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Home My WebLink About23-City Administrator OR' ,', ",I ~ L Ii 10."1 ~M CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION From: Fred Wilson Subject: Resolution of the Mayor and Common Council approving the Fifth Amendment to Mutual Release and Settlement Agreement between the City and Dr. Irving Feldkamp, and Resolution of the Community Development Commission approving an amendment to Letter Agreement with the City of San Bernardino regarding MAP assistance for Dr. Irving M. Feldkamp and approving amendment to agreement regarding deposit of funds. MICC Meeting Date: July 23, 2001 Dept: City Administrator Date: July 16, 2001 Synopsis of Previous Council Action: 1994 Settlement Agreement with Dr. Irving Feldkamp adopted by Mayor and Common Council 1997 First Amendment to Settlement Agreement with Dr. Feldkamp adopted. 1998 Second Amendment to Settlement Agreement with Dr. Feldkamp adopted. 1999 Third Amendment to Settlement Agreement with Dr. Feldkamp adopted. 2001 Fourth Amendment to Settlement Agreement with Dr. Feldkamp adopted. Recommended Motion: Adopt Resolutions. ~ Signature Contact person: FrAd Wil~nn Phone: 5122 Supporting data attached: Yes Ward: 5 FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Ar.d n"'l':r.riptinn) Finance: Council Notes: ,4 . /"<..M-D ..lid (XJ ( ~ .;216 e;-AMo '" C()c/<3CD/ ~c?1 NtJ. c2..3 7/J-3/lJl MAYOR AND COMMON COUNCIL ECONOMIC DEVELOPMENT AGENCY STAFF REPORT Amendment to Settlement Agreement with Dr. Irving Feldkamp and Related Agreements Background In April, 2001 the City authorized an amendment to the Settlement Agreement with Dr. Irving Feldkamp ("Feldkamp") to extend the date to complete the requirements under Final Tract Map No. 14193. The Mayor and Common Council extended the date to complete the requirements under Final Tract Map No. 14193 to August 1,2001, as well as extended other dates contained in the Settlement Agreement. At that time, Dr. Feldkamp was in escrow with Corman Leigh Communities and Covenant Development, as owner ofCimarron at Verdemont Ranch, LLC ("Cimarron"). The escrow was scheduled to close in June, 2001. However, the bank financing the purchase by the developer would not extend a loan on the property unless the City subordinated its interest to the Bank. The escrow between Cimarron and Dr. Feldkamp has remained open and the new bank financing the sale, Pomona First Federal, has indicated to Mr. Hubby and Dr. Feldkamp that it will not require a subordination of the City's interest under the Settlement Agreement. Currently, Pomona First Federal is obtaining an appraisal of the property. The escrow is scheduled to close on September 7, 2001. Within the last month, the members of the Cimarron Limited Liability Company have changed and Cimarron's sole owner is now Covenant Development, Inc. which is owned by Skip Hubby. Covenant Development meets the experience criteria set forth for a developer under the Settlement Agreement. In order to close the transaction with the new financing in place, Dr. Feldkamp and Mr. Hubby have requested that the City amend certain terms and conditions ofthe Settlement Agreement, as follows: I. Extend the date to record the Final Tract Map from August 1, 2001 to May 1,2002. 2. Extend the date to commence construction to October 1,2002. 3. Extend the period within which the Redevelopment Agency of the City of San Bernardino will extend available MAP funds to Dr. Feldkamp's home buyers to: 2002\03 - $50,000; 2003\2004 - $100,000; and 2004\05 - $50,000. 4. Extend the dates to record the CC & R's which shall restrict 22 lots ofthe Property to low and moderate income residents. SB2001 :20827.1 - 1 - Extension of the dates in the Settlement Agreement and various other documents as set forth above will allow the transaction to close and allow the new owner time to meet all ofthe deadlines imposed by the Settlement Agreement. Recommendation: Staff recommends that the Mayor and Common Council and the Community Development Commission approve the following resolutions: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE FIFTH AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DR. IRVING FELDKAMP RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AN AMENDMENT TO LETTER AGREEMENT WITH THE CITY OF SAN BERNARDINO REGARDING MAP ASSISTANCE FOR DR. IRVING M. FELDKAMP AND APPROVING AMENDMENT TO AGREEMENT RE DEPOSIT OF FUNDS SB200L20827.! -2- I- I '- 2 3 4 5 6 - 14 '-' 15 16 17 18 19 20 21 22 23 (~(Q)[?W RESOLUTION NO. RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE FIFTH AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DR. IRVING FELDKAMP WHEREAS, the City of San Bernardino (the "City") is a 7 municipal corporation and charter city organized and existing under 8 the constitution and laws of the State of California; and 9 10 WHEREAS, on or about January 14, 1994, the City commenced II an action for judicial foreclosure of special tax liens in the 12 Superior Court of the State of California for the County of San 13 Bernardino,. against certain named defendants therein, including Developer, bearing Case No. SCV09593 ("Action") for failure to pay the special taxes levied against the Property; and WHEREAS, in 1994, the City entered into a Mutual Release and Settlement Agreement ("Original Settlement Agreement") with Dr. Irving Feldkamp structuring a schedule of payments and other terms for the construction of homes on the Property; and WHEREAS, the City and Dr. Feldkamp have been in negotiations for several years regarding the development of the 24 Property, and thus said Original Settlement Agreement was amended 25 in 1997 by the Amendment to Mutual Release and Settlement Agreement 26 (the "First Amendment"), amended in 1998 by the Second Amendment to - \... 27 Mutual Release and Set tlement Agreement (the "Second Amendment") , 28 in 1999 by the Third Amendment to Mutual Release and Settlement Lfto.~ t/Z1t~ SB200 1:20826. \ - 1 - ,""- '- I Agreement (the "Third Amendment") and again in 2001 by the Fourth 2 Amendment to Mutual Release and Settlement Agreement (the "Fourth 3 Amendment and collectively with the Original Settlement Agreement, 4 the First Amendment, Second Amendment and Third Amendment, the 5 "Settlement Agreement"); and 6 7 WHEREAS, Dr. Feldkamp has entered into escrow with a 9 close on September 7, 2001; and 8 prospective purchaser of the Property which escrow is scheduled to 10 11 WHEREAS, there are certain terms and condi tions contained 12 in the Settlement Agreement which will expire prior to closing 13 escrow or will not provide the developer sufficient time to close '- _ 14 escrow and commence performance under the Settlement Agreement; and 15 16 WHEREAS, the City desires to amend the Settlement 17 Agreement to extend certain requirements under the Settlement 18 Agreement as follows: 19 1. 20 21 2. 22 3 . 23 24 25 26 - 27 '- 28 Extend the period to record the Final Tract Map. to May 1, 2002; Extend the date to commence construction to October 1, 2002; Extend the period within which the Redevelopment Agency of the City of San Bernardino will agree to extend available MAP funds to Dr. Feldkamp's home buyers to: 2002\03 - $50,000 2003\2004 - $100,000; and 2004\05 - $50,000. SB200 1;20826. 1 - 2 - c ,,-.. .,- I NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY 2 OF SAN BERNARDINO DO HEREBY RESOLVE, DETERMINE AND ORDER AS 3 FOLLOWS: 4 5 Section 1. Amendment to Feldkamp Settlement 6 Aareement. The City hereby approves the Fifth Amendment to Mutual 7 Release and Settlement Agreement ("Fifth Amendment") between the 8 City and Dr. Feldkamp. The Fifth Amendment on file with the City 9 Clerk is hereby approved and the Mayor is authorized to execute the 10 final Fifth Amendment when the same has been prepared with such II changes as shall be approved by the Mayor or City Attorney. 12 13 14 Section 2. Approval of Covenant Development as Owner of the Limited Liabilitv Which Company Shall be 15 Purchaser/Developer. The Settlement Agreement requires that the 16 City in its reasonable discretion approve the prospective 17 purchaser/developer of the Property prior to the final sale. The 18 City has reviewed the resume of Covenant Development, which shall 19 own the limited liability company which shall purchase the 20 Property. Based upon that review, the City hereby approves Covenant 21 Development and Cimarron at Verdemont Ranch, LLC pursuant to 22 Section 2.3 of the Fifth Amendment. 23 24 Section 3. Official Action. The Mayor, the Ci ty 25 Clerk, City Attorney, City Special Counsel and any and all other 26 officers or agent of the City are hereby authorized and directed, C 27 for and in the name and on behalf of the City, to do any and all 28 things and take any and all actions, including execution and SB200 I :20826.1 - 3 - ........ "__ I delivery of any and all assignments, agreements, notices, consents, - '-' - '-" 2 instruments of conveyance, warrants and other documents, which 3 they, or any of them, may deem necessary or advisable in order to 4 consummate the transactions contemplated hereby including the 5 execution of the Fifth Amendment. Whenever in this Resolution any 6 officer of the City is authorized to execute or countersign any 7 document or take any action, such execution, countersigning or 8 action may be taken on behalf of such officer by any person 9 designated by such officer to act on his or her behalf in the case 10 such officer shall be absent or unavailable. The City hereby 11 appoints the Mayor as agents of the City for purposes of executing 12 any and all documents and instruments which any officer of the City 13 is authorized to execute hereunder. 14 III 15 III 16 III 17 III 18 III 19 III 20 21 22 23 24 25 26 27 28 SB200 1020826. 1 - 4 - .- 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE FIFTH AMENDMENT TO MUTUAL RELEASE AND 2 SETTLEMENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DR. IRVING FELDKAMP '-' 3 4 Section 4. Effecti ve Date. This Resolution shall 5 take effect from and after the date of its passage and adoption. 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly 8 adopted by the Mayor and Common Council of the City of 9 San Bernardino at a meeting thereof, held on 10 the day of July, 2001, by the following vote, to wit: 11 ,'- '-' Council: 12 ESTRADA LIEN 13 MCGINNIS SCHNETZ 14 SUAREZ ANDERSON 15 MCCAMMACK AYES NAYS ABSTAIN ABSENT 16 17 City Clerk 19 20 21 22 Approved as to form and legal content: 23 By: 24 C ty Attorney 25 26 - ~ 27 28 SB200 1 :20826.\ 18 The foregoing resolution is hereby approved this day of July, 2001. Mayor of the City of San Bernardino - 5 - - "-' ,- '- ,-. "-' 1 STATE OF CALIFORNIA COUNTY OF SAN BERNARDINO 2 CITY OF SAN BERNARDINO ss 3 4 I, Ci ty Clerk of the City of San Bernardino, DO HEREBY CERTIFY that the foregoing and attached 5 copy of Mayor and Common Council of the City of San Bernardino Resolution No. is a full, true and correct copy of that 6 now on file in this office. 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 have hereunto set my hand and Mayor and Common Council of the day of , 2001. IN WITNESS WHEREOF, I affixed the official seal of the City of San Bernardino this City Clerk SB200 1:20826.1 .- RECORDING REQUESTED BY: CITY OF SAN BERNARDINO '-' WHEN RECORDED RETURN TO: ,.... \... -- '-' LEWIS D'AMATO, BRISBOIS & BISGAARD, LLP 221 No. FIGUEROA STREET SUITE 1200 LOS ANGELES, CALIFORNIA 90012 ATTN: ALEXIS G. CRUMP Recordation Fee Not Applicable Pursuant to Government Code Section 6103 (Space Above For Recorder1s Use Only) FIFTH AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT SB2001:20829.1 ~- '-' FIFTH AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT This Fifth Amendment to Mutual Release and Settlement Agreement (this "Fifth Amendment") is entered into this 23rd day of July, 2001, by and between the City of San Bernardino, a California municipal corporation ("City") and Irving M. Feldkamp III or his assignees as herein provided ("Developer"). The City and the Developer are collectively referred to as the "Parties". SECTION 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 et. sea. (the "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 (the "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") for failure to pay the special taxes levied . against the Property. 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 agreed to make payments to the City for delinquent special taxes, San Bernardino Unified School District ("School District") fees, interest, penalties and costs provided in said Original Settlement Agreement. ...-. '-' 5B2001:20829.1 1 ,- '-" r" '-" ,,-. ~. 1.4. The Original Settlement Agreement was amended by that certain First Amendment to Mutual Release and Settlement Agreement dated October 21, 1997 (the "First Amendment") which modified the terms of payment and amounts due to the City under the Original Settlement Agreement and provided for the concurrent execution of the Purchase and Sale Agreement for the purchase by the Developer from the City of certain real property located within the District which real property is included in the definition of Property contained in Section 1.2 hereof. 1.5. On or about October 7, 1998, the Original Settlement Agreement was amended by that certain Second Amendment to Mutual Release and Settlement Agreement (the "Second Amendment") which further modified certain terms and conditions of the Original Settlement Agreement. 1.6. On or about June 1, 1999, the Original Settlement Agreement was amended by that certain Third Amendment to Mutual Release and Settlement Agreement (the "Third Amendment") which further modified certain terms and conditions of the Original Settlement Agreement. 1.7. On or about April 1, 2001, the Original Settlement Agreement was amended by that certain Fourth Amendment to Mutual Release and Settlement Agreement (the "Fourth Amendment") which further modified certain terms and conditions of the Original Settlement Agreement. (Whenever used herein and unless otherwise specified, the "Original Settlement Agreement" shall refer to the Original Settlement Agreement as amended by the First Amendment, Second Amendment, Third Amendment and Fourth Amendment,) 1.8. Pursuant to the First Amendment it has been established between the parties hereto that, as of the date of the First Amendment, the total amount of delinquent special tax, interest, penalties, School District Fees and costs due to the City with respect to the Property for the period from Fiscal Year 1991- 92 to Fiscal Year 97-98 was Eight Hundred Twenty Two Thousand, Four Hundred Ninety Three Dollars and Eighty Eight Cents ($822,493.88) (the "Debt"). This amount represented $10,822.29 per lot for the 76 lots existing on the Property (the "Home Release Payment"). Of this amount Five Thousand Four Hundred Forty Six and 29/100 Dollars ($5,446.29) was attributable to special taxes, interest and penalties and the remainder to other costs of the City associated with San Bernardino Unified School District fees. SB2001:20B29.1 2 - ~ ,- ~ -- ....... 1.9. Since the date of the First Amendment, the Developer has paid Thirty Five Thousand Three Hundred Fifty Nine Dollars and Ninety Four Cents ($35,359.94) of the Debt which has been credited, as follows: DATE OF PAYMENT CFD CITY WATER DEPT TOTAL RMBRSMT RMBRSMT Oct 97 3,059.94 -0- -0- 3,059.94 June 98 16.473 11.951 3.876 32.300 19,532.94 11,951 3,876 35,359.94 1.10. As of the date of the Third Amendment the amount of the Debt equaled Seven Hundred Eighty Seven Thousand One Hundred Thirty Three and 94/100 Dollars ($787,133.94) of which Three Hundred Ninety Four Thousand Three Hundred Eighty Four and 94/10 ($394,384.94) was attributable to special taxes, interest, penalties and cOpts (the "Special Tax Debt") and the remaining balance was attributable to outstanding amounts paid to reimburse the City for amounts owed to the San Bernardino Unified School District. 1.11. In August, 1999, the Developer paid the full amount of the outstanding balance of Special Tax Debt from amounts he received from the Redevelopment Agency of the City of San Bernardino in consideration for restricting the sale of an aggregate of 22 lots of the Property for residents of low- and moderate-income. 1.12, The City applied the money it received from the Developer, along with other amounts, to pay the outstanding balance of Special Taxes, defease the District's outstanding Refunding Bonds and extinguish the District. 1.13. Currently, the amount due and owing from the Developer to the City (the "Remaining Debt") equals Five Hundred Forty Four Thousand Seven Hundred Forty Nine Dollars ($544,749). 1.14. The parties hereto now mutually desire to further amend and supercede the Original Settlement Agreement to revise 582001:20829.1 3 ,- '- - '-' - '-' certain terms concerning the performance obligations of Developer as hereinafter set forth. 1.15. In consideration of the covenants, conditions and promises herein contained, the Parties agree as, set forth. SECTION 2. SETTLEMENT TERMS AND CONDITIONS 2.1. The amount due and owing from the Developer to the City hereunder (the "Remaining Debt") equals Five Hundred Forty Four Thousand Seven Hundred Forty Nine Dollars ($544,749), and shall be paid in the following manner: Developer shall be required to pay a fee equal to $7,167.75 per home (the "Modified Home Release Price"): The Modified Home Release Price includes: (i)$3,884.75 per home as reimbursement to the City for School District fees totaling Two Hundred Ninety Five Thousand Two Hundred Forty One Dollars ($295,241) ("School District Reimbursement"); (ii) $1,283 per home as reimbursement to the City General Fund for amounts due to the City Water District totaling Ninety Seven Thousand Five Hundred Eight Dollars ($97,508) ("General Fund Water Reimbursement"); and (iii) $2,000 per home as reimbursement to the City General Fund totaling One Hundred Fifty Two Thousand Dollars ($152,000) (the "General Fund Payment") . 2.2, (a) The Modified Home Release Price shall be 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 Modified Home Release Price 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. (b) Late charges shall accrue in the event the payment required hereunder is not paid within thirty (30) days of its due SB2001:20829.1 4 - date and shall bear interest at the rate of ten percent (10%) per ~ annum until paid. (c) Except as provided in Section 2.3 hereof, Developer may not transfer title to all or any portion of the Property unless and until it has remitted the Modified Home Release price payment. Upon payment of the Modified Home Release Price, the City shall execute a notice of satisfaction of lien which shall be recorded to release the lot from this Fourth Amendment. 2.3. Notwithstanding the above, with the consent of the City, which consent shall not be unreasonably withheld, the Developer may enter into a construction or sales contract for construction on the Property or sale of the Property with a licensed contractor or a developer who, (1) between the period of January, 1997 through January, 2001: (i) has constructed or is scheduled to construct at least one hundred (100) single family housing units, (ii) has developed at least 100 parcels of real property or (iii) has achieved any combination of (i) and (ii) totaling 100 and (2) assumes all of the duties and obligations under this Fourth Amendment. .- ....... 2.4, 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 Remaining 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 amounts set forth here~n are the only School District fees applicable to the Property. 2,5, In addition to being within the District, the Property was also subject to Verdemont Infrastructure Fees ("VI Fees"). However, the Developer shall not be required to pay any VI Fees on the Property. 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 conf irms that it has entered into a letter agreement in the form attached hereto as Exhibit "B" with the Agency ( the "Letter Agreement") 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 -- '- S82001:20829.1 5 o c c for MAP assistance. Under the MAP, the buyers shall receive no more than the following amounts in the following years: 2002/2003 - $50,000; 2003/04 - $100,000; 2004/05 - $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. 2.7. The Parties hereto acknowledge that pursuant to that certain Letter Agreement between the Agency and the Developer, dated Juiy 28, 1999, as amended on April 20, 2001 and as again amended herewith ( the "Agency/Feldkamp Agreement) (attached hereto as Exhibit B), the Agency and the Developer have agreed that in consideration for the amounts paid by the Agency on behalf of the Developer to extinguish the Special Tax Debt, the Developer shall restrict the sale of an aggregate of 22 lots of the Property for residents of low- and moderate-income. SECTION 3. DEFAULT TERMS 3.1. The following shall constitute events of default by the Developer hereunder: (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 record the Final Map for Tract No, 14193 on or before May 1, 2002; (iii) Default on the part of the Developer under any provisions of its long term construction loan financing of the Property. (iv) Failure to commence construction of on-site building by October 1, 2002, and thereafter proceed with said construction with due diligence until completion, subject to Section 3.2 hereof. 582001:20829.1 6 c c c STATE OF CALIFORNIA COUNTY OF On before me, (here insert name and title of the officer), 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 he/she/they executed the same in his/her/their authorized capacity (ies) , and that by his/her/their signature(s) on the instrument the person(s). or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal, Signature (Seal) SB2001:20829.1 10 '-, '- - '- ,- '- EXHIBIT "Au [DESCRIPTION OF PROPERTY] 882001,20829.1 -. ~ - ~ - '-' EXH:IB:IT B July 23, 2001 Redevelopment Agency of the City of San Bernardino 201 North "E" Street, 3rd Floor San Bernardino, CA 92401 Re: Mortgage Assistance for Developer Properties Dear Mr, Van Osdel: 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 Fifth Amendment to Mutual Release and Settlement Agreement between the City and Irving M. Feldkamp III ("Developer") dated as of July 23, 2001, 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: 2002/2003 - $50,000; 2003/04 - $100,000; 2004/05- $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 SB2001:20829.1 . -- 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 herewith. Very truly yours, CITY OF SAN BERNARDINO By: Judith Valles Mayor AGREED AND ACCEPTED: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: .~ Gary Van Osdel Executive Director '- ,- \.,.. SB2001:20829.1 "'- I -- 2 3 4 5 6 7 c.... ", 'L ; : . j ,,-, , J .. ....1 . RESOLUTION NO. RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AN AMENDMENT TO LETTER AGREEMENT WITH THE CITY OF SAN BERNARDINO REGARDING MAP ASSISTANCE FOR DR. IRVING M FELDKAMP AND APPROVING AMENDMENT TO AGREEMENT RE DEPOSIT OF FUNDS WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is organized and existing under the 8 Community Development Law (Health and Safety Code Section 33000, et 9 sea.) and is authorized thereunder to purchase and sell property in 10 order to carry out its redevelopment purposes; and 11 12 WHEREAS, in 1994, the City of San Bernardino (the "City") ,13 entered into a. Settlement Agreement ("Original Settlement Agreement") 14 with Dr. Irving Feldkamp in connection with the property within - "'-" 15 Community Facilities District 995 ("CFD 995") owned by Dr. Feldkamp; 16 and - '- 17 18 WHEREAS, said Settlement Agreement was amended several times 19 to extend the dates of performance thereunder; and 20 21 WHEREAS, in October, 1997 the Agency executed a Letter 22 Agreement (the "Letter Agreement") with the City which was amended in 23 1999 and April, 2001 because the terms of the Settlement Agreement 24 were extended; and 25 26 WHEREAS, the Letter Agreement provides that the Agency shall 27 use its best efforts to provide mortgage assistance to all buyers of 28 the Feldkamp lots who qualify for the Agency's Mortgage Assistance SB200\ :20825.\ 1 "- '-' - I Program ("MAP") in the following years: 1999/2000 - $50,000; 2000/01 - 2 $100,000; 2001/02 - $50,000; and 3 4 WHEREAS, the City and Dr. Feldkamp desire to amend the 5 original Settlement Agreement to extend the provision of MAP 6 assistance to: 2002\03 - $50,000; 2003\2004 - $100,000; 2004\05 - 7 $50,000 and the Agency desires to amend the Letter Agreement to 8 provide for such changes. 9 10 WHEREAS, in connection with the Settlement Agreement the 11 Agency and Dr. Feldkamp entered into the Agreement Re Deposit of Funds 12 (the "Low and Moderate Income Restriction Deposit Agreement") which 13 provided for the restriction of 22 lots of the Feldkamp Property to 14 low and moderate income in consideration for the Agency providing ~ 15 certain funds to Dr. Feldkamp in connection with CFD 995; and 16 17 WHEREAS, the Low and Moderate Income Restriction Deposit 18 Agreement was amended in April, 2~01 and the parties desire to again 19 amend said agreement to extend the period within which to record low 20 and moderate income covenants, conditions and restrictions "in order to 21 allow the new owner of the Property the opportunity to designate which 22 lots shall be restricted by said convenants, 23 24 NOW, THEREFORE, THE COMMUNITY DEVELOPMENT COMMISSION, ACTING 25 ON BEHALF OF THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, 26 DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: 27 _ 28 '- SB200I020825.! 2 ,- 1 Section 1. Execution of Amended Letter Aqreement and '-' 2 Amendment to Low and Moderate Income Restriction DeDosit Aqreement. 3 The Agency hereby approves the form of Letter Agreement attached 4 hereto as Exhibit A and the form of Low and Moderate Income 5 Restriction Deposit Agreement attached hereto as Exhibit B with such 6 changes as shall be approved by the Executive Director upon 7 recommendation of counsel. 8 9 Section 2. Official Action. The Chairman, Executive 10 Director, Secretary, counsel and any and all other officers of the 11 Agency are hereby authorized and directed, for and in the name and on 12 behalf of the Agency, to do any and all things and take any and all 13 actions, including execution and delivery of any and all assignments, 14 certificates, requisitions, agreements, notices, consents, instruments .- '-' 15 of conveyance, warrants and other documents, which they, or any of 16 them, may deem necessary or advisable in order to consummate the 17 transactions contemplated herein. Whenever in this Resolution any 18 officer of the Agency is authorized to execute or countersign any 19 document or take any action, such execution, countersigning or action 20 may be taken on behalf of such officer by any person designated by 21 such officer to act on his or her behalf in the case such officer 22 shall be absent or unavailable. The Agency hereby appoints its 23 Chairperson and Executive Director as agents of the Agency for 24 purposes of executing any and all documents and instruments which any of the Agency is authorized to execute hereunder. 25 officer 26 III 27 III - 28 III ......... SB200 1:20825.\ 3 11 Commission AYES NAYS ABSTAIN ABSENT ESTRADA 12 LIEN McGINNIS 13 SCHNETZ SUAREZ 14 ANDERSON - McCAMMACK '-' 15 16 - '-' 1 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AN AMENDMENT TO LETTER AGREEMENT WITH THE CITY OF SAN BERNARDINO 2 REGARDING MAP ASSISTANCE FOR DR. IRVING M FELDKAMP AND APPROVING AMENDMENT TO AGREEMENT RE DEPOSIT OF FUNDS 3 4 Section 3. This Resolution shall take effect upon the 5 date of its adoption. 6 7 I HEREBY CERTIFY that the foregoing Resolution was duly 8 adopted by the Community Development Commission of the City of 9 San Bernardino at an adjourned regular meeting thereof, held on the 10 day of July, 2001, by the following vote, to wit: 17 Secretary The foregoing resolution is hereby approved this day 18 of July, 2001- 19 20 21 Judith Valles, Chairperson Communi ty Devel.opment Commission of the City of San Bernardino -- 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 - 28 - '- '- 1 STATE OF CALIFORNIA ) COUNTY OF SAN BERNARDINO )ss 2 CITY OF SAN BERNARDINO ) 3 I, Secretary of the Community Development Commission of the City of San Bernardino, DO HEREBY 4 CERTIFY that the foregoing and attached copy of Community Development Commission of the City of San Bernardino Resolution No. is 5 a full, true and correct copy of that now on file in this office. 6 IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the Community Development Commission of the City 7 of San Bernardino this day of , 2001. Secretary of the Community Development Commission of the City of San Bernardino SB200 I :20825. I - "-' - """" "-" '- I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 EXHIBIT A July 2001 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. Van Osdel: 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 Fifth Amendment to Mutual Release and Settlement Agreement between the City and Irving M. Feldkamp III ("Developer") dated as of July 23, 2001, 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: 2002/2003 - $50,000; 2003/04 - $100,000; 2004/05- $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 herewith. Very truly yours, CITY OF SAN BERNARDINO By: Judith Valles Mayor 24 AGREED AND ACCEPTED: 25 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO 26 27 28 By: Gary Van Osdel Executive Director SB2001 :20825.\ - '-' - """'" ~-'" \..... I 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Exhibit B SECOND AMENDMENT TO AGREEMENT RE DEPOSIT OF FUNDS This Second Amendment to Agreement Re Deposit of Funds (this "Amendment") is entered into this 23rd day of July, 2001, by and between the Redevelopment Agency of the City of San Bernardino, a public body ("Agency") and Irving M. Feldkamp III or his assignees as herein provided ("Developer") and hereby amends that certain Agreement Re Deposit of Funds dated July 28, 1999, as amended by that certain Amendment to Agreement Re Deposit of Funds dated April 1, 2001, as follows: The last paragraph thereof shall be deleted and the following paragraph shall be added: "The parties hereto agree to execute Conditions, Covenants and Restrictions ("CC & R's") and within a reasonable period following execution hereof which period shall not exceed nine months) said CC & R's shall be recorded in the County Recorder's Office of the County of San Bernardino against 22 lots of the Property." DEVELOPER THE REDEVELOPMENT AGENCY CITY OF SAN BERNARDINO OF By: By: Irving M. Feldkamp III Gary Van Osdel Executive Director 28 SB200l:20825.1 - CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION '- From: Fred Wilson Subject: Resolution of the Mayor and Common Council approving the Fifth Amendment to Mutual Release and Settlement Agreement between the City and Dr. Irving Feldkamp, and Resolution of the Community Development Commission approving an amendment to Letter Agreement with the City of San Bernardino regarding MAP assistance for Dr. Irving M. Feldkamp and approving amendment to agreement regarding deposit of funds. MICC Meeting Date: July 23, 2001 Dept: City Administrator Date: July 16, 2001 Synopsis of Previous Council Action: ;- '- 1994 Settlement Agreement with Dr. Irving Feldkamp adopted by Mayor and Common Council 1997 First Amendment to Settlement Agreement with Dr. Feldkamp adopted. 1998 Second Amendment to Settlement Agreement with Dr. Feldkamp adopted. 1999 Third Amendment to Settlement Agreement with Dr. Feldkamp adopted. 2001 Fourth Amendment to Settlement Agreement with Dr. Feldkamp adopted. Recommended Motion: Adopt Resolutions. .l;~ ,;#,11<.;("1..; (! , . Signature Contact person: FrAd Wil~nn Phone: 5122 Supporting data attached: Yes Ward: 5 FUNDING REQUIREMENTS: Amount: Source: (Acct. No.) (Ar.d n"'l':r.riptinn) Finance: Council Notes: ........ - MAYOR AND COMMON COUNCIL ECONOMIC DEVELOPMENT AGENCY ---- STAFF REPORT Amendment to Settlement Agreement with Dr. Irving Feldkamp and Related Agreements . Background In April, 2001 the City authorized an amendment to the Settlement Agreement with Dr. Irving Feldkamp ("Feldkamp") to extend the date to complete the requirements under Final Tract Map No. 14193. The Mayor and Common Council extended the date to complete the requirements under Final Tract Map No. 14193 to August 1, 200 I, as well as extended other dates contained in the Settlement Agreement. At that time, Dr. Feldkamp was in escrow with Corman Leigh Communities and Covenant Development, as owner ofCimarron at Verdemont Ranch, LLC ("Cimarron"). The escrow was scheduled to close ip June, 2001. However, the bank financing the purchase by the developer would not extend a loan on the property unless the City subordinated its interest to the Bank. The escrow between Cimarron and Dr. Feldkamp has remained open and the new bank financing the sale, Pomona First Federal, has indicated to Mr. Hubby and Dr. Feldkamp that it will not require a subordination of the City's interest under the Settlement Agreement. Currently, Pomona First ~ Federal is obtaining an apprai'sal of the property. The escrow is scheduled to close on September 7, ~ 2001. Within the last month, the members of the Cimarron Limited Liability Company have changed and Cimarron's sole owner is now Covenant Development, Inc. which is owned by Skip Hubby. Covenant Development meets the experience criteria set forth for a developer under the Settlement Agreement. In order to close the transaction with the new financing in place, Dr. Feldkamp and Mr. Hubby have requested that the City amend certain terms and conditions ofthe Settlement Agreement, as follows: I. Extend the date to record the Final Tract Map from August 1, 2001 to May 1,2002. 2. Extend the date to commence construction to October 1,2002. 3. Extend the period within which the Redevelopment Agency of the City of San Bernardino will extend available MAP funds to Dr. Feldkamp's home buyers to: 2002\03 - $50,000; 2003\2004 - $100,000; and 2004\05 - $50,000. 4. Extend the dates to record the CC & R's which shall restrict 22 lots of the Property to low and moderate income residents. SB200 I :20827.1 - I - .- ..~ -- ~ Extension of the dates in the Settlement Agreement and various other documents as set forth above will allow the transaction to close and allow the new owner time to meet all of the deadlines imposed by the Settlement Agreement. Recommendation: Staff recommends that the Mayor and Common Council and the Community Development Commission approve the following resolutions: RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE FIFTH AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND DR. IRVING FELDKAMP RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION APPROVING AN AMENDMENT TO LETTER AGREEMENT WITH THE CITY OF SAN BERNARDINO REGARDING MAP ASSISTANCE FOR DR. IRVING M. FELDKAMP AND APPROVING AMENDMENT TO AGREEMENT RE DEPOSIT OF FUNDS SB200 I :20827.1 -2- . ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): 'I - Z :3 -0 \ Vote: Ayes '2..-'\ Nays Change to motion to amend original documents: '2.3A Item # -e7 Abstain Reso. # On Attachments: ~ Contract term: Note on Resolution of Attachment stored separately: ~ Direct City Clerk to (circle I): PUBLISH, POST, RECORD W/COUNTY r)-.QS-() \ IJ-;:l "'-OJ '1-;;>6-0\ Date Sent to Mayor: Date of Mayor's Signature: Date of ClerklCDC Signature: Date MemolLetter Sent for Signature: R,-! (?l) f"< 60 Day Reminder Letter Sent on 30th day: 90 Day Reminder Letter Sent on 45th day: See Attached: See Attached: See Attached: Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234, 655, 92-389): Copies Distributed to: City Attorney ,/ Parks & Rec. Code Compliance Dev. Services Police Public Services Water Notes: Resolution # 2CXJ \ - "2 <\ Q .e- Absent 1 &E c..rx..-!ZOO(-d'1 I NulVVoid After: By: ~ Reso. Log Updated: v" Seal Impressed: /' Date Returned: Yes /' No By Yes No V' By Yes No ./ By Yes No / By Yes No / By EDA v" Finance MIS CtOm In/~RL Others: BEFORE FILING. REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term. etc.) Ready to File: _ Date: Revised 01/12/01 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): 1]- Z3-C) \ Vote: Ayes 2-'\ Nays Change to motion to amend original documents: Item# 2313 -€r Abstain Reso. # On Attachments: ,/ Contract term: - Note on Resolution of Attachment stored separately: -=.. Direct City Clerk to (circle I): PUBLISH, POST, RECORD WICOUNTY Date Sent to Mayor: 'l.-;;J 5 -0 \ Date of Mayor's Signature: 't- -:JCc,-ci Date of ClerklCOC Signature: '1-;) Cc,- 0 \ Date MemolLetter Sent for Signature: Py,1 <'.il PI 60 Day Reminder Letter Sent on 30th day: 90 Day Reminder Letter Sent on 45th day: See Attached: See Attached: See Attached: Request for Council Action & Staff Report Attached: Updated Prior Resolutions (Other Than Below): Updated CITY Personnel Folders (6413, 6429, 6433, 10584, 10585, 12634): Updated CDC Personnel Folders (5557): Updated Traffic Folders (3985, 8234,655,92-389): Copies Distributed to: City Attorney ,/ Parks & Rec. Code Compliance Oev. Services Police Public Services Water Notes: Resolution # CCCI2C:C)\-Zr') I Absent \ 'ZQ)1~Z<\O NulVVoid After: - By: - Reso. Log Updated: Seal Impressed: ,/ ,/ Date Returned: Yes / No By Yes No ./ By - Yes No ..L By Yes No ,/ By Yes No 7 By EDA /' Finance MIS ADm I n I. \ii2, A-\(j R' Others: BEFORE FILING, REVIEW FORM TO ENSURE ANY NOTATIONS MADE HERE ARE TRANSFERRED TO THE YEARLY RESOLUTION CHRONOLOGICAL LOG FOR FUTURE REFERENCE (Contract Term, etc.) Ready to File: _ Date: Revised 0111210 I