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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