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HomeMy WebLinkAbout22-City Attorney ATTORNEY AT LAW /;j( 1/ lh GARY W. SMITH SUITE 408 FIRST AMERICAN BUILDING 323 WEST COURT STREET TELEPHONE 714-889-9829 SAN BERNARDINO. CALIFORNIA 92401 September 23, 1985 Mr. Ralph H. Prince City Attorney for the City of San Bernardino 300 North "D" Street San Bernardino, CA 92401 RE: Sunpointe Village (LandTech, Inc.) Dear Mr. Prince: I have recently been retained by LandTech, Inc., who is the developer of Sunpointe Village which received the Planning Department's Development Review Committee approval on June 20, 1985, as is evidenced by the July 10, 1985 correspondence of Mr. Edward L. Gundy, Senior Planner. In response to said approval, my client has submitted plans to the Building and Safety Department, and I have been in contact with Mr. Rosebraugh, Superintendent of Building and Safety, who acknowledges receipt thereof within a time sufficient to except my clients from certain Administrative Code amendments regarding handicapped persons. In addition, however, my clients sought to comply with requirements of the City which, if met, would exempt them from making a deposit of approximately $1,350.00 per unit into a s c h 0 0 1 b u i 1 din g fun d, w h i chi s b e i n g est a b 1 ish e d f'o r the construction of new schools to meet the growth in the community. The primary concern of the City in exempting any developer (my clients included) from the requirement of deposits on a per unit basis into the new school fund was that the developer provide the City with a lender's commitment letter on or before September 16, 1985. However, pursuant to telephone conversations with Mr. John Wilson, a Deputy City Attorney in your office, my clients were granted an extension until Friday, September 20, 1985. The reason for the extension was that Mr. Wilson had determined that the letter provided to my clients by Nevada National Bank dated September 13, 1985 (a copy of which is attached hereto) was not sufficient to be considered a loan commitment letter, and therefore, absent more, my clients would not fall within the period of time permitted to acquire the lender's certificate, and thereby get a Certificate of Clearance from the San Bernardino City Schools, the both of which, when combined, would qualify my clients as an exception to the school building fund deposit requirement. ~d Mr. Ralph H. Prince September 23, 1985 Page Two RE: Sunpointe Village I spoke with Mr. Wilson on Thursday, September 19th and reviewed the Nevada National Bank correspondence as attached hereto. Mr. Wilson was of the opinion that the lender would have to be completely unequivocal in its commitment, whereas I related to Mr. Wilson that it has been my experience that a lender will never make a commitment without the opportunity to withhold funding should some of its requirements not be met at a future date. While consulting with Mr. Robert Nix, Assistant Vice President, Real Estate Department, Nevada National Bank, 233 S. Fourth Street, P.O. Box 18415, Las Vegas, Nevada 89114, (702) 386-3719, I explained the City's position according to Mr. Wilson, and asked Mr. Nix to confirm to me that my representations to Hr. Wilson were accurate. Mr. Nix agreed to do so and subsequently we had a conference call between Mr. Wilson, Mr. Nix and myself wherein Mr. Wilson was unmoved by Mr. Nix's representations and requested a letter from the lender that was devoid of any conditions upon which the lender may exercise its discretion and refuse to fund a project. Mr. Nix explained that all banks reserve that right, whereupon I suggested that Mr. Nix could provide such a letter with an addendum going to my clients stating that it was solely for the purpose of satisfying the requirements of the City and did not limit the lender's options to fund the project in the future. Mr. Wilson indicated that that would be acceptable with him and that the City's main concern was that there was a commitment for money now, and whether that money was ever provided in the future was irrelevant, but that there must be no conditions upon the commitment letter. The following morning I spoke with Mr. Nix and asked him whether he was able to write such a letter which he indicated he was not. Mr. Nix informed me that it was the advice of his legal department that he not write such a letter in that it would misstate the lender's position and therefore be untruthful with the City of San Bernardino which, of course, is not in the best interests of any of the parties herein, nor the people of the City of San Bernardino. I had to agree with Mr. Nix that the letter which Mr. Wilson indicated would be acceptable could only be prepared with the knowledge that the same was not true. I am certain you will agree, had Mr. Nix consulted either of us for legal advice regarding the same, our advice should have matched that of legal counsel for Nevada National Bank. Mr. Ralph H. Prince September 23, 1985 Page Three RE: Sunpointe Village My clients have submitted the Nevada National Bank loan commitment letter of September 13, 1985 to the City within the time frame permitted by the City. Therefore, if, after reviewing the enclosed you are in agreement with my clients' position, and the position of Nevada National Bank, that the enclosed correspondence constitutes a loan commitment that is the standard loan commitment presented by Nevada National Bank on any occasion other than when actual funding is taking place, then my clients were within the requisite time frame to be considered exempt from required deposits within the new school building fund. My clients can then proceed to get a Certificate of Clearance from the San Bernardino City Schools, thereby furthering their advancement toward actual construction of Sunpointe Village. I would appreciate your reviewing this matter, and will look forward to hearing from you at your earliest convenience. GWS/sl Enclosures I II) \fJ CI BERNARDINO SOl) NORTH "0" STREET. SAN BERNARDINO. CALIFORNIA 92418 -~ ''''. RALPH H. PRINCE CITY A HORNEY September 27, 1985 14.9917 Gary W. Smith Attorney at Law Suite 408 First American ~uilding 323 West Court Street San Bernardino, California 92401 Re: Sunpointe Village (LandTech, Inc.) Dear Mr. Smith: I am in receipt of your letter of September 23, 1985, asking whether the letter of the Nevada National Bank dated September 13, 1985, approving financing for Sunpointe Village complies with the exemption provisions of Subsection 9J of Resolution No. 85- 337, the "school impaction" fee resolution. The financing is conditioned by the following language in the ".-~ - ""--' ~ -~---ietter:- - - , "The above commitment is subject to review and approval by Lender's Senior Loan Committee at Lender's sole discretion." Thus, it was a conditional and not, in my judgment, a verified firm commitment for financing in place and recorded as required by Subsection 9J, as was previously determined by John Wilson, Deputy City Attorney on September 16 and on September 19, 1985. . Very truly y~U~s,~ /&fP~~ RALPH H. PRINCE City Attorney RHP:ca cc: Frank Ayala John Wilson ~ 2;2