLE VII
MISCELLANEOUS PROVISIONS
Section 7.01. Notices. All notices, demands or requests
required or permitted to be given pursuant to this Agreement shall
be in writing. If not otherwise provided hereunder, all notices,
demands or requests to be sent to any party hereto shall be deemed
to have been properly given or served by delivering the same
personally to each party, by sending the same through a nationally
recognized overnight courier service, or by depositing the same in
the United States mail, addressed to such party, postage prepaid,
and registered or certified with return receipt requested, at the
following addresses:
As to the Buyer:
Irving M. Feldkamp III
P.O. Box 6649
San Bernardino, CA 92412
With a copy to:
Naomi Silvergleid, Esq.
Singer & Silvergleid
3750 University Avenue, Suite 550
Riverside, CA 92501
As to Seller:
City of San Bernardino
300 North "D" Street, 6th Floor
San Bernardino, CA 92418
Attn: City Administrator
with a copy to:
SABO & GREEN, A Professional Corporation
23801 Calabasas Rd., Suite 1015
Calabasas, CA 91302-1595
Attn: Alexis G. Crump, Esq.
As to Escrow Agent: First American Title Insurance Company
323 Court Street
San Bernardino, CA 92401
All notices, demands and requests shall be effective when
personally delivered to the addressee or received by overnight
courier, or by the United States mail in accordance with the
foregoing.
Section 7.03. Bindina Effect. This Agreement shall bind
and inure to the benefit of the parties hereto and their respective
heirs, executors, administrators, legal representatives, successors
and assigns.
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Section 7.04. CounterDarts. This Agreement may be
executed in several counterparts, each of which shall be deemed an
original, and all of such counterparts together shall constitute
one agreement, binding on all parties hereto.
Section 7.05. Meraer of Agreement. Unless otherwise
specified in this Agreement, all the terms and conditions of this
Agreement shall not survive the Closing and shall be merged into
the Grant Deed from Seller to the Buyer.
Section 7.06. Severabili tv. If all or any portion of
any of the provisions of this Agreement shall be declared invalid,
illegal or unenforceable by laws applicable thereto, then the
performance of said offending provision or provisions shall be
excused by the parties hereto, and such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement.
Section 7.07. CaDtions. The titles or captions of the
provisions of this Agreement are merely for convenience of
reference and are not representations of matters included or
excluded from such provisions.
Section 7.08. Time: Entire Aareement. Time is of the
essence of this Agreement. The parties hereto expressly
acknowledge and agree that, with regard to the subject matter of
this Agreement except as provided in the Amendment, and the
transactions contemplated herein, (a) there are no oral agreements
between the parties hereto, and except as provided in the
Amendment, (b) this Agreement, including the defined terms and all
exhibits and addenda, if any, attached hereto, embodies the final
and complete agreement between the parties and supersedes all prior
and contemporaneous negotiations, offers, proposals, agreements,
conunitments, promises, acts, conduct, course of dealing,
representations, statements, assurances and understandings, whether
oral or written and may not be varied or contradicted by evidence
of any such prior or contemporaneous matter or by evidence of any
subsequent oral agreement of the parties hereto.
section 7.09. No Modifications ExceDt in Wri tina. No
modification or amendment of this Agreement shall be binding unless
set forth in writing and signed by the party or parties to be bound
by such modification or amendment.
Section 7.10. Further Assurances. In addition to the
acts and deeds recited herein and contemplated to be performed,
executed and/or delivered by either Seller or the Buyer, Seller and
the Buyer shall perform, execute and/or deliver or cause to be
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performed,
necessary,
assurances
consummate
executed and/or delivered at the Closing, or
after the Closing, any and all further acts, deeds
as may, from time to time, be reasonably required
the transactions contemplated in this Agreement.
if
and
to
Section 7.11. No Existincr Leases. Seller hereby
warrants that, upon Closing there will be no oral or written leases
affecting the Property, and hereby covenants to, and shall, deliver
to the Buyer at Closing, exclusive possession of the Property, free
and clear of all tenants and/or other occupants and rights of any
such parties.
Section 7.12. Calendar
specified, all references to days in
to be references to calendar days.
Davs. Unless otherwise
this Agreement shall be deemed
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IN WITNESS WHEREOF, the parties hereto have executed this
Purchase and Sale Agreement to become effective as of the Effective
Date.
"BUYER"
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IrvingVM. Feldkamp II ,
an individual
"SELLER"
CITY OF SAN BERNARDINO,
a municipal corporation and
charter city
~~~
Tom Minor, Mayor
SBEO\0121\DOC\263-2
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EXHIBIT "A"
LEGAL DESCRIPTION
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EXHIBIT "A"
THE NORTHWESTERLY 1/4 OF BLOCK 55 OF THE LANDS OF IRVlNGTON LAND AND WATER
COMPANY, IN THE COUNTY OF SAN BERNARDINO, STATE OF CAUFORNIA, AS PER PLAT
RECORDED IN BOOK 3 OF MAPS, PAGE 9, RECORDS OF SAID COUNTY, DESCRIBED AS
FOLLOWS:
BEGINNING AT A POINT IN THE NORTHERLY UNE OF SAID BLOCK 55, LOCATED MIDWAY
BETWEEN THE NORTHEASTERLY CORNER AND THE NORTH-WESTERLY CORNER OF SAID
BLOCK; THENCE WESTERLY ALONG THE NORTHERLY LINE OF SAID BLOCK 55 TO THE
NORTHWESTERLY CORNER THEREOF; THENCE SOUTHERLY ALONG THE WESTERLY UNE OF
SAID BLOCK 55 TO A POINT MIDWAY BETWEEN THE NORTHWESTERLY CORNER AND TPE
SOUTHWESTERLY CORNER OF SAID BLOCK 55; THENCE AT RIGHT ANGLES EASTERLY ALONG
THE EASTERLY AND WESTERLY CENTER LINES OF SAID BLOCK 55 TO A POINT MIDWAY
BETWEEN THE EASTERLY AND WESTERLY LINES OF SAID BLOCK; THENCE NORTHERLY
ALONG THE NORTHERLY AND SOUTHERLY CENTER LINES OF SAID BLOCK 55 TO THE POINT
OF BEGINNING.
SAID TRACT OF LAND CONSISTING OF LOT 2 AND PORTIONS OF LOTS 1 AND 3 OF SAID
BLOCK 55.
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97-308
EXHIBIT "B"
SUPPLEMENTAL ESCROW INSTRUCTIONS
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97-308
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EXHIBIT "e"
GRANT DEED
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I REQUESTED BY AND
WHEN RECORDED MAIL TO:
97-308
CITY CLERK
CITY HALL
300 North "D" Street
San Bernardino, CA 92418
APN: 261-082-01
SPACE ABOVE FOR RECORDER'S USE
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, The CITY OF
SAN BERNARDINO, a municipal corporation, hereby grants to IRVING M. FELDKAMP, ill
the real property in the City of San Bernardino, County of San Bernardino, State of California, described as
follows:
LEGAL DESCRIPTION ATTACHED AS EXlllBIT "A"
CITY OF SAN BERNARDINO,
a municipal corporation
Dated:
By:
TOM MINOR, Mayor
ACKNOWLEDGEMENT OF GRANTOR(S):
COUNTY OF
)
) S.S.
)
STATE OF CALIFORNIA
On
before me,
, personally appeared
personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that helshe/they executed the same in hislher/their authorized capacity(ies), and that
by hislher/their signature(s) on the instrument the person(s) , or the entity on behalf of which person(s) acted, executed the instrument.
WIlNESS my hand and official seal.
:;lgnature
EXHIBIT "c"
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97-308
EXHIBIT "D"
PERMITTED EXCEPTIONS
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97-308
1.
GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1997-98, NOW A LIEN NOT YET PAYABLE.
2.
TAX-DEFAULTED GENERAL AND SPECIAL TAXES FOR THE FISCAL YEAR 1990-91. AND
SUBSEQUENT YEARS.
AMOUNT TO REDEEM PRIOR TO AUGUST 30,1997,536,737.16.
(APN: 261-082-01)
Preliminary Report
PAGE 2
97=303
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First American Title Insurance Company
323 COURT STREET (P.O. BOX 0327) SAN BERNAROINO. CALIF. 92412 . (909) 009.0311
(lCscnow INSTllUCTJONS I
Marcia T..'lrrell
Escrow Otlicer
Escrow No. 93917MT
Dale: J OCTOBER 7, 1997
NOlwllhslandlng any olher provisions oflhese InSlnlctlolls II is ullderslood that Ihls escrow Is enlered Inlo pursllallllo
Ihelenns and provisions of thai cerlaln PUrch8Ae And ~Alp. Aerppmf'!nt IIntt Tnin.... ~A,.rnu TnA....rU,.....'nos
daled
September 30. 1997
, by and between
o
Irvin M. Feldkam III
hereill8fler referred to as "Agreemenlll.
(bllyer),
(.eller),
.
To Ihe eXfenllhallhe "Agreement" conlains any provision inconsistent wllh or conlrary to the provl.lons of Paragraph
Seven (7) of the General Provlsionsallached 8S Schedule ItA1' to Ihese inslructlons, slIc'I"Agrecment" shall remain
Ihe agreemelll oflhe parlles Iherelo bUI the provisions ofPafagraph (7) shall specifY Ihe obligations of Escrow Ilolder
relative 10 Ihe cancellation of'hls Escrow.
THE GENEI'AL rROVISIONS SET OUT IN SCHEDULE "A" ATTACHED HERETO HAVE IIEEN
nEAD ANn AnE UEREnv Al'llnOVEI) nv TilE UNJ)J~nSI(;NEU.
A copy ofllle aforesaid IOAgreemenlH 'Ias been deJlosi'ed wllh Iho Escrow I lolder Dud IlIe samG Is Ilercby Illcorporaled
by referellce fa snme. Ench ofll1o parlles oflhls escrow specifically acknowledges IlIat Iho COllslUlunalloll of llils
escrow Is contingent IIpon compllallce wilh S0ll10 or all oflllo execlllmy lerms and provisions due 10 be performed
prior 10 the close of escrow havo been comlllied wilh prior 10 sllch close of escrow.
ThclO elerow In,'rucHonl, .nd amend men', tllere'o, lI1ay be executed In one or more eoull'llrplrf.. eRch
of\'t'lllcll 'nde'lllulcoUy .IIIIIIIIVO .helome erred allrlt were the orlehlA', "lid nil o(whlelltql(clllocelhor
l'lnll con.mu.e one IlId Ihe lame 1lIllrndloll.
Accordlngly,lho !lortles Ilereby ftgreelhnl prior to close of escrow ,I he I)Ortlos shhll deposit wrlttenlnslructlolls wllh
Escrow Holder ack9owledgln8 Ihat allllae execlIlory lerlUS and provlsiolls oflhe 'IAgreement", Insofar a! Ihe SRllle
perla in to each said parlY respecllvely and any obligation of Escrow Holder relallve Iherclo, have been flllly lIIel or
complied wllh, or aro waived.
Further, each said party shan speclncally relense Escrow Holder from any and allllnbillly,lfany, wl1lch II may have III
cOllnectlon wilh Ihls escrow because of allY party'. falluro 10 meel or comply with allY such execulory term or
,.ravlslon of Iho l'Agreement'l prior 10 cJose:of escrow. Oeposll of Stich wrlllen Inslnrclloll or Duyer's dcposll of
closing rUlldS,lIhseuf IInywrJUen 'nsfrU(lllofl from cllherpar'y not 10 ,noceed wllh Ihecloso orcscrow,lillllll COlllilllulc
each said Ilorty's spccllic aulhorlzollou 10 close this escrow.
Seller,
L7.r~M. ~Q~
~~, H., 'eld~~m~:~~;; ~, ._
" r,' fl. ,l.l f I '.1 "1,; I~, ~ II" ' i
'1'1
City of San Bernardino, a municipal,' "
'I' '11"
CO~~,o.n._ nd--...ehmr c~tY'1 ,I' ':!.:;",j'" ",,;
By. .,.,j(7.?:Ji/ttldtrL ""'"'''' "':'!'
.,,;di", Ilf: ,,' r;" ,.' ;1-
DYI' . P,.' '..
'Rull. U~-""_~.1,
. ""111. ill"'.lfi':' I'"
, I; jI: ~ ( i, It. I, 1'" .' 'I
coPy DO NOT RETURN
97-308
SCHEDULE 'A'
GENERAL PROVISIONS
I. IIErOSIT OF FUNBr & IIISBURSEMENTS
Escrow I 'older sllalJ deposit all (uuds received In lids escrow III allY nuanclalluslllullon hlSured by a federal agency o(
lhe UllltelJ Slolet OoverlUuenl, Jncludlng nnallclaJ InsIUu.JolI' afOUaled willi Elcrow lIoJder', COJlII'anr,11l 0110 or more
gelleral escrow delllBlld accoulIls. Unless Escrow Holder Is handed a W-9 Corm alld .peclno JII~sbllellllnslruclloll'
(rollllhe Buycr and Seller. atl (unds delivered 10 e.crow Uoldcr pUfluallllo Ihe.e Inslruclloll. will be d'pollled Jlla
1I0n-lulerest bearlllg nduchuy accoulIl. All dJsburlemelll. Ihall be made by I!scrow 1I0lder', check pulell olJlerwbe
Ilulrucled III wrlllllg. Escrow I'older Js authorized 110110 close escrow or dlsbuue ulIlll collecled CUllds have beeu
confirmed III escrow.
2. GOOII FUNIIS LAW
TIle patlles Illldersland 11181 AU. Cuuds 10 close escrow and/or 10 be released eRrly IIIU.t be deposlled lulo e.crow ,ulor
10 Ihe dale DC dOling or early release 10 allow lufOclelll lime for c1caflUlce oC lite fund, Ilrlor 10 dbburaelllGIlI. Inlho
eVOUlluch (unds arc 1101 hi Ihe tornl oC a cashier'., cerUOed or Icller check drawn Oil a tluallclalllulllullolI,lullJde'll
Ihuelllull be allowlIlJ (or clearance 10 cOlllllly wllh any -load Cunds.'aw whIch I, III errecl. (Par e":row. rOllducled III
Cullfornla. Ille .good (ullds-Iaw Is Secllon 124J3.1 of Ihe Camornla Insurance Code.) 'funds lIIay lie wired directly Inlo
First American', deposllory bank Becounllo avoid wailing (or c1eafllllce.
J. rRORATIONS AND ADJUSTMENTS
The expression -close or ellcraJ.- used Jlllh15 escrow lIleNU IlIe dnle on which doculllenls reCerred 10 herein pre
recorded BllIJ relales Dilly 10 prorations Bnd/or adjushuellls unless otherwise IlleclOed.
All Jlrorallolu Dud/or adjusllllenls arc 10 belllade on IIle basis of R 3D-day lIIoulh unless olherwlse lIulrucled III w.llllIg.
4. RECORBATION OF BOCUIIIENTS
Escrow Holder b aUlhorlzed 10 record nny documellls delivered IIlcoUgh Ihl. escrow, Ihe recording or whlcb I. lIecellnry
or JlroJler '"Ihe Issuanco oC Ihe re.,uesled policy or f1t1e huurallce.
5. AUfIlORIZ,\T10N TO FURN/SII (:orms
Escrow "olcler Is 10 Curnlsh n copy of IIIl~se Inslrucllons, 8tnendlllcnls Ihereln, closing ahllellleuls pud/or IlIIY olllC~r
llocufllenls deposlled lnlhl. escrow 10 Ihe lender(.). Ibe real eslale broker(s), IIle auomey(s) Blld/or Ihe uccouulalll(s)
Involved Jnlb" Ir8tu8cllon upon requesl DC Ihe Jender',lIrokcrs, allorueys. or accounlauls.
6. rERSONAL rROrERlY TAXES
No erallllllal'nn, UCCSearcll or hUllrPlIce as 10 Ilersonalllfo,lerly ami/or Ihe IImollul or paymenl or penonalllfollerly
lue.l. rll(lulred ullle$J otherwlle ',ulrucled In writing.
7. IlIGIIT OF CANCELLATION
Any party hUlrucllng Escrow Holder 10 cancellhls escrow shall me notice or cancellullollln I!scrow Ilolder's amce, In
wrlllug. Within a reasonable lime, Escrow Holder .hall mall, by certlned and regular mall, 0110 copy or Iho 1I01lco 10
each or the olher parlles allhe addresses sl.led lu Ihls eserow. Unless a wrUleu obJeclloll tl;t caucellallouls filed In
Escrow I'older', olllco by al,a,lywlthlnlen (IO)da)'l after dltlc aClIlalllus.l!scrow 'folder It authorlted allll ollllon 10
cOIIIP'ywllh Ihe nolleo and demand paymenl of Escrow Holder'. caucellallon charges as provided In Ihese Ocne.al
rrovlslOlu. If a Wllllen obJecllon Is tued, I!scrow Holder Js aullllirlied 81 Hscrow Ilolder's OpllOlllo hold all the moiley'.
and documelJ(. contained In Ihl, elcrow Blld lake 110 rurlher acllo.. unlll olllerw'se dlrClcled, cUller by Ibe parlle" flIulual
wr'lIell'uJlrucllons. or nual order oC R court of cOlllpelenljurlsdlclloll.
8. ACTION IN INlllnrLIlAIIIlR
Tho pari let 'Ierelo eJlpreJSly IIsree IIUlI Escrow Holder hWlllle abso'ule rlghl 81 Escrow Holder's eJecllolllo me nn
acllou JII InlerJilellder requiring Ihe parUes 10 IUllIwer and Illlgalo their several claims alld rlghls belween IhelllseJves pud
Escrow Holder Is authorized 10 deposit all docUlllents BlIII funds h~ld III lids escrow wllh the clerk ot Ihe cDurl. In rho
evenl such au acllod Is tued, 1110 parties JoInlly 81ld leverally IIgreelo pay Escrow Ilolder's canreUaUolI charges 81ld
cosls, experues and reasonable aflorney'.. fees wllich Escrow Holder Is re(lulred to expend or Incur III the Jnlerpleader
aclloll, 1111' amount thereof 10 be fixed and Judgmenl therefore 10 be rendered by tho courl. Upon the Ollng or lhe
IIclloll, fiscrow Holder allall tJlereupolI be fully released and discharged from all obligations 10 furlller perfurm nuy
dUlles or obllgallons otherwise ImllOsed by Ihelerlll' of Ibis escrow.
97-308
, 9. 11!IIMINATION 01' AGI!NCY OBLIGATIONS
I( IIlere b 110 acllolllaken 011 (lab escrow wJlhln IlK (6) lI10uths after Ihe -('me 1111111 dale- IS lei Corlh III Ihe escrow
Inslrucllolls or Mitten eXlelulon (hereof, Escrow Holder'. agency obllCalloll.halllermhlRle a( Escrow I'older'. opllon
alld aU doculllenls,lIIollles or oilier Ilems held by I!5crow Jlolder .hall be reluflled Co Ihe pBrlles de,IoslUng the lame.
In Ihe evenl of lefllllnalloll o( lids elcrow, whelher Bllhe requesl or any or 1110 flarllel or otherwise, all fees and cJlorge.
due In cOllueclloll wllh lids escrow Including expendllures Incurred Dlld/or aUlhorlzed shall be Ilald by Ihe JI.rlles herelo.
10. CONfLICTING INSTRUCTIONS
Shoultl Escrow Ilolder before or afler close or escrow receive or becomo aware of IUIY conDlctJ"g demands or claims
willi respect 10 IIl1s escrow or lite rlghls of 811Y of Ihe parlles herelo. or BlIY mOlley or IlrOIJerlydeposlled herein or
al(ected hereby, I!scrow J lolder Ihall have IlIe rlghl to dlscollllnue any or all furlher acl. 011 J!scrow Ilolder', I)ar' unlll
'ho cOIIOlcl1s resoJved 10 E.crow Holder's sallsfaclloll, and Escrow Holder sllall 'lave fho furlller rlChllo COlUlllence or
defend allY aellon or proceedlllgs (or IIIe delermlllRllolI of Ihe cOlllllcl as Jlrovhled JII 'he -nlShl of CanceUollou. amI
-Ad'ol! IUllllerll'eader. paragr8,IIu or these Oeneral rrovisloJu.
11. USURY
Escrow IJoltJer Is 110110 be concerned wllh any (Illesllon oC usury In any JOBllS or ellcumbrance.lnvJilved In the
processlllg o( Ihls escrow and Escrow I lolder Is hereby released of OilY resllOllSlblllly Alld/or liability Iherefor.
12. INBI!MNITY FOR ATTORNEYS fEES AND COSTS
III the eveul sull Is brouchl by IIIIY (Iarly 10 this escrow,lncludlng the Escrow II0hler or allY olber Ilarly, acahul elch
olher, or olhers,lncludlu& Ihe Escrow Holder, cJahulng auy rlghtlhey lIIay have .gahul eacb olher or .Calusllhe Bscrow
Jlolder,lhellln thal eWlIII, wllh IlIe exception of gross negligence by Ihe Escrow JlollJer, 'he p&rlles Ilerelo agree 10
11Idellllllfy and hold Ihe Eserow Ilolder harmle.. agalnsl any allorney'1 fees and coslllncurred by II.
13. MIENIIMI!NTS TO I!SCnow INSTIIUCTIONS
AllY amendmenf or suppJelllenllo IIlese escrow Inslrucllolls lUusl be In wrJllug. These e.crow Ilulrucllolu and any
wrJllell amendlllellfs,luflfllelllelll.t or elllllbll' .Ihlched IIlerllto consrllule IIle elltJre escrow IIlrlllllllenllUllolllrlie
&crow I'older and Ibe"arlles 'lerelo with resJlecllo the sUbJecl maIler 'Icreo( ftllllluperacdcs aJl Jlr'or ulldersllludlllgs,
Willi resJ'ecl ,herelo.
14. rnOrERTYTAXES SUDSEQUENl'TO CLOSE OF ESCROW
Duyer and Seller Jlere'u acknowledge IIlal fhere may be SUPI)lelllelllal Blld/or addlllonallaxe. wldch lIIay be assessed by
reason of a challge In ownership or cOIllJ,lelJolI o( cou.slrucllon. This will be renected JII 'lIe policy of '1110 Insurance
Issued 81 the close of escrow.l!scrow Uolder .hall nol be cOllcerned wllh allY adJus'llIeul(.) of ,u,I,lIelllcllhd lue.
belweellllle parlle, for bills received by the parlle. arler IlIe close o( escrow. III the evelll Seller has received
Suppleulelllal'l'llIC DUI.(,) prior 10 close of escrow. Seller will Ilcovidelhellllo Eacrow Ilolder willi III eXlllanallon of
lime periods covered by Ihe flU: blU(s) for proration J)urposes. (III California Ihe al)pllcable provisions DIe found In
California Ilevenue alld Taxation Code SecllollS 15 and following,)
Jlllhe evenl Duyer or Seller has applied, or applies for R reduced assessmenf, wul a refund of laxes Is recel~ed by Aul
American Title Insurance CompBI'y as Agenl, Escrow ] Jolder Is 10 relallllhe funds III one or more or I!scrow Hohler',
general escrow demand aecounls until Escrow Holder has received mutual wrlUell bulrucllolu fcom Ihe liar lie, ellrecllll&
Escrow I'older as 10 IIle properly disposition of Ihelax refulld.
15. CUANGI! OF OWNI!RSUU' FORMS
Duyer will furnish Escrow IJolder wllh II compleled Preliminary CIlBlIge of Ownersldl) Re,lorl wJdch Escrow Ilolder Is
Inslrucled 10 .ubmU alUme o(recordalloll purluanllo Secllon4B0.3 of Ihe California Revenue alld Tuallon Code. III
rhe evelltlhls escrow Is olberwlse ready 10 close and Duycr IIBS nol provided Ihe above reporf, escrow Holder Is
Jllslrucled 10 c10selhls escrow aud t:oUecl (rom Duyer for Ihe County Reconler allY addllloual feo re1lulred lor
record_lion when ft ."relhulnllrY Change of OWlIershl" nellore tloes nol RCCOIllIIBIlY Ihe documenls being recorded.
lIuyer II aware IhBl If IlIe above rellorlls lIot subJOIUed alUme of recordallon as required. a CJI811ge of Owuershlll
Shtlemen' must be OIed by IIle Duyer directly wUh llae Counly AuelSor 1101 laler Illan 4S d.,)'I after recorda lion alii'
rallurc 10 do so will result In addllional penallles. Duyer acknowJedge. IhalEscrow floldor shall have 110 resllollSlblllly
and/or lIablllly for IlIe Counly Recorder's accep'llnce or reJecllolI of II1el1reJlllllllary Chllnge of OWllershll' lleJ)orl. For
escrows InvolvIng properly In slates olher UIBlI Callforula parties will provide Escrow Ilolder wllh B""lIcable doclllllelll.
as lIIay bb required by 'he counly recorder or faxlllg aulllorJly 10 close IIl1s Irallsacllon.
16. INSUltANCI! "OI.ICII!S OTlllm TUAN '1'I'll.It INSUItANC"
When dealing willi real prolJerly and/or ImproVflllenl. IOCRleel fhereon JI Js udvlsllb'elo ob.nJlI firc, 'lamnl or J1RblJlly
lluurance coverage. In all acls JIIUd. escrow relallng 10 Insurance, Including adjus'menls, If any, Escrow Ilolder lIIay
WSUftl8 Ihal each polley Is In force and thallhe necessary premlulII has been pllid. Escrow Holder Ihallnol be
,-
:"i
97-308
re.pouslble (or oblalnJlIg Ore, Inward or Ilablllly Insurance, unless fiscrow Holder has received written Jnslruclloll prior
10 close DC escrow (rom Ihe 'larUe, or 'helr resf.ecllve loude".
17. FACSIMILE INSTRUCTIONS
III fhe evenl Uto plUllo. ullll18 .facshnlle. Irall.mlUed Ilsned doculIIeul., Buyer allll Seller hereby agree 10 aceolll and
Jnslruct lhe I!scrow I folder 10 rely ullollluch documen.s III It IIley 'lad orlgln.lllcn.lures. Buyer ami Seller hereby
acknowledge aud agree 10 provide 10 I!.crow .'older, wllhln ,evellly..two (12) houri of Ir.,uJu!t,lon, luch doculllellls
bearln! Ihe original Ilan8luru. Duyer aud Seller furlher acknowledse Blld agree thai doculQonl. lIecolI.,y for recordlu!
wllh olher 1I1B11 orlglnal.lguatures (J.e., facsimiles) WUlIIOI he accc'lted for recordlll. by Ibe Counly Ihcorder Ihercby
delaylllgllulI dose of elcrow.
IS. EXECUTE IN COUNTERrART
Tiles, e,crow IrufruclloJu and Blly.ubsequent amendments mRY be execuled 'n olle or lIIore cQulllci.larls, each Df wldcb
Jlldepeudenlly Ihallllave tile lame effect as Jr II were Ihe origInal, and all of which lakell toselber Ihal. conslllule one
and 1'10 lamo Insfruc"on. . .
IFTlI!! TRANSACTJONWHlCIIISTIIBSUDIBCTOFTHlS ESCROW IS ASALB. TIIB rARTIES TO THIS
TRANSACflON MAY IIA VB CBRTAINTAX I1BrORTING AND WITIIIIOLDING OBLIGATIONS
rURSUANTTO STATB LAW OR FBDBRAL LAW REFERRED TO IN OBNERAL rROVlSlONS 1'.21
BELOW.
19. RnrORTING TO TIIB INTERNAL IIIlVI!NUE SERVICE
The Tax Reform Acl oC J986 provide. Iltat Escrow Holder mu.t rcporl corlaJu Informal Ion relardlng cerlaln real 8'lalo
IrBluacllons 10 the Internal Re\'enuo Servico. Thl. Information Includes, afRolIl oilier thllll'. the Seller'lloclala:ecurJly
nUnlber Blld/or lax IdenUncatlon number alld (orwardlngllddrell. and Ihe gros'lales price of the Iransaclloll. "fbl. It
nol a requlremenlceneraled by l!acrow Holder, bUI ralller a meBlQ of complying willi the III law. This luformallon
musl be provided fo F1ral Anlerlcan1'IUe Insurance Company uponlhe opening of e.crow and lieU her can escrow be
closed. nor can a deed or any olller documelll. be recoreded unlll Informallonls prowed and Iho Seller cerllno. Che
accuracy of lite Informallonln wrlUlIg. By oxecullon of Ihese escrow Itulrucllons, rhe parllea Icknowfedae retelpl of lids
nollce_
20. TAX I1ErORTlNG AND WITIIIIOLDING OBLIGATIONS OI'TIIE rARTlES
CALIFORNIA LAW: In accordanco willi SeclloJl! 18662 and 18668 of the, CaUforu'a Revelluo and Taradoll Code, a
lJuyer mlY be requlred'o wJfhhold all alOoulIl equal 10 fluee and onc~lIllrd (J-JlJ) percenl of IIle laJes prlce,llIlJle case
of I dlStloslUolI of CalIfornia real properly lulereal by either: (1) A Seller wlto It an Individual wJ11a Q lasl knoWlI .lreel
address oul.lde DC CaJJfornla or when 1110 dl.sbufsemellllnslruclJonJ aUlhorlze tllO proceeds 10 be lonl Jo a financlat
InleroledJary of Ihe Seder; OR (2) A corporal~ Setler which IIBS '!O p.ernlBllenl pla-:e of I!uslneas.ln C~llfofllla. Por . . .
failure 10 Wllhhold,lhe Buyer may become lubJecllo a penally In BlI amounl erluallo clio Irealer of len(JO) (Iereenl of
Ute amount required 10 be wllhlleld or five hundred dollafl ($500). lIowewr, nolwlUufandlnc any oUlOr provision
JllcJuded Inllle Callfonll.llalufe. referenced herel.... no DU)'ar will be required 10 wlUdlold any amounl or be lubJect to
penally lor falJure '0 wil'dlold If: (a) Thc .ales price of Ihe CallfornJa real prollercy conveyed does nol exceed one
hundred Ihousaud dollar. ($l00.000)i OR (b)'I'he Seller execule. a wrlllen cerllOcate, under Iho penally uf perjury.
certifying Ihallhe Seller Is . resident of California. or If. corporallon, has a pennBllenll)laco of buslneasln California;
Oil (c) The Seller, who Is an Individual, encules a wrltlen cerUficate, under the penally of perjury, Ihalllte Callrornla
real properly being conwyed I. lite Seller'1 principal residence (as defiued 111 Section 1034 of Iho Inlerna! UevelluCl
Code). The Seller Is JubJecllo penally for knowblgly fiUng a frauduleul cerUncale for Ihe purposo of amllllng Ute
wlthholdlllg requlcemenl. The California Itatules referenced herehtlnelude provisions which aUlborlze Ihe Franchise
Tax Board 10 grant reduced wllltholdlng and walvcrl from withholding 011 R case-by-case basis.
Tho Seller Play requesl a reducllon In wlthholdlllg or waiver and the Duyer and Seller may oblaln addlHonallnforllJllllolI
byconlacllllg IIle Jtranchlse Tax lJoard. WllldlOld 81 Source Unll, P.O.lJOJl: 65J, Sacralllclllo, CA 95812.0651 (916/845-
4900).
LAW OF STATES OTIIHR TIIAN CALIFORNIA
I( IhellRrlles arc required 10 wlUlhold by IIle raw of a Ilale olher Ulan CRllfomla, the PRllles ulllJerslaud IIml Ule
withholding oblll!lallunls Ibe excluslvo obllgallon of UIO Plrlle. fo lIus JrBllSacllon and 'hal ~strow I 'older " nul
obUgaled fo wllhhold or nOllfy Iho parlles ul any wUhholdlng obllgolloll I!tey may have.
!lEPERAI.. LAW: 'nlewlIl Revenue Code Section 1..45 placellpeclal requirement. for I... ceporlln& Blld wllhbuldluB 011
""' parUello a real eslato 'r..uaetlon whero 'be Seller O't8luferor) Is a lIon-resldenlllJleu, a nOIl-dumeJllc corllorlllJun
or plll'nersld,I, a domesllc corJKlrafloll or parlllershlp coulroUed by f1on-rasldenls or non-resident curt.orollolu or
parlnershl"s.
Wllh respecllo California law, Ihe laws of slales Diller (han California and federal low referred to above, IIle IlI1rlles 10
lids Irl1l1laclloJlshould leek 811 allome)"" 8[coUnI80I'" or oUier IIX .peclllllsl'l oJllnloll ['oncernlng Iho erred of Ihe.e
law. 011 thl. lrallsacllon. The par lies 10 Ihl. transactlon.llould NOT lei on or rely 011 allY .Ialement. mado or ollllUed by
. 97-308
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the e.crow officer, IIl1e orocer, or oilier doslu. officer wllb rlllpetllo tax toporllllS or wllllllOhJlII& requlremenll. Dy
execulloJ1 DC Ihese escrow lnslrucllolls. Ihe IIBflles 8tkllowledge recelpl' or 1111. lIollce.
21. BISCLOSURE OFTAXrAYER IDENTIFICATION NUMBeRS
Inlerunl Revenue Code SeclloIl6109(h) hl1pose. requirement' Cor furnishing, disclosing, BlKI Jllcludl1l81ullayer
IdellllDmlloll nUJubeflIn IIll relums onlhe parties to a resldenllal real eslale IransacllulI JnvolringleJler-lltovlded
nll.lldu!;. TIle puUe. uudefllalld IhDllhe disclosure reporllos: requirement. are exclusive obllcallolu belweenllle
plUlIe. to Ihl.t IrBlu.clloll and IhalEscrow Jlolder Is nol oblJaated 10 tr.IUIIIU Ihe laxp',)'IIr JdClIllOcallollllUJllbeUlo Iho
Inlcrual Ilevenue Service or IQ Ihe parUe..l!scrow IJolder Is nol rendering BlI opinion coneernlullhe errect oflhls law
011 thlslrBluaclloJl, Blld Ihe parlle. .ronol acting 011 any Ilalementl ulade or ondUed by Iho e.cruw or clo.llI& ulf1cer.
lJy execullun oC IlIese escrow JILslruclloll5, Ihe parlle. ackllowledge rccelpl of IIl1s nDlIce.
To C.cllll.'e compliance wlllllhls 'aw, the parlles 10 Ihl. escrow Jlereby aUlhorlze !!scrow Jlolder 10 ulclUo auy II.rly'1
!upayer JdeuUncallon Iluluber. to any reque'1hll parly WIIO II a parly 10 Ihb Iran..dlolL TII. requeilllJl party Ihall
deliver. wrlllell requdllo escrow. The parlle. herelo waive all dahll of confldenllallty rellUdlullhelr resllccllvo
tupayer IdellllflcalloflllUmbefJ alld agree 10 hold Uscrow Jlolder harmless -,alllIl.1I1 feu, cost" or JudllUlellls
Incurred and/or awarded hi cOlulecllou with Ihe reJease oC lupayer Idenllncallollllulubefl.
rURSUANTTO CIVIL COBe SeCTION 1057.7, FIRST AMeRICAN TITLE INSURANCE COMrANY
CONIIUCTS eSCROIV BUSINESS UNBell ceRTIFICA'Il! 01' AUI'UORllY NO. 2787 IssuellllV TilE
STArn OF CAUFORNIAIIErAlITMelO' OF INSURANce.
FUNDS HIlLD Fl!1l AORIlIlMIlNf
If funds remain In escrow on the dale wldcli Is 90 days afler close of escrow (or In (he evenl escrow has IIOt closed, 90
daY' arler Ihe e'lllIIllled clOIlng dale.el forth lulhese hlSlruclloJl,s) Ihclla mOlllhly fUllds held re. of $15.00 IhllU.ccrue
for each monlla or Cracllon of .llIoulh Ihereafler Ih.lllI. Cunds, or BllY portJolllhereof, reDlaln In e.crow. E.croW' b
aUlhorlzed 10 deduct Ih. monthly funds held fee dhecUy Crom Ihe (und. held 011 . monthly, or oilier periodic basis (I.e.
quarlerly, .eml-annually, etc.). By Inlllallol below, the par lies acknowledge &lId .cree to pay 'he.. Iuolllo coml1elUlle
you Cor )'Uur administration, monltorlnlf, accounting, reminders 8ud olher Jlollfh::allolu and l)rOcelllulf DC the CUlld, 10
Ileld hi accordallce with I.d. Cunds held Cee qreemcnl. .
DuYer'./nllls/"~
SeUer'./nllls/"
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97-308
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1 James c. Fedalen, Esq. (SB #89184)
SABO & GREEN,
2 A Professional Corporation
23801 Calabasas Road, Suite 1015
3 Calabasas, California 91302
Telephone: (818) 704-0195
4
Attorneys for Plaintiff
5 CITY OF SAN BERNARDINO
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7
r....:'~:'/2f'-':':f:':' r;:_,
- OCT (' ~ All'~'
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN BERNARDINO
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11 CITY OF SAN BERNARDINO, )
a California Municipal )
12 Corporation, )
)
13 Plaintiff, )
)
14 v. )
)
15 SAN BERNARDINO S.B. FIVE, )
Limited Partnership, )
16 a California Limited Partnership, )
g,t. ll., )
17 )
Defendants. )
18 )
19
Case No. SCV09593
AMENDED STIPULATION FOR
ENTRY OF JUDGMENT
20
IT IS HEREBY STIPULATED by and between Plaintiff CITY OF
21 SAN BERNARDINO, a California municipal corporation '''City'') and
22 Defendant Irving M. Feldkamp, III, as follows:
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1.
Defendant waives all rights
under
the
Soldiers' and Sailors' Civil Relief Act of 1940, as
Defendant is the owner of the real property
described in Paragraph 2 of the Complaint on file
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amended.
2.
herein, which real property is located within
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Community Facilities District No. 995 in the City
of San Bernardino, California ("CFD No. 995"1, and
is identified as County Assessor's Parcel No. 0261-
082-02; and Defendant is also the owner of real
property identified as County Assessor's Parcel No.
0261-082-01 (collectively the "Property"). On or
about August 29, 1994, the City and Defendant
entered into a Mutual Release & Settlement
Agreement ("Agreement") as amended by the First
Amendment to Mutual Release and Settlement
Agreement ("Amendment") in settlement of this
action. This Stipulation is entered into pursuant
to Section 3.2 of the Amendment and is attached to
the Amendment as Exhibit "C".
3. Defendant acknowledges that the special taxes
alleged to be attributable to the Property are
delinquent and continue to accrue interest and
penalties. City and Defendant hereby stipulate
that as of October 21, 1997, the amount which
Defendant must pay to City in order to cure the
delinquent special taxes, penalties, interest and
costs associated with the Property for tax years
1991-92 through 1997-98 is Eight Hundred Twenty Two
Thousand, Four Hundred Ninety Three Dollars and
Eighty Eight Cents ($822,493.88).
4.- This Stipulation may be filed by the City
immediately upon execution hereof. The parties
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1 stipulate that a judgment may be entered in this
2 action in favor of the City and against Defendant
3 for judicial foreclosure, and an Order of Sale
4 issue on the Property in the event that any payment
5 due under the Amendment is not received within
6 fifteen (15) days of its due date.
7 5. By execution of this Stipulation, Defendant
8 hereby stipulates that he and the Property
9 described in Section 2 above are within and subject
10 to this Court's jurisdiction.
11 6. Upon event of default under the Amendment and
12 failure to deliver a quitclaim deed to the City, it
13 is stipulated that the judgment will include the
14 following relief:
15 6.1 That this Court adjudge and decree liens
16 against the Property for the amount set forth in Section 3 hereof;
17 6.2 That this Court order the inunediate foreclosure
18 sale of the Property without the right of redemption;
19 6.3 That this Court order that all special tax
20 installments within CFD No. 995 becoming delinquent after the date
21 of the delinquencies referred in Section 3 hereof, but before the
22 date of judgment, be included in the amount of the judgment, along
23 with all interest, penalties, costs, and other fees and charges
24 pertaining thereto;
25 6.4 That this Court order that the Property shall
26 continue to be subject to the lien of special taxes within CFD
27 No. 995 for the payment of all special taxes levied securing the
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1 bonds issued by the City, including interest, penalties, costs and
2 other fees and charges pertaining thereto, remaining to be levied
3 or paid subsequent to the entry of judgment;
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If Defendant fails to pay any payment due
under the Amendment within 15 days of its due date,
City shall thereafter be entitled to immediately
apply to this Court ex oarte, without notice of any
kind to Defendant or to his counsel, and to enter
judgment herein against Defendant in the total
delinquent amount, less any credit for payments
received, and pursue its legal remedies as are more
particularly set forth in Section 6 of this
Stipulation.
Upon full satisfaction and receipt by the City
of the total amounts due under the Amendment, and
upon occurrence of the terms and conditions set
forth in the Amendment, the City shall cause to be
entered a Request For Dismissal of the action
without prejudice to be filed with the above-
entitled court.
Defendant shall bear his own attorney's fees
and costs incurred in the defense of this action,
if any.
Each of the parties have been represented, or
had the opportunity to consult with counsel of
their own choosing, prior to executing this
Stipulation.
Each of the parties affirms to the
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other that it has consulted and discussed the
provisions of this Stipulation with its counsel, or
freely waived its right to do so, and fully
understands the legal effect of each such
provision.
11. This Stipulation shall be binding upon and
inure to the benefit of the parties hereto and
their respective successors, legal representatives
and assigns.
12. This Stipulation is entered into by each of
the parties without reliance upon any statement,
representation, agreement, arrangement or
understanding, oral or written, between and among
the parties hereto, relating to the subject matter
contained in this Stipulation, which are not fully
expressed herein or the Exhibits attached thereto.
This Stipulation and the Exhibits attached thereto,
constitute the entire agreement between the parties
hereto and supersedes any prior written or oral
agreement between said parties concerning the
settlement of all claims between the Parties.
13. This Stipulation shall not be amended or
modified except in writing signed by each of the
Parties affected by such amendment or modification.
14. The parties agree to execute any and all
addi tional documents reasonably necessary to
complete and document this transaction.
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The
drafting
this
and
negotiation
of
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Stipulation has been shared by the parties.
For
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all purposes, this Stipulation shall be deemed to
have been drafted jointly by each of the parties.
The signature pages of this Stipulation may be
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16.
executed in counterparts, each of which shall be
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deemed to be an original, but such counterparts,
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when taken together, shall constitute but one
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Stipulation.
IT IS SO STIPULATED.
11 Dated: October 21, 1997
CITY OF SAN BERNARDINO,
a California municipal
~(
y: f?t~
Tom Minor,
Mayor
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15 SABO & GREEN
A Professional Corporation
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17 By:
A xis G.
18 Attorneys Plaintiff
CITY OF SAN BERNARDINO,
19 a California municipal corporation
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21 Dated: October 21, 1997
~Vj.'~~
23 SINGER & SILVERGLEID
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25 By:
Naomi Silvergle'S,
26 Attorneys for
27 SBEO/0121/DOC/261-1
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