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HomeMy WebLinkAboutRES NO 164-05 RESOLUTION No.1 6 4 ;,; 0 5 RESOLUTION APPROVING FORM AND SUBSTANCE OF ACQUISITION AND DISCLOSURE AGREEMENT AND AUTHORIZING CHANGES THERETO AND EXECUTION THEREOF CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO. 05-1 (CITY IN THE HILLS) WHEREAS, there has been filed with the City Clerk of the City of Bakersfield (the "City") an agreement, having Exhibits A through D, inclusive, attached thereto, and entitled "Acquisition and Disclosure Agreement" (the "Acquisition and Disclosure Agreement"), dated July 20, 2005, by and between the City and Mountain View Bravo, LLC; and WHEREAS, this City Council wishes to approve the Acquisition and Disclosure Agreement as to fonn and substance, with provision for making changes thereto, and to authorize the execution thereof; NOW, THEREFORE, THE CITY COUNCIL HEREBY FINDS, DETERMINES AND RESOLVES as follows: 1. This City Council approves the fonn and substance of the Acquisition and Disclosure Agreement, providing (1) the tenns and conditions under which Mountain View Bravo, LLC, will provide for the construction and installation of certain prescribed improvements and (2) the tenns and conditions under which the City will use its best efforts to issue and sell limited obligation improvement bonds of Assessment District No. 05-1 (City in the Hills) ("Assessment District No. 05-1") and, upon satisfaction of certain prescribed conditions, utilize a prescribed portion of the proceeds of sale of such bonds to acquire the completed DOCSSF1:819430.1 40213-36 SS4 ~ 'òAK~?> C) ó' >- ." ,... IT - r- "'ORIGINAt<:> improvements, it being expressly provided in the Acquisition and Disclosure Agreement, among other things, that the purchase price of the subject improvements is payable solely from such proceeds of sale and from no other source whatsoever. A copy of the Acquisition and Disclosure Agreement is attached to this resolution. 2. This City Council hereby authorizes the making of modifications to said Acquisition and Disclosure Agreement prior to execution thereof, provided that any such modifications, including additions, changes, and deletions, be approved by the City Attorney prior to such execution, such approval to be conclusively established by the City Attorney's execution thereof. 3. The Mayor is authorized to Sign the Acquisition and Disclosure Agreement, the Finance Director is authorized to countersign the Acquisition and Disclosure Agreement as signed by the Mayor, and all other officers and representatives of the City and of the City's Bond Counsel for Assessment District No, 05-1 are authorized to execute where indicated. DOCSSFl:819430.1 40213-36 SS4 2 ~ 'òAK~1' C) <P >- '"" ,... m - r- o (J f)RIGINAI I 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 July 20,2005, by the following vote: ~v Vv~ ,,/ CARSON, BENHAM, MAGGARD, COUCH, HANSON, SULLIVAN, SCRIVNER ~ Councilmember NOES: Councilmember ABSTAIN; Councilmember C A~SENT:) Councilmember 5-· t>t) ~ ~~ éLMrrh^~ City Clerk and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED this 20th dav of Julv. 2005 MIKE MAGGARD Vice-Mayor ~~1f Q APPROVED AS TO FORM: ORRICK, HERRINGTON & SUTCLIFFE LLP Bond Counsel By APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney BY~~~ DOCSSFl:819430.1 40213-36 SS4 3 « 'òAK~1' C) <J> "- .." ,... f11 Õ ,... '1PIGINAf ACQUISITION AND DISCLOSURE AGREEMENT NO. CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO. 05- I (CITY IN THE HILLS) Recitals A. The parties to this Acquisition and Disclosure Agreement (the "Agreement") are the City of Bakersfield, a California charter city (the "City"), and Mountain View Bravo, LLC, a California limited liability company (the "Developer"). B. The effective date of this Agreement shall be July 20, 2005. C. The Developer has caused an executed petition to be filed with the City, requesting the City to implement special assessment proceedings for the purpose of acquiring certain public improvements (the "Improvements") within or adjacent to the assessment district (the "Assessment District"), which public improvements are to be constructed by the Developer, as stated in the petition, Said proceedings are to be taken pursuant to the Municipal Improvement Act of 1913 (Sections 10000 and following, California Streets and Highways Code) (the "1913 Act"), Section 53753 of the California Government Code, and Bakersfield Municipal Code Section 13.08,070, leading to the levy and recording of special assessments upon certain prescribed property (the "Subject Property") within the Assessment District, and limited obligation improvement bonds (the "Bonds") of the City are to be issued and sold pursuant to the Improvement Bond Act of 1915 (Sections 8500 and following, California Streets and Highways Code) (the "1915 Act") upon the security of the unpaid special assessments on the Subject Property, which constitutes a land development project of the Developer commonly DOCSSF 1 ,819441.1 40213,36 SS4 ~ 'òMt"-9 C) ~ >- - ,... m _ r- '" (J I')R\(jlNAl ._ ,___...,_,__. ..___..___..____._n_._.'_ ._--'_..~- referred to as "City in the Hills," The Improvements and the estimated construction costs related thereto are identi fied in Exhibit A, attached hereto and by this reference incorporated herein, The Subject Property is shown in Exhibit B, attached hereto and by this reference incorporated herein, The parties expressly acknowledge that Exhibit A shall be subject to revision after the effective date of this Agreement to reflect modifications made to the Engineer's Report (as defined in paragraph D below) at any time in accordance with the 1913 Act, it being the intention of the parties that Exhibit A shall at all times reflect the corresponding information as set forth in the Engineer's Report, as the same may be modified from time to time by action of the City Council. All references hereafter in this Agreement to "Exhibit A" shall be deemed to be references to Exhibit A as modified from time to time. D. On May 25, 2005, the City Council of the City approved the boundary map for the proposed assessment district to be known as "Assessment District No. 05-1 (City in the Hills)." By its resolution of intention also adopted on May 25, 2005, the City Council appointed the Director of Public Works of the City as the Engineer of Work for the Assessment District and directed the Engineer of Work to prepare and file with the City Clerk the written engineer's report (the "Engineer's Report") prescribed by Section 10204 of the California Streets and Highways Code, as supplemented by Article xmD of the California Constitution. The Engineer's Report, when filed with the City Clerk, will be submitted to the City Council for preliminary approval and the scheduling of the required public hearing. Following the close of the public hearing and subject to the information and evidence provided at the hearing, the City Council is expected to approve the Engineer's Report, whether as originally filed or as modified to incorporate changes deemed appropriate by the City Council. DOCSSF 1 :8194411 402 I],]ó SS4 2 ~~M~-5' C) ~ >- - ,... m _ r- o (J ORIGINAL E. The City has selected Stone & Youngberg LLC as the investment banking firm to act as underwriter (the "Underwriter") of the Bonds, which are to be issued pursuant to the 1915 Act, in a principal amount not to exceed the total amount of assessments which are proposed to be levied on the Subject Property, as shall be specified in the Engineer's Report. Assuming eventual approval ofthe Engineer's Report, levy and recording of the assessments and sale of the Bonds to the Underwriter, upon receipt of bond sale proceeds, if, as and when received from the Underwriter, the City intends to utilize a prescribed portion of said proceeds of sale in accordance with and subject to the terms and conditions of this Agreement to acquire from the Developer completed portions or phases of the Improvements, as summarized in Exhibit A, and to reimburse the Developer for the Developer's Incidental Construction Expense (defined in paragraph 8 below). F. It is understood by the Developer that there may be insufficient funds ITom the proceeds of sale of the Bonds to pay the Acquisition Price (as defined in paragraph 6 below) of completed portions or phases of the Improvements. As used in the foregoing sentence and elsewhere in this Agreement, the term "proceeds of sale of the Bonds" shall be deemed to include that portion of the investment earnings on the prescribed amount of such proceeds as are deposited in the Improvement Fund to be established for the Assessment District pursuant to the resolution authorizing issuance of the bonds (the "Resolution"), which portion is not required to be set aside for rebate to the United States of America pursuant to the provisions of the Resolution pertaining to such rebate set-aside procedures. G, For the benefit of purchasers of the respective parcels of land constituting the Subject Property, and to assure the City that the special assessment lien obligation is being fully disclosed to such purchasers, the Developer is willing to agree to obtain from each such DOCSSFl :819441.1 4021 ],]6 SS4 3 ~ 'òA/Ç~~ C) <f> "- ""'" '::: rn <.J ,... (J ORIGINAL ,~._.._._.__._----- purchaser an executed and acknowledged notice in substantially the form set forth in Exhibit C, attached hereto and by this reference incorporated herein, to cause such notice to be recorded in the official records of the County Recorder of the County of Kern, and to file a copy of each such executed notice with the Finance Director of the City (the "Finance Director"). H. In consideration for the mutual undertakings of the parties stated herein, the parties agree as follows: Al!reement I. The foregoing recitals are true and correct, and the parties expressly so acknowledge. Said recitals are incorporated herein by reference. 2, Upon receipt from the Underwriter of a written offer for purchase of the Bonds satisfactory to the Finance Director, and upon prior satisfaction of all other conditions precedent to bond issuance and delivery as specified herein, the City agrees to proceed with all due diligence in providing for issuance, sale and delivery of the Bonds. The Developer expressly acknowledges that the conditional obligation of the City to pay the Acquisition Price (as defined in paragraph 6 below) for the Improvements is strictly limited to a portion of the proceeds of sale of the Bonds and to no other source of funds whatsoever and, further, that the principal amount of the Bonds will be strictly limited in accordance with paragraph 6 below. 3, The Developer shall provide for its own construction financing, construction contracting and contract administration for the Improvements. In providing for the construction and installation of the Improvements, the Developer shall be obligated to meet all requirements customarily imposed upon subdividers and developers in such circumstances by the DOCSSF 1:819441.1 40213-3ó SS4 4 ~ 'òAK~?> C) û' >- -:!ò I- m - ,... '" (J ORIGINAL City and by any other public agency or public utility company having jurisdiction. Without limiting the generality of the foregoing, the Developer shall be obligated as follows: a. The Developer shall post completion bonds, labor and materials bonds, and one-year maintenance bonds in the same manner and in the same amount as is required by the City and by any other public agency or public utility company having jurisdiction as would be required in the absence of assessment proceedings. b, The Developer shall complete and record a Developer's notice of completion (the 'Developer's Notice of Completion") for each phase of the Improvements that is to be acquired by the City, c. By its offer to transfer ownership of any portion or phase of the Improvements to the City or other public agency or public utility having jurisdiction, the Developer shan warrant that said portion or phase of the Improvements will be free from defects in workmanship or materials and will be suitable for their intended use. Said warranty shall extend for a period of one (I) year after the recording by the City of a notice of completion and acceptance of work (a "Notice of Completion and Acceptance of Work") or for a period of one (I) year from the finalization of a street construction pennit (a "Street Construction Permit"). A Notice of Completion and Acceptance of Work shall only be issued pursuant to an improvement agreement (an "Improvement Agreement"), entered into between the City and the Developer, for the particular parcel map or tract map under which the Developer is required to construct the portion or phase of Improvements in question. Consequently, the Developer understands that the one (I) DOCSSFI :819441.1 40213-36 SS4 year warranty period may, in fact, extend considerably beyond one (I) year after ~ 'òAK~-9 C) <f> "- -n ,... - _ m o ,... ORIGINAt(J 5 completion of a particular portion or phase of Improvements completed and acquired by the City pursuant to this Agreement because the City's Notice of Completion and Acceptance of Work for any tract or parcel can be issued only when all of the Improvements required to be constructed by that Improvement Agreement have been completed and accepted by the City for the entire tract or parcel in question. Similarly, a Street Construction Permit may sometimes be issued for Improvements which are constructed, completed and deemed ready for acceptance in portions or phases, with the similar result that the one (I) year warranty period may again extend beyond one (I) year after completion of a portion or phase of Improvements has been completed. d. In addition to the warranties and obligations of the Developer set forth in the foregoing subparagraph (c), the Developer shall remain and shall be responsible to the City for any defects in work, supplies, or materials in connection with the Improvements occurring or appearing within one (I) year ofrecording by the City of its Notice of Completion and Acceptance of Work, as identified in the foregoing subparagraph (b) of this Section 3, The City shall give the Developer written notice to replace, repair or correct any defect forthwith upon discovery thereof, and the Developer shall proceed forthwith and with all due diligence to effectuate replacement, repair or correction of such defect; and, without in any way whatsoever diminishing the warranties and obligations of the Developer or shortening the period thereof as prescribed in the foregoing subparagraph (c), and provided that such replacement, repair or correction of such defect is completed or made to the satisfaction of the Director in the Director's sole discretion (such discretion not to be unreasonably exercised), the responsibility of the DOCSSFI,819441.1 40213-36 SS4 6 ~ 'òf'..Ké'-9 C) <P >- "!' I- ,." - ,.... o (J ORIGINAL --.-".------ '-'..----"----'-----.-.-.-- Developer for defects shall terminate at the end of one (1) year following such occurrence or appearance. 4. Subject to the limitation that the obligation of the City to pay the Acquisition Price (defined in paragraph 6 below) shall be strictly limited to a portion of the proceeds of sale of the Bonds and to no other source of funds whatsoever, the Developer shall cause the Improvements to be constructed, and the City shall acquire the Improvements from the Developer. Construction of the Improvements need not be undertaken in any given sequence, and discrete portions or phases of the Improvements (as identified in Exhibit A) may be completed and acquired in phases without the necessity of completion and acquisition of other portions or phases of the Improvements, provided that the conditions of this paragraph 4 and of paragraphs 7 and 10 of this Agreement have been satisfied as to such portions or phases of the Improvements and as to the Subject Property, Upon receipt of a Developer's Application and Certificate for Payment (substantially in the form of Exhibit D attached hereto) (the "Developer's Application"), signed and stamped by the Developer's engineer, certifying that discrete portions or phases of the Improvements (as identified in Exhibit A) are complete and ready for acceptance by the City (said portions or phases of the Improvements to be itemized in said Developer's Application and to match the description of the Improvements set forth in Exhibit A), the Director of Public Works of the City or his designee (the "Director") shall review such Developer's Application. Upon making the determination that such portions or phases of the Improvements (as identified in Exhibit A) are complete and ready for acceptance (such determination not to be umeasonably withheld), and upon the City's recordation of its Notice of Completion and Acceptance of Work, said Director shall accept said portions or phases of the Improvements as complete and shall ~ '?JAK~~ C) ~ "- - I- rr, - f"- '" e:. ORIGINAL DOCSSFI,819441.1 40213,36 SS4 7 issue a written acknowledgment to that effect (the "Director's Acknowledgment"); provided that, in reviewing the Developer's Application, the Director shall apply the City's then current standards for inspection and certification of acceptability of public improvement work in effect at the time of approval of the applicable improvement plans, unless a different standard is required by law in which case the legally required standard shall be applied, and the Developer's Application shall be denied until such standards have been met, as determined by the Director, such determination not to be unreasonably withheld. Issuance of the Director's Acknowledgment shall constitute acceptance of such portions or phases of the Improvements for ownership by the City without the necessity of any further action or documentation, and the date of the Director's Acknowledgment shall constitute the date of transfer of ownership of the subject portions or phases of the Improvements. The warranty of the Developer specified by paragraphs 3(b) and 3(c) above shall commence on said date as to such portions or phases of the Improvements and shall continue for a period of one (I) year from the date of issuance of the City's Notice of Completion and Acceptance of Work for the entire tract or parcel in question, The amount of the Acquisition Price payable to the Developer on account of acquisition of such portions or phases of the Improvements and the procedure for disbursement of such Acquisition Price shall be determined in accordance with paragraphs 6 and 7 below in this Agreement; provided that the Developer expressly acknowledges that the obligation of the City to pay the Acquisition Price for any portions or phases of the Improvements is strictly limited to the prescribed portion of the proceeds of sale ofthe Bonds. DOCSSFI :819441.1 4021 )-36 SS4 8 ~ ~"'Kê-9 C) <I' ., >- - b .11 '" ..,. v .:tì I'\f:WAAtII.L 5, The City agrees to use its best efforts to accomplish a public offering and sale of the Bonds, it being understood that the City intends to accomplish such offering and sale through a negotiated sale to the Underwriter. The City agrees that the total discount applicable to such negotiated sale (including both Underwriter's discount and original issue discount, if any) shall not exceed the amount specified for "Bond Discount" in the Engineer's Report, as finally approved by the City Council, and that the Underwriter shall not be entitled to any allowance for Underwriter's counsel. To enable the City and the City's disclosure counsel for the Bonds ("Disclosure Counsel") to prepare an Official Statement to be utilized in connection with the Underwriter's public offering of the Bonds, the Developer shall (a) provide such Developer financial information, development program information respecting the Subject Property, title reports, appraisal reports, and such other information as the City, Disclosure Counselor the Underwriter may reasonably consider material in connection with preparing the Official Statement and determining feasibility and structure of the proposed bond issue and (b) execute a continuing disclosure undertaking to be prepared by Disclosure Counsel in a form and containing annual reporting and material event notice requirements which are standard for bond issues such as the Bonds and are otherwise required by the Securities and Exchange Commission, as determined by Disclosure Counsel. Except for those reports and information for which an allowance for costs has been set forth in the Engineer's Report (e.g., appraisal report), such reports and information shall be provided to the City and to the Underwriter at no cost to either. 6. The Developer expressly acknowledges that the acquisition price to be paid by the City from bond sale proceeds to acquire the completed Improvements (the "Acquisition Price") shall be equal to the actual cost to the Developer in constructing the DOCSSFI,819441.1 40213,36 SS4 9 ~ 'òAk(;"~ ~ ~ ?- ñi ''0 .."":' 'i)11:!Ir:;WfI¡(:)) ._~'---"-'--------------'--- Improvements, it being expressly understood that the City will limit the principal amount of such Bonds to an amount not to exceed one-fourth of the appraised fair market value of the Subject Property, as established by an appraisal report from an appraiser selected by the City, said appraisal report to be satisfactory to the City and to the Underwriter. Without limiting the generality ofthe foregoing, the City will limit the amount of the assessment lien on any parcel in the Assessment District to not more than one-third of the appraised fair market value of each such parcel. F or purposes of calculating the Acquisition Price at actual cost, said actual cost shall be determined by the Director on the basis of paid invoices, canceled checks and like documentation of the amounts actually paid by the Developer, it being understood that the Engineer's Report reflects such actual costs as nearly as is practicable. 7. Following receipt of proceeds of sale of the Bonds, payment by the City to the Developer of the Acquisition Price for completed portions or phases of the Improvements shall be made within thirty (30) days of satisfaction of both of the following conditions: a. The Director shall have issued the applicable Director's Acknowledgment, as provided by paragraph 4 above; and b. The Developer shall have provided the Director with copies of the paid invoices, canceled checks and like documentation required by paragraph 6 above for certification of actual cost of such portions or phases of the Improvements so as to establish the Acquisition Price thereof. DOCSSF 1:819441.1 40213-36 SS4 10 ~ 'òM~'9 C) <!} >- - I- rr _ t- '" C) ORIGINAL In the event the Acquisition Price exceeds the amount of the cost estimate for such portions or phases of the Improvements, as set forth in the Engineer's Report and summarized in Exhibit A hereof, the Developer shall nonetheless be paid the amount by which the Acquisition Price exceeds the lesser amount set forth in the Engineer's Report and summarized in Exhibit A hereto, but only (I) if there is a sufficient balance in the contingency allowance allocated to such portions or phases of the Improvements as set forth in Exhibit A for such purpose or (2) if, upon completion of all of the Improvements, savings have been achieved with respect to the Acquisition Price of other portions or phases of the Improvements which savings remain available for such purpose. 8. In addition to payment to the Developer by the City from the proceeds of sale of the Bonds of the Acquisition Price of the Improvements, the City shall further reimburse the Developer, but again only from the proceeds of sale of the Bonds, for the Developer's Incidental Construction Expense. Such Developer's Incidental Construction Expense shall be payable only to the extent that an explicit allowance is made in the Engineer's Report for such expense or surplus funds remain available for such purpose following completion of and payment for all of the Improvements. Such Developer's Incidental Construction Expense shall include (I) the cost and expense of engineering design of the Improvements, (2) the cost and expense of administering the construction contract or contracts for the construction of the Improvements, including construction change orders, (3) fees and costs incurred in obtaining permits, licenses, and payment and performance bonds, (4) fees and costs, if any, incurred with respect to acquiring rights-of-way or easements in connection with the Improvements, (5) fees and costs paid to title insurance companies for title reports, title insurance, recording services, lien-rree endorsements, or escrow services relating to the Improvements, (6) inspection fees and '< 'òf>..K~~ o ~ >- - DOCSSF1:819441.1 II ~ f!] 4021 ]-]6 SS4 '" (J ORIGINAL (7) any similar fees or costs reasonably incurred by the Developer incidental to the construction of the Improvements or to satisfaction of Developer obligations imposed by this Agreement; provided that the amount of such reimbursement for Developer's Incidental Construction Expense shall be limited to the amount available for such purpose as provided by the Engineer's Report or surplus funds remain available for such purpose following completion of and payment for all of the Improvements. Payment of such Developer's Incidental Construction Expense shall be made within thirty (30) days of receipt by the Director of paid invoices, canceled checks or like documentation from which to establish the actual amount of such reimbursable Developer's Incidental Construction Expense. 9. Delivery of the Bonds by the City to the Underwriter shall be expressly conditioned upon prior satisfaction of the following conditions precedent: a. All property taxes and all other amounts collected on the general property tax roll of Kern County respecting the Subject Property shall be paid current and in full (five-year installment payment plans shall not constitute compliance with this condition). b. The final map or maps, lot line adjustments or other authorized procedures of the City which create or establish the parcels of the Subject Property as shown on the assessment diagram shall have been recorded or, where no recording step is entailed, shall have been otherwise completed. DOCSSFL819441.1 40213-36 SS4 12 ~ 'òAK~?> C) ó' >- -n I- ñi - ,... °OR/GINAf' 10. Payment to the Developer of the Acquisition Price for the completed Improvements and reimbursement of any portion of the Developer's Incidental Construction Expense shall be made solely from the applicable portion of the proceeds of sale of the Bonds and from no other source whatsoever and shall be further expressly conditioned upon prior satisfaction of the conditions set forth in paragraphs 4 and 7 above and each of the following additional conditions precedent, to the extent applicable: a. The Developer shall have provided the City with executed (and acknowledged, if appropriate) instruments of transfer of ownership for any portion or phase of the Improvements (including, if necessary, the easement, right-of-way, or real property pertaining thereto) as to which the City reasonably requests such an instrument; provided that the City shall be obligated to prepare and provide the Developer with such instrument or instruments of transfer of ownership, b. No sooner than 90 days after recordation by the Developer of the Developer's Notice of Completion for each of the Improvements, the Developer shall provide the City, from a title company acceptable to the City, a mechanics lien free endorsement (with minimum liability of $1,000) or similar documentation acceptable to the City Attorney, respecting the Subject Property, and establishing that the Subject Property is free and clear of any form of mechanics lien or claim respecting any portion or phase of the Improvements which are being acquired by the City with the bond sale proceeds. It is expressly understood that, by this means, the City requires this form of assurance that the subject assessment liens shall apply to the Subject Property without any threat of being later deemed by a court of competent jurisdiction to be subordinate to a mechanics lien claim stemming from any portion or phase of the subject Improvements, ~ 'òMf1' DOCSSFI:8] 944 II ;: c; 402]],J6SS4 13 ,... rT1 - r- o (J ORIGINAL . --""'-'-'-'.--."- ·_.._--'------~- c. All property taxes and all other amounts collected on the general property tax roll of Kern County respecting the Subject Property shall be paid current and in full (five-year installment payment plans shall not constitute compliance with this condition). II. The Developer shall indemnify, hold hannless and defend the City and each of its officers, officials and employees from any and all claims, demands, actions and proceedings in law or equity (whether or not well-founded) brought by any person whatsoever, including the Developer, arising or alleged to have arisen directly or indirectly out of (i) any act, omission, or contract of the Developer or any of its contractors, subcontractors, materialmen, suppliers, or employees in connection with construction or installation of the Improvements or any portion or phase thereof, or (ii) any defects or alleged defects in materials or workmanship in the Improvements or any portion or phase thereof. The Developer shall not have a duty to indemnify and hold hannless against any liability, loss, debts, costs or damages caused sole1v by the negligence or willful misconduct of the City or to any liability, loss, debts, costs or damages arising out of events which occurred after expiration of the warranty period provided by paragraphs 3(b) and 3( c) above, Notwithstanding the provisions of this paragraph II, the City shall be responsible for negligence or willful misconduct in the perfonnance of its obligations under this Agreement, and nothing in this paragraph II shall be understood or construed to mean that the Developer agrees to indemnify the City or any of its officials, officers, or employees for any negligence or willful misconduct of the City, the City's bond counsel for the Bonds ("Bond Counsel"), Disclosure Counsel, the Underwriter (including any selling group or syndicate member), Underwriter's counsel, if any, financial advisors, appraisers, assessment engineers, or other DOCSSFL81944LI 402]3-36 SS4 14 '< 'òAK(:-9 C) c.P >- -T' I;: rr; a r- ORIGINAf' - .-.,- -, ,'---'. --"~-"--"---"~-'-'---- developers, landowners or financing participants, or any of their respective officers, directors, or employees, 12. The Developer agrees that it will require each purchaser of anyone or more of the parcels of the Subject Property to execute and date a Notice of Special Assessment District Lien, in substantially the form attached hereto as Exhibit C, appropriately completed with the pertinent information in the respective blanks on the form, and will cause the executed and acknowledged notice to be recorded in the official records of the County Recorder of the County of Kern within five (5) days of the close of escrow for the transfer of title to any such parcel. A copy of such executed notice shall be filed with the Finance Director. 13. The Developer acknowledges that it is represented by its own separate legal counsel in regard to the subject special assessment proceedings and the project of constructing and installing the Improvements. The Developer accepts responsibility for and shall be responsible for identification of and for compliance with all applicable laws pertaining to the project of constructing and installing the Improvements and the contract or contracts pertaining thereto, including but not limited to the Labor Code, the Public Contract Code, and the Government Code of the State of California. The City makes no representation as to the applicability or inapplicability of any laws regarding contracts, including contracts related to the construction and installation of the Improvements, and especially the matters of competitive bidding and the payment of prevailing wages. The Developer will neither seek to hold nor hold the City liable, and pursuant to paragraph II shall hold harmless and indemnify the City, each of its officers, officials and employees for any consequence of any failure by the Developer to correctly determine applicability of any such requirements to any contract it enters into, irrespective of whether the City knew or should have known about applicability of any such OOCSSFL819441.1 40213,36 SS4 15 ~ 'òMf~ C) <!:- >- - ,... IT _ r- '" (J ORIGINAL requirement. This paragraph shall apply with respect to any enforcement action, whether public or private, and whether brought by a public enforcement agency or by private civil litigation, against the Developer or the City or both with respect to the matters addressed by this paragraph 13. 14. Any notices required to be given pursuant to this Agreement shall be given in writing and shall be mailed to the parties at the following addresses: Citv of Bakersfield Public Works Department City of Bakersfield 1501 Truxtun Avenue Bakersfield, CA 93301 Attention: John A. Stinson Developer Mountain View Bravo, LLC c/o The S.K.Y. Companies 1554 South Sepulveda Boulevard, Suite 204 Los Angeles, CA 90025 With a COpy to: Lewis Feldman, Esq. Pillsbury Winthrop LLP 10250 Constellation Boulevard, 21 st Floor Los Angeles, CA 90067-6221 IS, This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. Any action at law or in equity arising under this Agreement brought by any party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried DOCSSF LX 1944 L I 40213-36 SS4 16 X Ç,F>.Kf~ C) ~ "- - ,... n- - ,... Q (J ~ in the Superior Court of the County of Kern, State of California, and the parties hereby waive all provisions of law providing for the filing, removal or change of venue to any other court. 16, As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine and vice versa. 17, The parties hereto hereby agree that an implied standard of reasonableness shall govern all actions of the parties hereunder, and the parties hereby covenant to one another to act in good faith and to deal fairly with one another to effectuate the purposes of this Agreement. 18. This is intended to be a fully integrated Agreement which contains the entire Agreement between the parties with respect to the matters pertaining to the process of acquisition by the City of the Improvements. 19. Time is of the essence with respect to this Agreement and each and every provision hereof. If for any reason the City has not received the full proceeds of sale of the Bonds by December 30, 2006, this Agreement shall terminate and be null and void, and neither the City nor the Developer shall have any liability or obligation hereunder; provided any such termination of this Agreement shall not affect the obligations of the Developer to install any portion of the Improvements as established by separate procedures of the City related to the development of any portion of the Subject Property and/or the recordation of any final map, lot line adjustment or similar instrument pertaining to any portion of the Subject Property, which obligations of the Developer shall continue in full force and effect. DOCSSFl:819441.1 40213-3h SS4 17 X 'òM~~ C) ~ »... - po. f'tJ __ l"- t) c;, í1I'1lGW.l 20. The Developer agrees that any and all obligations of the City arising out of or related to this Agreement are special and limited obligations of the City and that the City's obligations to make payments hereunder are restricted entirely to a portion of the proceeds of sale of the Bonds and from no other source, The Developer agrees to pay the full costs of the Improvements and to pay the Developer's Incidental Construction Expenses in excess of the moneys available therefor from said portion of the proceeds of sale of the Bonds. Neither the City nor any of its officers, officials or employees shall incur any liability hereunder to the Developer or to any other party in their individual capacities by reason of their actions hereunder or their execution hereof. 21. Except as may be specifically provided herein to the contrary, no third party shall be the express or implied beneficiary of this Agreement or any of its provisions, and no such third party may bring any action in law or equity with respect thereto, 22. This Agreement may be executed in more than one copy, and any copy, bearing original signatures, may serve as an original counterpart of this Agreement. 23. The obligations of the parties under this Agreement shall be binding upon and enforceable against the successors and assigns of the parties hereto, and the rights of the parties under this Agreement shall inure to the benefit ofthe successors and assigns of the parties hereto: provided, however, that this Agreement shall not be assigned by any party and no party shall be substituted for another party under this Agreement without the prior written consent of the City. DOCSSFI :819441.1 4021.1,J6 SS4 i8 '< 'ò!\J(~~ C) ~ >- - ,... m _ r- 'J (J ')qir,INAL IN WITNESS WHEREOF, the parties hereto have caused this Acquisition and Disclosure Agreement to be executed by their authorized representatives as ofthe effective date stated above. CITY OF BAKERSFIELD By: HARVEY L. HALL Mayor Attest: By: PAMELA A. McCARTHY, CMC City Clerk Countersigned: Approved as to Content: By: By: GREGORY J. KLIMKO Finance Director RAUL M. ROJAS Public Works Director Approved as to Form: VIRGINIA GENNARO City Attorney Approved as to Form: ORRICK, HERRINGTON & SUTCLIFFE LLP Bond Counsel By: By: SAMUEL A. SPERRY MOUNT AIN VIEW BRAVO, LLC, a California limited liability company By: Signature Print Name Title DOCSSFL81944Ll 402 13-36 SS4 19 '<. 'òMf-» C) ~ >- ~ 1 1::;. ,. c.? OAIGIN,J' ESTIMATED COMPLETION DATE 29670AQ1 EXHIBIT A CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO. 05-1 (CITY IN THE HILLS) ACQUISITION SCHEDULE IMPRQ\iE_M_ENTS PROJECT PHASED ACQUISITION ÇOSTS TOTAL PHASED ACQUISITION COSTS CITY HILLS DRIVE (ENTIRE STREET, WEST PORTION) IMPROVEMENTS (From Canteria Drive to Panorama Drive) - Grading (acquired with completed Street Improvements) $212,192.00 - Storm Drain $123,950.00 - Sewer $79,021.00 ,Street $1,294,396.00 - Miscellaneous $677,400.00 - Total Improvements, Contingency, and Incidentals $2,386,959.00 CITY HILLS DRIVE (ENTIRE STREET, EAST PORTION) IMPROVEMENTS (From Vineland Road to Canteria Drive) - Grading (acquired with completed Street Improvements) $75,359.00 - Storm Drain $9,446.00 ,Street $611.390.00 - Miscellaneous $98,832.00 - Total Improvements, Contingency, and Incidentals $795,027.00 PANORAMA DRIVE (ENTIRE STREET) IMPROVEMENTS (From Vineland Road to Masterson Street) - Grading (acquired with completed Street Improvements) - Storm Drain -Sewer - Street - Miscellaneous - Total Improvements, Contingency, and Incidentals $322,632.00 $215.364.00 $66,541.00 $1,459,959.00 $1,384,801.00 $3,449,297.00 VINELAND ROAD (EAST SIDE. NORTH PORTION) IMPROVEMENTS (From Paladino Drive to Panorama Drive) - Grading (acquired with completed Street Improvements) $74,052.00 - Storm Drain $29,126.00 ,Street $539,274.00 - Miscellaneous $349,341.00 - Total Improvements, Contingency, and Incidentals $991,793.00 VINELAND ROAD (EAST SIDE, SOUTH PORTION) IMPROVEMENTS (From Panorama DrÎve to North ot Hwy 178 Ramp) - Grading (acquired with completed Street Improvements) $97,121.00 - Storm Drain $310,615.00 - Street $443,328.00 - Miscellaneous $335,482.00 - Total Improvements, Contingency, and Incidentals $1,186,546.00 MASTERSON STREET (WEST SIDE & ENTIRE STREET) IMPROVEMENTS (From Paladino Dnve to Hwy 178; South 1514 Feet Full Width) - Grading (acquired with completed Street Improvements) $367.509.00 , Storm Drain $37.888.00 ~ Street $1,522,919.00 - Miscellaneous (Right-ot-way Acquisition) $689,409.00 ~ Miscellaneous (Other than Right-of-way Acquisition) $587,635.00 - Total Improvements, Contingency, and Incidentals $3,205,360.00 PALADINO DRIVE (SOUTH SIDE) IMPROVEMENTS (From Vineland Road to Masterson Street) - Grading (acquired with completed Street Improvements) $346,530.00 ,Street $1,208,412.00 - Miscellaneous $1,086,024.00 - Total Improvements, Contingency, and Incidentals $2,640,966.00 A-1 ~ ì õj r¡; r /J!j 1-, :\ I' u Lru I: TOTAL ACQUISITION _--º-OST-?__ 'òþ./(~~ 3- ~ >- - m 061~005 r:; ClPIr..Ir-jAl ESTIMATED COMPLETION DATE EXHIBIT A CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO, 05-1 (CITY IN THE HillS) ACQUISITION SCHEDULE IMPROVEMENTS CANTERIA DRIVE IMPROVEMENTS (From City Hills Drive to South End of Storm Drain Sump) - Storm Drain -Sewer - Total Improvements, Contingency, and Incidentals ON,SITE STORM DRAIN IMPROVEMENTS - Grading (acquired with completed Storm Drain Sump) - Storm Drain Sump - Miscellaneous - Total Improvements, Contingency, and Incidentals PROJECT PHASED ACQUISITION COSTS ------- $277,810.00 $71,166.00 $248,987.00 $31,983.00 $77,270.00 GRAND TOTAL CITY IN THE HilLS IMPROVEMENTS, CONTINGENCY, AND INCIDENTALS -------..-..--- --- TOTAL PHASED ACQUISITION COSTS ------..--- $348,976.00 $358,240.00 TOTAL ACQUISITION . COSTS,.. $15,363,164.00 Note: Each individual improvement item cost includes its share of the improvement contingency and incidental costs ~, ¡-, 29670AQ 1 A,2 ¡p : 0 I L ,. l U ¡ ';j uJ ' . -) d , '< 'ò1\K1!'~ () <P '"" m 0@0/200S r:; '1RIGINAL ;... EXHIBIT B SKETCH MAP OF THE SUBJECT PROPERTY CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO. 05-1 7 , 9 1 -+~-- II ~I z zl ~ o " ------ co- I I I " 16 ,\'òì , II;; ¢--" 'us ¢ !~ '# I~ ~G 'r- :\x- !~ 4-~ _~ --- --- 19 20 21 LEGEND ASSESSN£NT 0ISTRJC1' NO. 05-1 BOUNVARY _n________ a.\I((RSF1£LD Cm' UYITS -~--S[CTlONlM T 29 S. R 29 E REFERENCE TO TOWNSHIP 29 SOU'IH. RAMG£ 29 £AST. NOUNTOIÞIBL08AS[1,N/) III£RIDIAN 16 S£CTION NUWBrR ~SU8J£CTPROP€RIY ~~ r;¡ r. , ~ J I Ü) oJ '1,\ ' ' "j' ¡Iìj [' --~, !l i.-~ I NORTH ,= - WILSON '" ASSOCIATES 7600N.IIIGRAM/IIÆMJE.$Iß(202 nI£SHO.CAUFORtMt371' {~.ß6_ 011. /II'....!!!.- 00't 6-30-05 ",""".2iI§lI1.~ ~-""""'-""""'" EXHIBIT B ACQUISITION AND DISCLOSURE AGREEMENT SKETCH MAP OF THE SUBJECT PROPER1;.X- CITY OF BAKERSF1ELD ASSESSMENT DISTRICT NO.~~!'{I ?> (CITY IN THE HILLS) a ~ >- - County of Kern, Slale of CaliforniJ;!: J!! SHEET 1 OF _) _ SHEETS tJ t,) AL EXHIB IT C [Form of Notice to Comply with Government Code Section 53754] NOTICE OF SPECIAL ASSESSMENT ASSESSMENT DISTRICT NO. 05-1 (CITY IN THE HILLS), CITY OF BAKERSFIELD, CALIFORNIA TO: THE PROSPECTIVE PURCHASER OF THE REAL PROPERTY KNOWN AS: Assessor's Parcel Number: Assessment Number: Street Address (ifknown): THIS IS A NOTIFICATION TO YOU PRIOR TO YOUR PURCHASING THIS PROPERTY. This property is within the above-named assessment district (the "Assessment District"), and a special assessment in the principal amount of $ has been levied on this property by the City of Bakersfield (the "City"). The special assessment obligation may be paid in scheduled annual assessment installments, with interest and administrative expenses included (the "Annual Installments"), or it may be paid off and fully discharged by a cash payment to the City's Finance Director in an amount calculated in accordance with the law for that purpose, The City has issued or will be issuing bonds (the "Bonds") to finance the acquisition or construction of certain public improvements which were detennined following a public hearing to be of direct and special benefit to property within the Assessment District. The Bonds will be repaid from the Annual Installments on those properties within the Assessment District for which the special assessment obligation has not been paid off and fully discharged, Unless the special assessment obligation on this property is hereafter paid off and fully discharged, this property is will remain subject to Annual Installments of the Assessment District which will appear on your regular property tax bill each year over the life of the Bonds, and which are in addition to the regular property taxes and any other charges and levies that will be listed on the property tax bill. If you fail to pay Assessment Installments when due each year, the property may be foreclosed upon and sold. DOCSSFLS19441.l 40213~36 SS4 20 '< ç¡,!\K~.p o ~ >- - m - ,..... \R!GINA~ The Annual Installment for this property, as shown on the most recent tax bill for the 20_-20_ tax year (rounded off to the nearest even dollar) is dollars ($ ). Assessment Installments will be collected each year until the Bonds are repaid. The public improvements which are being financed by the proceeds of sale of the Bonds are: [Provide a summary of the public improvements] For more complete information about the public improvements, see the Engineer's Report for the Assessment District, dated ,2005 (the "Engineer's Report"), a copy of which is on file with the Public Works Department of the City, 1501 Truxtun Avenue, Bakersfield, California. [If applicable, add the following: "Some of these improvements may not yet have been constructed or acquired, and it is possible that some may never be constructed or acquired,"] YOU SHOULD TAKE THIS ASSESSMENT AND THE BENEFITS FROM THE PUBLIC IMPROVEMENTS FOR WHICH IT PAYS INTO ACCOUNT IN DECIDING WHETHER TO BUY THIS PROPERTY. YOU MAY OBTAIN A COPY OF THE ENGlNEER'S REPORT, WHICH SPECIFIES MORE PRECISELY HOW THE ASSESSMENTS ARE APPORTIONED AMONG PROPERTIES IN THE ASSESSMENT DlSTRICT BY CALLING (661) 326-3799, THERE WILL BE A CHARGE FOR A COPY OR FOR COPIES OF THIS DOCUMENT, NOT TO EXCEED THE REASONABLE COST OF PROVIDING THE COPY OR COPIES. Acknowledgment of Prospective Purchaser I (WE) ACKNOWLEDGE THAT I (WE) HAVE RECEIVED A COPY OF THIS NOTICE. I (WE) UNDERSTAND THAT I (WE) MA Y TERMINATE THE CONTRACT TO PURCHASER OR DEPOSIT RECEIPT AFTER RECEIVING THIS NOTICE FROM THE OWNER/SELLER OR THE AGENT SELLING THE PROPERTY. THE CONTRACT MAY BE TERMINATED WITHIN THREE DA YS IF THE NOTICE WAS RECEIVED IN PERSON OR WITHIN FIVE DAYS AFTER IT WAS DEPOSITED IN THE MAIL BY GlVING WRITTEN NOTICE OF THAT TERMINATION TO THE OWNER/SELLER OR TO THE AGENT SELLING THE PROPERTY. Date: ,20 (Prospective Purchaser Print Name) (Signature of Prospective Purchaser) DOCSSFLSI9441.l 40211,36 SS4 21 « 'òM~-9 C) <.r "- '" '::: m '" ,.. 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