AGREEMENT NO. 15 -070 ( 1)
AMENDMENT NO. 1 TO AGREEMENT NO. 15 -070
THISAMENDMENTNO. ONE (1) TO AGREEMENTNO. 15 -070 is made and entered into on MAR3 0 1016 ( the " First Amendment Date "), by and between the CITYOF BAKERSFIELD, a municipal corporation ( " CITY" herein), and SIERRA OAKS PARTNERS LLC, a Delaware limited liability company SUBDIVIDER" herein).
RECITALS
WHEREAS, on March 25, 2015, CITY and SUBDIVIDER entered into Agreement No. 15 -070 for the acquisition and development of Belcourt at Seven Oaks Park ( " Park "); and
WHEREAS, Agreement No. 15 -070 called for SUBDIVIDER to begin construction of Park prior to the issuance of any building permit and complete construction by March 1, 2016; and
WHEREAS, on September 2, 2015, SUBDIVIDER requested to delay the deadline to begin construction of Park due to a slowing of SUBDIVIDER's home development forecast; and
WHEREAS, CITY agrees to amend Agreement No. 15 -070 in order to allow developer to build Park at a more appropriate time.
NOW, THEREFORE, incorporating the foregoing recitals herein, CITYand SUBDIVIDERmutually agree to amend Agreement No. 15 -070 as follows:
Section 1. Part I, Section 3 of Agreement No. 15 -070 is hereby amended to read as follows:
3. TIME OF CONSTRUCTION. SUBDIVIDER shall commence
construction of the Parkby no later than the date that the City issues a building permit for the 300th residential dwelling unit within the Zone of Benefit, in addition to the building permits previously issued for the Park Square
apartments ( the " Park Commencement Date') and shall
complete construction within two years following the Park Commencement Date ( the " Park Completion Date "),
unless an extension of time is granted by CITY in writing and approved by the City Council. If construction of the Amendment No. I to Agreement No. 15 -070 0AKF9
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Park has not commenced by the Park Commencement
Date, then no further building permits will be issued for residential dwelling units within the Zone of Benefit until SUBDIVIDER commences construction of the Park. If a
Notice of Completion of the Park is not recorded by the Park Completion Date, no further Building Permits will be issued for residential dwelling units within the Zone of Benefit until a Notice of Completion of the Park is
recorded.
Section 2. Part II of Agreement No. 15 -070 is hereby amended to read as follows:
REFUND TO SUBDIVIDER / SUBDIVIDER' S PARK DEVELOPMENT DEPOSITS /
DEDICATION UPON DEFAULT / SATISFACTION OF PARK DEVELOPMENT
REQUIREMENTS / NO CITY LIABILITY
6. Refund to SUBDIVIDER / SUBDIVIDER' s Park Development Deposits.
6. 1 Refund to SUBDIVIDER. Upon SUBDIVIDER' s
satisfactory completion of construction of the Park
Improvements, CITY shall refund to SUBDIVIDER the sum of Three Hundred Ninety -Two Thousand Two Hundred Twenty - Four Dollars ($ 392, 224. 00) which SUBDIVIDER previously deposited with the CITY as security for parkland development in connection with the Park Square at Seven Oaks apartment project ( " SUBDIVIDER' s Park Square Deposit ").
6.2 SUBDIVIDER' s Park Development Deposits. In
order to provide further assurances to the CITY to secure SUBDIVIDER' s obligations under this Agreement, SUBDIVIDER and CITY agree as follows.
6.2. 1 Upon the issuance of each building permit
for a residential dwelling unit within the Zone of Benefit SUBDIVIDER shall deposit with CITY an amount equal to the park development, improvement and enhancement fee
payable to the CITY for a similar residential dwelling pursuant to the provisions of Bakersfield Municipal Code Section 15.82 effective as of the earlier of, ( i) the date of issuance of such gAKF9Amendment No. I to Agreement No. 15 -070 U s„
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building permit, or ( ii) the date of approval or conditional approval of SUBDIVIDER'S vesting tentative map ( or other applicable vesting method), if any, which isapplicable to the lot for which such building permit is issued ( each, a " Park Development Deposit," and collectively, " Park Development Deposits ").
6.2. 2 With respect to the Park Development
Deposits:
6. 2. 2. 1 In the event of SUBDIVIDER' s
material default of its obligations under this Agreement, CITY shall have and retain all such Park Development Deposits, and shall have the right to use the some for the development, improvement and / or enhancement of park facilities
benefiting the Zone of Benefit. The provisionsof this Section
6.2. 2. 1 shall not diminish or otherwise affect the CITY' s right to call upon or enforce the CITY' S improvement security as referenced in Sections 17 through 19 below.
6. 2. 2. 2 Upon SUBDIVIDER' s completion
of the Park Improvements in accordance with Article I and SUBDIVIDER' s conveyance of the Park to the CITY in
accordance with Article IV below, CITY shall refund to
SUBDIVIDER all Park Development Deposits theretofore
collected by the CITY, and thereafter CITYshall on a quarterly basis refund to SUBDIVIDER all additional Park Development Deposits collected by the CITYup to a total reimbursement to SUBDIVIDERequal to the lesser of the following, ( i) the total amount of the Park Development Deposits collected by the CITY upon the issuance of building permits for residential dwelling units within the Zone of Benefit, ( ii) an amount equal to SUBDIVIDER' s actual verified costs incurred in the design, engineering and construction of the Park Improvements
including any subsequent park improvements constructed
for the Park as contemplated in Section 17. 1 below), or ( iii) an amount equal to the Engineer' s Bond Estimate as referenced in Section 17. 1 below ( together with any subsequent
Engineer' s Bond Estimate relating to subsequent park
improvements constructed for the Park). Any unrefunded
balance of the Park Development Deposits, including any interest earned thereon, shall be retained by CITY.
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7. City' s Rights and Remedies Upon SUBDIVIDER's Default. If SUBDIVIDERdefaults on its obligations under this Agreement, CITY shall have all rights and remedies available to CITY at law or in equity on account of such default, including the right to retain SUBDIVIDER's Park Square Deposit and the Park Development Deposits, and the right to require the payment of park
development, improvement and / or enhancement fees as called for in chapter 15.82 of the Bakersfield Municipal Code as a condition to the further issuance of building permits for residential dwelling units within the Zone of Benefit. In addition to the foregoing, if SUBDIVIDERdefaults on its obligation to commence construction of the Park by the Park Commencement Date or to complete construction of the Park by the Park Completion Date, then, in addition to CITY' s other rights and remedies under this Agreement, SUBDIVIDER shall, upon SUBDIVIDER' s receipt of CITY' s written notice of such default and demand for dedication, dedicate the Park property to the CITYfor use as a public park site.
8. Satisfaction of Park Dedication and Park Development.
Improvement and Enhancement Requirements. SUBDIVIDER' s completion of the Park Improvements and dedication of the Park, as contemplated in this Agreement shall satisfy all park dedication, development, improvement and enhancement requirements for the full build - out of the Zone of Benefit, including all requirements under chapters 15.80 and 15.82 of the Bakersfield Municipal Code, all requirements under section 9. 1 of the Specific Plan, including implementation measures P -1 through P -6, inclusive, thereof, and any conditions of approval requiring park dedication,
development, improvement and / or enhancement. Accordingly, except as specified to the contrary in Section 7 above, development within the Zone of Benefit shall be exempt from the provisions of chapter 15.80 of the Bakersfield Municipal Code pursuant to the provisions of Section 15. 8O. 19O.D thereof, and shall be exempt from the provisions of chapter 15.82 of the Bakersfield Municipal Code pursuant to the provisions of Section 15.82. O7O.B thereof.
9. No CITY Liability. CITY shall have no liability for failure to collect any park development, improvement and / or enhancement fees specified herein and cannot and does not pledge itself that such moneys will be collected. SUBDIVIDER acknowledges and agrees that except as specified to the contrary in Section 7 above, CITY will not collect park development, improvement and / or Amendment No. I to Agreement No, 15 -070 0AKF9
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enhancement fees from the Zone of Benefit, and accordingly no such fees will be available to reimburse SUBDIVIDERfor or in connection with the development of the Park. SUBDIVIDER shall deposit with the CITY Park Development Deposits, and CITY shall refund to SUBDIVIDERSUBDIVIDER's Park Square Deposit and the Park Development Deposits, as more particularly set forth in Part II, Section 6 above.
Section 3. Part V, Section 17.1 of Agreement No. 15 -070 is hereby amended to read as follows:
17. 1 This Agreement shall be secured by good and sufficient security, which shall be filed with the CITYprior to commencement of construction. Such improvement security shall consist of security set forth in Bakersfield Municipal Code Chapter 16.32. Any corporate surety bond issued pursuant to Bakersfield Municipal Code Section 16.32.020 -3 shall substantially conform to the form set forth in Section 66499. 1 of the Map Act or any successor statute.
The Engineer' s Bond Estimate which is attached hereto as Exhibit " E" and incorporated as though fully set forth herein reflects the estimated cost of the various features of the Park Improvements as of March 25, 2015. At or before SUBDIVIDER' s commencement of construction of the Park, SUBDIVIDER shall deliver to CITY, for CITY' s approval, an updated Engineer' s Bond Estimate which reflects the estimated cost of the various features of the Park Improvements as of such time, and such updated Engineer' s Bond Estimate approved by the CITYshall be used, if applicable, as the basis for the reduction of security in connection with the CITYacceptance of Park Improvements, and, if applicable, for the refund of Park Development Deposits to SUBDIVIDER as contemplated in clause ( iii) of Section 6. 2. 2. 2 above. In the event SUBDIVIDER elects to construct subsequent improvements for the Park then, following CITY' s approval of such subsequent improvements, and at or before SUBDIVIDER' s commencement of construction of such subsequent improvements, SUBDIVIDER shall deliver to CITY, for CITY' s approval, an Engineer' s Bond Estimate for such subsequent improvements which shall be used, if applicable, as the basis for the reduction of security in connection with the CITY acceptance of such supplemental improvements, and, if applicable, for the refund of Park Development Deposits to SUBDIVIDER as contemplated in clause ( iii) of Section 6. 2. 2 above.
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Section 4. Part V, Section 34 of Agreement No. 15 -070 is hereby amended to read as follows:
34. ASSIGNMENT. This Agreement shall not be assigned by any party, or any party substituted, without prior written consent of all parties, provided, however, that SUBDIVIDERshall have the right to assign SUBDIVIDER' s rights and delegate SUBDIVIDER' s obligations under this Agreement to Bolthouse Properties, LLC, a California limited liability company or Bolthouse Development Company, LLC, a California limited liability company ( in either case, " BOLTHOUSE"), effective upon SUBDIVIDER's or BOLTHOUSE's delivery to CITY of written notice of such assignment and delegation, together with a fully executed original of an assignment and assumption agreement duly signed by both SUBDIVIDERand BOLTHOUSEby which SUBDIVIDER assigns to BOLTHOUSE its rights and delegates its obligations under this Agreement, and BOLTHOUSE accepts and assumes such rights and obligations.
Section 4. Except as amended herein, all other provisions of Agreement No. 15 -070 shall remain in full force and effect.
THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESSWHEREOF, the parties hereto have caused this Amendment No. One ( 1) to Agreement No. 15 -070 to be executed the day and year first above written.
CITY"
CITY OF BAKERSFIELD
By:
HARVEY L. HALL
Mayor
APPROVED AS TO CONTENT:
RECREATION AND PARKS DEPARTMENT
REn
By: N+ QVr- t mfiV0---
DIANNE HOOVER
Recreation and Parks Director
APPROVED AS TO FORM:
VIRGINIA GENNARO
City Attorney
By: C/ ti
RICHARD IGER
Deputy City Attorney
COUNTERSIGNED:
By:
NELSON SMITH
Finance Director
Rl: lsc
Amendment No. 1 to Agreement No. 15 -070
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SUBDIVIDER"
SIERRA OAKS PARTNERS LLC,
Senior Projects Manager
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