HomeMy WebLinkAboutRES NO 218-14OH &S DRAFT — Distributed 10/24/14
RESOLUTION NO. -2J R _ Q
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF BAKERSFIELD (1)
AUTHORIZING THE CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY (THE "AUTHORITY ") TO FORM A COMMUNITY
FACILITIES DISTRICT WITHIN THE TERRITORIAL LIMITS OF THE CITY OF
BAKERSFIELD TO FINANCE CERTAIN PUBLIC IMPROVEMENTS AND
DEVELOPMENT IMPACT FEES; (2) EMBODYING A JOINT COMMUNITY
FACILITIES AGREEMENT SETTING FORTH THE TERMS AND CONDITIONS OF
THE COMMUNITY FACILITIES DISTRICT FINANCING; (3) APPROVING AN
ACQUISITION AGREEMENT BETWEEN THE CITY AND THE DEVELOPER;
AND (4) AUTHORIZING STAFF TO COOPERATE WITH THE AUTHORITY AND
ITS CONSULTANTS IN CONNECTION THEREWITH.
WHEREAS, the City of Bakersfield (the "City ") is a charter city and a municipal
corporation duly organized and existing under and by virtue of the laws of the State of California
(the "State "); and
WHEREAS, the California Statewide Communities Development Authority (the
"Authority ") is a California joint - exercise of powers authority lawfully formed and operating
within the State pursuant to an agreement (the "Joint Powers Agreement ") entered into as of
June 1, 1988 under the authority of Title 1, Division 7, Chapter 5 (commencing with Section
6500) of the California Government Code; and
WHEREAS, the City is a party to the Joint Powers Agreement and by virtue
thereof a member (a "Program Participant ") of the Authority; and
WHEREAS, the Joint Powers Agreement was entered into to establish the
Authority as an agency authorized to issue bonds to finance projects within the territorial limits
of its Program Participants; and
WHEREAS, the Joint Powers Agreement authorizes the Authority to undertake
financing programs under any applicable provisions of State law to promote economic
development, the stimulation of economic activity, and the increase of the tax base within the
jurisdictional boundaries of its Program Participants; and
WHEREAS, the "Mello -Roos Community Facilities Act of 1982," being Chapter
2.5, Part 1, Division 2, Title 5 (beginning with Section 53311) of the Government Code of the
State (the "Act ") is an applicable provision of State law available to, among other things, finance
public improvements necessary to meet increased demands placed upon local agencies as a result
of development; and
WHEREAS, there is a development project in the City owned by Rio Bravo
Medical Campus, LLC, a California limited liability company (respectively, the "Development
Project" and the "Developer ") and the Developer has requested the City to consider formation of
a community facilities district for the Development Project under the Act; and
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WHEREAS, the City does not desire to allocate City resources and City staff time
to the formation and administration of a community facilities district and to the issuance of
bonds; and
WHEREAS, the Development Project will promote economic development, the
stimulation of economic activity, and the increase of the tax base within the City; and
WHEREAS, both the Authority and the City are "local agencies" under the Act;
and
WHEREAS, the Act permits two or more local agencies to enter into a joint
community facilities agreement to exercise any power authorized by the Act; and
WHEREAS, the City desires to enter into such an agreement with the Authority to
authorize the Authority to form a community facilities district within the territorial limits of the
City to finance public improvements and fees required of the Development Project; and
WHEREAS, a form of Acquisition Agreement (the "Acquisition Agreement ")
between the City and the Developer has been presented to the City Council and is on file with the
City Clerk; and
WHEREAS, nothing herein constitutes the City's approval of any applications,
Development Project entitlements and/or permits, and such, to the extent required in the future,
are subject to and contingent upon City Council approval following, to the extent applicable,
environmental review in compliance with the California Environmental Quality Act ( "CEQA ");
and
WHEREAS, nothing herein affects, without limitation, requirements for and/or
compliance with any and all applicable and /or necessary improvement standards, land use
requirements or subdivision requirements relating to the Development Project or any portion
thereof, which obligations are and shall remain independent and subsisting; and
WHEREAS, the City Council is fully advised in this matter;
NOW THEREFORE, BE IT RESOLVED by the Council of the City of
Bakersfield that it does hereby find, determine, declare and resolve as follows:
Section 1. The City hereby specifically finds and declares that the actions
authorized hereby constitute and are with respect to municipal affairs of the City and the
statements, findings and determinations of the City set forth in the recitals above and in the
preambles of the documents approved herein are true and correct.
Section 2. This resolution shall constitute full "local approval," under Section 9
of the Joint Powers Agreement, and under the Authority's Local Goals and Policies (see below),
for the Authority to undertake and conduct proceedings in accordance herewith and under the
Act to form a community facilities district (the "Community Facilities District ") with boundaries
substantially as shown on Exhibit A, attached hereto, and to authorize a special tax and to issue
bonds with respect thereto.
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Section 3. The Joint Powers Agreement, together with the terms and provisions
of this resolution, shall together constitute a joint community facilities agreement between the
City and the Authority under the Act. As, without this resolution, the Authority has no power to
conduct proceedings under the Act to form the Community Facilities District, adoption by the
Commission of the Authority of the Resolution of Intention to form the Community Facilities
District under the Act shall constitute acceptance of the terms hereof by the Authority.
Section 4. This resolution and the agreement it embodies are determined to be in
the best interests of the residents of the City, and of the future residents of the area within the
Community Facilities District.
Section 5. The City acknowledges that the Authority has adopted Local Goals
and Policies as required by Section 53312.7 of the Act. The City approves the use of those Local
Goals and Policies for use in connection with the Community Facilities District, and hereby
agrees that the Authority may act under those Local Goals and Policies in forming and
administering the Community Facilities District.
Section 6. Pursuant to the Act and this resolution, the Authority may conduct
proceedings under the Act to form the Community Facilities District and to have it authorize the
financing of the facilities and fees set forth on Exhibit B, attached hereto. All of the facilities,
whether to be financed directly or through fees, are facilities that have an expected useful life of
five years or longer and are facilities that the City or other local public agencies, as the case may
be, are authorized by law to construct, own or operate, or to which they may contribute revenue.
The facilities are referred to herein as the "Improvements," and the Improvements to be owned
by the City are referred to as the "City Improvements." The fees are referred to as the "Fees,"
and the Fees paid or to be paid to the City are referred to as the "City Fees."
Section 7. For Fees paid or to be paid to another local agency, the Authority will
obtain the written consent of that local agency before issuing bonds to fund such Fees, as
required by the Act. For the Improvements to be owned by other local agencies, the Authority
will separately identify them in its proceedings, and will enter into joint community facilities
agreements with those local agencies prior to issuing bonds to finance such Improvements, as
required by the Act. Each joint community facilities agreement with a local agency will contain
a provision that the local agency will provide indemnification to the City to the same extent that
the City provides indemnification to the local agencies under the terms of this resolution.
Section 8. The City Council certifies to the Commission of the Authority that all
of the City Improvements including the improvements to be constructed or acquired with the
proceeds of City Fees are necessary to meet increased demands placed upon the City of
Bakersfield as a result of development occurring or expected to occur within the Community
Facilities District. Joint community facilities agreements with other local agencies will each
contain a certification with respect to the Improvements to be owned by, and Fees paid or to be
paid to, the local agency equivalent to that made by the City in this paragraph.
Section 9. The Authority will apply the special tax collections initially as
required by the documents under which any bonds are issued; and thereafter, to the extent not
provided in the bond documents, may pay its own reasonable administrative costs incurred in the
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administration of the Community Facilities District. The Authority will remit any special tax
revenues remaining after the final retirement of all bonds to the City and to the other local
agencies in the proportions specified in the Authority's proceedings. The City will apply any
such special tax revenues it receives for authorized City Improvements or City Fees and its own
administrative costs only as permitted by the Act. The joint community facilities agreements
with other local agencies must require the other local agencies to apply the special tax revenues
they receive for their authorized Improvements and Fees under the Community Facilities District
and for their own related administrative costs only as permitted by the Act.
Section 10. The Authority will administer the Community Facilities District,
including employing and paying all consultants, annually levying the special tax and all aspects
of paying and administering the bonds, and complying with all State and Federal requirements
appertaining to the proceedings, including the requirements of the United States Internal
Revenue Code. The City will cooperate fully with the Authority in respect of the requirements
of the Internal Revenue Code and to the extent information is required of the City to enable the
Authority to perform its disclosure and continuing disclosure obligations with respect to the
bonds, although the City will not participate in nor be considered to be a participant in the
proceedings respecting the Community Facilities District (other than as a party to the agreement
embodied by this resolution) nor will the City be or be considered to be an issuer of the bonds.
The Authority is required to obtain a provision equivalent to this paragraph in all joint
community facilities agreements with other local agencies.
Section 11. In the event the Authority completes issuance and sale of bonds,
and bond proceeds become available to finance the Improvements, the Authority shall establish
and maintain a special fund to be known as the "City of Bakersfield Rio Bravo Project
Community Facilities District Acquisition and Construction Fund" (the "Acquisition and
Construction Fund "). The portion of bond proceeds which is intended to be utilized to finance
the Improvements and Fees shall be deposited in the Acquisition and Construction Fund. The
Acquisition and Construction Fund will be available both for City Improvements and City Fees
and for the Improvements and Fees pertaining to the other local agencies.
Section 12. As respects the Authority and the other local agencies, the City
agrees to fully administer, and to take full governmental responsibility for, the construction or
acquisition of the City Improvements and for the administration and expenditure of the City Fees
including but not limited to environmental review, approval of plans and specifications, bid
requirements, performance and payment bond requirements, insurance requirements, contract
and construction administration, staking, inspection, acquisition of necessary property interests
in real or personal property, the holding back and administration of retention payments, punch
list administration, and the Authority and the other local agencies shall have no responsibility in
that regard. The City reserves the right, as respects the Developer, to require the Developer to
contract with the City to assume any portion or all of this responsibility. The Authority is
required to obtain provisions equivalent to this paragraph in the joint community facilities
agreement with the other local agencies.
Section 13. The City agrees to indemnify and to hold the Authority, its other
members, and its other members' officers, agents and employees, and the other local agencies
and their officers, agents and employees (collectively, the "Indemnified Parties ") harmless from
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any and all claims, suits and damages (including costs and reasonable attorneys' fees) arising out
of the design, engineering, construction and installation of the City Improvements and the
improvements to be financed or acquired with the City Fees. The City reserves the right, as
respects the Developer, to require the Developer to assume by contract with the City any portion
or all of this responsibility. The Authority is required to obtain a provision equivalent to this
paragraph in all joint community facilities agreements with the other local agencies naming the
City and its officers, agents and employees as Indemnified Parties with respect to the other local
agencies' Improvements and the improvements to be constructed or acquired with the other local
agencies' Fees.
Section 14. As respects the Authority and the other local agencies, the City
agrees — once the City Improvements are constructed according to the approved plans and
specifications, and the City and the Developer have put in place their agreed arrangements for
the funding of maintenance of the City Improvements — to accept ownership of the City
Improvements, to take maintenance responsibility for the City Improvements, and to indemnify
and hold harmless the Indemnified Parties to the extent provided in the preceding paragraph from
any and all claims, etc., arising out of the use and maintenance of the City Improvements. The
City reserves the right, as respects the Developer, to require the Developer by contract with the
City to assume any portion or all of this responsibility. The Authority is required to obtain a
provision equivalent to this paragraph in all joint community facilities agreements with other
local agencies naming the City and its officers, agents and employees as Indemnified Parties.
Section 15. The City acknowledges the requirement of the Act that if the City
Improvements are not completed prior to the adoption, by the Commission of the Authority, of
the Resolution of Formation of the Community Facilities District, the City Improvements must
be constructed as if they had been constructed under the direction and supervision, or under the
authority of, the City. The City acknowledges that this means all City Improvements must be
constructed under contracts that require the payment of prevailing wages as required by Section
1720 and following of the Labor Code of the State of California. The Authority makes no
representation that this requirement is the only applicable legal requirement in this regard. The
City reserves the right, as respects the Developer, to assign appropriate responsibility for
compliance with this paragraph to the Developer.
Section 16. The form of the Acquisition Agreement now on file with the City
Clerk is hereby approved, and the City Manager or such officer's designee (the "City Manager ")
is authorized to execute, and deliver to the Developer, the Acquisition Agreement on behalf of
the City in substantially that form, with such changes as shall be approved by the City Manager
after consultation with the City Attorney and the Authority's bond counsel, such approval to be
conclusively evidenced by the execution and delivery thereof.
Section 17. After completion of the City Improvements and appropriate
arrangements for the maintenance of the City Improvements, or any discrete portion thereof as
provided in Section 53313.51 of the Act and in the Acquisition Agreement, to the satisfaction of
the City, and in conjunction with the City's acceptance thereof, acquisition of the City
Improvements shall be undertaken as provided in the Acquisition Agreement.
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Section 18. The City hereby consents to the formation of the Community
Facilities District in accordance with this resolution and consents to the assumption of
jurisdiction by the Authority for the proceedings respecting the Community Facilities District
with the understanding that the Authority will hereafter take each and every step required for or
suitable for consummation of the proceedings, the levy, collection and enforcement of the special
tax, and the issuance, sale, delivery and administration of the bonds, all at no cost to the City and
without binding or obligating the City's general fund or taxing authority.
Section 19. The terms of the Agreement embodied by this resolution may be
amended by a writing duly authorized, executed and delivered by the City and the Authority,
except that no amendment may be made after the issuance of the bonds by the Authority that
would be detrimental to the interests of the bondholders without complying with all of the
bondholder consent provisions for the amendment of the bond resolutions, bond indentures or
like instruments governing the issuance, delivery and administration of all outstanding bonds.
Section 20. Except to the extent of the indemnifications extended to the other
local agencies in the Agreement embodied by this resolution, and the City's agreement to take
responsibility for and ownership of the City Improvements, no person or entity, including the
Developer, shall be deemed to be a third party beneficiary of this resolution, and nothing in this
resolution (either express or implied) is intended to confer upon any person or entity other than
the Authority and the City (and their respective successors and assigns) any rights, remedies,
obligations or liabilities under or by reason of this resolution.
Section 21. The City shall be identified as a third -party beneficiary of all joint
community facilities agreements between the Authority and the other local agencies to the extent
of the indemnification provisions and the provisions whereby the local agencies agree to take
responsibility for and ownership of their Improvements.
Section 22. This resolution shall remain in force until all bonds have been
retired and the authority to levy the special tax conferred by the Community Facilities District
proceedings has ended or is otherwise terminated.
Section 23. The City Council hereby authorizes and directs the City Manager
and other appropriate City staff to cooperate with the Authority and its consultants and to do all
things necessary and appropriate to carry out the intent of this resolution and the Community
Facilities District financing, and to execute any and all certificates and documents in connection
with the bond issuance as shall be approved by the City Manager after consultation with the City
Attorney and the Authority's bond counsel.
Section 24. The City Council hereby approves delivery of a certified copy of
this resolution to the Authority.
Section 25. This Resolution shall take effect upon its adoption.
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HEREBY CERTIFY that the foregoing Resolution was passed and
adopted by the Council of the City of Bakersfield at a regular meeting thereof
held on DFC 1 0 2014 , by the following vote:
AY
NOES:
ABSTAIN
ARSE
✓ ✓ ✓
COUNCIL MEMBER RIVERA, MAXWELL, WEIR, SMITH,
COUNCIL MEMBER
COUNCIL MEMBER
COUNCIL MEMBER
✓ ✓
SULLIVAN, .?b r \\cr
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CITY CLERK AND EX IVC16 of the
Council of the City dt Bakersfield
mayor
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
JOSHUA RUDNICK
DEPUTY CITY ATTORNEY II
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EXHIBIT A
COMMUNITY FACILITIES DISTRICT BOUNDARIES
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EXHIBIT B
[AUTHORIZED IMPROVEMENTS AND FEES]
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EXHIBIT B
AUTHORIZED IMPROVEMENTS AND FEES
1. Offsite Water Pump Station
2. Morning Drive — Onsite Sewer
3. Sewer
4. Morning Drive — Onsite Water
5. Highland Knolls /Kircaldy
6. Morning Drive Extension
7. Onsite Storm Drain
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OH &S DRAFT — Distributed 10/24/14
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
STATEWIDE COMMUNITY DEVELOPMENT PROGRAM
ACQUISITION AGREEMENT
BY AND AMONG
CITY OF BAKERSFIELD,
THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
AND
RIO BRAVO MEDICAL CAMPUS, LLC,
a California limited liability company
in respect of
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY
Community Facilities District No. 2014 -01 (Bakersfield Rio Bravo)
Dated as of [ 1 1, 2014
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ACQUISITION AGREEMENT
Recitals
A. The parties to this Acquisition Agreement (the "Agreement ") are the City of Bakersfield, (the
"City "), the California Statewide Communities Development Authority ( "Authority ") and Rio
Bravo Medical Campus, LLC, a California limited liability company (the "Developer ").
B. The effective date of this Agreement is [ 1, 2014.
C. The Developer has applied for the financing of certain public capital improvements, and certain
governmentally- imposed development fees (collectively, the "Acquisition Improvements "). The
fees will themselves finance public capital improvements. The public capital improvements are
to be owned and operated by the City, and the financing is to be accomplished through a
Community Facilities District which will be administered by the Authority under and pursuant to
the Mello -Roos Community Facilities Act of 1982 — California Government Code Sections
53311 and following (the "Act "). On [ ], 2014, the City adopted Resolution No.
[ authorizing the Authority to form a community facilities district (the "Community
Facilities District ") within the territorial limits of the City to finance the Acquisition
Improvements. On [ , 2014, the Authority formed the Community Facilities District
and, on the same date, a landowner election was conducted in which all of the votes were cast
unanimously in favor of conferring the Community Facilities District authority on the Authority
Commission.
D. The Authority intends to levy special taxes and issue bonds to fund, among other things, all or a
portion of the costs of the Acquisition Improvements. The portion of the proceeds of the special
taxes and bonds allocable to the cost of the Acquisition Improvements, together with interest
earned thereon, is referred to herein as the "Available Amount ".
E. The Authority will provide financing for the acquisition by the City of the Acquisition
Improvements and the payment of the Acquisition Price (as defined herein) of the Acquisition
Improvements from the Available Amount. Attached hereto as Exhibit A is a description of the
Acquisition Improvements, which includes authorized discrete and usable portions, if any, of the
public capital improvements, pursuant to Section 53313.51 of the Act, to be acquired from the
Developer, and the specified development fees.
F. The parties anticipate that, upon completion of the Acquisition Improvements and subject to the
terms and conditions of this Agreement, the City will acquire the completed Acquisition
Improvements. An itemized development fee shall be considered complete when it is paid by the
Developer, or when it is payable directly from bond or special tax proceeds.
G. Any and all monetary obligations of the City arising out of this Agreement are the special and
limited obligations of the City payable only from the Available Amount, and no other funds
whatsoever of the City shall be obligated therefor under any circumstances.
H. In consideration of Recitals A through G, inclusive, and the mutual covenants, undertakings and
obligations set forth below, the City and the Developer agree as stated below.
1. Attached to this Agreement are Exhibit A (the Acquisition Improvements and the Eligible
Portions thereof), Exhibit B (form of Requisition), and Exhibit C (Bidding, Contracting and
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Construction Requirements for Acquisition Improvements), all of which are incorporated into this
Agreement for all purposes.
Agreement
ARTICLE I
DEFINITIONS; COMMUNITY FACILITIES DISTRICT FORMATION AND
FINANCING PLAN
Section 1.01. Definitions. As used herein, the following capitalized terms shall have
the meanings ascribed to them below:
"Acceptable Title" means free and clear of all monetary liens, encumbrances,
assessments, whether any such item is recorded or unrecorded, and taxes, except those items which are
reasonably determined by the City Engineer not to interfere with the intended use and therefore are not
required to be cleared from the title.
"Acquisition and Construction Fund" means the "City of Bakersfield Rio Bravo
Community Facilities District Acquisition and Construction Fund" established by the Authority pursuant
to the Resolution and Section 1.03 hereof for the purpose of paying the Acquisition Price of the
Acquisition Improvements.
"Acquisition Improvement" means a public capital improvement or a development fee
described in Exhibit A hereto.
"Acquisition Price" means the total amount eligible to be paid to the Developer upon
acquisition of an Acquisition Improvement as provided in Section 2.03, or in the case of a development
fee, the actual amount paid by the Developer, or the amount of a development fee to be paid on behalf of
the Developer from bond or special tax proceeds, in every case not to exceed the Actual Cost of the
Acquisition Improvement.
"Actual Cost" means the total cost of an Acquisition Improvement, as documented by the
Developer to the satisfaction of the City and as certified by the City Engineer in an Actual Cost
Certificate including, without limitation, (a) the Developer's cost of constructing such Acquisition
Improvement including grading, labor, material and equipment costs, (b) the Developer's cost of
designing and engineering the Acquisition Improvement, preparing the plans and specifications and bid
documents for such Acquisition Improvement, and the costs of inspection, materials testing and
construction staking for such Acquisition Improvement, (c) the Developer's cost of any performance,
payment and maintenance bonds and insurance, including title insurance, required hereby for such
Acquisition Improvement, (d) the Developer's cost of any real property or interest therein that is either
necessary for the construction of such Acquisition Improvement (e.g., temporary construction easements,
haul roads, etc.), or is required to be conveyed with such Acquisition Improvement in order to convey
Acceptable Title thereto to the City or its designee, (e) the Developer's cost of environmental evaluation
or mitigation required for such Acquisition Improvement, (f) the amount of any fees actually paid by the
Developer to governmental agencies in order to obtain permits, licenses or other necessary governmental
approvals and reviews for such Acquisition Improvement, (g) the Developer's cost for construction and
project management, administration and supervision services for such Acquisition Improvement, (h) the
Developer's cost for professional services related to such Acquisition Improvement, including
engineering, accounting, legal, financial, appraisal and similar professional services, and (i) the costs of
construction financing incurred by the Developer with respect to such Acquisition Improvement.
PA
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"Actual Cost Certificate" means a certificate prepared by the Developer detailing the
Actual Cost of an Acquisition Improvement, or an Eligible Portion thereof, to be acquired hereunder, as
may be revised by the City Engineer pursuant to Section 2.03.
"Agreement" means this Acquisition Agreement, dated as of [ ], 2014.
"Authority" means the California Statewide Communities Development Authority.
"Authority Trust Agreement" means a Trust Agreement entered into by the Authority and
an Authority Trustee in connection with the issuance of bonds.
"Authority Trustee" means the financial institution identified as trustee in an Authority
Trust Agreement.
"Available Amount" shall have the meaning assigned to the term in Recital D.
"Bonds" means bonds or other indebtedness issued by the Authority that is to be repaid
with Special Taxes.
"City" means the City of Bakersfield.
"City Engineer" means the City Engineer of the City of Bakersfield or his /her designee
who will be responsible for administering the acquisition of the Acquisition Improvements hereunder.
"Code" means the Government Code of the State of California.
"Community Facilities District" shall have the meaning assigned to the term in Recital C.
"Developer" means Rio Bravo Medical Campus, LLC, a California limited liability
company, its successors and assigns.
"Disbursement Request Form" means a requisition for payment of funds from the
Acquisition and Construction Fund for an Acquisition Improvement, or an Eligible Portion thereof in
substantially the form contained in Exhibit B hereto.
"Eligible Portion" shall have the meaning ascribed to it in Section 2.03 below.
"Installment Payment" means an amount equal to ninety percent (90 %) of the Actual
Cost of an Eligible Portion.
"Project" means the Developer's development of the property in the Community
Facilities District, including the design and construction of the Acquisition Improvements and the other
public and private improvements to be constructed by the Developer within the Community Facilities
District.
"Resolution" means City of Bakersfield Resolution No. [ , adopted
[ ], 2014 titled "A Resolution of the City Council of the City of Bakersfield (1)
Authorizing The California Statewide Communities Development Authority (The "Authority ") To Form
A Community Facilities District Within The Territorial Limits Of The City Of Bakersfield To Finance
Certain Public Improvements And Development Impact Fees; (2) Embodying A Joint Community
Facilities Agreement Setting Forth The Terms And Conditions Of The Community Facilities District
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Financing; (3) Approving An Acquisition Agreement Between The City And The Developer; And (4)
Authorizing Staff To Cooperate With The Authority And Its Consultants In Connection Therewith."
"Special Taxes" means annual special taxes, and prepayments thereof, authorized by the
Community Facilities District to be levied by the Commission of the Authority.
"Title Documents" means, for each Acquisition Improvement acquired hereunder, a grant
deed or similar instrument necessary to transfer title to any real property or interests therein (including
easements), or an irrevocable offer of dedication of such real property with interests therein necessary to
the operation, maintenance, rehabilitation and improvement by the City of the Acquisition Improvement
(including, if necessary, easements for ingress and egress) and a bill of sale or similar instrument
evidencing transfer of title to the Acquisition Improvement (other than said real property interests) to the
City, where applicable.
Section 1.02. Establishment of Community Facilities District. Developer has
requested the City to permit the Authority to provide for financing of the Acquisition Improvements
through the establishment and authorization of the Community Facilities District and the City agreed by
its adoption of the Resolution. The Community Facilities District was established by the Authority on
[ ], 2014, and through the successful landowner election held that same day, the Commission of
the Authority is authorized to levy the Special Taxes and to issue the Bonds to finance the Acquisition
Improvements. Developer, the City and the Authority agree to reasonably cooperate with one another in
the completion of the financing through the issuance of the Bonds in one or more series.
Section 1.03. Deposit and Use of Available Amount.
(a) Prior to the issuance of the first series of Bonds, Special Taxes collected by the
Authority shall be deposited in the Acquisition and Construction Fund established by the Resolution, and
may be disbursed to pay the Acquisition Price of Acquisition Improvements in accordance with Article II
of this Agreement. All funds in the Acquisition and Construction Fund shall be considered a portion of
the Available Amount, and upon the issuance of the first series of Bonds the Acquisition and Construction
Fund shall be transferred to the Authority Trustee to be held in accordance with the Authority Trust
Agreement.
(b) Upon the issuance of the first series of Bonds, the Authority will cause the
Authority Trustee to establish and maintain the Acquisition and Construction Fund for the purpose of
holding all funds for the Acquisition Improvements. All earnings on amounts in the Acquisition and
Construction Fund shall remain in the Acquisition and Construction Fund for use as provided herein and
pursuant to the Authority Trust Agreement. Money in the Acquisition and Construction Fund shall be
available to respond to delivery of a Disbursement Request Form and to be paid to the Developer or its
designee to pay the Acquisition Price of the Acquisition Improvements, as specified in Article II hereof.
Upon completion of all of the Acquisition Improvements and the payment of all costs thereof, any
remaining funds in the Acquisition and Construction Fund (less any amount determined by the City as
necessary to reserve for claims against the account) (i) shall be applied to pay the costs of any additional
Acquisition Improvements eligible for acquisition with respect to the Project as approved by the
Authority and, to the extent not so used, (ii) shall be applied by the Authority to call Bonds or to reduce
Special Taxes as the Authority shall determine.
Section 1.04. No Effect on Other Agreements. Nothing in this Agreement shall be
construed as affecting the Developer's or the City's duty to perform their respective obligations under any
other agreements, land use regulations or subdivision requirements related to the Project, which
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obligations are and shall remain independent of the Developer's and the City's rights and obligations
under this Agreement.
ARTICLE II
DESIGN, CONSTRUCTION AND ACQUISITION OF ACQUISITION IMPROVEMENTS
Section 2.01. Letting and Administering Design Contracts. The Developer has
awarded and administered, or will award and administer, engineering design contracts for the Acquisition
Improvements to be acquired from Developer. All eligible expenditures of the Developer for design
engineering and related costs in connection with the Acquisition Improvements (whether as an advance to
the City or directly to the design consultant) shall be reimbursed at the time of acquisition of the
Acquisition Improvements. The Developer shall be entitled to reimbursement for any design costs of the
Acquisition Improvements only out of the Acquisition Price as provided in Section 2.03 and shall not be
entitled to any payment for design costs independent of the acquisition of Acquisition Improvements.
Section 2.02. Letting; and Administration of Construction Contracts; Indemnification.
State law requires that all Acquisition Improvements not completed prior to the formation of the
Community Facilities District shall be constructed as if they were constructed under the direction and
supervision, or under the authority, of the City. In order to assure compliance with those provisions,
except for any contracts entered into prior to the date hereof, Developer agrees to comply with the
requirements set forth in Exhibit C hereto with respect to the bidding and contracting for the construction
of the Acquisition Improvements. The Developer agrees that all the contracts shall call for payment of
prevailing wages as required by the Labor Code of the State of California. The Developer's
indemnification obligation set forth in Section 3.01 of this Agreement shall also apply to any alleged
failure to comply with the requirements of this Section, and/or applicable State laws regarding public
contracting and prevailing wages.
Section 2.03. Sale of Acquisition Improvements. The Developer agrees to sell to the
City each Acquisition Improvement to be constructed by Developer (including any rights -of -way or other
easements necessary for the Acquisition Improvements, to the extent not already publicly owned), when
the Acquisition Improvement is completed to the satisfaction of the City for an amount not to exceed the
lesser of (i) the Available Amount or (ii) the Actual Cost of the Acquisition Improvement. Exhibit A,
attached hereto and incorporated herein, contains a list of the Acquisition Improvements. Portions of an
Acquisition Improvement eligible for Installment Payments prior to completion of the entire Acquisition
Improvement are described as eligible, discrete and usable portions in Exhibit A (each, an "Eligible
Portion "). At the time of completion of each Acquisition Improvement, or Eligible Portion thereof, the
Developer shall deliver to the City Engineer a written request for acquisition, accompanied by an Actual
Cost Certificate, and by executed Title Documents for the transfer of the Acquisition Improvement where
necessary. In the event that the City Engineer finds that the supporting paperwork submitted by the
Developer fails to demonstrate the required relationship between the subject Actual Cost and eligible
work, the City Engineer shall advise the Developer that the determination of the Actual Cost (or the
ineligible portion thereof) has been disallowed and shall request further documentation from the
Developer. If the further documentation is still not adequate, the City Engineer may revise the Actual
Cost Certificate to delete any disallowed items and the determination shall be final and conclusive.
Certain soft costs for the Acquisition Improvements, such as civil engineering, may have
been incurred pursuant to single contracts that include work relating also to the private portions of the
Project. In those instances, the total costs under such contracts will be allocated to each Acquisition
Improvement based on the methodology specified in Exhibit A, or as otherwise approved by the City
Engineer. Where a specific contract has been awarded for design or engineering work relating solely to
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an Acquisition Improvement, one hundred percent (100 %) of the costs under the contract will be allocated
to that Acquisition Improvement. Amounts allocated to an Acquisition Improvement will be further
allocated among the Eligible Portions of that Acquisition Improvement, if any, in the same proportion as
the amount to be reimbursed for hard costs for each Eligible Portion bears to the amount to be reimbursed
for hard costs for the entire Acquisition Improvement. Costs will be allocated to each Acquisition
Improvement based on the methodology specified in Exhibit A, or as otherwise approved by the City
Engineer. The costs of certain environmental mitigation required to mitigate impacts of the public and
private portions of the Project will be allocated to each Acquisition Improvement based on the
methodology specified in Exhibit A, or as otherwise approved by the City Engineer.
Section 2.04. Conditions Precedent to Payment of Acquisition Price. Payment to the
Developer or its designee of the Acquisition Price for an Acquisition Improvement from the Acquisition
and Construction Fund shall in every case be conditioned first upon the determination of the City
Engineer, pursuant to Section 2.03, that the Acquisition Improvement satisfies all City regulations and
ordinances and is otherwise complete and ready for acceptance by the City, and shall be further
conditioned upon satisfaction of the following additional conditions precedent:
(a) The Developer shall have provided the City with lien releases or other similar
documentation satisfactory to the City Engineer as evidence that none of the property (including any
rights -of -way or other easements necessary for the operation and maintenance of the Acquisition
Improvement, to the extent not already publicly owned) comprising the Acquisition Improvement, and the
property which is subject to the special taxes of the Community Facilities District, is not subject to any
prospective mechanics lien claim respecting the Acquisition Improvements.
(b) The Developer shall be current in the payment of all due and payable general
property taxes, and all special taxes of the Community Facilities District, on property owned by the
Developer or under option to the Developer within the Community Facilities District.
(c) The Developer shall have provided the City with Title Documents needed to
provide the City with title to the site, right -of -way, or easement upon which the subject Acquisition
Improvement is situated. All such Title Documents shall be in a form acceptable to the City and shall
convey Acceptable Title. The Developer shall provide a policy of title insurance as of the date of transfer
in a form acceptable to the City Engineer and the City Attorney insuring the City as to the interests
acquired in connection with the acquisition of any interest for which such a policy of title insurance is not
required by another agreement between the City and the Developer. Each title insurance policy required
hereunder shall be in the amount equal to the Acquisition Price. The amount paid to the Developer or its
designee upon satisfaction of the foregoing conditions precedent shall be the Acquisition Price less all
Installment Payments paid previously with respect to the Acquisition Improvement.
Section 2.05. Payment for Eligible Portions. The Developer may submit an Actual
Cost Certificate to the City Engineer with respect to any Eligible Portion. Payment to the Developer or its
designee from the Acquisition and Construction Fund of an Installment Payment with respect to such
Eligible Portion shall in every case be conditioned first upon the determination of the City Engineer,
pursuant to Section 2.03, that the Eligible Portion has been completed in accordance with the applicable
plans and specifications and that the Eligible Portion satisfies all City regulations and ordinances and is
otherwise complete and, where appropriate, is ready for acceptance by the City, and shall be further
conditioned upon satisfaction of the following additional conditions precedent:
(a) The Developer shall have provided the City with lien releases or other similar
documentation satisfactory to the City Engineer as evidence that the property (including any rights -of-
way or other easements necessary for the operation and maintenance of the Eligible Portion, to the extent
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not already owned by the City) comprising the Eligible Portion is not subject to any prospective
mechanics lien claim respecting the Eligible Portion.
(b) The Developer shall be current in the payment of all due and payable general
property taxes, and all special taxes of the Community Facilities District, on property owned by the
Developer or under option to the Developer within the Community Facilities District.
(c) The Developer shall have provided the City with Title Documents needed to
provide the City with title to the site, right -of -way, or easement upon which the subject Eligible Portion is
situated. All such Title Documents shall be in a form acceptable to the City Engineer and shall be
sufficient, upon completion of the Acquisition Improvement of which the Eligible Portion is a part, to
convey Acceptable Title.
(d) Payment and performance bonds, from a bonding company with an A.M. Best
rating of at least "A -" or its equivalent, applying to plans and specifications for the Acquisition
Improvement approved by the City, shall be in place to secure completion of the Acquisition
Improvement of which the Eligible Portion is a part.
Section 2.06. Disbursement Request Form. Upon a determination by the City
Engineer to pay the Acquisition Price of an Acquisition Improvement pursuant to Section 2.04 or to pay
an Installment Payment for an Eligible Portion pursuant to Section 2.05, the City Engineer shall cause a
Disbursement Request Form substantially in the form attached hereto as Exhibit B to be submitted to the
Authority Trustee, and the Authority Trustee shall make payment directly to the Developer or its designee
of the amount pursuant to the Authority Trust Agreement. The Authority, the City and the Developer
acknowledge and agree that the Authority Trustee shall make payment strictly in accordance with the
Disbursement Request Form and shall not be required to determine whether or not the Acquisition
Improvement or Eligible Portion has been completed or what the Actual Costs may be with respect to the
Acquisition Improvement or Eligible Portion. The Authority Trustee shall be entitled to rely on the
executed Disbursement Request Form on its face without any further duty of investigation.
In the event that the Actual Cost of an Acquisition Improvement or the Installment
Payment for an Eligible Portion is in excess of the Available Amount, the Authority Trustee shall
withdraw all funds remaining in the Acquisition and Construction Fund and shall transfer those amounts
to the Developer or its designee. The unpaid portion of the Actual Cost shall be paid from funds that may
subsequently be deposited in the Acquisition and Construction Fund from a subsequent issuance of Bonds
or from Special Tax revenues, if either of those occurs.
Section 2.07. Limitation on Obligations. In no event shall the City or the Authority be
required to pay the Developer or its designee more than the amounts held in the Acquisition and
Construction Fund.
ARTICLE III
MISCELLANEOUS
Section 3.01. Indemnification and Hold Harmless. The Developer hereby assumes the
defense of, and indemnifies and saves harmless the City, the Authority and their respective officers,
directors, employees and agents, including the Authority Trustee, from and against all actions, damages,
claims, losses or expenses of every type and description to which they may be subjected or put, by reason
of, or resulting from or alleged to have resulted from the acts or omissions of the Developer or its agents
and employees arising out of any contract for the design, engineering and construction of the Acquisition
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Improvements entered into by the Developer or arising out of any alleged misstatements of fact or alleged
omission of a material fact made by the Developer, its officers, directors, employees or agents to the
Authority's underwriter, financial advisor, appraiser, district engineer or bond counsel or regarding the
Developer, its proposed developments, its property ownership and its contractual arrangements contained
in the official statement relating to the Authority financing (provided that the Developer shall have been
furnished a copy of the official statement and shall not have objected thereto); and provided, further, that
nothing in this Section 3.01 shall limit in any manner the City's rights against any of the Developer's
architects, engineers, contractors or other consultants. Except as set forth in this Section 3.01, no
provision of this Agreement shall in any way limit the extent of the responsibility of the Developer for
payment of damages resulting from the operations of the Developer, its agents and employees. Nothing
in this Section 3.01 shall be understood or construed to mean that the Developer agrees to indemnify the
City, the Authority or any of their respective officers, directors, employees or agents, including the
Authority Trustee, for any wrongful acts or omissions to act of the Authority or its officers, employees,
agents or any consultants or contractors, including the Authority Trustee, and for any wrongful acts,
willful misconduct, active negligence or omissions to act of the City, or its officers, employees, agents or
any consultants or contractors, including the Authority Trustee.
Section 3.02. Audit. The City and the Authority shall have the right, during normal
business hours and upon the giving of ten days' written notice to the Developer, to review all books and
records of the Developer pertaining to costs and expenses incurred by the Developer (for which the
Developer seeks reimbursement pursuant to this Agreement) in constructing the Acquisition
Improvements.
Section 3.03. Cooperation. The City, the Authority and the Developer agree to
cooperate with respect to the completion of the financing of the Acquisition Improvements by the
Authority through the levy of the Community Facilities District Special Taxes and issuance of Bonds.
The City, the Authority and the Developer agree to meet in good faith to resolve any differences on future
matters which are not specifically covered by this Agreement.
Section 3.04. General Standard of Reasonableness. Any provision of this Agreement
which requires the consent, approval or acceptance of either party hereto or any of their respective
employees, officers or agents shall be deemed to require that the consent, approval or acceptance not be
unreasonably withheld or delayed, unless the provision expressly incorporates a different standard. The
foregoing provision shall not apply to provisions in the Agreement which provide for decisions to be in
the sole discretion of the party making the decision.
Section 3.05. No Third Party Beneficiaries. It is expressly agreed that there are no
third party beneficiaries of this Agreement, including without limitation any owners of bonds, any of the
City's or the Developer's contractors for the Acquisition Improvements and any of the City's, the
Authority's or the Developer's agents and employees.
Section 3.06. Conflict with Other Agreements. Nothing contained herein shall be
construed as releasing the Developer or the City from any condition of development or requirement
imposed by any other agreement between the City and the Developer, and, in the event of a conflicting
provision, the other agreement shall prevail unless the conflicting provision is specifically waived or
modified in writing by the City and the Developer.
Section 3.07. Notices. All invoices for payment, reports, other communication and
notices relating to this Agreement shall be mailed to:
If to the City:
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[Contact name and address]
City of Bakersfield
If to the Authority:
CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY
1100 K Street, Suite 101
Sacramento, CA 95814
If to the Developer:
[Contact name and address]
Any party may change its address by giving notice in writing to the other parties.
Section 3.08. Severability. If any part of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect
to the fullest extent reasonably possible.
Section 3.09. Governing Law. This Agreement and any dispute arising hereunder shall
be governed by and interpreted in accordance with the laws of the State of California.
Section 3.10. Waiver. Failure by a party to insist upon the strict performance of any of
the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the
default of the other party, shall not constitute a waiver of the party's right to insist upon and demand strict
compliance by the other party with the terms of this Agreement.
Section 3.11. Singular and Plural; Gender. As used herein, the singular of any word
includes the plural, and terns in the masculine gender shall include the feminine.
Section 3.12. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original.
Section 3.13. Successors and Assigns. This Agreement is binding upon the heirs,
assigns and successors -in- interest of the parties hereto. The Developer may not assign its rights or
obligations hereunder, except to successors -in- interest to the property within the District, without the
prior written consent of the City and Authority, which consent shall not be unreasonably withheld. In no
event shall any successor -in- interest or assignee have any liability on account of any acts, omissions or
liabilities of a prior owner (including the Developer), or for any acts, omissions or events that occur after
the date on which such successor owner ceases to own such property. Without limiting and subject to the
foregoing, the obligations described in Section 3.01 hereof shall apply to all assignees and successors -in-
interest only with respect to acts, omissions or events occurring after the date of assignment or succession
through the date on which such successor owner ceases to own such property; provided that the
Developer and all assignees and successors -in- interest shall remain liable for their respective obligations
under Section 3.01 and this Section 3.13 notwithstanding any subsequent assignment or succession.
Additionally, any mortgagee or other person that acquires the property within the District owned by the
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Developer pursuant to a foreclosure or trustee's sale or pursuant to a deed -in -lieu of foreclosure shall have
the right to become the "Developer" (as a successor to the original Developer) under this Agreement.
Section 3.14. Remedies in General. It is acknowledged by the parties that the City
would not have entered into this Agreement if it were to be liable in damages under or with respect to this
Agreement or the application thereof, other than for the payment to the Developer of any (i) moneys
owing to the Developer hereunder, or (ii) moneys paid by the Developer pursuant to the provisions hereof
which are misappropriated or improperly obtained, withheld or applied by the City.
In general, each of the parties hereto may pursue any remedy at law or equity available
for the breach of any provision of this Agreement, except that the City shall not be liable in damages to
the Developer, or to any assignee or transferee of the Developer other than for the payments to the
Developer specified in the preceding paragraph. Subject to the foregoing, the Developer covenants not to
sue for or claim any damages for any alleged breach of, or dispute which arises out of, this Agreement.
Section 3.15. Liability of Developer. Notwithstanding anything to the contrary in this
Agreement or any other agreement, document, instrument or certificate executed in connection with this
Agreement, no present or future "Constituent Member" (as hereinafter defined) in Developer, nor any
present or future shareholder, officer, director, employee, trustee, beneficiary, advisor, member, partner,
principal, participant or agent of or in Developer or of or in any person or entity that is or becomes a
Constituent Member in Developer, shall have any personal liability, directly or indirectly, under or in
connection with this Agreement or any other agreement, document, instrument or certificate executed in
connection with this Agreement, or any amendment or amendments to any of the foregoing made at any
time or times, heretofore or hereafter, and the City and the Authority each on behalf of itself and its
successors and assigns, hereby waives any and all such personal liability. The term "Constituent
Member" shall mean any direct member in Developer and any person or entity that, directly or indirectly
through one or more other partnerships, limited liability companies or other entities is a member in
Developer.
Section 3.16. Assignment. The obligations and rights of the parties to this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors, but those rights and obligations shall not be assignable, transferable or delegable, except
pursuant to the terms hereof, without the written consent of the other parties hereto, and any attempted
assignment, transfer or delegation thereof which is not made pursuant to the terms hereof shall be void.
Section 3.17. Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of all of the parties hereto.
Section 3.18. Sole Agreement. This Agreement, including Exhibit A hereto,
constitutes the sole agreement of the parties and supersedes all oral negotiations and prior writings with
respect to the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed, the day and year first -above written.
"CITY"
CITY OF BAKERSFIELD
0
HARVEY L. HALL
Mayor
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
JOSHUA RUDNICK
DEPUTY CITY ATTORNEY II
Insurance:
APPROVED AS TO CONTENT:
CITY DEPARTMENT NAME
DEPARTMENT HEAD NAME
TITLE
COUNTERSIGNED:
NELSON SMITH
Finance Director
Attachments: Exhibits A, B, C
Additional Signatures on Following Page
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CALIFORNIA STATEWIDE COMMUNITIES
DEVELOPMENT AUTHORITY, a joint powers
authority created by the California Legislature in 1988,
Authorized Signatory
RIO BRAVO MEDICAL CAMPUS, LLC, a California
limited liability company
By: G.L. Bruno Associates, Inc., Manager
By: Gary L. Bruno, CEO /President
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EXHIBIT A
DESCRIPTION OF ACQUISITION IMPROVEMENTS, ELIGIBLE PORTIONS
AND ESTIMATED ACTUAL COST
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EXHIBIT B
DISBURSEMENT REQUEST FORM
(Acquisition Improvement or Eligible Portion)
To: [Authority Trustee]
Attention:
Fax:
Phone:
Re: CSCDA Community Facilities District No. 2014 -01 (Bakersfield Rio Bravo)
The undersigned, a duly authorized officer of the CITY OF BAKERSFIELD hereby
requests a withdrawal from the City of Bakersfield Rio Bravo Community Facilities District Acquisition
and Construction Fund, as follows:
Request Date:
Name of Developer:
Withdrawal Amount:
Acquisition Improvements
[Insert Date of Request]
[Insert Acquisition Price /Installment Payment]
[Insert Description of Acquisition
Improvement(s) /Eligible Portion(s) from Exhibit A]
Payment Instructions: [Insert Wire Instructions or Payment Address for
Developer or Developer's designee as provided by the
Developer]
The undersigned hereby certifies as follows:
The Withdrawal is being made in accordance with a permitted use of the monies pursuant
to the Acquisition Agreement and the Withdrawal is not being made for the purpose of reinvestment.
None of the items for which payment is requested have been reimbursed previously from
the Acquisition and Construction Fund.
If the Withdrawal Amount is greater than the funds held in the Acquisition and
Construction Fund, the Authority Trustee is authorized to pay the amount of such funds and to pay
remaining amount(s) as funds are subsequently deposited in the Acquisition and Construction Fund,
should that occur.
CITY OF BAKERSFIELD
IL0
Title:
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EXHIBIT C
BIDDING, CONTRACTING AND CONSTRUCTION REQUIREMENTS FOR
ACQUISITION IMPROVEMENTS
With respect to construction contracts awarded after approval of the Agreement, bids for construction
shall be solicited from at least three (3) qualified contractors, provided at least three (3) qualified
contractors are reasonably available. The Developer may also directly solicit bids. The bid package may
consist of preliminary plans and specifications.
The bidding response time shall be not less than ten (10) working days.
An authorized representative of the City shall be provided a copy of the tabulation of bid results upon
request.
Contract(s) for the construction of the public Acquisition Improvements shall be awarded to the qualified
contractor(s) submitting the lowest responsible bid(s), as determined by the Developer.
The contractor to whom a contract is awarded shall be required to pay not less than the prevailing rates of
wages pursuant to Labor Code Sections 1770, 1773 and 1773.1. A current copy of applicable wage rates
shall be on file in the Office of the City Clerk, as required by Labor Code Section 1773.2.
The Developer shall provide the City with certified payrolls.
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