HomeMy WebLinkAbout40- City Administrator -CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: City Administrator Subject Second Amendment to Mutual
Release and Settlement
Dept O RIGINAL Agreement [Feldkamp]
Date: October 5, 1998
Synopsis of Previous Council Action:
Recommended Motion
That said resolution be adopted.
Signature
Contact person: Gale Schlesinger Phone 383-9373
Supporting data attached: Yes Ward:
FUNDING REQ S: Amount:
Source:(Acct. No.)
(Acct. Description)
Finance:
Council Notes:
Agenda Item No. LID
CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
TO: Mayor and Common Council
FROM: Timothy Sabo
DATE : September 28 , 1998
RE : Second Amendment to Mutual Release and Settlement
Agreement [Feldkamp]
BACKGROUND
On June 18, 1990, the City created Community Facilities District
No . 995 pursuant to the Mello-Roos Community Facilities Act (the
"District") . In December, 1990, the City issued the $7 , 325, 000
Special Tax Limited Obligation Bonds ("Bonds") . The Bonds wfr:
refunded with the $3, 315, 000 Community Facilities District No. 995
of the City (Verdemont Area) Special Tax Refunding Bonds (the
"Refunding Bonds") .
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, including Irving M. Feldkamp (the
"Developer") who, at the time, owned thirty-four (34 ) lots within
the District ("Parcel 1") . In an effort to resolve their
differences and avoid the expense 'and inconvenience of future
litigation, the City and the Developer entered into that certain
Mutual Release and Settlement Agreement dated as of August 29, 1994
(the "Original Settlement Agreement") . Pursuant to the Original
Settlement Agreement, the Developer agreed to make payments to the
City for delinquent special taxes and school fees, interest,
penalties and costs thereon as provided in the Original Settlement
Agreement .
On October 6, 1997, the Mayor and Common Council approved that
certain First Amendment to Mutual Release and Settlement AgreemF._^;_
dated October 21, 1997, by and between the City and the Developer
(the "First Amendment") The First Amendment modified the terms of
payment and amounts due to the City under the Original Settlement
Agreement . Additionally, the First Amendment provided for the
concurrent execution of a Purchase and Sale Agreement which allowed
the Developer to purchase forty-two (42) lots within the District
SBEO/0121/DOC/275.1
9/28/98 gis 1
from the City ("Parcel 2") . Parcel 1 and Parcel 2 are collectively
referred to as the "Property. "
Due to the change in the real estate market and other factors, the
Developer has been unable to develop the Property as originally
planned. The Developer has proposed the revisions included in the
Second Amendment to Mutual Release and Settlement Agreement (the
"Second Amendment") to extend the dates for performance of the
construction obligations of the Developer in order to avoid a
default of the Original Settlement Agreement, as amended.
SECOND AMENDMENT
The following revisions to the sections of the First Amendment as
enumerated below are proposed to allow an extension of time for
development of the Property and clarify certain other terms :
1 . Section 2 . 2 . As revised, this Section allows the Developer to
enter into a sales contract with a developer for sale of the
Property. Additionally, the final date when a developer or
contractor' s qualifying experience for the purchase or construction
of the Property may be considered is extended from September 1997
to June 30, 1998 .
2 . Section 3 . 1 . The following are added as defaults of the
Agreement by the Developer: (a) failure to apply for a grading
permit for Phase I by January 1, 1999 (Section 3 . 1 (iii) ) and (b)
failure to commence construction of on-site building lots for Phase
I by the initiation of on-site grading activities and installation
of other lot improvements on or before February 31, 1999 (Section
3 . 1 (v) ) . The date for filing the Final Map for Tract No. 14193 is
extended from October 9, 1997 to October 9, 1998, to reflect prior
Council action extending such date (Section 3 . 1 (iv) ) . The final
date for the commencement of construction of housing units for
Phase I is also extended from February 1, 1998 to June 30, 1999
(Section 3 . 1 (vi) ) .
3 . Section 4 . 1 . The number of lots comprising Parcel 2 is
corrected to accurately state 42, rather than 76 .
RECOMMENDATION
Adopt the attached Resolution of the Mayor and Common Council
approving and authorizing the execution of the Second Amendment .
SBEO/0121/DOC/275.1
9/28/98 gis 2
1 RESOLUTION NO.
2
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF
3 THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING AND AUTHORIZING THE EXECUTION OF A
4 CERTAIN SECOND AMENDMENT TO MUTUAL RELEASE AND
SETTLEMENT AGREEMENT [FELDKAMP]
5
6 WHEREAS, the City of San Bernardino is a municipal
7 corporation and charter city duly organized and existing pursuant
8 to the laws of the State of California, (the "City") ; and
9
10 WHEREAS, on June 18, 1990, the City created Community
11 Facilities District No . 995 ("District") and in December, 1990, the
12 City issued the $7 , 440, 000 Special Tax Bonds ( "Bonds" ) ; and
13
14 WHEREAS, the City refunded the Bonds in 1994 , with the
15 issuance of the $3, 315, 000 Community Facilities District No . 995 0`
10" the City of San Bernardino (Verdemont Area) Special Tax Refund--g �
17 Bonds ("Refunding Bonds") ; and
is
19 WHEREAS, Irving M. Feldkamp III (the "Developer") owns
20 certain unimproved property within the District (the "?roperty";
21 and
22
23 WHEREAS, on or about January 14, 1994, the City commenced
24 an action for judicial foreclosure of special tax lies in _he
25 Superior Court of the State of California for the County of San
26 Bernardino, against certain named defendants therein, includ`
27 Developer, bearing Case No . SCV09593 (`� "Action") ; n
�..e a_.0 �
28
1
1 WHEREAS, in an effort to resolve their differences and to
2 avoid the expense and inconvenience of any future litigation,
3 including without limitation, litigation of the Action, the City
4 and Developer entered into that certain Mutual Release and
5 Settlement Agreement dated as of August 29, 1994 (the "Original
6 Settlement Agreement") ; and
7
8 WHEREAS, pursuant to the Original Settlement Agreement,
9 the Developer agrees to make payments to the City for delinquent
10 special taxes, school fees, interest, penalties and costs thereon
11 as provided in said Original Settlement Agreement; and
12
13 WHEREAS, the Original Settlement Agreement was amended by
14 that certain First Amendment to Mutual Release and Settlement
15 Agreement dated October 21, 1997 (the "First Amendment") ; and
16
17 WHEREAS, the First Amendment modified the terms of
18 payment and amounts due to the City under the Original Settlement
19 Agreement and provided for the concurren- execution of a ?UrChaSe
20 and Sale Agreement under which the Developer purchased certain real
21 property from the City as legally described therein; and
22
23 WHEREAS, the City and Developer desire to furt-er amend
I
24 the Original Settlement Agreement to revise certain terms
25 concerning the performance obligations of the Developer as set
26 forth in the Second Amendment to Mutual Release and Settlement
27 Agreement attached hereto as Exhibit "A" (the "Second Amendment") ;
29 and
2
1 WHEREAS, the City desires, at this time, to approve and
2 authorize the execution of the Second Amendment .
3
4 NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE CITY
5 OF SAN BERNARDINO DO HEREBY RESOLVE, DETERMINE AND ORDER AS
6 FOLLOWS :
7
8 Section 1 . The Recitals hereinabove are true and
I
9 correct and are incorporated herein by this reference .
10
11 Section 2 . The Mayor and Common Council of the City
12 hereby approves the Second Amendment in the form attached hereto as
13 Exhibit "A" together with such changes as the Mayor and City
14 Attorney deem necessary and desirable and further authorizes and
15 directs the Mayor or such other authorized officer of the City to
16 execute the Second Amendment .
17
18 Section 3 . The Mayor, the City Clerk, and City
19 Administrator and any and all other officers or agents of the City
20 are hereby authorized and directed, for and in the name and on
21 behalf of the City, to do any and all things and take any and all
22 actions, including execution and delivery of any and all
23 assignments, agreements, notices, consents, instruments of
24 conveyance, warrants and other documents, which they, or any of
25 them may deem necessary or advisable to complete the transaction
26 contemplated herebv.
27
28
3
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO, CALIFORNIA, APPROVING AND AUTHORIZING THE EXECUTION OF A
CERTAIN SECOND AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT
AGREEMENT [FELDKAMP]
I SECTION 4. The authorization granted hereunder shall expire and be void and of no
2 further effect if the second amendment to release and settlement agreement is not executed by both
3 parties and returned to the Office of the City Clerk within sixty (60) days following the effective
4 date of the resolution.
5 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and
6 Common Council of the City of San Bernardino at a meetin
7 thereof, held on the day of , 1998, by the following vote, to wit
8 COUNCIL MEMBERS: AYES NAYS ABSTAIN ABSENT
9 ESTRADA
10 LIEN
11 ARIAS
12 SCHNETZ
I3 DEVLIN
14 ANDERSON
15 MILLER
16
17 CITY CLERK
18
The foregoing Resolution is hereby approved this day of 1998.
19
20
JUDITH VALLES, Mayor
21 City of San Bernardino
22 Approved as to form and
23 legal content:
24 JAMES F. PENMAN,
City Attorney
25
26
By: -
27
28
4
t
5
C I T Y O F
A an bernardino
R A C H E L C L A R K
C I T Y C L E R K
October 8, 1998
Dr. I. M. Feldkamp
P. O. Box 6950
San Bernardino, CA 92412
Dear Dr. Feldkamp:
At the Mayor and Common Council meeting of October 5, 1998, the City of San
Bernardino adopted Resolution 98-292 authorizing a 2nd amendment to mutual release
and settlement agreement.
Enclosed are two (2) original agreements. Please sign in the appropriate locations and
return one (1) original agreement to the City Clerk's Office, ATTN: Melanie Miller, P.O.
Box 1318, San Bernardino, CA, 92418 as soon as possible.
You may retain one (1) duplicate originals for your records.
Please be advised that said resolution will be null and void if it is not executed within
sixty (60) days— December 4, 1998.
If you have any questions, please do not hesitate to contact me at (909) 384-5002.
Sincerely, f
I •�
Rachel Clark
City Clerk Received by
r
RC:mam Date:
Enclosures
P . O . B O X 1 3 1 8 S A N 8 E R N A R D I N O C A 9 2 4 0 2
3 0 0 N O R T H D S T R E E T S A N 8 E R N A R D I N O
C A L I F O R N I A 9 2 4 1 8 - 0 0 0 1 ( 9 0 9) 3 8 4 - S 0 0 2
( 9 0 9 ) 3 8 4 - 5 1 0 2 F A X - ( 9 0 9 ) 3 8 4 -S 1 5 8
T D D / T T Y - ( 9 0 9 ) 3 8 4 - 5 5 4 0
a NAR���p
C I T Y O F
Ak
an bernardino
R A C H E L C L A R K
C I T Y C L E R K
October 12, 1998
Errol Mackzum
San Bernardino County Recorder
222 West Hospitality Lane
San Bernardino, CA 92415
Dear Mr- Mackzum.
Enclosed is Resolution 98-292 adopted at the October 5, 1998 Mayor and Common
Council meeting.
Please record and return Resolution 98-292 to me as soon as possible.
Sincerely,
Rachel Clark
City Clerk
By- Melanie Miller, Senior Secretary
mam
Enclosure
j cc'I"ard\C o D velonne
P . O . B O X 1 3 1 8 , S A N 8 E R N A R D I N 0 C A 9 2 4 0 2
3 0 0 N O R T H D S T R E E T S A N 8 E R N A R D I N O ,
C A L I F O R N I A 9 2 4 1 8 . 0 0 0 1 ( 9 0 9 ) 3 8 4 - S 0 0 2
( 9 0 9 ) 3 8 4 - 5 1 0 2 F A X - ( 9 0 9 ) 3 9 4 -S 1 5 8
T D D ! T T Y - ( 9 0 9 ) 3 8 4 - 5 5 4 0
PLEASE COMPLETE irm wamaxmw
mp f"(1 1[mm RjacAlEalrm Iff.
CITY OF SAN BEUjMWnW
CITY Cl-mm'S OFFICE
AND WHEN RECORDED MAIL TO:
CITY CLUXS OFFICE
P 0 BOX 1318
r— M
SAN BERRARDINO CA 92402 PS z 4 7 I FU AFF SMIS PR CFY CRT C" AN M,M FS
Attn: M. Killer
109 Sr LA M aria TRAMS TAX aA apM am
SPACE ABOVE FOR RMORDEWS USE ONLY
Resolution No. 98-292
T'fft Of Dmumecrt
N.
A 11
............. . ....... .. ...........
.. . . ........
... .... ......
Q
.. .. . ....
..........
.. ... .. ....
R
M,*�z
THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($100 AdclUanid RecordkV Fee App9m)
"swamsvftmppLpd
98 292 zxA hl �- W � I
RECORDING REQUESTED BY:
CITY OF SAN BERNARDINO
WHEN RECORDED RETURN TO:
SA30 & GREEN,
A PROFESSIONAL CORPORATION
201 NORTH "E" STREET, SUITE 206
SAN BERNARDINO, CALIFORNIA 92401
Recordation Fee Not Applicable
Pursuant to Government Code Section 6103
(Space Above For Recorder's Use Only)
SECOND AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT
98=292
SECOND AMENDMENT TO MUTUAL RELEASE
AND SETTLEMENT AGREEMENT
This Second Amendment to Mutual Release and Settlement
Agreement (the "Second Amendment") is entered into this 5r-*" day of
October, 1998 , by and between the CITY OF SAN BERNARDINO, a
California municipal corporation ("City") and IRVING M. FELDKAMP
III, an individual ("Developer") .
RECITALS
On or about January 14, 1994, the City commenced an
action for judicial foreclosure of special tax liens in the
Superior Court of the State of California for the County of San
Bernardino, against certain named defendants therein, including
Developer, bearing Case No . SCV09593 (the "Action" ) .
In an effort to resolve their differences and to avoid
the expense and inconvenience of any future litigation, including
without limitation, litigation of the Action, the City and
Developer entered into that certain Mutual Release and Settlemer;
Agreement dated as of August 29, 1994 (the "Original Settlement
Agreement") . Unless otherwise defined herein, capitalized terms
shall have the meanings given in the Original Settlement Agreement .
Pursuant to the Original Settlement Agreement, the
Developer has agreed to make payments to the City for delinquent
special taxes levied on certain unimproved property located within
Community Facilities District No. 995 (the "District") in which
Developer owns, and school fees, interest, penalties and costs
thereon as provided in said Original Settlement Agreement .
The Original Settlement Agreement was amended by that
certain First Amendment to Mutual Release and Settlement Agreement
dated October 21, 1997 (the "First Amendment") . Whenever used
herein, the "Original Settlement Agreement" shall refer to the
Original Settlement Agreement as amended by the First Amendment .
The First Amendment modified the terms of payment and
amounts due to the City under the Original Settlement Agreement and
provided for the concurrent execution of the Purchase and Sale
Agreement attached thereto as Exhibit "E" for the purchase by '_r•_
Developer from the City of certain real property located within the
District described therein as Parcel 2; and
SBEO/0121/DOC/273.5
10/1/98 gis -1-
98-292
The parties hereto now mutually desire to further amend
the Original Settlement Agreement to revise certain terms
concerning the performance obligations of Developer as hereinafter
set forth.
This Second Amendment shall be recorded against all real
property contained in Exhibit "A" attached to the First Amendment
(the "Property") .
NOW, THEREFORE, in consideration of the covenants,
conditions and promises herein contained, the City and Developer
agree to amend the Original Settlement Agreement as follows :
Section 1 .
Section 2 .2, relating to Settlement Terms and Conditions,
is amended to read:
"Any construction or sales contract executed by Developer
for construction on the Property or sale of the Property shall be
entered with a licensed contractor or a developer who, between the
period of January 1994 through June 30, 1998 : (i) has constructed
or is scheduled to construct at least one hundred (100) single
family housing units, (ii) has developed at least 100 parcels of
real property or (iii) has achieved any combination of (i) and (ii)
totaling 100 . "
Section 2 .
Section 3, relating to Events of Default and Remedies;
Indemnification, is hereby amended as follows :
a . Subsection 3 . 1 (iii) is renumbered subsection
3 . 1 (iv) .
b . Subsection 3 . 1 (iv) is renumbered subsection 3 . 1 (vi) ,
C . Subsections 3 . 1 (iii) , (iv) , (v) and (vi) shall read:
" (iii) Failure to apply to the City for a grading permit
for the development of Phase I on the Property on or before January
1, 1999;
(iv) Failure to record the Final Map for Tract No. 14193
on or before December 29, 1998;
SBEO/0121/DOC/273.5
10/1/98 g1s -2-
98-292
(v) Failure to commence construction of on-site
building lots for Phase I by the initiation of on-site grading
activities and installation of other lot improvements on or before
February 28 , 1999; or
(vi) Failure to commence construction of housing units
for Phase I on or before sixty ( 60) days after the final approval
and written certification of each finished lot by the City, but it
no event later than June 30, 1999 . "
d. Amend the first sentence of Section 3 . 3, to read:
"Developer shall not be in default under subsections
(iii) , (iv) , (v) or (vi) of Section 3 . 1 in the event that such
default is the result of unlawful or unreasonable actions by the
City. "
Section 3 .
The number of lots referenced in Section 4 . 1, relating to
the purchase of Parcel 2, shall be changed from "76" to "42 . "
Section 4 .
With the exception of the foregoing revisions, each and
every term of the Original Settlement Agreement remains in full
force and effect and survives this Second Amendment . The Original
Settlement Agreement, as amended by the First Amendment, is
incorporated herein by this reference . This Second Amendment, reari
in conjunction with the Original Settlement Agreement, contains the
entire understanding of the parties with respect to the subject
matter hereof, and no modification or waiver of any of the
provisions hereof shall be valid unless in writing and executed by
the parties to be bound.
Section 5 .
This Second Amendment shall be governed in accordance
with the laws of the State of California . Any action brought to
enforce or interpret this Second Amendment or any part hereof,
shall be brought in the State of California, in the County of San
Bernardino .
SBEO/0121/DOC/273.5
10/1/98 gis -3-
98-292
Section 6 .
Each party hereto certifies that he, she or it has read
all of this Second Amendment and fully understands all of the same .
Section 7 .
This Second Amendment shall be recorded in the
appropriate real property records of San Bernardino County,
California, and shall constitute a lien on the Property described
in Exhibit "A" attached to the First Amendment for the amounts set
forth therein.
Section 8 .
The effective date of this Second Amendment shall be
deemed to be the date of recording hereof.
Section 9 .
This Second Amendment has been duly ratified, accepted
and consented to by the City through the action of its Mayor anti
Common Council . The representatives signing this Second Amendment
on behalf of the City expressly represent that he, she or they do
so with the full authority and consent of the City.
SBEO/0121/DOC/273.5
10/1/98 gis -4-
98-292
IN WITNESS WHEREOF, the City and Developer have executed
this Second Amendment as of the date first written above .
Dated: October 7h-, 1988 CITY OF SAN BERN INO,
a Califor nicipal corporation
By:
APPROVED AS TO FORM AND CONTENT:
Dated: October 1998
By:
torneys for the City
f San Bernardino
DEVELOPER
By V
Irvi g M. Feldkamp II
[PLEASE NOTE THAT SIGNATURES OF ALL PARTIES
TO THIS SECOND AMENDMENT MUST BE NOTARIZED]
SBEO/0121/DOC/273.5
10/1/98 gis —rJ-
Dated October 9, 1998
STATE OF CALFORNIA
COUNTY OF San Bernardino S.S.
On _October 9.1998 before me,
Lori Yarnell
a Notary Public in and for and County and State,personally appeared
_Irving Feldkamp,Developer
Personally know to me(or proved to me on the basis of satisfactory evidence)
to be the person(s)whose name(s)is/are subscribed to the within instrument
and acknowledge to me that be/she/they executed signatures)on the
instrument the person(s),or the entity upon behalf of which the person(s)
acted,executed the instrument.
WITNESS my hand and ciak seal
LORI YARDELL
Signature Carrrnba m*1091448
-. NotcyPublc—Caromka
RWerdde Camtlr
b My Comm.Exp res Mar 20.2000
P!EABE CGMRZM DU fEdlrAIm
tam ITT®dY:
CIZ! OF SAN BEABDIIID
c= CI.F m'S OFFICE
AND MIHO4 RECC DEED MAIL TO:
CITY CLERK'S OFFICE
P 0 BOX 1318
i a s s s s
SAN Bffi�iASDIHO CA 92 02 ro nEE An on rw c" arr c" "am po p% MM
Attn: M. Miller
S Q
M ST I a S" tf.= TRAMS TAX U cEe EUM
SPACE ABOVE FOR RECORCER'S USE ONLY
Resolution No. 98-292
(Needs to be re-recorded as the City signatures were not notarized previously. )
Title of DMUMMt
}
s Z.
mb
M
3 Kct tr-`.� - I XO '°i �t � • ,c ...c `i t3t H`:t
t
THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORYATH M
($3-00 Addtloed Repo r h Fm APPNW)
Pumm Ccm%km 11mm wa�mw Recorded in Official Records, County of
mm r,m mm p1majEffm BY. San Bernardino, Errol J. MackzL#n, Recorder
CITY OF SAN ZZIRAMINO Doc No . 19980472163
CITY amm's OFFICE 3 : 00pm 11 /03/98
AM WIM RECC)REM Jt4jL JXk
CITY CLUK'S OFFICE No Fee # 699
P 0 BOX 1318
17 2m3r--4r—' 5m $ r— 7mel-7agmarl
SAN BERNAIMINO CA 92402 m FU I AM an AM W POM
Attn: M. Killer
5
M ST LA m arts ntUF-TAX DA CM
SPACE ABOVE FOR RECORDER'S USE ONLY
Resolution No. 98-292
TWO of 0muffumt
i,4
21. . ... .
--0;o-
7
-'0
Aw 111-1-1-:1-11.
.. .. .....
..........
... .....
3
THIS COVER SHEET ADDED TO PROVIDE ADEQUATE SPACE FOR RECORDING INFORMATION
($3M Axkftonid erg Fee Appiles)
98-292 �X`/� �/I T' �• .y.!
RECORDING REQUESTED BY:
CITY OF SAN BERNARDINO
WHEN RECORDED RETURN TO:
SABO & GREEN,
A PROFESSIONAL CORPORATION
201 NORTH "E" STREET, SUITE 206
SAN BERNARDINO, CALIFORNIA 92401
Recordation Fee Not Applicable
Pursuant to Government Code Section 6103
(Space Above For Recorder's Use Only)
SECOND AMENDMENT TO MUTUAL RELEASE AND SETTLEMENT AGREEMENT
SECOND AMENDMENT TO MUTUAL RELEASE
AND SETTLEMENT AGREEMENT
This Second Amendment to Mutual Release and Settlement
Agreement (the "Second Amendment") is entered into this -5/111--day of
October, 1998 , by and between the CITY OF SAN BERNARDINO, a
California municipal corporation ("City") and IRVING M. FELDKAMP
III, an individual ("Developer") .
RECITALS
On or about January 14, 1994 , the City commenced an
action for judicial foreclosure of special tax liens in the
Superior Court of the State of California for the County of San
Bernardino, against certain named defendants therein, including
Developer, bearing Case No. SCV09593 (the "Action") .
In an effort to resolve their differences and to avoid
the expense and inconvenience of any future litigation, including
without limitation, litigation of the Action, the City and
Developer entered into that certain Mutual Release and Settlemer1-
Agreement dated as of August 29, 1994 (the "Original Settlement
Agreement") . Unless otherwise defined herein, capitalized terms
shall have the meanings given in the Original Settlement Agreement .
Pursuant to the Original Settlement Agreement, the
Developer has agreed to make payments to the City for delinquent
special taxes levied on certain unimproved property located within
Community Facilities District No. 995 (the "District") in which
Developer owns, and school fees, interest, penalties and costs
thereon as provided in said Original Settlement Agreement .
The Original Settlement Agreement was amended by that
certain First Amendment to Mutual Release and Settlement Agreement
dated October 21, 1997 (the "First Amendment") . Whenever used
herein, the "Original Settlement Agreement" shall refer to the
Original Settlement Agreement as amended by the First Amendment .
The First Amendment modified the terms of payment and
amounts due to the City under the Original Settlement Agreement and
provided for the concurrent execution of the Purchase and Sale
Agreement attached thereto as Exhibit "E" for the purchase by th,_
Developer from the City of certain real property located within the
District described therein as Parcel 2; and
SBEO/0121/DOC/273.5
10/1/98 gis -1-
98-292
The parties hereto now mutually desire to further amend
the Original Settlement Agreement to revise certain terms
concerning the performance obligations of Developer as hereinafter
set forth.
This Second Amendment shall be recorded against all real
property contained in Exhibit "A" attached to the First Amendment
(the "Property") .
NOW, THEREFORE, in consideration of the covenants,
conditions and promises herein contained, the City and Developer
agree to amend the Original Settlement Agreement as follows :
Section 1 .
Section 2 .2, relating to Settlement Terms and Conditions,
is amended to read:
"Any construction or sales contract executed by Developer
for construction on the Property or sale of the Property shall be
entered with a licensed contractor or a developer who, between the
period of January 1994 through June 30, 1998 : (i) has constructed
or is scheduled to construct at least one hundred (100) single
family housing units, (ii) has developed at least 100 parcels of
real property or (iii) has achieved any combination of (i) and (ii)
totaling 100 . "
Section 2 .
Section 3, relating to Events of Default and Remedies;
Indemnification, is hereby amended as follows :
a . Subsection 3 . 1 (iii) is renumbered subsection
3 . 1 (iv) .
b . Subsection 3 . 1 (iv) is renumbered subsection 3 . 1 (vi) .
C. Subsections 3 . 1 (iii) , (iv) , (v) and (vi) shall read:
" (iii) Failure to apply to the City for a grading permit
for the development of Phase I on the Property on or before January
1, 1999;
(iv) Failure to record the Final Map for Tract No. 14193
on or before December 29, 1998;
SBEO/0121/DOC/273.5
10/1/98 qis —2—
98-292
(v) Failure to commence construction of on-site
building lots for Phase I by the initiation of on-site grading
activities and installation of other lot improvements on or before
February 28, 1999; or
(vi) Failure to commence construction of housing units
for Phase I on or before sixty (60) days after the final approval
and written certification of each finished lot by the City, but it
no event later than June 30, 1999 . "
d. Amend the first sentence of Section 3 . 3, to read:
"Developer shall not be in default under subsections
(iii) , (iv) , (v) or (vi) of Section 3 . 1 in the event that such
default is the result of unlawful or unreasonable actions by the
City. "
Section 3 .
The number of lots referenced in Section 4 . 1, relating to
the purchase of Parcel 2, shall be changed from "76" to "42 . " .
Section 4 .
With the exception of the foregoing revisions, each and
every term of the Original Settlement Agreement remains in full
force and effect and survives this Second Amendment. The Original
Settlement Agreement, as amended by the First Amendment, is
incorporated herein by this reference . This Second Amendment, read
in conjunction with the Original Settlement Agreement, contains the
entire understanding of the parties with respect to the subject
matter hereof, and no modification or waiver of any of the
provisions hereof shall be valid unless in writing and executed by
the parties to be bound.
Section 5 .
This Second Amendment shall be governed in accordance
with the laws of the State of California . Any action brought to
enforce or interpret this Second Amendment or any part hereof,
shall be brought in the State of California, in the County of San
Bernardino.
SBEO/0121/DOC/273.5
10/1/98 gis -3-
98-292
Section 6.
Each party hereto certifies that he, she or it has read
all of this Second Amendment and fully understands all of the same .
Section 7 .
This Second Amendment shall be recorded in the
appropriate real property records of San Bernardino County,
California, and shall constitute a lien on the Property described
in Exhibit "A" attached to the First Amendment for the amounts set
forth therein.
Section 8 .
The effective date of this Second Amendment shall be
deemed to be the date of recording hereof.
Section 9 .
This Second Amendment has been duly ratified, accepted
and consented to by the City through the action of its Mayor anti
Common Council . The representatives signing this Second Amendment
on behalf of the City expressly represent that he, she or they do
so with the full authority and consent of the City.
SBEO/0121/DOC/273.5
10/1/98 gis —4—
98-292
IN WITNESS WHEREOF, the City and Developer have executed
this Second Amendment as of the date first written above .
Dated: October 717", 1988 CITY OF SAN BERN IN01,
a Califor nicipal corporation
By:
APPROVED AS TO FORM AND CONTENT :
Dated: October 1998
By: 0"' -�-' d
torneys for the City
f San Bernardino
DEVELOPER
By: U
Irvi g M. Feldkamp II
[PLEASE NOTE THAT SIGNATURES OF ALL PARTIES
TO THIS SECOND AMENDMENT MUST BE NOTARIZED]
SBEO/0121/DOC/273.5
10/1/98 gis —5—
W FA
Aar
ti
CALIFORNIA
BALL-PURPOSE
an
ACKNOWLEDGEMENT
STATE OF CALIFORNIA
COUNTY OF
0,
On d 2 before me,
ATE NAME,TITLE OF OFFICER E.G.,"JANE DOE, VARY PUBLIC"
I b
personally appeared,
personally known to me (4 on the 4aetory evil-demee)to be the person4)
whose name; is/ subscribed to the within instrument and acknowledged to me that'Wshe/
h61_
executed the same in Ais/fier/theIr--authorized capacity(issj, and that by hrs/her/t r__
Sig nature(& on the instrument the personK,or the entity upon behalf of which the person("cted,
executed the instrument.
WITNESS my hand and official seal. U E!9en C. Gomez Z
orlr",51145063
NOTARY PUBLIC-CALIFORNIAQ
SAN BERNARDINO COUNTY
Comm.Exp.July 2.2001
(SEAL)
NOTARY PUBLIC SIGNATURE
OPTIONAL INFORMATION
..........
TITLE OR TYPE OF DOCUMENT
DATE OF DOCUMENT 1011 Ag NUMBER OF PAGES
SIGNER(S)OTHER THAN NAMED ABOVE
Dated October 9, 1998
STATE OF CALFORNIA
COUNTY OF San Bernardino S.S.
On _October 9.1998 before me,
Lori Yarnell
a Notary Public in and for and County and State,personally appeared
_Irving Feldkamp,Developer
Personally know to me(or proved to me on the basis of satisfactory evidence)
to be the person(s)whose name(s)is/are subscribed to the within instrument
and acknowledge to me that he/she/they executed 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 icial seal
\ 1� LORI YARPELL
Signature
Commis lon#1091448
Rbef*ie COUNY
My Comm.Expires Mar 20.2000
�tiTtNAl2D�N
G
C I T Y O F
An
1 �
(in 13ernardino
V
R A C H E L C L A R K
C I T Y C L E R K
December 4, 1998
Errol Mackzum
San Bernardino County Recorder
222 West Hospitality Lane
San Bernardino, CA 92415
Dear Mr. Mackzum:
Enclosed is Resolution 98-292 adopted at the October 5, 1998 Mayor and Common
Council meeting.
Please re-record Resolution 98-292 as the City signatures were not previously notarized.
Please return this document to me as soon as possible.
Sincerely,
Rachel Clark
City Clerk
By: Melanie Miller, Senior Secretary
mam
Enclosure
P . O . B O X 1 3 1 8 , S A N 8 E R N A R D I N 0 , C A 8 2 4 0 2
3 0 0 N 0 R T H D S T R E E T S A N 8 E R N A R D I N 0 .
C A L I F O R N I A 9 2 4 1 8 . 0 0 0 1 ( 9 0 9 ) 3 8 4 - 5 0 0 2
( 8 0 9 ) 3 8 4 - S 1 0 2 F A X • ( 9 0 9 ) 3 8 4 5 1 5 8
T D D / T T Y - ( 9 0 9 ) 3 8 4 . 5 S 4 0