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Home My WebLink AboutPayment 03-2 Belsera II #1 ) ì \ ) {J Æ . - BAKERSFIELD PUBLIC WORKS DEPARTMENT MEMORANDUM TO: Paul Sheats, Accountant I FROM: t Marian P. Shaw, Civil Engineer IV DATE: April 5, 2007 SUBJECT: ASSESSMENT DISTRICT NO. 03-2 PAYMENT REQUEST ******************************************************************* The City has received a written application request from the developer that the improvements referenced on the attachment are complete and have been accepted by the City. Documents included contracts, change orders, paid invoices and other documentation establishing the actual amount paid by the developer, thus establishing the Acquisition Price at actual cost. In Addition, the developer has provided the City a Mechanics lien free endorsement as per the requirements of the Acquisition Agreement. Therefor, please find attached the Application for Payment of improvements for Assessment District No. 03-2, Belsera II Area Acquisition Payment No. 1 Processing. Wilson and Associates was retained by the City Public Works Department to review those applications for payment from bond proceeds for this Assessment District. Completed Items as per Exhibit "A" of the Acquisition Agreement: (See attached request). $177,486.00 Send $ 177,486.00 to: Centex Homes 5601 Truxtun Avenue, Suite 220 Bakersfield, CA 93309 Attention: Russ Johnson xc: Nelson Smith, Finance Director Bob SherfYf Deputy City Attorney 03-2reimb1.doc prepared Thursday, April 5, 2007 1O:34AM l' Wilson & Associates 7600 North Ingram Avenue, Suite 202 Fresno, California 93711 (559) 436-6644 Fax: (559) 436-6646 April 2, 2007 29638B John Stinson / Marian Shaw Public Works Department City of Bakersfield 1501 Truxtun Avenue Bakersfield, CA 93301 Re: City of Bakersfield Assessment District No. 03-2; Belsera II Area Acquisition Payment Processing No. I Dear John and Marian: Wilson & Associates has finished our review process of the payment request for the Improvements completed in the Belsera II Area of Assessment District No. 03-2 ("AD 03-2"), based on Volume I of the payment request dated March I, 2007, submitted by McIntosh & Associates on behalf of Centex Homes (the "Applicant"). This letter and recommendation for payment pertain to all improvements in the Be/sera II Area (described in Exhibit B, Table B-II-C of the Final Engineer's Report for AD 03-2). After reviewing said Application No.1, we have come to the below-described conclusions and recommendations regarding this Acquisition Payment for thé improvements in the Belsera II Area of AD 03-2. Enclosed with this letter is a table entitled "Table 1, Itemized Improvements and Acquisition Costs Approved for Payment No.1 in Belsera II Area, City of Bakersfield Assessment District No. 03-2" ("Table 1") that presents an itemized comparison of the cost of improvements to be acquired as they were estimated and shown on said Exhibit B, Table B-II-C of the AD 03-2 Engineer's Report (which is the acquisition amount funded by the AD 03-2 proceedings) to the itemized amount paid by the Applicant for each item of work shown in the Application No. 1 and requested for payment by the Applicant. Table 1 also shows in its column entitled "Approved Payment Per This Request" the amount for each item of work we recommend for payment to the Applicant as the AD 03-2 Acquisition Price under Payment No.1 for the Belsera II Area. Also enclosed are: (i) a copy of the Applicant's "Application and Certificate for Payment" form, (ii) a copy of Chicago Title Company "Mechanic's Lien Guarantee," (iii) copies of the Applicant's Notices of Completion for the relevant improvements in Tract No. 5831 Unit No.3 (note: all of those notices were recorded in 2005), and (iv) a copy of City-issued Notice of Completion for Tract No. 5831 Unit No.3. \ John Stinson / Marian Shaw April 2, 2007 Page Two The total Acquisition Price recommended for payment to the Applicant for acquisition of all AD 03-2 Belsera II Area Improvements per Application No.1 is $177,486.00, all as itemized on the enclosed Table 1 and summarized below. The following is a recapitulation of funds recommended for payment under this Belsera II Area Payment No. I: Improvement Acquisition Item AD 03-2 Approved Amount Amount Requested for Payment Amount Approved for Payment No.1 A. TRACT NO. .5831 UNIT NO.3 ON-SITE IMPROVEMENTS 1. Grading 2. Street Improvements 3. Contingency 4. Incidentals 5. Subtotal $ 0.00 $ 0.00 $ 0.00 $ 177,486.00 $ 197,382.94 $ 177,486.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 177,486.00 $ 197,382.94 $ 177,486.00 $ 177,486.00 $ 197,382.94 $ 177,486.00 B. TOTALS As also described in the notes on page 1 of Table 1, the above-summarized amounts are based on the following findings: 1. Items labeled "1" in Table 1 "Notes" column are described as follows: Based on the savings in costs of some of the items of work approved in the Final Engineer's Report, there are several "new" items of work approved for payment at this time. All ofthese additional items of work are items in the same categories of work as the originally approved item~ or are items constructed instead of the originally approved items due to changes in the final design. 2. Items labeled "2" in Table 1 "Notes" column are approved for payment at this time at a lesser amount than requested by the Applicant (up to the maximum amount available for payment of all improvements in the Belsera II Area), or not approved for payment at this time, since there are no more originally approved funds available in the Improvement Fund for to the Belsera II Area. Based on the findings described above and in accordance with the Application No.1, it is the recommendation of our analysis that $177,486.00 he paid and that a check for that amount be made payable to Centex Homes, as a payment pursuant to this Payment No.1 request for the completed t improvements in the Belsera II Area of AD 03-2. John Stinson / Marian Shaw April 2, 2007 Page Three Please call if you have any questions on the results of our analysis or the recommendations presented herein for payment of the Acquisition Price. Sincerely ~ ~ Ed Wilson Dejan Pavié Wilson & Associates Enclosures cc: Russ Johnson / Geoff Howard Judy Kindig / Roger McIntosh TABLE 1 ITEMIZED IMPROVEMENTS AND ACQUISITION COSTS APPROVED FOR PAYMENT NO, 1 IN BELSERA II AREA CITY OF BAKERSFIELD ASSESSMENT DISTRICT NO. 03-2 ~. _._________.._m_.__. i~~GINEER;S REPORT ESTIM~!E -', LREQUESTED FOR PAYMENT ", I APPROVED: fNOTESl ! f Unit Total: : Unit Total III PAYMENT PERil (See ' ll~ ,_ ..__~n:!.g",~(;r.iptiC?'!.....__.._. ! Quantity..~nits C.<:>.~t C.os~~ L Quantity Units Cost Co~t__-.-J THIS REQUEST I ~~Ow) ¡ A, TRACT NO. 5831 UNIT NO, 3 ON-SITE IMPROVEMENTS a. GRADING Roa~Yi.a'y' Excav'!l~o~____. '" .._-=:YCY' 1 ,50 --"--$Ö~ÕÕ; ;-·-'Ö CY TOTAL GRADING .----.--. $0,00·-·--· b. STREET IMPROVEMENTS A.C, Paving Aggregate Base Subgrade Preparation Balance Site Sawcut Striping and Signing T rafflc Control Extra Paving 6" Curb & Gutter Grade/Compact C&G Sidewalk ----- -_.-.- .----.--. TOTAL STREET IMPROVEMENTS c. SUBTOTAL IMPROVEMENT COST d. CONSTRUCTION CONTINGENCY e, SUBTOTAL IMPROVEMENT COST AND CONTINGENCY f. INCIDENTAL COST Design Engineering Improvement Bonds Construction Staking Soils and Materials Testing and Report Contractor Supervision and Overhead Plan Check and Inspection Fees : -º-<?.n.s~ruction Insp~~!!<:>!!_______. .._.~_ TOTAL INCIDENTAL COST g, TOTAL TRACT NO. 5831 UNIT NO.3 ON-SITE IMPROVEMENTS, CONTINGENCY, AND INCIDENTALS 1778 TON 1696 CY ° SF ° SF o LF o LS o LS o LS 4612 LF o LF o SF 1----· B. TOTAL BELSERA II AREA IMPROVEMENT COST (Totals from Item A) a, IMPROVEMENTS b, CONTINGENCY c, INCIDENTALS , d. TOTALBELSERA ïfAREÄ'¡;:,fPROVEMENT COST C. RECAPITULATION -- $52,215.0Ò¡ r-$52,215,001 $36,050,001' I $36,050.00 $15,426,00: $15,426.00 I $4,285,00 I $4,285,00 1 $250,00 II $250.00, $10,613,00 $0,00 ¡ $2,451,00 II $0.00 I $1'684'7511 $1,684.75 $30,057,95 I $30,057,951 $4,589,0°1 ' $4,589,00 I $39,761,241 $32,928,3~J $197,382.94 $177,486.00 $197,382.94 $177,486.00 $0.00 $0.00 $197,382.94 $177,486.00 $80,010:00' ¡-:t;47i; TON $55,968,00 i I 2,575 TON $0,00 ~ I 85,700 SF $0,00 I ¡ 85,700 SF $0,00 ¡¡50 LF $0.00 ¡ ¡ 1 LS $0,00: : 1 LS $0,001 ! 1 LS $41,508,00 ¡ ¡ 4,589 LF $0,00: , 4,589 LF $O.OO! j 23,117 SF $177,486,ÕO' -'-- $177,486.00 $0.00 $177,486.00 35.4Q 14.00 0,18 0.05 5,00 10613,00 2451.00 1684,75 6,55 1.00 1,72 45,00 33,00 1.00 0,00 0,00 0,00 0,00 0.00 9,00 0,00 2,00 $o,öõl i-'- $O,OOi ¡ $O,OO! ¡ $0,°°1 i $0,00: I $O.OOi ¡ $0,00: : --------'$0.00 _no ......--- $177,486.00 $177,486.00 $0.00 $0,00 $177,486.00 a. TOTAL APPROVED FOR PAYMENT PER FINAL ENGINEER'S REPORT b, TOTAL APPROVED FOR PAYMENT NO.1 (PER THIS REQUEST) c. TOTAL FUNDS AVAILABLE FOR PAYMENT AT A LATER DATE (IN AD 03-2 BELSERA II AREA) 0,00 $0,00'1 ¡---··$O.OO J ~. $0.00 .. $iï.OÕ' ¡ 1 1 1 2 2 1 1 2 - $0,00 i II $0,00: I $0,00 I $0,00 I : $0.00 'I $0.00 I I $0.00 I $0,00 ! $0,00 $0.00 I ' $0.00 I $0,00: ¡ --...!º'-ºº-l "--_, $0.00 ¡ ------.J $0.00 $0.00 $197,382,94 $177,486,00 $197,382.94 $0,00 $0,00 $197,382.94- $177,486,00 $0,00 $0,00 $177,486.0Õ" $177,486.00 $177,486.00 NOTES: $0.00 _.._.____________.__0.. _no. 0_.___ ___.._._._._____n_..__.___...._... 1. Based on the savings in costs of the items of work approved in the Final Engineer's Report, there are several "new" items of work approved for payment at this time. All of these additional items of work are items in the same categories of work as the originally approved items or are items constructed instead of the originally approved items due to changes in the final design, 2, Items approved for payment at a lesser amount than requested (up to the maximum amount available for payment of all improvements in the Belsera II Area), or not approved for payment at this time, since there are no more originally approved funds available in the Improvement Fund for the Belsera II Area. 29638B-1WK4 04/02/2007 EXHIBIT "A" APPLICA TION AND CERTIFICATE FOR PA YMENT TO: (OWNER) . (Send check) Centex Homes Attn: Russ Johnson 5601 Truxtun Ave. Suite 220 Bakersfield, CA 93309 Marian Shaw City of Bakersfield 1501 Truxtun Avenue Bakersfield. CA 93301 PROJECT: Assessment District 03-2 Belsera Area (Tract No, 5831 Unit No.3) On-Site Improvements PROCESS DATE: 2/22/07 ATTENTION: CONTRACTOR: Centex Homes Central Valley Division 1840 So. Central Visalia. CA 93277 OWNER'S APPLICATION FOR PAYMENT PROJECT NO: 04-08 (2) In accordance with the Acquisition Agreement, application for Payment is made for the following items of work: Per Exhibit B, Table B-II-C BELSERA AREA IMPROVEMENTS TO BE ACQUIRED A. TRACT NO. 5831 UNIT NO.3 ON SITE IMPROVEMENTS a. b. GRADING STREET IMPROVEMENTS $0.00 $197,382.94 Subtotal Frontage Improvement Costs $197,382.94 d. f. g. CONSTRUCTION CONTINGENCY INCIDENTAL COSTS Total Tract No. 5831 Unit No.3 On-Site Improvements, Contingency, and Incidentals $00.00 $00.00 $197,382.94 The above items of work are 100% complete. The abo~e amounts are the actual costs for each item of work as outlined in Exhibit "B" of the Engineer's Report "'7-~Z-D Date: c.. In accordance with the Contrac observations and the data com The Engineer certifies to the progressed to the point indic knowledge, information and is in accordance with the Co Contractor is entitled to payme This Certificate is not negotiable, The AMOUNT CERTIFIED is payable only to the Contractor named herein, Insurance, payment and acceptance of payment are without prejudice to any rights of the Owner or Contractor under this Contract. OWNER'S CERTIFICATION Centex Homes hereby certifies that the materials or services shown hereon were furnished to the City of 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. CENTEX HOMES CENTRAL V, ALLE1IVISION 1840 '. C TRAL , 9327, \ <J )/~. RUSS "JOHNSON VP of Land Acquistions and Entitlement --I '. ) ',' C~ Chicago Title Company 2510 S. East Avenuef Suite 600 · Fresnof CA 93706 559457-2300. FAX 559 457-2395 February 21, 2007 McIntosh & Associates Attention: Judy Kindig 2001 Wheelan Court Bakersfield, CA 93309 Reference: Tract 5831 Order No.: 07-54104614-DW Thank you for placing your order with Chicago Title Company. We appreciate the opportunity of being of service to you. Sincerely, Chicago Title Company \ INVOICE McIntosh & Associates Attn: Judy Kindig 2001 Wheelan Court Bakersfield, CA 93309 INVOICE NO.: 715000004712 February 21, 2007 Unposted LOCATE NO.: TITLE NO.: 07-S4104614-DW CAC117715-7715-4541-0054104614 REF. NO.: Tract 5831 CUSTOMER PHONE: 661-834-4814 SALES REP(S): BUYER: SELLER: PROPERTY: no situs, Bakersfield, CA DESCRIPTION: 429000 Mechanic's Lien Guarantee CLTA Guarantee Form No.9 (6/6/92)- $1,000.00 250.00 PLEASE PAY THIS AMOUNT $ 250.00 TERMS - NET DUE UPON RECEIPT ~) Chicago Title Insurance Company \ GUARANTEE NO.: CACTI7715-7715-4541-00541 04614-CTIC-2007 -G9 SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE LIMITS OF LIABILITY AND THE CONDITIONS AND STIPULATIONS OF THIS GUARANTEE, Chicago Title Insurance Company a corporation, herein called the Company, GUARANTEES the Assured named in Schedule A against actual monetary loss or damage not exceeding the liability amount stated in Schedule A, which the Assured shall sustain by reason of any incorrectness in the assurances set forth in Schedule A. ,. ~Q~~L,,-=- a--countersigned Chicago Title Insurance Company " ~J M{ì.--L- __ ATTEST -7 /J / J~¿~ Mechanic's lien Guarantee CLTA Guarantee Form No, 9 (12/15195) Guarantee No. CACIT7715-7715-4541-0054104614-CnC-2007-G9 SCHEDULE A MECHANIC'S LIEN GUARANTEE Liability: Fee: $1,000.00 $250.00 1. Name of Assured: McIntosh & Associates 2. Date of Guarantee: February 12, 2007, 07:30 A.M. The assurances referred to on the face page hereto are: That, according to those public records which impart constructive notice of matters relating to the title to the land described herein, there are no NOTICES OF COMPLETION NOTICES OF CESSATION OF LABOR NOTICES OF NON-RESPONSIBILITY CLAIMS OF STATUTORY LIENS FOR LABOR OR MATERIALS (OTHER THAN SUCH CLAIMS FOR WHICH A RELEASE APPEARS IN SAID RECORDS), OR NOTICES OF THE PENDENCY OF ACTIONS TO FORECLOSE SUCH LIENS, recorded subsequent to November 12, 2006, which purport to affect said land, other than those shown below under Exceptions. The land referred to in this guarantee is described as follows: See Exhibit "A" attached hereto and made a part hereof I I 1 Mechanic's Lien Guarantee CLTA Guarantee Form No, 9 (6/6/97.) Guarantee No. CACTI7715-7715-4541-0054104614-CTIC-2007-G9 EXHIBIT "A" THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF KERN, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: All that portion of Tract 5831, Unit 3, as filed for record in Book 49 of Maps at Pages 179 and 180 in the Office of the Kern County Recorder. Also being in the Southwest quarter of Section 12, Township 29 South, Range 26 East, Mount Diablo Base and Meridian, City of Bakersfield, County of Kern, State of California, described as follows: Commencing at the centerline intersection of Valentano Avenue and Luciano Street as shown on said Tract Map; thence North 00° 41' 38" East, along the centerline of said Luciano Street, a distance of 160.25 feet to the point of beginning; thence along the following twenty-three (23) courses: 1) South 89° 18' 22" East, a distance of 30.00 feet; thence 2) South 00° 41' 38" West, a distance of 385.89 feet to the beginning of a curve, concave Easterly, having a radius of 25.00 feet; thence 3) Southerly, along said curve, through a central angle of 19° 55' 11", an arc length of 8.69 feet to the beginning of a reverse curve, concave Northwesterly, having a radius of 92.00 feet; thence 4) Southerly and Westerly, along said curve, through a central angle of 129° 50' 22", an arc length of 208.48 feet to the beginning of a reverse curve, concave, Southerly, having a radius of 25.00 feet; thence 5) Westerly, along said curve, through a central angle of 19° 55' 11", an arc length of 8.69 feet; thence 6) North 89° 18' 22" West, a distance of 317.12 feet; thence 7) South 45° 45' 36" West, a distance of 28.25 feet; thence 8) South 00° 49' 33".West, a distance of 110.88 feet; thence 9) North 89° 17' 41" West, a distance of 60.00 feet; thence 10) North 00° 49' 33" East, a distance of 110.78 feet; thence 11) North 44° 14' 24" West, a distance of 28.32 feet; thence 12) North 89° 18' 22" West, a distance of 394.01 feet; thence 13) North 00° 41' 38" East, a distance of 60.00 feet; thence 14) South 89° 18' 22" East, a distance of 851.00 feet to the beginning of a curve, concave Northwesterly, having a radius of 25.00 feet; thence 15) Northeasterly, along said curve, through a central angle of 90° 00' 00", an arc length of 39.27 feet; thence 16) North 00° 41' 38" East, a distance of 215.50 feet; thence 17) North 44° 18' 22" West, a distance of 28.28 feet; thence 2 Mechanic's Uen Guarantee CL TA Guarantee Form No.9 (6/6/92) .. Exhibit "A" (continued) Guarantee No. CACTI7715-7715-4541-0054104614-CTIC-2007-G9 18) North 89° 18' 22" West, a distance of 809.00 feet; thence 19) North 00° 41' 38" East, a distance of 60.00 feet; thence 20) South 89° 18' 22" East, a distance of 809.00 feet; thence 21) North 45° 41' 38" East, a distance of 28.28 feet; thence 22) North 00° 41' 38" East, a distance of 110.25 feet; thence 23) South 89° 18' 22" East, a distance of 30.00 feet to the point of beginning. 3 Mechanic's Lien Guarantee CLTA Guarantee Form NO.9 (6/6/92) " Guarantee No. CACTI7715-7715-4541-0054104614-CTIC - 2007 -G9 SCHEDULE A (CONTINUED) Exceptions: NONE END OF EXCEPTIONS ) 4 Mechanic's Lien Guarantee CL TA Guarantee Form No.9 (6/6/92) SCHEDULE OF EXCLUSIONS FROM COVERAGE OF THIS GUARANTEE L Except to the extent that specific assurances are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following: '\ (a) Defects, liens, encumbrances, adverse claims or other matters against the title, whether or not shown by the public records. I (b) (1) Taxes or assessments of any taxing authority that levies taxes or assessments on real property; or (2) Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not the matters excluded under (1) or (2) are shown by the records of the taxing authority or by the public records. (c) (I) Unpatented mining claims; (2) reservations or exceptions in patents or in Acts authorizing the issuance thereof; (3) water rights, claims or title to water, whether or not the matters excluded under (1), (2) or (3) are shown by the public records, 2. Notwithstanding any specific assurances which are provided in Schedule A of this Guarantee, the Company assumes no liability for loss or damage by reason of the following: (a) Defects, liens, encumbrances, adverse claims or other matters affecting the title to any property beyond the lines of the land expressly described in the description set forth in Schedule (A) of this Guarantee, or title to streets, roads, avenues, lanes, ways or waterways to which such land abuts, or the right to maintain therein vaults, tunnels, ramps or any structure or improvements; or any rights or easements therein, unless such property, rights or easements are expressly and specifically set forth in said description, (b) Defects, liens, encumbrances, adverse claims or other matters, whether or not shown by the public records; (1) which are created, suffered, assumed or agreed to by one or more of the Assureds; (2) which result in no loss to the Assured; or (3) which do not result in the invalidity or potential invalidity of any judicial or non-judicial proceeding which is within the scope and purpose of the assurances provided, ( c) The identity of any party shown or referred to in Schedule A. (d) The validity, legal effect or priority of any matter shown or referred to in this Guarantee. 1. Definition of Terms. The following tenns when used in the Guarantee mean: (a) the "Assured": the party or parties named as the Assured in this Guarantee, or on a supplemental writing executed by the Company, (b) "land": the land described or referred to in Schedule A and improvements affixed thereto which by law constitute real property, The teno "land" does not include any property beyond the lines of the area described or referred to in Schedule A, nor any right, title, interest, estate or easement in abutting streets, roads, avenues, alleys. lanes, ways or watelWays, (c) "mortgage": mortgage, deed of trust, trust deed, or 'er security instrument. ) (d) "public records": records established under state .atutes at Date of Guarantee for the pwpose of imparting constructive notice of matters relating to real property to purchasers for value and without knowledge, (e) "date": the effective date, 2. Notice of Claim to be Given by Assured Claimant. An Assured shall notify the Company promptly in writing in case knowledge shall come to an Assured hereunder of any claim oftitle or interest which is adverse to the title to the estate or interest, as stated herein, and which might cause loss or damage for which the Company may be liable by virtue of this Guarantee. If prompt notice shall not be given to the Company, then all liability ofthe Company shall terminate with regard to the matter or matters for which prompt notice is required; provided, however, that failure to notify the Company shall inno case prejudice the rights of any Assured under this Guarantee unless the Company shall be prejudiced by the failure and then omy to the extent of the prejudice. 3. No Duly to Defend or Prosecute The Company shall have no duty to defend or prosecute any action or proceeding to which the Assured is a party, notwithstanding the nature of any allegation in such action or proceeding, 4. Company's Option to Defend or Prosecute Actions; Duty of Assured Claimant to Cooperate. Even though the Company has no duty to defend or prosecute as set forth in Paragraph 3 above: (a) The Company shall have the right, at its sole option and cost, to institute and prosecute any action or proceeding, interpose a defense, as limited in (b), or to do any other act wlùch in its opilÙon may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured, or to prevent or reduce loss or damage to the Assured, The Company may take any appropriate action under the tenns of this Guarantee, whether or not it shall be liable hereunder, and shall not thereby concede \bility or waive any provision of this Guarantee, If the þmpany shall exercise its rights under this paragraph, it shall ~ so diligently, (b) If the Company elects to exercise its options as stated in Paragraph 4( a) the Company shall have the right to select counsel of its choice (subject to the right of such Assured to GUARANTEE CONDITIONS AND STIPULATIONS object for reasonable cause) to represent the Assured and shall not be liable for and will not pay the fees of any other counsel, nor will the Company pay any fees, costs or expenses incurred by an Assured in the defense of those causes of action which allege matters not covered by this Guarantee, ( c) Whenever the Company shall have brought an action or interposed a defense asp emtitted b y the provisions 0 f t his Guarantee, the Company may pursue any litigation to final detennination by a court of competent jurisdiction aild expressly reserves the right, in its sole discretion, to appeal from a n adverse judgment or order, (d) In all cases where this Guarantee pemtits the Company to prosecute or provide for the defense of any action or proceeding, an Assured shall secure to the Company the right to so prosecute or provide for the defense of any action or proceeding, and all appeals therein, and pemtit the Company to use, at its option, the name of such Assured for this pwpose, Whenever requested by the Cömpany, an Assured, at the Company's expense, shall give the Company all reasonable aid in any action or proceeding, securing evidence, obtaining witnesses, prosecuting or defending tþe action or lawful act which i n the opinion of the Company may be necessary or desirable to establish the title to the estate or interest as stated herein, or to establish the lien rights of the Assured. If the Company is prejudiced by the failure of the Assured to funùsh the required cooperation, the Company's obligations to the Assured under the Guarantee shall terminate, 5. Proof of Loss or Damage. In addition to and after the notices required under Section 2 of these Conditions and Stipulations have been provided to the Company, a proof ofloss or damage signed and sworn to by the Assured shall be funùshed to the Company within ninety (90) days after the Assured shall ascertain the facts giving rise to the loss or damage, The proof ofloss or damage shall describe the matters covered by this Guarantee which constitute the basis of loss or damage and shall state, to the extent possible, the basis of calculating the amount of the loss or damage, If the Company is prejudiced by the failure of the Assured to provide the required proof of loss or damage, the Company's obligation to such assured under the Guarantee shall terminate. In addition, the Assured may reasonably be required to submit to examination under oath by any authorized representative of the Company and shall produce for examination, inspection and COPYÙ1g, at such reasonable times and places as may be designated by any authorized representative of the Company, all records, books. ledgers, checks, correspondence and memoranda, whether bearing a date before or after Date of Guarantee, which reasonably pertain to the loss or damage. Further, if requested by any authorized representative of the Company, the Assured shall grant its pemtission, in writing, for any authorized representative of the Company to examine, inspect and copy all records, books, ledgers, checks, correspondence and memoranda Ù1 the custody or control of a third party, which reasonably pertain to the loss or damage, All information designated as confidential by the Assured provided to the Company pursuant to this Section shall not be disclosed to others unless, Ù1 the reasonable judgment of the Company, it is necessary in the administration of the claim, Failure of the Assured to submit for examination under oath, produce other reasonably requested information or grant pemtission to secure reasonably necessary information from third parties as required Ù1 the above paragraph, unless prohibited by law or govenunental regulation, shall terminate any liability of t he Company under this Guarantee to the Ássured for that claim 6. Options to Payor Otherwise Settle Claims: Termination of LiabiUty. In case of a claim under this Guarantee, the Company shall have the following additional options: (a) To Pay or Tender Payment of the Amount of Liability or to Purchase the Indebtedness, The Company shall have the option to payor settle or compromise for or Ù1 the name of the Assured any claim which could result in loss to the Assured within the coverage of this Guarantee, or to pay the full amount ofthis Guarantee or, iftms Guarantee is issued for the benefit of a holder of a mortgage or a lienholder, the Company shall have the option to purchase the indebtedness secured by said mortgage or s aid lien for the amount oWÙ1g thereon, together with any costs, reasonable attorneys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of purchase, Such purchase, payment or tender of payment of the full amount of the Guarantee shall temùnate all liability of the Company hereunder, In the event after notice of claim has been given to the Company by the Assured the Company offers to purchase said indebtedness, the owner of such indebtedness shall transfer and assign said indebtedness, together with any collateral security, to the Company upon payment of the purchase price, Upon the exercise by the Company of the option provided for in Paragraph (a) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall teffiÙnate, , includÙ1g any obligation to continue the defense or prosecution of any litigation for which the Company has exercised its options under Paragraph 4, and the Guarantee shall be surrendered to the Company for cancellation. (b) To Payor OthelWise Settle With Parties Other Than the Assured or WitlI the Assured Claimant. To payor othelWise settle with other parties for or in the name of an Assured claimant any claim assured against under this Gu arántee, together with a ny costs, a !tomeys' fees and expenses incurred by the Assured claimant which were authorized by the Company up to the time of payment and which the Company is obligated to pay, Upon the exercise by the Company of the option provided for in Paragraph (b) the Company's obligation to the Assured under this Guarantee for the claimed loss or damage, other than to make the payment required in that paragraph, shall tenninate, Ù1cludÙ1g any obligation to continue the defense or prosecution Mechanic's Lien Guarantee CLTA Guarantee Form No.9 (12/15195) of any litigation for which tht Cúmpany has exercised its options under Paragraph 4, 7. Determination and Extent of Liability. This Guarantee is a contract of indemnity against actual monetary loss or damage sustained or incurred by the Assured . ,imant who has suffered loss or damage by reason of reliance ;rr the assurances set fortIi in this Guarantee and only to the ",~nt herein described, and subject to the Exclusions From . Coverage ofTrus Guarantee, The liability of the Company under trus Guarantee to the Assured shall not exceed the least of: (a) the amount ofliability stated in Schedule A or in Part 2; (b) the amount of the unpaid principal indebtedness secured by the mortgage of an Assured mortgagee, as limited or provided under Section 6 of these Conditions and Stipulations or as reduced under Section 9 of these Conditions and Stipulations, at the time the loss or damage assured against by this Guarantee occurs, together with interest thereon; or (c) the difference between the value of the estate or interest covered hereby as stated herein and the value of the estate or interest subject to any defect, lien 0 r e ncwnbrance assured against by trus Guarantee, 8. Limitation of Liability. (a) If the Company establishes the title, or removes the alleged defect, lien or encwnbrance, or cures any other matter assured against by this Guarantee in a reasonably diligent manner by any method, including litigation and the completion of any appeals therefrom, it shall have fully performed its obligations with respect to that matter and shall not be liable for any loss or damage caused thereby. (b) In the event of any litigation by the Company or with the Company's consent, the Company shall have no liability for loss or damage until there has been a final detennination by a court of competent jurisdiction, and disposition of all appeals therefrom, adverse to the title, as stated herein, (c) The Company shall not be liable for loss or damage to any Assured for liability voluntarily asswned by the Assured in settling any claim or suit without the prior written consent of the Company, 9. ReductioD of Liability or Termination of Liability. ) All payments under this Guarantee, except payments made for costs, attorneys' fees and expenses pursuant to Paragraph 4 shall reduce the amount ofliability pro tanto, 10. Payment of Loss. (a) No payment shall be made without producing this Guarantee for endorsement of the payment unless the Guarantee has been lost or destroyed, in w ruch case proof 0 floss 0 r destruction shall be furnished to the satisfuction of the Company, (b) When liability and the extent of loss or damage has been definitely fixed in accordance with these Conditions and Stipulations, the loss or damage shall be payable within thirty (30) days thereafter. 11. Subrogation Upon Payment or Settlement. Whenever the Company shall have settled and paid a claim under trus Guarantee, all right of subrogation shall vest in the Company unaffected by any act of the Assured claimant. The Company shall be subrogated to and be entitled to all rights and remedies wruch the Assured would have had against any person or property in respect to the claim had this Guarantee not been issued. If requested by the Company, the Assured shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect trus right of subrogation, The Assured shall pemùt the Company to sue, compromise or settle in the Dame of the Assured and to use the name of the Assured in any transaction or litigation involving these rights or remedies, If a payment on account of a claim does not fully cover the loss of the Assured the Company shall be subrogated to all rights and remedies of the Assured after the Assured shall have recovered its principal, interest, and costs of collection. 12. Arbitration. Unless prorubited by applicable law, either the Company or the Assured may demand arbitration pursuant to the Title Insurance Arbitration Rules of the American Arbitration Association, Arbitrable matters may include, but are not limited to, any controversy or claim between the Company and the Assured arising out of or relating to this Guarantee, any service of the Company in connection with its issuance or the breach of a Guarantee provision or other obligation, All arbitrable matters when the Amount of Liability is $1,000,000 or less shall be arbitrated at the option of either the Company or the Assured. All arbitrable matters when the amount ofliability is in excess of $1,000,000 shall be arbitrated only when agreed to by both the Company and the Assured, The Rules in effect at Date of Guarantee shall be binding upon the parties, The award may include attorneys' fees only if the laws of the state in wruch the land is located pemùts a court to award attorneys' fees to a prevailing party. Judgment upon the award rendered by the Arbitrator(s) may be entered in any court having jurisdiction thereof, The law of the situs of the land shall apply to an arbitration under the Title Insurance Arbitration Rules, A copy of the Rules may be obtained from the Company upon request. 13. Liability Limited to This Guarantee; Guarantee Entire Contract. (a) This Guarantee together with all endorsements, if any, attached hereto by the Company is the entire Guarantee and contract between the Assured and the Company. In interpreting any provision of this Guarantee, this Guarantee shall be construed as a whole. (b) Any claim ofloss or damage, whether or not based on negligence, or any action asserting such claim, shall be restricted to this Guarantee. (c) No amendment of or endorsement to tlllS Guarantee can be made except by a writing endorsed hereon or attached hereto signed by either the President, a Vice President, the Secretary, an Assistant SecretaIy. or validating officer or authorized signatory of the Company, 14. Notices, Where Sent. All notices required to be given the Company and any statement in writing required to be furnished the Company shall include the nwnber of this Guarantee and shall be addressed to the company at: FNF - Southwest Claims Center 17911 Von Kannan Avenue, Suite 300 !ìvine, CA 92614 Alto: Claims Administration Mechanic's Lien Guarantee CLTA Guarantee Form No.9 (12/15195) l"al'IV' c..VVV ï'IVIIII 11 V ' -r \I L. L.. I' I I I PLEASE COMPLETE THIS INFORMA1ION - RECORDING REQUESTED BY " and for the benefit of the CITY OF BAKERSFIELD James W. FitchJ, Assessor - Recorder Kern County OUidaJ tiecords R.conl.d lit the "quesl 01 Public DOC#: 0205027357 SOFIR 2/0312005 11:33AM Stat Types: 1 Pages: 1 WHEN RECORDED MAIL TO: CITY OF BAKERSFIELD CITY CLERK 1501 ïRUXTUN AVENUE BAKERSFIELD, CA 93301 ~. --111111111111 œ II Fees Taxes Others PAID 0.00 0.00 0.00 $0.00 fIllS Ip_ F., _.,jot'. Use Onlv NOTICE OF COMPLETION AND ACCEPTANCE OF WORK (Work Within Public Right-of-Way) NOTICE IS GIVEN that work was completed on that certain prQlect known as TRACT 5831 UNIT t for the undersjgned agency on FEBRUARY 26, 2004, located SOOTA OF OLIVE DRIVE AND EAST Or- ALLEN ROAD, and that said project was accepted by this agençy on FEBRUARY 1. 2005. The undersigned agency owns the foDowing interest in said property descrioed above: right-of-way and pUblic improvements within the right-ot-way. The Contractor/Develo~er on said project was CENTEX HOMES, and contract number is City of )'akersfield Contract No. 03-173. Please refer to said contract number on all communications relating to ..aid contract. The address of the undersigned agency is City Hall. 1501 Truxtun Avenue, BakersfIeld. California 93301. I declare under penalty of perjury, under the laws ot the State of California, that the contents herein are true and correct to the best of my knowledge. Executed on February 1, 2005, at Bakersfield, California" ~.,-,.... Public Works Director By ~ :\GROUPOA'TIConstllJclion\NOCI2005\ TR 5831-3.doc J NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN THAT: 1. The undersigned is the owner of the interest or estate stated below in the property hereinafter described. 2. The full name of the undersigned is CENTEX HOMES. 3. The full address ofthe undersigned is 1840 S. CENTRAL STREET, VISALIA CA, 93277 4. The work of improvement on the property hereinafter described as completed on JANUARY 7, 2003 5. The name of the contract, if any, for such work ofimprovements was GRIFFITH COMPANY 6. The property on which said work of improvement was completed is in the City of Bakersfield, County of Kern, State of California, and is described as follows: PAVING BELSERA PHASE 3 :;¡HOMES BYpa ckDamell ~ Director of Land Development STATE OF CALIFORNIA ) COUNTY OF KBRNr~) Patrick Darnell being duly sworn, says that he is the Land Development Manager of Centex Homes the corporation that executed the foregoing notice as owner of the aforesaid interest or estate in the property therein described; that he makes this verification on behalf of said corporation; that he has read said notice and knows the contents thereof, and that the facts therein stated are true of his own knowledge. ) \¥-~ It/¡ MlJ' Date I{!/I~ Notary' Šignature J- - - - -~.~ - - '- - - J e v. c. PAlTON - Commission t 1326604 ¡. Notary Public - CarJfomia ~ J Tulare County f MyComm. ExpileS Nov21, 2005 ~ -- ........ -- __ -.K"""~~':~ ...... __ ....... OCT 1 4 20D5 WHEN RECORDED MAIL TO: Mml I"UUIIlY UllllilClI neliurU5 Recorded at the request ot Commerce Title UIZ1/ZUl 8:00 Af \ Cent~x Homes Attn: Terry Tucker 1840 S. Central Street Visalia, Ca 93277 DOC#: 0205258100 Stat Types: 1 Pages: 11111111 U III ! .. Fees ,! Jaxes ,P Others PAID 7.oe o.oe D.De $7.De NOTICE OF COMPLETiUN NOTICE IS HEREBY GIVEN THAT: 1. The undersigned is the owner of the interest or estate stated below in the property hereinafter described. 2. The full name of the undersigned is CENTEX HOMES. 3. The full address ofthe undersigned is 1840 S. CENTRAL STREET, VISALIA CA, 93277 4. The work of improvement on the property hereinafter described as completed on SEPTEMBER 24, 2003 5. The name of the contract, if any, for such work of improvements was BAKERSFIELD CONCRETE 6. The property on which said work of improvement was completed is in the City of Bakersfield, County of Kern, State of California, and is described as follows: CURB & GUTTER BEL SERA PHASE 3 CENTEX HOMES ' By Ii 14~ . ~trick Darnell Director of Land Development STATE OF CALIFORNIA ) - COUNTY OF IŒIDf 1u.lAtE) :Patrick Darnell being duly sworn, says that he is the Land Development Manager of Centex Homes the corporation that executed the foregoing notice as owner of the aforesaid interest or estate in the property therein described; that he makes this verification on behalf of said corporation; that he 'has read said notice and knows the contents thereof, and that the facts therein stated are true of his own knowledge. s.øz1tÁu0 /i;uø r Date tk ¡J1it/fr-J Notary Signature J'" - -~ ~ .-v~~.~;o~ - - ~ -61 Commission.1326604 i Notary Public - Califomia ~ J' Tulare County f ,.. -" 'Or ~~~~2:~ n/,'l 1 4 ~fIfJ~ -..,f)U\!} CITY OF BAKERSFIELD CLAIM VOUCHER I Vendor No. CLAIMANT'S NAME AND .ADDRESS: I certify that this claim is correct and valid, and is a proper charge against the City Agency and account indicated. CENTEX HOMES ATTN: RUSSJOHNSON 5601 TRUXTUN AVENUE, SUITE 220 BAKERSFIELD, CA 93309 (AUTHORIZED SIGNATURE OF CITY AGENCY) Date: 4/5/2007 Initials of Preparer: PS CITY DEPARTMENT: PLEASE PROVIDE SHORT EXPLANATION OF PAYMENT: Public Works (Including Contract Number if Applicable) IMPROVEMENTS FOR ASSESSMENT DISTRICT NO. 03-2, BELSERA II AREA ACQUISITION Fund Dept. Base Ell Objt Project # Invoice Number , Amount Comments on check stub 4 4031 822 8041 KEA614 177,486.00 AD 03-2 BELSERA II AREA VOUCHER TOTAL $177,486.00 SECTION 72, PENAL CODE p~"\iion 72, Presenting False Claims. Every person who with intent to defraud, , ;ants for allowance or for payment to any state board or officer, or any county, town, city district, ward or village board or officer, authorized to allow or pay the same if genuine, any false or fraudulent claim, bill, account, voucher, or writing, is guilty of a felony. FINANCE DEPT. USE ONLY Examined & Approved for Payment Amount C:IDocuments and SettingslpsheatslMy DocumentslAccounls PayablelAssessment District pmtsI04,05.07 03·2 CENTEX1 :16 PM