HomeMy WebLinkAboutRES NO 167-07
167.07
RESOLUTION NO.
RESOLUTION APPROVING FORM AND SUBSTANCE OF ACQUISITION
AND DISCLOSURE AGREEMENT AND AUTHORIZING
CHANGES THERETO AND EXECUTION THEREOF
CITY OF BAKERSFIELD
ASSESSMENT DISTRICT NO. 07-1
(VISTA VIEW ESTATES)
WHEREAS, there have 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"), with an
effective date of August 29,2007, by and between the City and PB5 Ventures, LLC; and
WHEREAS, this City Council wishes to approve the Acquisition and Disclosure
Agreement as to form 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 form and substance of the Acquisition and
Disclosure Agreement providing (1) the terms and conditions under which PB5 Ventures, LLC,
will provide for the construction and installation of certain prescribed improvements and (2) the
terms and conditions under which the City will use its best efforts to issue and sell limited
obligation improvement bonds of Assessment District No. 07-1 (Vista View Estates)
("Assessment District No. 07-1") and, upon satisfaction of certl;lin prescribed conditions, utilize a
prescribed portion of the proceeds of sale of such bonds to acquire the completed improvements,
,it being expressly provided in the Acquisition and Disclosure Agreement, among other things,
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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 each 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. 07-1 are authorized to execute where
indicated.
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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 August 29, 2007, by
the following vote:
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CARSON, BENHAM, WEIR, COUCH, HANSON, SULLIVAN, SCRIVNER
~ Council member
NOES: Councilmember
ABSTAIN: Councilmember
~SEND Councilmember ~
~d~~ffi~~
Clerk of the Council of the
City of Bakersfield
APPROVED this 29th day of August, 2007
HARVEY L. HALL
Mayor of the Ci of B ers
...
APPROVED AS TO FORM:
ORRICK, HERRINGTON & SUTCLIFFE LLP
Bond Counsel
By
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
By~ll1~
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ACQUISITION AND DISCLOSURE AGREEMENT NO. 07-
CITY OF BAKERSFIELD
ASSESSMENT DISTRICT NO. 07-1
(VISTA VIEW ESTATES)
Recitals
A. The parties to this Acquisition and Disclosure Agreement (the
"Agreement") are the City of Bakersfield, a California charter city (the "City"), and PB5
Ventures, LLC, a Delaware limited liability company (the "Developer").
B. The effective date of this Agreement shall be August 29,2007.
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 to be constructed by the Developer (the "Improvements")
benefiting the assessment district (the "Assessment District"), 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 referred to as "Vista View Estates." The
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Improvements and the e5timated construction cost5 related thereto are identified in Exhibit A,
attached hereto and by this reference incorporated herein. The Subject Property is 5hown 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 partie5 that Exhibit A shall at
all times reflect the corresponding information a5 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 June 20, 2007, the City Council of the City approved the boundary
map for the proposed assessment district to be known a5 "Asse5sment District No. 07-1 (Vista
View Estates)". By its re501ution of intention also adopted on June 20, 2007, the City Council
appointed the Director of Public Works of the City as the Engineer of Work for the A5sessment
District and directed the Engineer of Work to prepare and file with the City Clerk the written
engineer'5 report (the "Engineer's Report") prescribed by Section 10204 of the California
Streets and Highways Code, a5 5upplemented by Article XIUD of the California Con5titution.
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 a5 originally filed or as modified
to incorporate changes deemed appropriate by the City Council.
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E. The City intends to select an 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 Assessed Property, as shall be specified in the Engineer's Report. Assuming eventual
approval of the 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 from
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 also
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
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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:
Ae:reement
1. 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
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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 shall 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 (1) 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 (1) year from the finalization of a street construction
permit (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 (1)
year warranty period may, in fact, extend considerably beyond one (1) year after
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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 (1) year warranty period may again extend beyond one (1) 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 (1) year of recording by the City of
its Notice of Completion and Acceptance of Work, as identified in the foregoing
subparagraph (c) 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
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Developer for defect5 shall terminate at the end of one (1) year following such
recordation.
4. Subject to the limitation that the obligation of the City to pay the
Acquisition Price (defined in paragraph 6 below) 5hall be strictly limited to a portion of the
proceeds of sale of the Bond5 and to no other source of funds whatsoever, the Developer shall
cause the Improvements to be con5tructed, and the City shall acquire the Improvements from the
Developer. Construction of the Improvement5 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 pha5e5 without the necessity of completion and acquisition of other
portions or phases of the Improvement5, 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"), 5igned
and stamped by the Developer's engineer, certifying that discrete portions or phase5 of the
Improvements (a5 identified in Exhibit A) are complete and ready for acceptance by the City
(said portion5 or phases of the Improvements to be itemized in said Developer'5 Application and
to match the de5cription of the Improvement5 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 unreasonably
withheld, conditioned or delayed), and upon the City's recordation of its Notice of Completion
and Acceptance of Wark, said Director shall accept said portions or phases of the Improvements
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as complete and shall 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(c) and 3(d) above shall commence on said
date as to such portions or phases of the Improvements and shall continue for a period of one (1)
year from the date of recordation 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 of the Bonds.
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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 reasonably 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
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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 Assessed
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 of the 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.
For 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.
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In the event the Acqui5ition Price exceed5 the amount of the C05t e5timate for
5uch portions or phases of the Improvement5, as set forth in the Engineer'5 Report and
5ummarized in Exhibit A hereof, the Developer shall nonetheles5 be paid the amount by which
the Acquisition Price exceeds the le5ser amount set forth in the Engineer's Report and
summarized in Exhibit A hereto, but only (1) if there is a 5ufficient balance in the contingency
allowance allocated to 5uch portions or phase5 of the Improvements as set forth in Exhibit A for
5uch purp05e or (2) if, upon completion of all of the Improvements, saving5 have been achieved
with re5pect to the Acqui5ition Price of other portion5 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 proceed5 of
5ale of the Bonds of the Acqui5ition Price of the Improvement5, the City shall further reimbur5e
the Developer, but again only from the proceeds of sale of the Bond5, for the Developer's
Incidental Con5truction Expense. Such Developer's Incidental Con5truction Expense 5hall be
payable only to the extent that an explicit allowance is made in the Engineer's Report for 5uch
expense or surplus funds remain available for such purp05e following completion of and
payment for all of the Improvement5. Such Developer' 5 Incidental Construction Expense 5hall
include (1) the C05t and expense of engineering de5ign of the Improvements, (2) the C05t and
expense of admini5tering the construction contract or contracts for the con5truction of the
Improvements, including con5truction change order5, (3) fees and COSt5 incurred in obtaining
permits, licen5e5, and payment and performance bonds, (4) fees and costs, if any, incurred with
respect to acquiring rights-of-way or easement5 in connection with the Improvement5, (5) fee5
and C05ts paid to title insurance companies for title report5, title insurance, recording services,
lien-free endorsements, or escrow services relating to the Improvements, (6) inspection fees and
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(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.
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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 $100,000) 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. <of\.K~
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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).
11. The Developer shall indemnify, hold harmless 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 harmless against any liability, loss, debts, costs or damages caused solely by
the negligence or willful misconduct of the City and each of its officers, officials and employees,
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(c) and 3(d) above.
Notwithstanding the provisions of this paragraph 11, the City shall be responsible
for negligence or willful misconduct in the performance of its obligations under this Agreement,
and nothing in this paragraph 11 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,
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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 11 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 fQt>.Kc:-.
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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:
City of Bakersfield
Public Works Department
City of Bakersfield
1501 Truxtun Avenue
Bakersfield, CA 93301
Attention: John A. Stinson
Developer
PB5 Ventures, LLC
c/o Premier Land Management
900 Truxtun Avenue, Suite 330
Bakersfield, CA 93301
With a COPy to:
Latham & Watkins LLP
633 West Fifth Street, Suite 4000
Los Angeles, CA 90071
Attention: Ursula Hyman, Esq.
15. 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
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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 31, 2008, 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.
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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 of the 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Acquisition and
Disclosure Agreement to be executed by their authorized representatives as of the effective date
stated above.
CITY OF B~SFII~l.
ay
HARVEY L.-HALL
Mayor
-
-
Attest:
By:
PAMELA A. McCARTHY, CMC
City Clerk
Countersigned:
Approved a5 to Content:
By:
By:
NELSON K. SMITH
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
PB5 VENTURES, LLC,
a Delaware limited liability company
By: Petrini Bakersfield Ventures, LLC,
a Delaware limited liability company
its Sole Member
By: Troxler Residential Ventures XV, LLC,
a Delaware limited liability company,
its Managing Member
By: Troxler Ventures Partner5, Inc.,
a California corporation,
its Operating Member
By:
Bryan P. Troxler
President
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EXHIBIT A
CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO. 07-1
(VISTA VIEW ESTATES)
ACQUISITION SCHEDULE
ESTIMATED
COMPLETION
DATE
IMPROVEMENTS
TRACT NO. 6873 UNITS 1 THROUGH 4
(Westem Portion of Viste View Estates)
JUNE 2008 TRACT NO. 6873 UNIT 1
(North 1/2 McCutchen Rd. Along South Boundary, Block Wall. Storm Drain Piping,
and Storm Drainage Sump)
- Street Improvements: McCutchen Rd. (Base-Paving-Curb/Gutler-Sidewalk-Handicap Ramps)
- Storm Drain Improvements: Piping System (18 in.. 30 in.. and 36 in. Pipelines. Manholes. Calch Basins)
- Storm Drain Improvements: Sump Serving Tract No. 6873
- Miscellaneous Improvements: 6-ft. Block Wall with I-ft. Ret. (McCutchen Rd. Frontage)
- Total Improvements and Incidental Work
FEBRUARY 2009 TRACT NO. 6873 UNIT 2
(North 1/2 McCutchen Rd. Along South Boundary, East 1/2 Gostord Rd. Along
West Boundary, Block Wall. Storm Drain Piping)
- Street Improvements: McCutchen & Gosford Rds. (Base-Paving-Curb/Guller-Sidewalk-Handicap Ramps)
- Storm Drain Improvements: Piping System (18 in.. 30 in.. and 36 in. Pipelines. Manholes. Catch Basins)
- Miscellaneous improvements: 6-ft. Block Wall with I-ft. Ret. (McCutchen & Gosford Rds. Frontages)
- Total Improvements and Incidental Work
FEBRUARY 2009 TRACT NO. 6873 UNIT 3
(East 1/2 Gostord Rd. Along West Boundary. South 1/2 Berkshire Rd. Along
North Boundary, Block Wall. Storm Drain Piping)
- Street Improvements: Gosford & Berkshire Rds. (Base-Paving-Curb/Gutler-Sidewalk-Handicap Ramps)
- Storm Drain Improvements: Piping System (18 in. and 24 in. Pipelines. Manholes. Catch Basins)
- Miscellaneous Improvements: 6-ft. Block Wall with I-ft. Ret. (Gosford & Berkshire Rds. Frontages)
- Total Improvements and Incidental Work
DECEMBER 2010 TRACT NO. 6873 UNIT 4
(South 1/2 Berkshire Rd. Along North Boundary, Block Wall. Storm Drain Piping)
- Street Improvements: Berkshire Rd. (Base-Paving-Curb/Guller-Sidewalk-Handicap Ramps)
- Storm Drain Improvements: Piping System (18 in. and 24 in. Pipelines. Manholes. Catch Basins)
- Miscellaneous Improvements: 6-ft. Block Wall with I-ft. Ret. (Berkshire Rd. Frontage)
- Total Improvements and Incidental Work
PROJECT
PHASED
ACQUISITION
COSTS
$119.922.25
$100.564.00
$37.012.00
$32.670.00
$209.741.00
$158.153.00
$93,434.00
$324.088.25
$63.667.00
$78.882.00
$111.051.50
$84.846.00
$48.007.00
TOTAL
PHASED
ACQUISITION
COSTS
$290,168.25
$461,328.00
$466.637.25
$243.904.50
AREA
TOTAL
ACQUISITION
COSTS
SUBTOTAL TRACT NO. 6873 IMPROVEMENTS AND INCIDENTAL WORK
$1,462,038.00
TRACT NO. 6874 UNITS 1 AND 2
(Eastem Portion of Vista View Estates)
JUNE 2008
TRACT NO. 6874 UNIT 1
(North 1/2 McCulchen Rd. Along South Boundary. West 1/2 Reliance Dr. Along
East Boundary. Block Wall, Storm Drain Piping. and Storm Drainage Sump)
- Street Improvements: McCutchen Rd. & Reliance Dr. (Base-Paving-Curb/Guller-Sidewalk-Handicap Ramps)
- Storm Drain Improvements: Piping System (18 in.. 24 in.. and 30 in. Pipelines, Manholes. Catch Basins)
- Storm Drain Improvements: Sump Serving Tract No. 6874
- Miscellaneous Improvements: 6-ft. Block Wall with I-ft. Ret. (McCutchen Rd. & Reliance Dr. Frontages)
- T otallmprovements and Incidental Work
TRACT NO. 6874 UNIT 2
(South 1/2 Berkshire Rd. Along North Boundary, West 1/2 Reliance Dr. Along
East Boundary. Block Wall. Storm Drain Piping)
- Street Improvements: Berkshire Rd. & Reliance Dr. (Base-Paving-Curb/Guller-Sidewalk-Handicap Ramps)
- Storm Drain Improvements: Piping System (18 in. and 24 in. Pipelines. Manholes. Catch Basins)
- Miscellaneous Improvements: 6-ft. Block Wall with I-ft. Ret. (Berkshire Rd. & Reliance Dr. Frontages)
- Total Improvements and Incidental Work
JUNE 2010
$204.310.35
$133,441.00
$24,518.00
$47.567.00
$188.932.55
$144.645.00
$86.83800
$409.836.35
$420,415.55
SUBTOTAL TRACT NO. 6874 IMPROVEMENTS AND INCIDENTAL WORK
$830,251.90
GRAND TOTAL VISTA VIEW ESTATES AREA (TRACT NO. 6873 AND TRACT NO. 6874)
IMPROVEMENTS AND INCIDENTAL WORK
$2,292,289.90
Note:
Each individual improvement item cost Includes its share of the improvement incidental work cost for the tract phase.
29720aq1~Final
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EXHIBIT B
SKETCH MAP OF THE SUBJECT PROPERTY
OF BAKERSFIELD ASSESSMENT DISTRICT NO.
LEGEND
--l
!
07-1
ASSESSMENT DISTRICT NO. 07-1
BOUNDARY
~~ - - ~ SECTION UNE
T 30 $, R 27 E
REFERENCE TO TOWNSHIP 30 SOUTH,
RANGE 27 EAST, MOUNT DIABLO
BASE AND MERIDIAN
31 SECTION NUMBER
--- ____~---__--------L
i I
,
-+
I Q 14
I'~
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---+--------- ~
I PACHECO ROAD - - I .
,
,
,
, '
8ERKSHIR1ROAD I
~---- -~----------:-
~ 2'7 I 2.
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l_ __ i _ _ __ _ _ _ _ _. HOSKII<~'I' AVENUE
McCUTCHEN ROAD 'I
, ,
, ,
I TRACT INO 6874 1
I McKEe ROAD I 35
i 33 i---- ---34----1~
I I 1(1;:
i i i~
__ _~ +--_ _ -_______-.J--.__ __ ____ ~ __~
I I TAFT HIGHWAY I
I I
srOCl<OAL[
I~
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IE
Ii'
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8
~ SUBJECT PROPERTY
I
__1---- ___
MING AVENUE
UJIUJ
12 ~ I ~
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WHIT[ LANE
13
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CAMPUS PARK JRIVE
---I~
17
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---~
18 ~
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1 ~ :~-
- - - ----l--soUTHERN PACIFIC RAiLROAD !: - - - - - - - -- - ~ - - - - - - -
1 16 I
I~ , '
24 J! 19 ! 20 i 21
~ i i :
___ PANAMA LANf-----j--- VI~~~~I~Wi ESTA~~__ARE~_ ~ !___
l.&.l I PANAMA LANE
~I
TRACT NO. 6873
NORTH
O~ 1000' 2000'
4000'
15
22
I
,
,
1 23
,
,
1
,
------......,.---
I
WILSON &
ASSOCIATES
7600 N. INGAAN AVENUE, SUITE 202
~. CAlIfORNIA 93711
(559) 436 6644
DR.B'f~OATE~
PROJECT.2n2fL REVISION SKL--
flLE 23.Z2DM.L APPROVED ~
EXHIBIT B
ACQUISITION AND DISCLOSURE AGREEMENT
SKETCH MAP OF THE SUBJECT PROPERTY
CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO. 07-1
(VISTA VIEW ESTATES)
County of Kern, State of California
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EXHIBIT C
[Form of Notice to Comply with Government Code Section 53754]
NOTICE OF SPECIAL ASSESSMENT
ASSESSMENT DISTRICT NO. 07-1 (VISTA VIEW ESTATES), CITY OF BAKERSFIELD,
CALIFORNIA
TO: THE PROSPECTIVE PURCHASER OF THE REAL PROPERTY KNOWN AS:
Assessor's Parcel Number:
Assessment Number:
Street Address (if known):
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 determined 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.
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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 ,2007 (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 ENGINEER'S REPORT, WHICH SPECIFIES MORE
PRECISEL Y HOW THE ASSESSMENTS ARE APPORTIONED AMONG PROPERTIES IN
THE ASSESSMENT DISTRICT BY CALLING (661) 326-3058. 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) HA VE RECEIVED A COPY OF THIS NOTICE. I
(WE) UNDERSTAND THAT I (WE) MAY 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 DAYS IF THE NOTICE WAS RECEIVED IN PERSON
OR WITHIN FIVE DAYS AFTER IT WAS DEPOSITED IN THE MAIL BY GIVING
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)
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EXlDBIT D
FORM OF APPliCATION AND CERTIFICATE FOR PAYMENT
m: (OWNER) Castle & Cooke California, Inc.
I (XXX) Stockdale Highway
Bakersfield, CA 933 I I
PROJECT: Assessment District 01-2
River Walk Improvements
Pioneer Canal Relocation
PROCESS DAlE: 512112002
ATIENllON: Marian Shaw
City of Bakersfield
1501 Truxtun Avenue
Bakersfield. CA 93301
CONIRACIDR: Castle & Cooke California, Inc.
I(xxx) Stockdale Highway
Bakersfield, CA 933 I I
PROJECf NO: 6800.48 (012)
OWNER'S APPLICATION FOR PAYMENT
In accordance wi th the Acquisition Agreement. application for Payment is made for the following items of work:
Per Exhibit B-II-E, for River Walk Improvements:
B. PIONEER CANAL RELOCATION
a.
b.
Four Barrel Pipeline Extension Improvements
Backfill of Existing Canal Improvements
Water Feature Turnout Improvements
Sub- Total Improvement Cost
Construction Contingency
Sub-Total Improvement Cost & Contingency
Incidental Cost
$432,200. I 0
$ 77,0CiJ.00
$ 46100.00
$555.400.10
$ 9.0CiJ.00
$564,400. I 0
$101396.51
c.
d.
e.
f.
g.
h.
Total Pioneer Canal Relocation Improvements.
Contingency, and Incidentals
$665,796.61
The above items of work are 100% complete.
The above amounts are the actua1 costs for each item of work as outlined in Exhibit "B" of the Engineer's RepOlt
ENGINEER'S CERTIFICATE FOR PAYMENT
AMOUNT CERTIFIED ............. $665,796.61
(Attach explanation if amount certified differs
from the amount applied for.)
In accordance with the Contract Document based on on-site
observations and the data comprising the above application.
The Engineer certifies to the Owner that the Work has
progressed to the point indicated; that to the best of his
knowledge. information and belief, the quality of the work
is in accordance with the Contract Documents; and that the
Contractor is entitled to payment of the AMOUNT CERTIFIED
OWNER'S CERTIFICATION
Castle & Cooke California, Inc. hereby certifies that the materials or services shown hereon were furnished to the City 0 f
Bakersfield: that no part thereof has been paid; that the items of this claims are just and legal; that there is due the
undersigned the amount shown hereon.
CASlLE & COOKE CALIFORNIA, INC.
I(xxx) STOCKDAlE HIGHWAY
BAKERSFIELD, CA 933 I I
LAURA WHITAKER-VICE PRESIDENT
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