HomeMy WebLinkAboutRES NO 61-87NO. ~1-87
RESOLUTION OF THE COUNCIL OF THE
CITY OF BAKERSFIELD AMENDING THE
PARTICIPATION AGREEMENT FOR THE
CITY CENTER PROJECT BETWEEN
MOSESIAN DEVELOPMENT CORPORATION
AND THE BAKERSFIELD REDEVELOPMENT
AGENCY
WHEREAS, the Bakersfield Redevelopment Agency (the Agency) and
Mosesian Development Corporation (the Participant) have heretofore
entered into a Participation Agreement (hereinafter the "PA"), dated
October 24, 1986, pursuant to which the Agency agreed to sell, and
Participant agreed to purchase and develop, certain real property (the
"Sales Property") together with property already owned by the
Participant (the "Participating Property"). The Sales Property and
the participating Property are located within the boundaries of the
Downtown Bakersfield Redevelopment Project (the "Project") and are
collectively referred to as the "Site"; and
WHEREAS, the Agency and the participant now desire to make cer-
tain amendments to the PA in light of current Economic conditions.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BAKERSFIELD DOES
HEREBY RESOLVE AS FOLLOWS:
Section 1. The City Council finds and determines that the pur-
pose of this Agreement is to implement the PA by making certain amend-
ments thereto in light of current conditions and the further planning
decisions of the parties.
Section 2. The City Council hereby finds and determines that the
Method of Financing (Attachment No. 3) is hereby revised and attached
hereto as "Attachment No. 3, Revised Method of Financing," and incor-
porated herein by reference, and is hereby substituted for the origi-
nal Attachment No. 3 and made a part of the PA.
Section 3. The City Council hereby finds and determines that the
Schedule of Performance (Attachment No. 4 of the PA) is hereby revised
and attached hereto as "Attachment No. 4, Revised Schedule of
Performance," and incorporated herein by reference, and is hereby sub-
stituted for the original Attachment No. 4 and made a part of the PA.
Section 4. The City Council hereby finds and determines that
except as modified and amended in this Amendment of the Participation
Agreement, all other
shall remain in full
provisions of the PA not inconsistent herewith
force and effect.
.......... o0o ..........
I HEREBY CERTIFY that the foregoing Resolution was passed and
adopted by the Council of the City of Bakersfield at a special meeting
thereof held on 22nd day of April, 1987, by the following roll call
vote:
AYES: COUNCILMEMBERS: CHILDS, CHRISTENSEN, SMITH,~; MOORE, DICKERSOI'J,'SALVAGGIO
NOES: COUNC~LF, IEr~4BERS: ~.
ABSENT: COUNCILM EM?-Br~:
ABSTAINING. COUNCILMEMG~HS:
CITY CLERK and Ex Officio Clerk of the
Council of the City of Bakersfield
APPROVED April 22, 15~7
MAYOR of the City of B/~kersfield
CIT~ ~T~RNEY of the City
Bakersfield
041587
ATTACHMENT NO. 3
REVISED METHOD OF FINANCING
I. PARTICIPANT'S OBLIGATIONS
A. Purchase Price
1. Amount of Purchase Price.
The Purchase Price to be paid by the
Participant to the Agency for the Sales Property under this
Agreement shall be in an amount equal to thirty-five
percent (35%) of the net fair market value (the "NFMV") of
the Site and all improvements thereon (the "Office
Project") as set forth herein. NFMV means "Fair Market
Value," as defined herein, less (i) "Allowable Dew~lopment
Costs," as defined herein; (ii) a Participant's Profit
equal to fifteen percent (15%) of Fair Market Value (as
defined herein); and (iii) a cost of sale equal to three
percent (3%) of Fair Market Value.
"Fair Market Value" means an amount to be
determined through an appraisal process. Within the time
set forth in the Schedule of Performance (Attachment
No. 4), each party shall at its own cost select an M.A.I.
appraiser to make an independent fair market evaluation of
the Site and all improvements thereon. The Fair Market
Value of the Office Project shall be equivalent to the
value of the Office Project as if it were for sale on the
open market without consideration for any financing which
may exist for the Office Project. If the two appraisers
are in dispute as to the value of the Office Project, they
shall meet and confer and attempt to establish an agreed
value. If the difference between the two appraisals is ten
percent (10%) or less of the amount of the higher
appraisal, the Fair Market Value shall be the average of
the two appraisals. If the difference between the two
appraisals is more than ten percent (10%) of the amount of
the higher appraisal, the appraisers shall select ~ third
M.A.I. appraiser to make an independent fair market
evaluation. The Fair Market Value shall be the average of
the values determined by the three appraisers. The cost of
the third appraiser shall be borne equally by the parties.
During such appraisal procedure, the parties shall continue
to attempt to agree on a Fair Market Value.
Attachment No. 3
Page 1 of 13
"Allowable Development Costs" shall be
determined as of the "Break-Even Date" (as defined herein),
and shall mean the total "Development Costs" (as defined
herein), relating to the office building and parking
improvements less the A§ency's Reimbursement as set forth
in Section II.B. hereof. The Break-Even Date means the
earlier of (i) twenty-four (24) months from the date the
Certificate of Completion for the Developer's improvements
on the Site is issued, or (ii) the month that Gross Income
(as defined in subsection d.(1), below) first equals or
exceeds Permitted Expenses (as defined in subsection d.(2),
below). "Development Costs" shall include:
a o
All Hard Costs ("Hard Costs" are all
direct costs of labor, materials and
subcontract performance that are
incorporated into the improvements, and
all acquisition costs for the
Participating Property) including but
not limited to land acquisition costs,
construction costs, tenant improvements
costs to the extent not paid for by
tenants, and other capital improvements
costs;
All Soft Costs ("Soft Costs" are all
indirect costs of the improvements that
are properly categorized ~s capital
expenditures in accordance with
generally accepted accounting
principles and any other item of actual
expenditure customarily incurred in the
development of office buildings with
parking facilities) actually expended
for the development of the Office
Project commencing with the date of the
Agreement to Negotiate Exclusively
between the Participant and the Agency
through the construction period,
including but not limited to fees paid
to attorneys, architects, engineers,
accountants, consultants and other
professionals; appraisal costs; title
costs; required letters of credit
costs; construction testing costs;
construction performance bond costs;
reasonable employee salaries, if any,
not included in a., above, and only to
the extent directly allocable to the
development of the Office Project;
insurance premiums and commissions;
advertising and marketing costs and
Attachment No. 3
Page 2 of 13
d o
leasing commissions up to the
Break-Even Date including Site signage,
brochures, models, and real estate
brokerage promotional costs; real
estate taxes; financing costs and other
charges; points and commissions on
loans; any payments to governmental
bodies (other than federal, state and
local income taxes) relating to or
arising out of the project for taxes,
assessments or otherwise; and
subdivision costs. Payments to
non-third parties will be restricted in
situations where the Participant is its
own development manager in an amount
not to exceed four percent (4%) of its
Hard Costs, or where the Participant is
its own leasing agent in an amount not
to exceed twenty-five percent (25%) of
the first year's Gross Income or market
leasing commission rate, whichever is
less. Any other such situations shall
also be restricted to costs and fees
which are reasonable and customary.
Interest paid by Participant during the
construction period on all net
disbursements.
Any accumulated amount of "negative
cash flow," as defined herein, that may
be generated from the Office Project
from the date the Certificate of
Completion is recorded to the
Break-Even Date.
For the purpose of this Section I.A.,
the net cash flow or, if the cash flow
is negative, the "negative cash flow"
shall be calculated as follows:
The Gross Income of the Office
Project which means all revenue of
any kind or nature received by or
payable to Participant from the
Office Project, including, without
limitation, all revenue from the
office and parking tenants (but
excluding any security deposits
paid to the Participant which must
be returned to tenants) during the
period from the date the
Certificate of Completion is
Attachment No. 3
Page 3 of 13
(2)
recorded to the Break-Even Date.
The Agency shall have the right to
review and approve in advance all
leases with tenants in the Office
Project for the limited purpose of
ascertaining that the rental terms
applicable through the Break-Even
Date are reasonable in light of
the rental terms for the remainder
of the lease term; less
Permitted Expenses which means
normal and reasonable operating
expenses not reimbursed by
tenants, including building
insurance, janitorial, exterior
and interior maintenance, heating,
ventilating and air conditioning
maintenance, general cleaning and
elevator maintenance; leasing and
refitting expenses associated with
each lease within the Office
Project, which expenses shall be
amortized over the term of their
respective leases; management
expenses, which shall not exceed
4% of the Gross Income of the
Office Project; a reserve allowance
for capital replacements, which
shall not exceed eight cents per
gross square foot of the Office
Project; repair costs, except to
the extent they are properly
chargeable against the accrued
reserve allowance and are not
reimbursed or paid for by insurance
proceeds; and debt service, which
shall be equivalent to the sum of
the Office Project's total[ original
development costs plus the amount
of each year's negative cash flow,
if any, multiplied by the debt
service constant, as defined
herein. In the event debt is not
amortized over the term of the
loan by equal payments of principal
and interest, debt service for
purposes of this subsection (2)
shall be the amount necessary to
amortize the principal and interest
Attachment NO. 3
Page 4 of 13
payments due over a term of
thirty (30) years. The debt
service constant is the rate which
will amortize both the principal
and interest due on the debt.
Within 90 days after the end of each calendar year until
the Purchase Price has been fully paid, the Participant
shall submit to the Agency an annual audited financial
statement of the Office Project's audited development
costs, gross income, gross effective income, operating
expenses and debt service. Additionally, the Participant
shall submit to the Agency a certificate of an independent
certified public accountant to be mutually agreed upon by
the Participant and the Agency, which certificate shall be
addressed to the Agency and shall state that the accountant
is familiar with the terms of this Agreement and attesting
to the accuracy of the Participant's operational income and
costs as reported in the audited financial statement.
2. ~ime for Pa~-ment of Purchase Price
Prior to the ninth anniversary of the date
of conveyance of the Sales Property by the Agency to the
Participant, the Participant shall either pay to the Agency
the Purchase Price in full or shall elect to commence
paying the Purchase Price to the Agency in installments as
described herein.
In the event that the Participant desires to
pay the Purchase Price in installments, commencing on the
ninth anniversary of the date of conveyance of the Sales
Property by the Agency to the Participant, the Purchase
Price and interest on the unpaid balance will be repaid in
the form of montlhly payInents equal to sixty percent (60%)
of the Project's net cash flow, however, the Participant
shall make a minimum annual payment of $52,000. Therefore,
if at the end of each year the twelve (12) monthly payments
of sixty percent (60%) of the Project's net cash flow has
not equaled at least $52,000, within 30 days after the end
of the year the Participant shall pay the difference
between the amount paid to the Agency in that year and
$52,000. Interest on the unpaid balance of the Purchase
Price shall accrue at a rate equal to two percent (2%)
above the prime interest rate. The prime interest rate
shall be established each year based on the Bank of America
prime interest rate in existence on the anniversary date of
the payment of tlhe first installment of the Purchase Price.
In the event the Participant wishes to
refinance, or sell, transfer, convey, assign or lease
(except for leases for occupancy) the Site after issuance
Attachment No. 3
Page 5 of 13
of the Certificate of Completion but prior to the time
established for payment of the Purchase Price as set forth
herein, the Participant shall with the approval and at the
sole discretion of the Agency pay the Agency early (the
"Early Sale") for the Sales Property ("the Early Purchase
Price") in an amount equal to the greater of (a) $650,000
(the fair market value of the Sales Property at the time of
execution of this Agreement), plus an amount equal to any
increase in the CPI (as defined herein) for every year
after the time of execution of this Agreement until payment
of the Early Purchase Price; or (b) the fair market value,
which shall be determined through the same process set
forth in Section I.A.1. hereof, of the land only within the
Sales Property as determined at the time of Early Sale. In
such event, the Agency shall reconvey or cause to be
reconveyed the Deed of Trust.
The CPI shall mean the 1978 Revised United
States Department of Labor's Bureau of Labor Statistics
Consumer Price Index for Urban Wage Earners and Clerical
Workers, Los Angeles - Long Beach - Anaheim, California,
All Items Series A (1967=100).
If the Participant wishes to refinance, or
sell, transfer, convey, assign or lease (except for leases
for occupancy) the Site after both issuance of the
Certificate of Completion and commencement of the payment
of the installments of the Purchase Price as set forth
hereinabove but prior to payment in full of the Purchase
Price, the unpaid balance of the principal of the Purchase
Price and the accrued interest thereon must be paid to the
Agency before the time of such refinancing, sale, transfer,
conveyance, assignment or lease.
Security for Purchase Price and Additional
?ayments
Prior to the close of escrow, the Participant shall
execute and submit to the Agency (1) a Promissory Note, as
evidence of the Participant's obligation to pay the
Purchase Price, and (2) a Deed of Trust on the Site to
secure the Promissory Note. Both documents shall be
approved by Agency counsel in conformance with all the
terms of this Section I.A.3.
The Agency will agree to subordinate its interest in
the Site secured by the Deed of Trust to the original
construction loa~n and to the original permanent loan if the
amount of the loan does not exceed $10,650,000. This
agreement to subordinate the Agency's interest in the Site
secured by a Deed of Trust shall not include the Agency's
interest in the Parking Lease described in Section III of
this Method of Financing.
Attachment No. 3
Page 6 of 13
The Agency shall not subordinate its interest in the
Site secured by a Deed of Trust to any other financing
including but limited to a refinancing, sale, transfer,
conveyance, assignment or lease and in the event any of
these actions occur, the provisions of Section I.A.2. shall
govern.
Except for the Agency's agreement to subordinate as
set forth in Section B herein, any agreement to subordinate
the Agency's interest in the property secured by a Deed of
Trust shall only' take place if all the following conditions
are satisfied:
(a)
In accordance with Section 214 the Agency shall
approve the original construction and permanent
financing commitment which shall contain the
following conditions:
<i)
A requirement that 44,000 square feet (40%)
of the building be preleased prior to the
allocation of the loan proceeds; and
(ii) A requirement that the general partners will
guarantee repayment of the indebtedness.
(b)
All financing documents containing the
subordination of the Agency's interest in the
Site secured by a Deed of Trust shall be subject
to review and approval by the Agency. These
financing documents shall provide that:
(i)
Any insurance proceeds from fire and
extended coverage or other coverage shall be
used for repairk, reconstruction or
restitution of the office project and not to
repay any part of the outstanding
indebtedness secured by the m_~rtgage, deed
of trust or other security interest.
Copies of all notices of default shall be
sent to the Agency and shall give the Agency
the right, but not the obligation,
sixty (60) days to cure, or commence to
cure, within sixty days (60) any default
after the time for the Participant to cure
has expired (including any extensions of
time). Neither the Agency's right to cure
any such default nor the exercise of such
right by the Agency shall constitute or be
construed as an assumption of the
Participant's liability under the financing
documents.
Attachment No. 3
Page 7 of 13
If the Agency agrees to subordinate its interest in
the Site secured by a Deed of Trust in conformance with
this Section I.A.3. then in the years prior to commencement
of the payment of the Purchase Price, and in addition to
any other payments required by this Agreement, including
the Purchase Price, the Participant shall make the
following payments to the Agency from the Net Cash Flow
from the Office Project. For the purpose of this
Section I.A.3. Net Cash Flow shall
be calculated according to Section I.A.d except that
Permitted Expenses in I.A.d.(2) shall not include "debt
service"·
Until commencement of the payment of the Purchase
Price by the Participant, the Net Cash Flow shall be
allocated according to the following priorities:
First, the Participant shall receive an 11% preferred
cumulative return on a total project cost of
$11,500,000 from which debt service will be made·
Second, from the remaining Net Cash Flow, the Agency
shall be paid the greater of (a) or (b) below:
(a) The following Guaranteed Minimum Payments:
Time After Conveyance
of Sales Property
Amount
30 months 0
3 years 10,000
4 years 20,000
5 years 30,000
6 years 40,000
7 years 52,000
8 years 52,000
9 years 52,000
(b) 35% of the Net Cash Flow from 30 months until
9 years after conveyance of the Sales Property.
Third, Participant shall receive the remaining Net
Cash Flow.
If in any year the Agency does not receive the
Guaranteed Minimum Payment according to the schedule above
then the difference between the Guaranteed Minimum Payment
and the amount paid by the Participant to the Agency shall
be paid by the Participant to the Agency with interest
Attachment No. 3
Page 8 of 13
calculated according to the provisions of paragraph 2 of
Section I.A.2. at the time the Participant pays the
Purchase Price. This obligation shall be in addition to
the Purchase Price and shall be paid ~rom the Participant's
65% share of the NFMV of the Office Project.
If the Agency's interest is subordinated, within
90 days after the end of each calendar year through the
calendar year in which the Purchase Price is fully paid,
the Participant shall submit the payment to the Agency
required by this Section I.A.3.
B. Security for Participant's Failure to Fund Fee
As a condition to the Participant's receipt of a
permanent loan commitment from its financing institution
(the "Lender"), the Participant must execute a secured
promissory note in the amount of $315,000 to be paid to the
Lender in the event the Participant does not subsequently
execute the permanent loan documents and draw upon the
funds therefrom according to the terms of the permanent
loan commitment. This fee is hereinafter referred to as
the "Failure to Fund Fee." The Participant wishes to
execute a promissory note to be secured by a deed of trust
on the Site in favor of the Lender in the amount of the
Failure to Fund Fee.
The Agency will agree to subordinate its interest
in the Site which shall be secured by the Deed of Trust
specified in Section A.3 herein to a deed of trust on the
Site to secure the promissory note for the Failure to Fund
Fee, subject to the following conditions:
1. In consideration of the Agency's agreement
to subordinate its interest in the Site, Peter A. Mosesian,
a general partner of Mosesian Development Corporation,
shall execute a personal unconditional guarantee and
promise to pay $315,000 to the Agency, its successors and
assigns, on demandj in lawful money of the United States of
America, in the event the Lender demands payment of the
promissory note or the promissory note becomes payable.
The guarantee shall continue until such time as the
promissory note is either paid in full or becomes null and
void.
2. The promissory note, deed of trust and
guarantee shall be consistent with the terms of this
Agreement and shall be in a form acceptable to the Agency.
In particular, the promissory note shall include provisions
requiring payment only if the permanent loan is not drawn
down by the Participant and that the effect of the
Attachment No. 3
Page 9 of 13
promissory note and deed of trust shall terminate once the
permanent loan is drawn down by the Participant.
Notwithstanding any provisions in this Agreement
to the contrary, this deed of trust shall not be subject to
the conditions for deeds of trust as set forth in
Section A.3 herein.
Site Preparation and Clearance and Improvements
Inside Curbline
The Participant shall be responsible for all of
the site preparation and clearance costs and all of the
improvement costs inside the curbline. However, the Agency
shall pay for some of these costs as set forth in
Section II.B. hereof.
II. AGENCY OBLIGATIONS
Acquisition of the Sales Property and Relocation
of Occupants
The Agency agrees to make good faith efforts to
acquire all portions of the Sales Property and to relocate
occupants therefrom, and shall be responsible for all costs
incurred theref¢,r.
site Preparation and Clearance and Parkinq
Improvements
The Agency shall pay for a portion of the
Participant's costs for site preparation and clearance and
the development of parking improvements, on the Sales
Property in an amount not to exceed $600,000 (the Agency's
Reimbursement). After the construction lender has been
selected by the Participant and prior to approval of the
financing by the Agency, the Agency shall c~rtify in a form
acceptable to the Participant and the construction lender
that the Agency has set aside in an account $600,000 which
will be available to pay costs of Site preparation,
clearance and development of parking improvements. After
the commencement of construction, the Participant shall
cause the contractor to separate the costs of Site
preparation, clearance and the development of parking
improvements from the costs of other improvements, and
submit a statement and evidence of these costs to both the
Participant and the Executive Director of the Agency.
Within twenty (210) days after the Agency's receipt of the
statement and evidence of costs, the Executive Director of
the Agency shall approve or disapprove of the costs. If
approved, the Agency shall pay such costs immediately, up
to a maximum total of $600,000 for the costs either
Attachment No. 3
Page 10 of 13
directly to the contractor or pursuant to another lawful
method which is acceptable to the Agency, the Participant
and the construction lender.
C. Off-Site Improvements
The Agency shall be responsible for
constructing all of the off-site improvements
curbline.
the costs of
outside the
D. Loan for Rehabilitation
The Agency shall use its good faith effort to have the
City approve a loan to the Participant for the purpose of
rehabilitating the existing office building on the
Participating Property. The loan, if made, would be from
the City's existing rehabilitation loan program. Failure
of the Agency's to obtain City approval of a loan shall
not excuse the Participant from obtaining the financing
required by this Agreement and is not grounds for
terminating this Agreement or not complying with any of its
requirements.
III. PARKING LEASE
In the event the Agency exercises its Parking Option
as set forth in Section II.A. of the Scope of Development
(Attachment No. 5), within the time set forth in the
Schedule of Performance (Attachment No. 4), the Agency and
the Participant agree to enter into a lease agreement (the
"Parking Lease") whereby the Agency shall lease
approximately 1C0 parking spaces (the "Agency Parking
Spaces") from tke Participant, in accordance with the
following terms and conditions:
Leased Premises. The Agency shall lease the
Agency Parking Spaces from the Participant to
located in the parking structure to be
constructed by the Participant on the Sales
Property.
be
Co
Lease Term. The term of the Parking Lease shall
commence on the first day the Agency Parking
Spaces are open and available for use (the
"Commencement Date") and shall continue for
ninty-nine (99) years.
Lease Rate. The Agency shall pay to the
Participant a lease amount equal to One
Dollar ($1.00) per month plus an annual pro rata
share of the operating and maintenance expenses
attributable to the Agency Parking Spaces.
Attachment No. 3
Page 11 of 13
D. obtained
Fo
Go
Parkinq Revenues. All parking revenues
from the Agency Parking Spaces shall be
distributed to the Agency.
Use, Operation and Location. The Agency shall
control the use and operation, including rates,
of the Agency Parking Spaces. The Agency Parking
Spaces shall be located at a location mutually
acceptable to the Agency and the Participant.
Maintenance and Repair. The Participant shall be
responsible for the maintenance and repair of the
Agency Parking Spaces.
Insurance/Damage or Destruction. The Participant
shall carry fire and extended coverage insurance
in an amount equal to 100% of the replacement
costs (as defined below) of the Parking Facility
to ensure against loss or damage to the Parking
Facility resulting from risk ordinarily within
the classification of fire and extended coverage,
and specifically against the following perils:
fire, windstorm, cyclone, tornado, hail,
explosion, riot, riot attending strike, civil
commotion, malicious mischief, vandalism,
aircraft, vehicle, smoke damage and sprinkler
leakage. Such insurance shall be carried with
financially responsible insurance companies and
may be carried under a policy or policies
covering other property owned or controlled by
the Participant, provided that such policy or
policies shall allocate to the Parking Facility
an amount not less than 100% of the replacement
costs (as defined below) thereof.
The term "replacement costs" as used in this
Section G. shall mean the actual costs of
replacing the Parking Facility including amounts
for construction, architectural, engineering,
legal and administrative fees and inspection and
supervision during construction. Said
replac~ment costs shall be determined from time
to time (but not less frequently that once in
every thirty-six months) either by an appraisal
by an insurance company providing insurance
covering the destruction of the Parking Facility
or by an appraiser selected by the Participant
and approved by the Agency.
All insurance provided under this Section G.
shall be for the benefit of the Participant and
the Agency as a named insured.
Attachment No. 3
Page 12 of 13
The Participant shall furnish to the Agency on or
before the effective date of the Parking Lease
evidence that the insurance referred to in this
Section G. shall be in force and effect on said
effective date and that the premiums therefor
have been paid.
In the event that during the term of the Parking
Lease the Parking Facility shall be damaged or
destroyed by fire or other casualty, the
Participant shall repair or restore the Parking
Facility with all reasonable diligence.
In the event the Participant does not repair or
restore the damaged or destroyed Parking
Facility, the insurance proceeds received on
account of any damage to or destruction of the
Parking Facility or any part thereof shall be
applied as follows:
The amount of the insurance proceeds
attributable to the Agency Parking
Spaces shall be paid to the Agency.
The remainder of any insurance proceeds
shall be paid to the Participant.
ATTACHMENT NO. 5
Attachment No. 3
Page 13 of 13
ATTACHMENT NO. 4
REV__I_S_~D SCHEDULE OF PERFORM~ANCE
Action
Environmental Assessment. The
Agency shall take all necessary
actions and shall prepare all
necessary documents in order to
comply with CEQA.
Submission of Basic Concept
Drawinus. The Participant shall
prepare and submit to the Agency
for approval the Basic Concept
Drawings and related documents
for development of the Site.
Approval of Basic ConcePt
Drawings. The Agency shall
approve or disapprove the Basic
Concept Drawings.
Acenc¥ Park!no Option. The
Agency must exercise the Parking
Option if it wishes the
Participant to provide the
Agency with the additional 100
parking spaces.
Submission--Preliminary
Construction DrawinGs,
Landscabins and Gradinc Plan.
The Participant shall prepare
and submit to the Agency
Preliminary Construction
Drawings, outline specifications
and Landscaping and Grading Plan
for improvements on the Site.
Aooroval--Preliminarv Construc-
tion Drawincs, L~n~scsDins and
Gradins Plan. The Agency shall
approve or disapprove the Pre-
liminary Construction Drawings,
outline specifications and Land-
scaping and Grading Plan for
improvements on the Site.
[)ate
Prior to approval of this
Agreement.
Within 60 days after execution
of this Agreement by the
Agency.
Within 30 days after receipt
by the Agency.
Within 30 days after approval
of the Basic Concept Drawings.
Within 90 days after approval
by the Agency of the Basic
Concept Drawings.
Within 30 days after receipt
by the Agency.
Attachment No. 4
Page 1 of 5
10.
11.
12.
Action
Submission--Evidence of
Financinq Commitments. The
Participant shall submit to the
Agency satisfactory evidence
that the Participant has the
equity capital and commitments
for mortgage financing necessary
to carry out its obligations
under this Agreement.
Participant Submits Evidence of
Additional LandscaoinG &
Maintenance Obliqations on
Adjacent Abandoned Property.
The Participant shall either
cause the Adjacent Property
Owner to enter inte an Owner
Participaticn Agreement with the
Agency or submit an agreement
between the Adjacent Property
Owner and the Participant, which
provides for the p]anting,
landscaping and maintenance of
the Adjacent Abandoned Property.
ADproval--Evid- nce of Financing
Commitments. %he Agency shall
approve or disapprove the
Participant's evidence of
financing.
Commencement of AcQuisition.
The Agency shall ccmmence
acquisition of the Sales
Property.
Opening of Escrow· The Agency
and the Participant shall open
the escrow for conveyance of the
Sales Property.
Submission--Final Construction
Drawings, Landscapin~ and
Gradina Plan· The Participant
shall prepare and submit to the
Agency Final Construction
Drawings and specifications and
Final Landscaping ~.nd Grading
Plan for the Site·
Within 6 months after approval
of this Agreement by the
Agency.
Prior to submission of Final
Construction Drawings,
Landscaping and Grading Plan
for the Site.
within 30 days after receipt
by the Agency.
Within 30 days after Agency's
approval of Participant's
evidence of financing.
Within 30 days after commence-
ment of acquisition by the
Agency.
Within 120 days after the
approval of the Preliminary
Construction Drawings and
Landscaping and Grading Plan.
Attachment No. 4
Page 2 of 5
13.
15.
16.
17.
lS.
$ction
ADDroYal--Final Construction
Drawinca, LandscaDinc and
Gradinq Plan. The Agency shall
approve or disapprcve the Final
Construction Drawings and
specifications and Final
Landscaping and Grading Plan for
the Site.
Completion of Accuisition. The
Agency shall complete
acquisition of the Sales
Property and the relocation of
all occupants.
Parkinc Lease. The Participant
and the Agency shall execute the
Parking Lease.
Parcel MaD. If necessary, the
Agency shall prepare and process
a Parcel Map for conveyance of
the Sales Property.
Participant's Submission of
Documents. The Participant
shall submit to the Agency:
- evidence cf fee title to the
Participating Property;
a copy of the contract for
construction of the
improvements on the Site;
a copy of the construction
contractor's performance bond
for completion of the
construction of t]he
improvements on the Site.
Deposit of Grant Deed. The
Agency shall deposit the grant
deed for the Sales Property into
escrow.
Within 30 days after receipt
by the Agency.
within one (1) year after the
commencement of acquisition.
Prior to the close of escrow.
Prior to the close of escrow.
Prior to the close of escrow.
Not later than 3 days prior to
the close of escrow.
Attachment No. 4
Page 3 of 5
19.
20.
21.
22.
23.
24.
25.
Deposit of Deed of Trust and
Promissory Note. The
Participant shall deposit into
escrow the Deed of Trust and
Promissory Note.
Delivery of Possession of Sales
Property to Participant. The
Agency shall deliver possession
of the Sales Property to the
Participant.
Close of Escrow. Tine Agency
shall convey title to the
Participant, and the Participant
shall accept conveyance of the
Sales Property.
Commencement of
The Participant
construction of
on the Site.
Improvements.
shall commence
the improvements
Completion of Improvements. The
Participant shall complete
construction of imp~ovements on
the Site.
Certificate of Comoletion. The
Agency shall file for
recordation a Certificate of
Completion of the Site.
Selection of ADoraisers ~nd
Commencement of ADprsisa!s. The
Participant and the Agency shall
select their appraisers and have
the appraisals commenced for
determining the Fair Market
Value in order to establish the
Purchase Price to be paid to the
Agency by the Participant.
Not later than 3 days prior to
the close of esorow.
The earlier of (1) the close
of escrow for conveyance of
the Sales Property by the
Agency to the Participant; or
(2) if the Agency elects to
acquire the property by
eminent domain, within 150
days of the Agency approval of
the Participant's evidence of
financing.
Within 10 days after the Agency
has completed acquisition and
relocation and all previous
actions required by this
Agreement have been achieved.
Within 30 days after convey-
ance of the Sales Property to
the Participant.
Within 13 months after the
commencement of construction.
Upon completion of construc-
tion of all the improvements
on the Site satisfactory to
the Agency.
Prior to the end of the ~02nd
month after the close o~
escrow for conveyance of the
Sales Property by the Agency
to the Participant.
Attachment No. 4
Page 4 of 5
26.
27.
28.
29.
Action
Appraisals Completed.
Appraisals shall be completed.
Commencement of Third
Appraisal. If a third appraisal
is required, it shall be
commenced.
Completion of Third Appraisal
and Establishment cf Fair Market
Value. The third appraisal is
completed and the Fair Market
Value is established.
Payment of Purchase Price. The
Participant shall either pay the
Agency the Purchase Price in
full or commence paying the
Purchase Price in installments
for the Sales Property as set
forth in the Method of Financing
(Attachment No. 3).
Prior to the end of the 105th
month after the close o~ -
escrow for conveyance of the
Sales Property by the Agency
to the Participant.
Prior to the end of the 106th
month after the close
escrow for conveyance of the
Sales Property by the Agency
to the Participant.
Prior to the end of the t07th
month after the close
escrow for conveyance of the
Sales Property by the Agency
to the Participant.
Prior to or on the ninth
anniversary of the date of
conveyance of tlhe Sales
Property by the Agency to the
Participant.
Attachment No. 4
Page 5 of 5
SCOPE OF DEVELOPMENT
I. GENERAL
The Site shall be designed and developed as an
integrated complex in which the structures will have a high
quality contemporary architectural design, with harmony and
compatibility with adjacent new commercial buildings in the
downtown area.
The open spaces between the buildings where they exist
shall be designed, landscaped and developed with the same
degree of quality. The total development shall be in
acceptable conformity with the Redevelopment Plan for the
Downtown Bakersfield Redevelopment Project and all
standards as contained in the adopted Redevelopment Element
of the City's General Plan. The Agency and the Participant
will cooperate and direct their consultants, architects
and/or engineers to cooperate so as to ensure the
continuity and coordination vitally necessary for the
proper and timely completion of the Project.
II. PRIVATE DEVELOPMENT AND SITE CLEARANCE
A. Participant's Improvements
The Participant shall construct or cause to be
constructed on the Site an office building of approximately
100,000 gross square feet, with approximately 30 surface
parking spaces and a multi-level parking facility (the
"Parking Facility") containing a minimum of approximately
325 parking spaces, of which approximately 100 parking
spaces shall be subterranean, landscaping of all open
common areas between and among the buildings on the Site,
and such other on-site improvements as are necessary for
the development, use and maintenance of the Site (the
"Participant's Improvements").
In addition, the Agency has the sole option at
its discretion to require the Participant to construct an
additional level of parking within the Parking Facility for
approximately 100 additional parking spaces (the "Parking
Option"). In order to exercise the Parking Option, the
Agency must nctify the Participant in writing of its desire
to exercise it within thirty (30) days after approval of
the Basic Concept Drawings for the Parking Facility. In
the event the Agency does exercise the Parking Option, the
Agency shall be responsible for the costs of construction
Attachment No. 5
Page 1 of 4
of the additional parking spaces, and shall enter into an
agreement with the Participant for the lease of such
additional parking spaces as set forth in Section III. of
the Method of Financing (Attachment No. 3).
A heliport shall be permitted, subject to all
applicable regulations by the City, County or Federal
Aviation Agency.
All microwave receiving equipment, antennas,
transmitting dishes, etc., and environmental systems shall
be architecturally integrated with the basic design of the
structure. If design, location and treatment of these
facilities cannot be addressed during the preliminary
construction drawing stage, the treatment of this equipment
must be submitted to the Design Review Board for approval.
B. Architecture and Desiqn
The Participant's Improvements shall be of high
architectural quality, shall be well-landscaped, and shall
be effectively and esthetically designed. The shape, scale
of volume, exterior design and exterior finish of each
building must be consonant with, visually related to,
physically related to, and an enhancement to each other and
to adjacent buildings within the Project Area. The
Participant's plans submitted to the Agency for approval
shall describe in reasonable detail the architectural
character intended for the Participant's Improvements.
C. Landsca~inq
Landscaping shall embellish all open spaces upon
the Site (including setback areas) to integrate the
Participant's Improvements on the Site. Landscaping
includes but is not limited to such materials as paving,
trees, shrubs and other plant materials, landscape
containers, plaza furniture, top soil preparation,
automatic irrigation, landscape and pedestrian lighting and
water elements.
In addition to the landscaping required on the
Site, the Participant shall be responsible for the planting
and landscaping required in the existing area of K Street
between 17th and 18th Streets which is to be abandoned by
the City pursuant to Section III.E. herein and the mainten-
ance thereof (the "Additional Landscaping and Maintenance
Obligations"). A portion of this abandoned propertly shall
be located on property adjacent to the Site (the "Adjacent
Abandoned Property") and shall be owned by an adjacent
property owner (the "Adjacent Property Owner"). In order
to assure that the Additional Landscaping and Maintenance
Attachment No. 5
Page 2 of 4
Obligations pertaining to the Adjacent Abandoned Property
are fulfilled within the time set forth in the Schedule of
Performance (Attachment No. 4), the Participant shall
either cause the Adjacent Property Owner to enter into an
owner participation agreement with the Agency requiring the
Adjacent Property Owner to comply with the Additional
Landscaping and Maintenance Obligations or submit an
agreement between the Participant and the Adjacent Property
Owner which provides the Participant with access and rights
to the Adjacent Abandoned Property for the purposes of
complying with the Additional Landscaping and Maintenance
Obligations.
Landscaping shall carry out the objectives and
principles of the Agency's desire to accomplish a high
quality aesthetic environment.
D. Signs
All signs on the exteriors of buildings and
structures facing the street developed as a part of the
Participant's Improvements are of special concern to the
Agency and must be approved by the Agency, which approval
shall not be unreasonably withheld, and must comply with
applicable City ordinances and codes. The sign program
shall be developed in a comprehensive manner and shall be
submitted to the Design Review Board as a comprehensive
sign program prior to receiving Occupancy permits. The
locations, size, style and texture of signs must be clearly
defined.
E. Demolition, Compaction, Finish Gradinq and Site
Work
The Participant shall demolish all existing
structures on the Site and compact, finish grade and do
such site preparation as is necessary for the construction
of the Participant's Improvements on the Site.
III. PUBLIC PARTICIPATION IN DEVELOPMENT OF THE SITE
A. Relocation of Occupants of the Site
The Agency shall relocate all occupants of the
Site in accordance with state law.
B. Off-Sites
The Agency shall be responsible for constructing
all of the off-site improvements outside of the curbline,
and for providing utilities to the property line of the
Site.
Attachment No. 5
Page 3 of 4
C. Parcel MaD
If necessary, the Agency, prior to the date of
conveyance of the Sales Property, shall prepare and record,
or shall cause to be prepared and recorded, a parcel map
with respect to the Sales Property. The Agency shall bear
the costs of preparing and filing the parcel map if
required for conveyance of the Sales Property to the
Participant.
D. Environmental Review
The Agency, prior to the date of conveyance of
the Sales Property, shall prepare and certify the
appropriate environmental document required for development
of the Site.
E. Easements
The Agency shall cause the abandonment of (1) the east
one-half of "K" Street between 17th and 18th Streets; and
(2) the 30-foot east/west easement located in the middle of
the Site and relocation of the utilities contained therein,
if necessary.
The Agency and the Participant shall grant and permit
all other necessary and appropriate easements and rights
for the development of the Site, including, but not limited
to, easements and rights of vehicular access, pedestrian
access, parking, all utility services, structural support
and ventilation.
Attachment No. 5
Page 4 of 4