HomeMy WebLinkAboutOrd 34-85 Public FacilityProj 1 ORDINANCE NO. 34 - 85
AN ORDINANCE OF THE CITY 0~ DUBLIN, CALIFORNIA
APPROVING A CERTAIN LEASE TRANSACTION FOR THE LEASE BY THE CITY
AS LESSEE OF CERTAIN PUBLIC FACILITIES AND APPROVING AND
AUTHORIZING THE EXECUTION OF CERTAIN LEASES AND OTHER RELATED
FINANCING DOCUMENTS IN CONNECTION WITH THE DUBLIN PUBLIC
FACILITIES PROJECT NO. i
WHEREAS, the .City of Dublin (the "City"), has initiated
certain actions in connection with the preparations necessary for
the adoption of the proposed Public Facilities Project No. 1 (the
"Project"); and
WHEREAS, the City deems it desirable to proceed to undertake
certain actions prior to the anticipated adoption of the Project
in order to expedite the acquisition and construction of the
proposed Project and to take advantage of the currently favorable
economic conditions which make the acquisition and construction
of said proposed public facilities project-more feasible and
affect in a positive manner the ability of the City to obtain
lower construction costs and financing costs for certain public
improvements; and
WHEREAS, the City deems it to be desirable to lease from
.Dublin Information, Inc., a California nonprofit corporation,
(the "Lessor") certain real property (the "Site") for the
purposes and upon such terms as are more fully described in-that
certain lease agreement entitled "Lease'Agreement Relating to
Public Facilities Project No. 1", dated as of December 18, '1985,
(the "Lease Agreement"), attached hereto as Exhibit "A" and
incorporated herein by this reference; and
WHEREAS, the City deems it desirable to enter into an Agency
Agreement with the Lessor, attached hereto as Exhibit "B" and
incorporated herein by this reference, wherein the City would be
appointed as agent for the Lessor for the purposes of
construction, acquisition and operation of the Project; and
WHEREAS, in accordance with the Lease Agreement, the Lessee
as agent for the Lessor, shal~ construct a civic center complex
and related facilities upon the Site, as more fully described in
said Lease Agreement, and the Lessor shall lease said completed
public facilities which shall constitute the Facilities to the
City upon the terms which are more fully described in said Lease
Agreement; and
WHEREAS, pursuant to the Trust Agreement. attached hereto as
Exhibit "C", and incorporated herein by reference, the City and
the Lessor desire to authorize the sale of participation
interests in the Lease Agreement by the Lessor as Trustee
designated in the Trust Agreement, at rates of interest to be
subsequently determined and approved by the-City; and
WHEREAS, the entering into of the Lease Agreement by the
Lessor and the City and the execution and delivery thereof is
authorized or permitted by California Government Code Section
37350 et seq., and 37380, et seq., and the laws and Constitution
of the State of California.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DUBLIN DOES
ORDAIN AS FOLLOWS-
Section 1. The City of Dublin hereby approves the Lease
Agreement by and between the City and the Lessor substantially in
the form as attached hereto as Exhibit "A" and substantially upon
the terms and conditions as set forth therein, subject to the
insertion of the interest component of the lease payments as
shall be made by the City when the same shall have been
ascertained and subject to any changes in the principal amount to
be financed pursuant to the Lease Agreement. Any amendments,
modifications or changes to the Lease Agreement shall not
materially alter the City's obligation under the Lease Agreement
and shall be subject to approval by resolution of the City
Council. The Mayor and the City Clerk are hereby authorized and
directed to execute the Lease Agreement which shall be dated
December 18, 1985, and the seal of the City shall be affixed
thereto upon approval of the final forms thereto by a duly
approved and adopted Resolution of the City Council.
Section 2. The City hereby approves the Agency Agreement by
and between the City and the Lessor substantially in the forms as
attached hereto as Exhibit "B", and substantially upon the terms
and conditions as set forth therein.- Any amendments,
modifications or changes shall not materially alter the City's
obligation under the Trust Agreement and shall be subject to
approval by resolution of the City Council. The Mayor and the
City Clerk are hereby authorized and directed to execute the
Agency Agreement which shall be dated December 18, 1985, and the
seal of the City shall be affixed thereto upon approval of the
final forms thereof by a duly approved and adopted Resolution of
the City Council.
Section 3. The City hereby approved the form of the Trust
Agreement by and among the City, the Lessor and the Lessor as
Trustee designated therein substantially in the forms as attached
hereto as Exhibit "C", and substantially upon the terms and
conditions as set forth therein, subject to the insertion of the
interest component of the payments to be made on the Certificates
of Participation, evidencing ownership interests in the Lease
Agreement when such interest component has been ascertained and
subject to any changes in the principal amount of the
Certificates of Participation to be issued by the Lessor as
Trustee pursuant to the Trust Agreement. The Mayor and City
Clerk are hereby authorized and directed to execute the Trust
Agreement which shall be dated as of December 18, 1985, and the
seal of the City shall be affixed t~ereto upon approval of the
final forms thereof by a duly approved and adopted ResolUtion of
the City Council.
Section ~. The Mayor, the City Clerk, other authorized
officials of ~he City and all members of the City Council are
hereby authorized and directed to execute and deliver any and all
documents which may be required under the terms of the Lease
Agreement, the Agency Agreement, and the Trust Agreement and to
execute such instruments and take such other action as may be
required or appropriate for the performance of the duties imposed
thereby.
Section 5. IMMEDIATE EFFECT
This Ordinance shall take effect immediately upon its
enactment because the adoption and immediate effect thereof is
necessary to the construction of a civic center which will house
police facilities essential to public peace and safety, and in
addition, the construction of traffic signalization and street
improvements, including pedestrian and vehicular ingress and
egress to said civic center complex.
Section 6. POSTING OF ORDINANCE
The City Clerk of .the City of Dublin shall cause this
.Ordinance to be posted in at least three (3) public places in the
City of Dublin in accordance with Section 36933 of the Government
Code of the State of California.
PASSED, APPROVED AND ADOPTED by the City Council of the City
of Dublin on this 18th day of December, 1985 by the following
vote'
AYES'
Councilmembers Hegarty, Jeffery, Moffatt, Vonheeder
and Mayor Snyder
NOES' None
ABSENT' None
.-' May~6r /
City Clerk
LEASE AGREEMENT
RELATING TO PUBLIC FACILITIES PROJECT NO. 1
by 'and between
DUBLIN -INFORMATION, INC.
and
CITY OF DUBLIN
Dated as of December 18, 1985
CerM~ates of Participa~n evidencing ownership interests of the owners and
holders thereof in and to this Lease Agreement will be delivered in accordance with
the providions of a Trust Agreement dated as of December 18, 1985.
Section 1.01.'
Section 1.02.
Section 1.03.
Section 1.04.
Section 1.05.
Section 2.01.
Section 2.02.
Sect~n 3.01.
Section 3.02.
Section 3.03.
Section 3.04.
-Section 3.05.
Section 3.06.
Section 3.07.
Section 3.08.'
Section 3.09.
.Section 3.10.
Section 3..11.
Section 3 f 12.
Section 3.13.
Section 3.14.
Secth0n 3.15.
Section 3.16.
Section 3.17.
Section 3.18.
Section 4.01.
Section 4.02.
Section 4.03.
Sectk)n 4.04.
Section 4.05.
Section 4.06.
'
TABLE OF CONTENTS
ARTICLE I
RECITALS
Status and Powers of the Lessor
Status and Powers of the City
Purpose of Agreement -
Public Bene~-
Acknowledgment of Status of Land
ARTICLE II
DEFINITIONS AND GENERAL PROVISIONS
DeMnitdons in General
Rules of Construction
ARTICLE 7TI
LEASE OF PROJECT; LEASE PAYMENTS
Depo~_- of Moneys
Grant of Easement for Access
Construction of Project
Payment of Pr~ Costs
Commencement of the Lease Term
Termination of the Lease Term
En~0yment of P~
Payments to Constitute A Current
Expense of the City
Payment of Base Payments
Interest Component
Manner of Payment
Continuation of Lease
Non-appropziation
Disposition of Base Payments and
Add~+~nal Payments '
Addit~nal Payments
Title to the Project 8
Seo~y Interest
Payment in Lawful Money; No Set-Off
ARTICLE IV
COVENANTS
Improvements
Maintenance and Ut~l~t~_s
Publ~ T,-i~b-~l-i-l-~y Insurance
Worker's Compensation Insurance
Fore and Special Extended Coverage
Endorsement
Page
9
10
Section 4.07.
Section 4.08.
Section 4.09.
Section 4.10.
Section 4.11.
Section 4.12.
Section 4.13.
Section 4.14.
S~n 4.15.
Section 4.16.
Section 4.17.
Section 4.18.
Section 4.19..
Section 4.20.
Section. 4.21.
Section 4.22.
Section 4.23.
Section 4.24.
Section 4.25.
Section 4.26.
Section 4.27.
Section 4.28.
SectkDn 4.29.'
Section 4.30.
Section 5.01.
Section 5.02.
Section 6.01.
Section 6.02-..
Section 6.03.
Section 6.04.
Section 6.05.
Section 6.06.
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Form of Insurance Policies; Deliver
Inability to Obtain Earthquake
Insurance
Application of Net Proceeds of
Insur-~nce
T~I~_ Insurance
Application of Net Proceeds of
Title Insurance or Condemnation
Payment of Lease Payments
Comp]~ance with this Agreement ..
Payment of Taxes
Observance of Laws and Regulations
Maintain and Preserve the Project
Other L~ens
Against Encumbrances of Sales
Prosecution and Defense of Suits
Recordation and
Waiver of Laws
Compliance with Conditions Precedent
Power to Enter Into Agreement
Further Assurance
Financial Reports
Lessor Not
Operation of Project
Furnishing and Equipping of Project
Furnishing Additional Information
Value for Condemnation
ARTICLE. V
DISCLAIMER OF WARRANTIES; ACCESS; ASSIGNMENT
Disclaimer of Warranties
Lessor Access to the Prc~ect
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Events of Default Del/ned
Remedies on Defau]~
Suits at Law or in Equity and Mandamus
Non-Waiver
Remedies Not Exclusive
Status Quo
ARTICLE VII
ADMINISTRATIVE PROVISIONS
Preservation and Inspection of Documents
Parties of Interest
No Recourse Under Agreement
Notices
PaGe
10
10
10
11
11
12
12
12
12
13
13
13
13
14
14
14
14
14
14
14
15
15
15
16
16
17
17
18
18
19
19
20
20
21
21
'Section 7.05.
Sect/on 7.06.
Section 7.07.
Section 7.08.
Section 7.09.
Section .7.10.
Section 7.11.
Exhibit "A"
Exhibit "B"
Exhibit "C"
Binding 'Effect
Severab~l~y
Headings
Applicab~ Law
Lessor and City Representatives
Form of Ceztif/cates of Of~cers
Successor to Lessor
Descz/p~n
Lease Term and Lease Payment Amounts
Page
21
21
21
21
21
21
21
LEASE AGREEMENT
RELATING TO PUBLIC FACTT.T'TIES PROJECT NO. 1
THIS LEASE AGREEMENT RELATING TO PUBLIC FACILITT~.S PROJECT
NO. 1, made and entered into as of December 18, 1985, by. and between Dublin
Information, Inc., a pub~l~c bene~- nonpro~t corporation duly organized and
existing under the laws of the State of California (herein called the "lessor"), and
the City of Dublin (herein c~ll~d the "City"), a municipal corporation of the State
of C~l~ornia.
WITNESSETH:
In consideration of the mutual covenants herein~ contained and for
other valuable consideration, the part~.s hereto do hereby agree as follnws:
-1-
ARTICLE I
RECITALS
Section 1.01. Status and Powers of the Lessor. The Lessor ~s a
corporation duly autho~.ed and existing under the laws of the State of Cal~*ornia.
Section 1.02. Status and Powers of the City.. The C~y is a muP~c~al
corporation of the State of Cml~forriia duly organized and operatkng pursuant to the
laws of the State of Ca]i*ornia.
..
The City is de-~rous of leasing certain fadlities in order to provide
improvements to the Dublin Civic Center Complex and Related Fa~l~ty (the
"Project"). The City is authorized by Government Code Sect~Dns 37350 and 37380
to lease real and personal property in order to achieve its public purposes.
Sectioh 1.03. Purpose of Agreement. The City desires to lease the
Pr~ect from the Lessor and the Lessor de--res to lease the Prq~t to the C~y.
The purpose of this Agreement is to ~f~ectuate said transact~n by setting forth
the te_rms and condit~ns rela~ing thereto.
Sect~n 1.04. Public Bene~t. This Agreement is for the bene~ of the
public and is in furtherance of the public purposes of the City.
Section 1.05. .Acknow!~d~ment of Status of Land. The Lessor and the
City acknowledge that the Lessor is the owner of the land more particularly
described on Exhibit "B" at~ached hereto and by th~s reference incorporated
herein.
-2-
ARTICLE II
DEFINITIONS AND GENERAL PROVISIONS
Section 2.01. Defdnitions in General The te~ms 'defined in Exhibit "A"
a~*t~_ched hereto and by th~s reference incorporated herein, as used and capJ*~l~ed
herein, shin11, for mll purposes of this Agreement, have the meanings asczibed to
them in said Exhibit "A", unless the context clearly requires some other meaning.
In addition, the term "Agreement" as used herein means this Lease Agreement
Relating to Public Fa~l~s Project No. 1.
Section 2.02. Rules of Construction. Words of-the masculine gender
sh~11 be deemed and construed to include correlative words of the feminine and
neuter genders. Unless the contex~c otherwise indicates, words importing the
singular number shall include the plural number and vice versa, and words
importing persons shall include corporations and asso~ations, including public
bo8~s, as w~11 as natural persons.
"hereto" "herein" "hereunder", and any
The terms "hereby", "hereof", , ,
sim~lar terms, as used in thJ~ Agreement, refer to thJ~ Agreement.
-3-
ARTICLE ~7
LEASE OF PROJECT; LEASE PAYMENTS
Section 3.01. Deposit of Moneys.. In order to induce the City to lease
the Project from the Lessor and to assure the City that the moneys needed to pay
the Project Costs w/ll be available for this purpose without delay, the Lessor
immediately follow/ng recordation of this Agreement by the City, shall depo~- with
the Trustee, or cause to be dep.o-~d with the Trustee, the sum of $11,9.6~8,000.
Of this amount, approximately $11,968,000 less a~count, is req~%red to be
deposited in the Acquisition and con~cfu~n Account held by the Trustee
pursuant to the Trust Agreement for the City and any rema/ning amount is
required to be deported in the Lease Payment Account held by the Trustee
pursuant to the Trust Agreement for the City. In addit/on, accrued interest will
be deposited with the Trustee in the Lease Payment Account.
Sect/on 3.02. Grant of Easement for Access. In order to enable the
Lessor to carry out the terms of th~ Agreement, to provide for the
and construction of the Project and to exer~se remed/~s in the event of a defa~
by the City under this Agreement, and for other valuable consideration, the City
hereby grants and conveys to the Lessor, its agents and its assigns a
nonexclusive easement for vehicular and pedes~n ingress and egress upon and
over the ]and/den~d in Exhibit "B" a~tached hereto, and all necessary
easements for the constructk)n, maintenance, use and operation of the Project.
The City represents that it is empowered to grant and convey such easement and
that such grant and conveyance does not v~n]~te the terms of any lease, indenture
or other agreement to which it is a party.- The terms of such easement shall be
for a pea/od of f/fty (50) years commencing on the date of th/s .Agreement. Lease
Payments may be e~r]~r paid in full, in which case such e~sement shall terminate
upon the date on which Lease Payments have been p~a in full
Section 3.03. Construction of Prc~t. The Lessor agrees to acquire
and construct the Project pursuant to the plan.s and spe~'~-ations submitted to and
approved by the City. The Lessor shall appoint the City as its agent for the
purposes of construction of the Project. The Lessor recogn/zes that the City has
heretofore performed a portion of the work for the Pr~ and acknowledges that
such is hereby deemed to have been performed by the City on behalf of the
Lessor. The City, as agent of the Lessor shall cause the construct/on to be
performed diligently to the end that the Project will be substantially completed in
accordance with the aforesaid pl8ns and spe~oations on or p~/or to the
Completion Date. The City agrees that upon, substance1 completion of any portion
of the Project it will take posses~on of that porthDn of the Project under the terms
and provisions of this Agreement. No changes shall be made in such plsns and
sped~ations unless such changes are approved in w~ttng by the City.
Upon completion of construction of the Project satisfactory to the City,
the City sha]l deliver to the Lessor a cer~oate of completion thereof executed by
an Author/zed Oeec. er .of the City.
If the Lessor, for any reason whatsoever, cannot dml~ver posses~nn of
the completed Project to the City by the Completion Date, th/s Agreement shall not
be void or voidable, nor shall the Lessor be liable to the City for any loss or
damage resulting therefrom; but in such event the remaining Lease Payments
pert_~n/ng to the Pro, ct shall be abated, in 'the proportion that the construction
cost of the portion of the Pr~ not so delivered bears to the entire Pro, ct Costs
of the Project, with respect to the period between the Completion Date and the
~ime when the Lessor J~ ~ble to deliver possession of such portion of the Project.
Section 3.04. Payment ..of Pr~ect Costs. Payment for the construct~n
of the Project, as well as all other Project Costs, shall be made from the moneys
deported with the Lessor as Trustee as provided in Sect/on 3.01, which moneys
shall be ~bursed for such purpose in accordance and upon compliance with
Article IV of the Trust Agreement.
Section 3.05. Commencement of the Lease Term. The Lease Term shall
commence as of December 18, 1985~-and shall terminate on February 1, 2010. The
Lease Term shall continue from year-to-year as shown on Exhibit "C" attached
hereto and made a part hereof, upon approp~tion by the City of suf~nt legally
available funds to make payment of the Base Payments, Additional Payments and
any other payments due hereunder payable du~ng such Lease Term. The Base
Payments shall be as provided in Exhibit "C" of this Lease. Payments of interest
due under th/s Lease shall be due and payable to the Lessor semiannually on July
15 and January 15, commencing July 15, 1986, as set forth in Exhibit "C" of '
Lease. Payments of p~incipal shall be due and payable to the Lessor on January
15, 1987, and each January 15 thereafter through January 15, 2010 as set forth in
Exhibit "D" of th/s Lease.
Section 3.06. Term/nation of the Lease Term. The Lease Term shall
terminate upon the e~rl~_st of any of the f~]]mwing events:
(a) the occurrence of an Event of Non-appropriation pursuant to this
(b) an Event of Default and the Lessor's ~]~ction to terminate th/s
Lease under Art/cle VI of this Lease; or
(c) the 'last day of the Lease Term of this Lease, upon payment of ~1]_
Base Payments and ~11 other payments due hereunder.
Section 3.07. En~yment of Project. The Lessor hereby covenants that
the City shall du~ing the Lease Term peaceably and q~etly have and hold and
envy the Pr~ without suit, trouble or hindrance from the Lessor, except as
expressly required or permitted herein. The Lessor shall not interfere with the
quiet use and en~yment of the Project by the City during the Lease Term so long
as no Event of Non-approp~tion or Event of Default shall have occurred. The
Lessor shall, at the request, of the City and at the cost of the City, jcin and
cooperate fully in any legal action in which the City asserts its ~ight to such
posses.~ and en~yment to the extent that the Lessor may lawfully do so. In
add~on, the City asserts ~s Iight to such possession and en~yment to the extent
that the Lessor may law~]]y do so. In addition, the City may at ~-~ own expense
~in in any legal action afufecting its posses~on and en~yment of the Project and
shall be ~dned in any action a~fecting its 1/ab~s hereunder. The Lessor shall
have the ~ight at all reasonable times upon reasonable notice duling' business
hours to enter into and upon the Pro~=c~ for the purpose of inspecting the same.
Section 3.08. Payments to Constitute a Current Expense of the City.
The City and the Lessor understand and intend that the obligation of the City to
pay Base Payments, Ada~%4nnal Payments and other payments hereunder constitutes
.,
a current expense of the City and shall not in any way be construed to be a debt
of the City in contravention of any applicable constitutional or statutory limitation
or other req~rements concerning the creation of indebtedness by the C/fy, nor
shall anything contained herein constitute a pledge of any revenues, funds or
moneys of the City. Base payments and Additional Payments due hereunder shall
be be payable only from current funds which are budgeted and appropziated, or
otherwise legally available, for the purpose of paying Base Payments, Ad~nnal
Payments or other payments due hereunder as con--aeration for use of the Project
during the Fiscal Year of the City for which such funds were budgeted and
appropz/ated or otherwise made legally av~l~hle for such purpose. This Lease
shall not create an immediate indebtedness for any aggregate payments which may
become due hereunder in the event that the Lease Term is continued. Neither the
City, nor the Lessor on its beh~f, has pledged the ~l] fa~h and credit of the
City, the State of C~l~fornia or any agency or department thereof to the payment
of the Base Payment~s, Add/t/onal Payments, any other payments due hereunder, or
the interest thereon.
Section 3.09. Payment of Base Payments. The City shall pay Base
Payments to the Lessor for ~~bution to the Cer~omte Holders in accordance
with this Lease and the Trust Agreement during the Lease Term as herein
provided. The Base Payments duz/ng the Lease Term shall be the amounts in the
"Tct~] Base Payment" column as set forth in Exh/bit "C" of this Lease. Payments
of interest due under this Lease shall be due and payable to the lessor
semiannua~y on July 14 and January 15, commencing July 15, 1986, as set forth in
Exhibit "C" of this Lease. Payments of pz/ncipal shall be due and payable on
January 15, 1987, and each January 15 thereafter through January 15, 2010, as
set forth in Exhibit "C" of this Lease.
Section 3.10. Interest Componentl A port/on ~f each Base Payment is
paid as, and represents payment of, interest, and Exh/bit "C" of this Lease sets
forth the interest component of each Base Payment.
Section 3.11. Manner of Payment. Each Base Payment, Additional
Payment and Optional Prepayments, if any, shkll be paid exclusively from general
funds of the City and from other funds legally av~h]s and in lawful money of the
United States of Amen/c~ to the Lessor at its pzincipal o~ce. The obligations of
the City to make payment of the Base Payments and Ada~nnal Payments requested
hereunder and to perform and observe the other covenants and agreements
contained herein sh~11 be absolute and uncona~t~onal in all events except as
expressly provided under the Lease. Notwithstanding any d/sputa between the
City and the Lessor, any contractor or subcontractor retained with respect to the
construct/on of the Project, any suppl~_r of labor or matsz/als in connection
therewith or any other person, the C/ky shall make all payments of Base Payments
and Additional Payments when due and shall not withhnla any Base Payments and
Ada~t~nnal Rayments pending f/nal resolution of such dispute nor shall the City
assert any zight of setoff or countero]a~m against ~t~ obligat/on to make such
payments requested under this Lease. The obligation of the City to make Base
Payments and Additional Payments duz/ng the Lease Term shall be absolute and
uncona~onal and in all events, except as expressly provided in this Lease,
payment of the Base Payments shall not be abated through accident or unforeseen
circumstances.
Sectk)n 3.12. Continuation of Lease. The City intends to continue to
lease the Project for the entire Lease Term and to pay the Base Payments and
Addit/onal Payments hereunder. The City reasonably b~l~ves that leg~]y available
,
- 6 -
funds of an amount s~fS~mnt to make all Base Payments and Additional Payments
duz/ng the Lease Term can be obtained. Th~ City covenants that it will take all
procedural steps lawfully within ~t-~ power to obtain and maintm~n funds from which
all payments may be made, including prov~ns for such payments to the extent
necessary in each budget approved and exhausting all available ad--rive
reviews and appeals in the event such portion of the budget is not approved.
Section 3.13. No.n-appropziation. In the event that suff~ent funds
sh~l] not be approp~ated and budgeted for the payment of Base Payments and
Additional Payments required to be pm!a in the n~xt occurz/ng Fiscal Year, and if
the City has no funds legally available from other sources, an event of
non-appropziation shall be deemed to have cccurred, and the City may terminate
this Lease at the end 'of the then current Fiscal Year. In that event, the City
shall not be obligated to make payment of the Base Payments and Additional
Payments beyond the then current Fiscal Year. The City agrees to deliver notice
of such termination to the Lessor at least ninety (90) days pz/or to the end of the
then current Fiscal Year, but failure to give such notice sh~11 not extend the
Lease Term beyond the end of such Fiscal Year.
Upon the occurrence of an event of non-appropriation, the City shall
continue to be liable to the Lessor for the Base Payments, Addit/onal Payments and
any other payments due hereunder which are allocable to any pen/od du~ng which
the City Shall continue to occupy the Pr~.
The City shall in all events vacate the Project no later than ninety (90)
days subsequent to a termination of this Lease by reason of an event of
non-apprOpniation or an event of def~__ult. Neither the failure of the City to vacate
the Project immed~at~!y upon the occurrence of an event of non-approp~a~qnn or an
event of default, nor the acceptance by the Lessor of any Base Payments or any
other payments mllc~_.able to any pe_r~od duz/ng which the Cihy shall remain on the
Pr~ sb~11 be deemed a renewal of this Lease or a waiver of any such event of
non-approp~at~n or event of defa~!t.
The Lessor shall, upon the occurrence of an event of non-approprq~tkDn,
be entitled to ~!l moneys then on hand and being held in all funds created
hereunder as Trustee for the benefit of the holders cf the Cerebrates. All
property, funds and zights acq~fred by the Lessor upon the termination of this
Lease by reason of an event of non-apprcp~ation or an Event of Default as
provided herein, less any moneys due and owing to the Lessor for services
performed as Lessor and Trustee, shall be h~ld_ by the Lessor as Trustee for the
ben~- of the Certq~ate Holders..
Section 3.14. Disposition of Base Payments and AdditS0nal Payments.
Upon receipt by the Lessor of each Base Payment or any Add~onal Payments, the
Lessor shall apply the amount of such Base Payments and such Addit~nal Payments
as provided in the Trust Agreement.
Section 3.15. Additional... Payments. All taxes, charges, costs and
expenses which the City assumes or agrees to pay pursuant to the Lease
(including all indemD~ation hereunder or pursuant to the Trust Agreement)
together with roll interest and penml+qes that may accrue thereon in the event of
failure by the City to pay the same as herein provided, all other damages, costs
and expenses which the Lessor may suffer or incur, and any and all other sums
which may become due by reason of any failnre by the City to comply with the
agreements, terms, covenants and condit/ons of this Lease shall be deemed to be
"add/t~nal Payments" payable by the City to-the Lessor and, in the event of
nonpayment of the Addit~nal Payments, the Lessor shall have all the zights and
remed/~s as are herein provided in the case of nonpayment of Base Payments.
Addit/onal Payments are payable as of the date the next Base Payment is due from
the City. Ail amounts payable as Ad~nnal Payments sh~11 be payable only ~rom
general funds of the City, or other funds legally available, without setoff or
deduction.
Sect/on 3.16. Title to the Project. Title to the Prc~=ct shsl! remain in
the Lessor, subject to the leasehold interest of the City. T~I~ to the Project and
any and all additions, repairs, replacements (excluding personal property which
has been replaced by reason of 'normal wear and tear) or mod~oatgDns thereto and
the leasehold interest of the City in and to the Project shin11 be held in the name
of the Lessor, as Trustee for the ben~- of the holders of the Cerebrates
notwithstanding: (i) a termination of this Lease Agreament by the City by reason
of an event of non-approp~mtion as provided in this Lease; (i~ the occurrence of
one or more Events of Default; or (iii) the .violation by the Lessor of any prov~nn
of this Lease Agreement. Any deed or slip(lint document evidencing owners.hip of
the Pro, ct shall provide thereon the follow/ng legend:
"The property descnibed herein is owned by Lessor
under that certain Trust Agreement dated as of
December 18, 1985, subject to a Lease Agreement
dated as of December 18, 1985, between Dublin
Information, Inc., as Lessor and the City of Dublin.
The property desczibed herein may not be sold,
transferred or encumbered except in accordance with
the terms of said Lease Agreement and said Trust
Agreement."
The City shall have no zight, ttt/e or interest in the Project or any
add~ons, repairs, replacements, mod~c-atio.ns or fixtures thereto, ~xcept as
expressly set forth in this Lease Agreement.
In the event that the City shall pay all Base Payments and Addit/Dnal
Payments due hereunder d~v~ng the Lease Term, then the Lessor shall qu~l~m
title to the Site and the Project, free from any lien or encumbrance created by or
~.~4ng through the Lessor, but without other warranties, to the City, and the
Lease shall terminate pursuant to the terms and cond/iions thereof.
Section 3.17. Secunitv Interest. To secure the payment of all of the
obligat/ons of the City to the Lessor under this Lease, the City hereby grants to
the Lessor, as Trustee for the bene~t of the holder of the Cerebrates, a secuzity
interest in this Lease Agreement and the zights to receive payments from the C~y
heT. eunder.
Section 3.18. Payment in Lawful Money; No Set-Off. Each Lease
Payment shall be paid by the City in lawful money of the Unitad States of Amez/ca,
which at tJhe tLme of payment is legal tender for the payment of public and pnivate
debts. Any such Lease Payments accruing hereunder which shall not be paid
when due shell~ bear interest at the rate of twelve percent (12%) per annum from
.... the Payment Date to which such Lease Payment per~m~ns until the date when said
· Lease Payment is paid. Notwithstanding any d~$pute between the City and the
Lessor, the City shall make each and all Lease Payments when and as due and
shall not withhold any Lease Payments pending the final resolution of such
~'~.~.il;iiii~~' ~pute. The City sh~l] not assert any zight of set-of~ or counterclaim against ~
' ~"~' obligat~n to make Lease Payments as set forth herein.
-9-
ARTICLE IV
COVENANT-S
Section 4.01. Improvements. The City shall have the zight duzing the
term of this Agreement to make addi~Hons or improvements to the Project, or to
permit such add_~t~nns and improvements to be made.
Section 4.02. Maintenance and Utilities. The City shall mainea~n and
repair the Project and shall pay for all utility services suppl~d to the Project
(which services shall include secuzity services, power,- gas, tslephone, light,
heating, water, sewer and al1 other u~lity services), all costs of operation of the
Project and _~11 costs of repair and replacement of the Project res~lt~ng from
ordinary wear and tear or want of care. In exchange for the Lease Payments
herein provided, the Lessor agrees to provide only the Project.
Section 4.03. Public. T.(~hil~y Insurance. Throughout the term of this
agreement the City shall maintain _li~hili~_y insurance in protection of the Lessor,
the Trustee and the City, and their respective members, o~cers, agents,
employees, assignees and sublessees. Said. insurance shall pay on behalf of said
parties against loss or liability for damages for personal injury, death or property
damage occm~oned by reasons of the construction or operation of the Project.
Such insurance shall provide coverage of not less than $1,000,000 combined single
limit of bodily injury, personal injury and property damage, subject to deductible
clauses providing for deductible amounts of $100,000 for bodily injury or personal
injury. Such liabi]J~ insurance may be maintained as part of, or in conjunction
with, any other liability insurance coverage car~d by the City, and may be
maint~iued in the form of s~lf-insurance by the City.
·
Section 4.04. Worker's Compensation Insurance. The City shall maintain
or cause to be maintmined, throughout the term of this Agreement, Workers'
Compensation protection to cover ~11 persons employed in connection with the
Project who are not otherwise covered and to cover z5~11 liability under the
Workers' Compensation Insurance and SafeC-y Act in force in the State of
Calit:ornia, or any act hereafter enacted as amendatory thereof or supplemental
thereto or in l~_u thereof. Such prote~n shall be provided by a responsible
insurance carH~_r author~.ed under the laws of the State of California to insure
employers against such ]/ability or by a s~lf-insurance program adopted by the
City pursuant to a plan acceptmble by the State of California under the Labor
Code.
Section 4.05. Fire and Special. Extended Coverage Endorsement. The
Ci~ shall maint~n, throughout the term of this Agreement, fire and lightning
insurance and special extended coverage endorsement wkich includes vandalism and
m~l~c~ous mischief endorsement and extended coverage endorsement and earthquake
assumption endorsement on _~11 structures constituting any part of the Pro~t in an
amount (less the appropriate deductible amount) equal to the greater of (i) the
replacement cost of such structures or (ii) at lea~ the aggregate unp~id pzincipal
component of Lease .Payments. Each such policy of insurance shall contain an
inflation clause, a standard replacement cost endorsement providing for no
deduction for depre~tion, and a stipu/ated amount endorsement. Such insurance
may be maintained in conjunction with or separate from any other similar insurance
carr~'~d by the City and may be maintained in the form of s~lf-insurance by the
Section 4.06. .
Section 4.07. Form of. Insurance P~]~es; Delivery.
(a) All insurance required by this Agreement shall require and provide
that all Net Proceeds thereunder shall be payable to the Lessor as Trustse. The
City may cause the Lessor as Trustee to adjust, c~]]~t and receive all moneys
which may become due and payable under any such po]~s, and to compromise
any and all claims thereunder. Net Proceeds of such insurance shall be app]~d as
provided in ~ Agreement. Ail p~]~s of insurance required by this Agreement
shall provide that the Lessor as Trustee and the City shall be given thirty-five
(35) days' notice of any intended cancellation thereof or reduct~n of the coverage
provided thereby.
(b) The City shall d~l~ver to the Lessor as Trustee in the month of
January in each year a schedule, in such detail as the Trustee may request,
setting forth the insurance po]~s then in force and s~]~-insurance in e~ect
pursuant to this Agreement, the names of the insurers, which have issued the
pol~s, the amounts thereof and the property and ~ks covered thereby. If so
requested in w~iting by the Lessor as Trustee, the C~y shall also deliver to the
Lessor as' Trustee duplicate o~iginals or cer~ed copies of each insurance p~]~cy
and such statements of self-insurance descI/bed in such schedule, provided,
however, that delivery of the insurance p~]~s or s~tements under the pro~ns
of tkis Section shall not confer responsibi~ upon the Lessor as Trustee as to the
s~f~ncy of coverage or amounts of said policies or of such s~]~-insurance.
Section 4.08. Inabili~; to Obtain Earthquake Insurance.
Notwithstanding the prou~ns of Section 4.05, if at any time the City sha!~ be
unable to obtain earthquake insurance to the extent required by such Section on
the open market from reputable insurers at a reasonable cost, the failure to
maints~n such insurance shall not constitute a breach of ~ Agreement if the City
sha~ cause the employment of an independent insurance consultant having a
favorable repute for sk~]] and ~perience in such matters, for the purpose of
reviewing .such insurance requirement and making recommendations respecting the
amount and prov~nns of reasonably obtainable insurance, including self-insurance,
or the est~_b]~hment of another generally accepted form of alta_~native earthquake
protection that should be carried in lisu thereof, or the infeasib~ity of obtaining
earthquake insurance at a reasonable cost from a reputable insurer, and if the
C~y shall comply with the recommendations made in such report. A' signed copy
of the report of the insurance consultant shall be ~!~d with the Lessor and the
earthquake insurance requirement specified in Section 4.05 shall be deemed to be
modeled 'to conform with the recommendations in such report.
Section 4.09. Application of Net Proceeds of Insurance. Any Net
Proceeds of any such insurance required by this Agreement r ]e!ating to accident to
or destruct/~n of any part of the Pr~ect which ~s c~]]ected by the Lessor as.
Trustee shall be depositsd in a spe~a] fund to be held by the Lessor as Trustee
and applied and ~bursed as set forth
(a) If the City determines that such Net Proceeds are suf~nt to
repair, reconstruct or replace the damaged or destroyed portion of the Pr~ect,
which determination shall be evidenced by a cer~f~cate executed by an Authorized
O~er of the City and filed with the Lessor as Trustee, then the City shall cause
such portion of the Pr~ect to be repaired, reconstructed or replaced to at least
the same good order, repair and con_ai~nn as it was in p~ior to the damage or
destruction, insofar as the same may be accomplished by the use of s~i~ Net
Proceeds, and the City sba11 ~rect the Lessor as Trustee to ~isburse said Net
Proceeds for said purpose. In the event that any balance of s~i~ Net Proceeds
remains after such repair, reconstruction or replacement, the City shall ~irect the
Lessor as Trustee to deposit said balance in the Lease. Payment Account and to
apply said balance to the prepayment of Lease Payments in accordance with Section
6.15 (a) of the Trust Agreement. Subject to the provd~_nns of subsections (b) and
(c) of this Section 4.09, the City shall be obligated to continue to make Lease
Payments required by this Agreement notwithstanding ac~dent to or destruct~n of
a_ll_ or a port~n of the Project; provided, however, that in the event that accident
or damage to any portion of the Project is such as to cause such portion not to be
usable, then such Lease Payments shall be abated, in the proportion to which the
unusable portion of the Project bears to the entire Project, until repair of such
damaged portion is completed to such an ~xtent as to enable use thereof.
(b) In the event that such Net Proceeds are not su~nt to rep~,
reconstruct or replace the damage or destroyed port/on of the Pro~ct, as
evidenced by a cerebrate executed by an Authorized Of~-er of the City and ~]~d
with the Lessor as Trustee, the City shall direct the Lessor as Trustee to deposit
said Net Proceeds in the Lease Payment Account and to apply s-=id Net Proceeds to
the prepayment of Lease Payments in accordance with Section 6.15 (a) of the Trust
Agreement.
(c) Net Proceeds of business interruption insurance required by this
Agreement shall be used ~rst to reimburse the City for Lease Payments theretofore
paid under this Agreement notwithstanding accident to or destruction of all or a
portion of the Project. In the event that any balance of said Net Proceeds remains
aft_eT such reimbursement, the City sh~_ll ~ec~ the Lessor as Trustae to deposi~
said balance to the prepayment of Lease Payments in accordance with Section
6.15(a) of the Trust Agreement.
Section 4.10. Title Insurance. The Lessor will provide tttla insurance
under one or more po]~s, in the form of Am~-an Land Title Association Pol~
of Title Insurance. Such pol~ay shall insure the Lessor's fee title to the land
described in Exhibit "B" a%~_ached hereto, subject only to Permittad Encumbrances,
shall_ insure the City's leasehold interest in the Pro~ct and shall be in a principal
amount equal to the total stipulated value set forth in Exhibit "C". Said title
insurance polio_y shall be issued by a title insurance ~company licensed to do
business in California and shall provide for an endorsement upon completion of
construct/on of the Pr~, s~p~lathng that title to the Pro, ct is held by the
Lessor.
Sect/on 4.1i. Application of Net Prcceeds of Title Insurance or
Condemnation. Ail Net Proceeds received under the title insurance p~lio_y provided
for by Section 4.10 hereof or in any condemnation proceeding undertaken by any
governmental agency relathng to all or a portion of the Project Shall be deposited
in a special fund to be held by the Lessor as Trustee and shall be applied and
disbursed as set forth below:
(a) If the City determines that such title defect or condemnation has
not matendally affected the operation of the Project or the ability of the City to
meet any of its obligations hereunder, as set forth in a cer~oate executed by an
Autho~ed Off/cer of the City and ~l~d with the Lessor as Trustee, and that such
Net Proceeds are i~s11~~t to enable the City to prepay Lease Payments by
paying the stipulated value of the Project in full on the next succeeding Payment
Date.
(b) If the City detmrmines that such tit3~ defect or condemnat~n has
matm2/ally affe~d the operation of the Project or the ability of the City to meet
any of ~ts obligations hereunder as set forth in a certificat~ executed by an
Autho~xed O~cer of the C~y and ~l~_d with the Lessor as Trustee, or if such Net
Proceeds are su~nt to enable the City to prepay Lease Payments in full by
paying the stipulated value of the Project on the n~xt succeed/ng Payment Date,
the City shall direct the Lessor as Trustee to deposit said Net Proceeds in the
Lease Payment Account and to apply such Net Prcceeds to the prepayment in full
or (to the extent that such ~1~ defect or condemnat/on pertains only to a porthDn
of the Project) in part on the next succeeding Payment Date of Lease Payments in
accordance with Section 6.15 (a) of the Trust Agreement.
Section 4.12. Payment of Lease Payments. The City shall duly and
punctually pay or cause to be paid the Lease Payments, at the dates and places
and in the manner provided in this Agreement according to the true intent and
meaning hereof and shall not ~rectly or ind/rectly extend or assent'to the
extension of the Payment Dates of any Lease Payments.
SectkDn 4.13. Compl~nce with this Agreement. The Lessor and the City
will faith/5~lly observe and perform all o~ the covenants, cond~ons and
requirements of this Agreement, and will not suffer or permit any d~-~ault to cccur
hereunder, nor do or permit to be done in, upon or about the Prc~ect or any part
thereof, anything that might in any way weaken, diminish or impair the operation
.thereof. N~her the Lessor nor the C~y will do or permit anything to be done,
or omit or refrain from doing anything, in any such omis-~on of or r~vra/ning from
adrien, would or might be a ground for canc~ll~t~n or termina~Dn of this
Agreement.
Sec~on 4.14. .Payment of Taxes. The C~y will pay or cause to be paid
all taxes, assessments and other governmental-charges, if any, that may be levied,
assessed or charged upon the Project or any part thereof, promptly as and when
the same shall become due and payable; provided, however, that the City shall be
required to pay any such tax, assessment, or charge, if the va~lity thereof shall
concurrently be contested in gcod faith by approp=iata proceedings, and if the
City shall set aside reserves deemed by it to be adequate with respect thereto and
proVided further, that the City, upon the commencement of any procee~gs to
foreclose the l~_n of any such tax, assessment, or charge, will forthwith pay, or
cause to be paid, any such tax, assessment or charge, unless contested in good
faith as aforesaid. The City w~l not s~er the Project or any part thereof to be
sold for any taxes, assessments or other charges whatsoever, or to be forfeited
therefor. Nothing herein cont~ned shall be deemed to impose any liabf~ to pay
taxes, assessments or charges where none/s imposed by law.
Section 4.15. Observance of Laws and Reg~]~tSDns. The City w~]] well
and truly keep, observe and perform or cause to be kept, observed and performed
all valid and lawful obligations or regulations now or hereafter imposed on it by
contract, or prescribed by any law of the United States, or of the State of
C_~]~forn/a, or any o~cer, board or commis~n having ju~sdict~n or control, as a
cond~on of the continued enjoyment of any and every Iight, p~iv~]~ge or franchise
now owned or hereafter acquired by the C~y, including its ~ight to ex/st and
carry on business as a pub_lira body and mundcipal corporation, to the end that
such zights, pzivileges and franchises shall be maintained and preserved, and
shall not become abandoned, forfeited or .in any manner impaired.
Section .4.16. Maintain and Preserve the Project. The City w~l] operat~.,
maintain and preserve the Project in good repair and working order and will
operate the Project in an mff~mnt and economical manner.
Section 4.17. Other Items. The City shall keep the Project and
parts thereof free from judgments, from mechanics and mat~_~mlmen's liens (~xcept
those _~ng from construction of the Project) and free from all liens, claims,
demands and encumbrances of whatsoever nature or character, other than
Permitisd Encumbrances and the City shall keep the Project free f~om any c/aim or
liabik~ which might impair of impeded the operations of the Project; provided,
however, that the City shml] not be required to pay any such liens, ml~ms or
demands~ if the valid/ty thereof shal] concurrently be contested in good faith by
approp _ri~te proceedings, and if the City shall set aside reserves deemed by it to
be adequate with respect thereto and provided further, that the City upon the
commencement of any proceedings to foreclose the l~n of any such charge or
claim, will forthwith pay any such charge or ~la~m unless contested in good
as aforesaid. The Lessor or its assignee, may, (aft_~r ~rst giving the City ten
(10) days' w~itten notice to comply therewith and failur~ of the City to so comply
witluin said ten-day pen~od) defend against any and all actions or proceedings in
which the validit~ of this Agreement is or might be questioned, or may pay or
compromLse any claim or demand asserted in any such actions or proceedings;
provided, however, that, in defending against such actions or proceedings or in
paying or compromi~ng such claims or demands, the Lessor shall not in any event
be deemed to have waived or released the City from liability for or on account of
any of ~ coveriants and warranties contained herein, or from its liabi~
hereunder to defend the validity of this agreement and to perform such covenants
and warranties.
Section 4.18. Against Encumbrances or Sal~s. The City shall not create
or suffer to be created any mortgage, pledge, lien, charge or encumbrance upon
the Project, or upon any real or personal property essential to the operation of
the Project, other than Permi_Vted Encumbrances. The City will not s~ll or
otherwise Bi-pose of any property, essential to the proper operation of the Project,
except as otherwise permi_tfr_ed by this Agreement.
Section 4.19. Prosecution and Defense of Suits. The City shall,
promptly upon request of the Lessor from time to ~e take such action as may be
necessary or proper to remedy or cure any defect in or cloud upon the +d~le to the
Project whether now existing or hereafter developing and shall prosecute all such
suave, actions and other proceedings as may be appropriate for such purpose and
shall indemnify and save the Lessor and its assignee harmless from all loss, cost,
damage and expense, including attorneys' fees, which they or any of them may
incur by reason of any such defect, cloud, suit, action or proceedings.
Section 4.20. Recordation and Filin9. The City shall record and fi!~_
this Agreement and all such documents as may be required by law (together with
whatever ~l~e may be necessary or be reasonably required by the Lessor), in such
manner, at such times and in such places as may be required by law in order z%~lly
to preserve and protect the zights of the Lessor under this Agreement.
Section 4.21. Waiver of Laws. The City shall not at any time in~t
upon or plead in any manner whatscever, or'claim or take the ben~ or advantage
of, or suffer any stay or extmn~on law now or at any time hereafter in force
which may adversely ~ect the covenants and agreements contained in this
Agreement and the bene~- and advantage of any such law or laws is hereby
expressly waived by the. City to the extend that the City may legally make such
waiver.
Section 4.22. Compliance with Conditions Precedent. Upon the date of
d~l~very of this Agreement, all conditions, acts and things required by law or by
this Agreement to have happened or to have been performed precedent to or in the
execution of this Agreement Shall exist, have happened and have been performed,
and this Agreement sba]]_ be within every li~ presca/bed by law.
Section 4.23. Power to Enter Into Agreement. The City is duly
authorized pursuant to the law to enter into this Agreement and to covenant to
make annual appropziations for the payment of Lease Payments. The prov~nns of
this Agreement are and will be the valid and legally enforceable special obligations
of the City in accordance with their terms and the terms of this Agreement.
Section 4.24. Further Assurances. Whenever and so ozOcen as requested
so to do by the Lessor., the City w~11 promptly execute and deliver or cause to be
executed and d~l~vered all such other and further instruments, documents, or
assurances, and promptly do or cause to be done all such other and further
things, as may be necessary or reasonably required in order further and more
fully to vest in the Lessor all nights, interests, powers, benefits, p~ivileges and
advantages conferred or intended to be conferred upon the Lessor by this
Agreement.
Section 4.25. Finan~l Reports. Within one hundred eighty (180) days
altar the ~]~se of each Fiscal Year of the City, the City will furndsh, or cause to
be furnished, to the Lessor de*~led, cer~f~.d reports of audit, based on an
examination s,~~ntly completed, prepared b~v an independent publ~ accountant,
coveuing the operations of the City and its general fund.. Such au~t report shall
:knclude statements of the status of eaCh account pertaining to the Project, showing
the purpose of the withdraw~]~ therefrom and the b~]~nce therein at the beginning
and end of said Fiscal Year.
Section 4.26. Lessor Not L~ble. Neither the Lessor nor ~t~ members,
o~cers, agents or employees shall be liable to the City or to any other party
whomsoever-for any death, injury or damage that may result.to any person or
property by or from any cause whatsoever in, on or about the Project. The City
shall indemnify, or cause indemD~cation of, and hold the Lessor, its members,
o~f~ers, agents and employees harmless from, and defend each of them against,
any and all claims, liabJ~, liens and judgments for death of on injury to any
person or damage to property whatscever occurring in, on or about the Project.
Section 4.27. .Operation of Project. The City shall assure that the
Project is operated pursuant to complete and lawful authozity. No perm~t_~, nights,
franchises or pzivileges r~l~t/ng thereto shall be allowed to lapse or be forfeited so
long as the same shall be necessary for the operation of the Project. The City
sh~11~ procure the extension or renewal of each and every permit, night, franchise
or pnivil~ge so e_xpizing and necessary or de~rable for the ownership or operation
of the Project as such.
Section 4.28. Furn/s~q and Equipping of Prc~....The City shall
continuously furn/sh and equip the Project; or cause the Project to be furn/shed
and equipped, so that the Pr~ shall at all times constitute complete and
operational fac{l~t~_s.
Section 4.29. Furn/shin9 Additional Informat~n. The City shall, from
time to time, ~urnish to the Lessor such data regarding the Project as shall be
reasonably requested in order to enable the Lessor to determine whether there has
been compliance with the covenants, terms and prov~nns of this Agreement.
Section 4.30. Value for Condemnat/on. The City agrees that in the-
.. event that condemnation proceedings are taken by another governmental agency
with respect to the Project, the C/fy shall to the extent legally appropriate,
declare that the f~r market value of the Project/s not less than an amount equal
to the aggregate unpaid pz/ncipal component of Lease Payments.
- 16 -
ARTICLE V
DISCLAIMER OF WARRANTIES; ACCESS; ASSIGNMENT
Section 5.01. Discla/mer of'Warrants. THE LESSOR DOES NOT MAKE
ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO
THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY
OF. THE PROJECT OR ANY PORTION THEREOF, OR ANY OTHER
REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROJECT OR ANY
PORTION THEREOF. In no event shall' the Lessor be ]~ble for /ncident~l,
indirect, spe~_~'~]' or consequential damages in connection with this Agreement or the
ex/sbence, damages in connection with this Agreement or the existence, furnishing,
or functioning of the Project or the City's use of the Pr~, except such damages
as may ar~.~e by reason of a breach of this Agreement by the Lessor.
Section 5.02. Lessor Access to the P~ The City 'agrees that the
Lessor shall have the zight at ~]] reasonable times to enter upon and to examine
and inspect the Project. The City further agrees that the Lessor shall have such
zights of access to the Prc~ect as may be reasonably necessary to cause the proper
maintenance of the Project in the event of failure by the City to perform
obligations for maintenance set forth herein.
- 17 -
ARTICLE VI
EVENTS OF. DEFAULT AND REMEDIES
Section 6.01. Events of Default Del/ned. The following sh~!] be "events
of default under this Agreement and the terms "events of default" and "defal~_lt"
shall mean, whenever they are used in this Agreement, with respect to the
Pr~ect, any one or more of the following events. ImmeS~at~ly upon the occurrence
of an event of defa,~l~ or a condition which, with the passing of time will become
an event of default, the City sha!] provide the Trustee with w~n notice thereof.
(a) Fa~]ure by the City to pay any Lease Payment or other payment
required to be pa~d hereunder at the time spe~d herein;
(b) Failure by the City to observe and perform any covenant, condition
or agreement on its part to be observed or performed, other than as referred to
in clause (a) of this Section, for a peniod of thirty (30) days after wzitten notice
specifying such failure and requesting that it be remedied has been given to the
City by the Lessor; provided, however, that the Lessor may, upon wzitten request
of the City pr~or, to the expiration of such thirty (30) day p~nd, consent to an
extmn~nn of such thne in order to cure such failure if corrective action has been
instituted by the City and is being 8~gently pursued and will, in the judgment of
the Lessor be diligently pursued until the default is corrected;
(c) A court having juz/sd~n in the premises shall enter a decree or
order for re]~* in respect of the City in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a sequestrator (or similar o~1) of the City or for any subs~ntial
part of _~*~ property, or'ordening the winding up or liquidation of its a~fairs, and
such decree or order shall remain unstayed and in ~ect for a period of sixty (60)
days or
(d) The City sha]] commence a voluntary case under any applicable
bankruptcy, insolvency or other sindlar law now or hereafter in effect, or sh~]l
consent to the entry of any order for r~l~ in an involuntary case under any such
law, or shall consent to the appointment of or taking posses~on by a receiver,
liquidator, assignee, true, custodian, sequestrator (or similar of~l) of the
City for any substantial part of its property, or shall make any general assignment
for the benefit of creditors, or shall fail generally to pay its debts as they become
due or shall take any corporate action in furtherance of any of the foregoing.
Section 6.02. Remedies on Default. Upon the happening of any of the
events of default~ spe~d in Section 6.01 hereof, the Lessor may exercise any and
s11 remedies available pursuant to law or in equity or the following granted
pursuant to this Agreement:
(a) With or without termination of this Lease Agreement reenter and
take possession of the Site and terminate and revest in the Lessor all night, title
and interest of the City in the Pr~ect and the leasehold interest of the City in the
Project Site, holding the City liable for all Base Payments and Addition~ Payments
due during the then current Fiscal Year; and
(b) Lease or sublease the Project for the account of the City, for terms
not to exceed the then remaining term of the Lease, holding the City liable
for all Base Payments and Additional Payments due du~ing the then current Fiscal
Year; and
(c) Terminate this Lease Agreement; and
(d) Take whatever action at law or in equity may appear necessary or
d~rable to c~ the payments when due and thereaftar to become due, or to
enforce performance and observance of any obligat~n, agreement or covenant of
the City under this Lease Agreement.
The City hereby expressly author~.ed the Lessor to lease or sublease the
Pr~, for terms not to exceed the then remaining term of the Lease, for
commercial or other purposes. The City covenants and agrees that it has or will
take all necessary act/on in accordance with the laws of the State of California,
and any charter, resolut/Dn or ordinance applicable to the City, including but not
limited to zoning laws and ordinances, to autho~.e such lease or sublease.
Section 6.03. Su~_~ at Law or in Equity and Mandamus. In addition to
the remedies set forth in Section 6.02 hereof, in case one or more of the events of
default sh_~]l happen, then and in every case, the Lessor shall be en+4~]ed to
proceed to protect and enforce the ~ights vested in the Lessor by this Agreement
by such approp~ate judaea] proceeding as the Lessor shall deem most effectual to
pr~ and enforce any such =ight, either by suit in equ~_ty or by action at law,
whether for the spe~_'~c performance of any covenant or agreement contained in
this Agreement, or in aid of the exercise of any power granted in this Agreement,
or to enforce any ether legal or equitable Iight vested in the Lessor by this
Agreement or by law. The prov~-~ns of th/s Agreement and the duties of the
City and of the o~cers, agents and employees thereof shall be eF~forceable by the
Lessor by mandamus or other approp~/ate suit, action or proceeding in any court
of competent jurisd/ct/on.
(a) Without li~g the generality of the foregoing, the Lessor shall
have the Iight to:
(i) Accounting. By action or suit in equity to require the City
and ~-~ o~Scers, agents and employees to account as the trustee of an
express trust.
(i~ Injunction. By action or suit in equi~ to enjcLn any acts or
thing which may be unlawful or in ~nla~/on of the ~ights of the Lessor.
('~i) Mandamus. By mandamus or other su~t_, action or proceeding at
law or in equity to enforce its or their ~ights against the City and its
and any of ?$ o~cers, agents and employees, and to compel it or them
to perform and carry out its and their du~s and obligations under the
law and ?~ and their covenants and agreements with the City as
provided herein.
Section 6.04. Non-Waiver. Nothing in this Areolae VI or in any other
prov~-~nn of this Agreement shall affect or impair the obligation of the City, which
is to pay the Lease Payments, as hereS=n provided. No delay or omis~on of the
Lessor to exercise any ~ight or power a~.~ng .upon the happening of any event of
default shall impair any such ~ight or power or shall be construed to be a waiver
of any such event of default or any acquiescence therein, and every power and
remedy given by this Art:ic3~ VI to the Lessor may be exercised from time to time
as often ~ sh~l. be doomed e~pe~'~nt by the Lessor.
Section 6.05. Remedies Not Exclusive. No remedy herein or by law
conferred upon or reserved to the Lessor ~s intended to be exclusive of any other
remedy, but each such remedy is cumulative and in ad~nn to every other
remedy, and every remedy given hereunder or now or hereafter existing, at law
or in equity or by statute or otherwise, may be exercised without exhausting and
without regard to any other remedy conferred herein or by any ]aw.
Sect/on 6.06. Status Quo. In case any s~, action o~ proceeding to
enforce any ~ight or exer~e any remedy shall be brought or taken and then
d~ontinued or abandoned, or shall be determined adversely to the Lessor, then,
and in every such case, the Lessor shall be restDred to its former position and
~ights and remedies as if no such suit, action or proceedings had been brought or
- 20 -
ARTICLE VII
ADMINISTRATION PROVISIONS
SectgDn 7'01. Preserva...t~n and Inspect/on of Documents. Ail documents
received by the Lessor or the City under the provS~ns of this Agreement shall be
retained in tho_~r respective possessions and shall be subject at all reasonable times
to the inspect/on of the other party hereto and its assigns, agents and
representatives, any of whom may make cop/ms thereof.
Section 7.02. Parties Of Inter~st. Nothing in this Agreement,
expressed or implimd, /s intended .to or shall be construed to confer upon or to
give to any person or party other than the Lessor and the City any zights,
remea_ies or claims under or by reason of th/s Agreement or any covenants,
condithpns or st~u]ation hereof; and all covenants, s~puJations, promises and
agreements in this Agreement made by or on behalf of the Lessor or the City
be for the sole and exclusive benoit_ of the Lessor and the City.
Section 7.03. No Recourse Under Agreement. All covents, st~ulations,
promises, agreements and obligations of the parties hereto contained in this
Agreement sh~l] be deemed to be the covenants, s~pulations, promises, agreements
and ob~ga~ions of the parties hereto, respectively, and not of any member,
offulcer, employee or agent of the parties hereto in an individual capacity., and no
recourse shall be had for the payment of the Lease Payments or for any
based thereon or under this Agreement against any member, o~cer, employee or
agent of the parkas hereto.
Section 7.04. Notices. All notices, certif/cates or other c6mmunications
hereunder sh~]] be suff/ciently given and sh~]] be deemed given when delivered or
depo_-_~t~d in the United States ma~] in cerHf~od or registered form with postage
~]]y prepaid:
If to the Lessor~
Dublin Information, Inc.
6500 Dublin Avenue
Dublin, California 94568
If to the City:
City of Dublin
6500 Dublin Boulevard
Dublin, California 94568
The parties hereto, by notice given hereunder, may, .respectively, designate
~ ~ferent addresses to which subsequent notices, cerH~e_ates or other
communications w~]] be sent.
Section 7.05. .Binding Effe~. This Agreement shall inure to the
of and shall be binding upon the Lessor and the City and their respective
successors and assigns.
Sect/on 7.06. Severability. If any one or more of the covenants,
stip~_~]ations, prom/ses, agreements or obligations provided in this Agreement on the
part of the Lessor or the City to be performed should be detmrmined by a court of
competent juz/sd/ction to be contrary to ]aw, then such covenant, stipu~tion,
%-
promise, agreement and obligation shall be .deemed and construed to be severable
from the remaining covenants, stipul~ons, promises, agreements and obligations
herein cont~ned and shall in no. way ~ect the va]i6~y of the other pro~4~ns of
this Agreement.
Section 7.03. Headinqs. Any headings preceding the text of the
several A~s and Sections hereof, and any table of contents or marginal notes
appended to copies hereof, sh~]] be solely for conven/~n~ or reference and shall
not constitute a part of th/s Agreement, nor shall they a~ect its meaning,
construction or eefect.
Section 7.08. Applicable Law. This Agreement shall be governed by
and con~crued in accordance with the laws of the State of C~l~or~a.
Section 7.09. Lessor and City Representatives. Whenever under the
prov~_'~ons of this Agreement the approval of the Lessor or the City is required,
or the Lessor or the City are required, or the Lessor or the City are req,f~ed to
take some action at-the request of the other, such approval of such request may
be given for the Lessor by an Autho~ed O~cer of the Lessor, and for the City
by an Authorized O~er of the City, and any party h~reto shall be autho~ed to
rely upon any such approval or request.
Section 7.10. Form of Cer~cates of O~-ers. Every cer~cate with
respect to compliance with a condit~n or covenant provided for in this Agreement
and which is precedent tm the taking of any action under this Agreement sh~!]
include:
(a) A statement that the person making or giving such cer~cate has
read such covenant or condition and the de~n~ons herein relating thereto;
(b) A b~ief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such cerebrate
are based;
(c) A statement that, in the opinion of the signer, he has made or
caused to be made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or con ~di~mn
has been complied with; and
(d) A statement as to whether, in the opinion of the signer, such
cond~on or covenant has been complied with.
A cer~cate may be based, insofar as it relates to legal matters, upon a cer~cate
or opinion of or representations by counsel, unless the persons providing the
cer~c-ate know that the cer~oate or representa~mns with respect to the matters
upon which the cer~cate may be based are erroneous, or in the exer~'~e of
reasonable care should have known that the same were erroneous.
Section 7.11. Successor to the Lessor. The Lessor may, at any tLme,
and at the request of the City, shall assign ~ts Iights and obligations under this
Lease Agreement and the other agreements pertaining to the Pr~ect to which it is
a party to a successor, provided that the City must consent to any such
assignment and that the assignment will not adversely mate~a]]y affect the ~ights
IN WITNESS WHEREOF, the parties have executed tbSs Agreement by
th~r of~cers thereunto duly autho~ed as cf the date and year ~rst wzitten
above.
.
DUBLIN INFORMATION, INC.
as Trustee and Lessor
(SEAL)
By:
Titl~:
T~t]e:
CITY OF DUBLIN
(SEAL)
By:
Tit/e:
A%~_est:
By:
Tit/e:
Mayor
City C]~rk
STATE OF CALTVORNIA
COUNTY OF ALAMEDA
SS.
I, a No*ary Publi~ in and for said County in the State aforesaid, do
hereby certify that and
the and respectively, of
Dublin Information, Inc., appeared before me th/s day in person and acknowledged
that, being duly authoz/zed, such o*~mers signed, sealed, a~ested and dml~vered
the foregoing Lease Agreement.
Given under my hand and natural seal this'
, 1985.
day oz
(SEAL)
Notary Public in and for the
State of California
My Commis~on expires:
STATE OF CALIFORNIA )
) SS.
COUNTY OF ALAMEDA )
I, a Not~ary Publ~ in and for said County in the State aforesaid, do
hereby cert4fy that and
the and respectively, of the
Cihy of Dublin, appeared before me th/s day in person and acknowledged that,
being duly authorized, such o*~cers signed, sealed, athested and de]4vered the
foregoing Lease Agreement.
Given under my hand and natural seal th~
, 1985.
day of
(SEAL)
N~ry Public in and for the
State of C~l~*ornia
My Commission expires:
- 24 -
i 'i :? ' '; .~ [ '"
EXHIBIT "A"
DEFINITIONS
!
(a) Autho=ized Newspaper. The term "Autho~zed Newspaper" means a
finance] paper, or a newspaper of general circulatipn in the City of Dublin and
County of Santa Cruz, C~]i~orrda, which is customa~ly publ~hed on each business
day and is p~inted in the English language.
(b). Autho~ed Of~cer. The term "Authorized O~cer", when used
with respect to the City, means the Mayor, Vice Mayor, City Clerk, City
Administrator or any other o~cer of the City which is, designated by the City
Coun~ of the City as .an Autho~ed Of~cer. The term "Authorized Off-er",
when used with respect to the Lessor, means any of~cer of the Lessor.
(c) Cerebrate Re.er. The term "CerM~cate Register". means the
books for registration maintained by the Lessor as Trustee pursuant to Section
6.10 of the Trust Agreement.
(d) Cer~eates. The farm "Certificates Means the certificates of
par~/~pation prepared and delivered by the Lessor as Trustee pursuant to the
Trust Agreement.
(e) .Completion Date. The term "Completion Date" means September 1,
1988, or the date of final acceptance of the Pr~ect by the Cihy whichever date
~rst occurs.
(f) Construct~n Account. The term "Cons~uction Account" means the
account by that name established under, and h~]~_d by the Lessor as Trustee
pursuant to, Section 4.02 of the 'Trust Agreement.
·
(g) Federal Securities. The t~qn "Federal Secu~os" means
cer~cates of indebtedness, notes, bonds, or similar secu/it~s which are direc~
obligations of, or by the pz/ncipal and intarest of which secuz~+~es are secured by,
· the Unitmd States, whether issued in book entry form or oth~ise.
(h) Fiscal Year. The term "Fiscal Year" means a f/scal year of the
City, commencing on July 1 of each calendar year and ending on June 30 of the
subsequent calendar year.
(i) Fully Registered C er~cates.. T he term "F~lly Regi_~ed
°'~t"~_ -- II
Cer~ -ares means Cer~eates registered as to p=in~pal and interest and payable
to the registered owner.
(k) Lease or Lease A~reement. The term "Lease" or "Lease Agreement"
means that certain Lease Agreement Rm]mting to Public Fa~]~tims Pr~ect No. 1,
dated as of December 18, 1985, by and between the Lessor and the City.
(1) Lease Payment Account. The term "Lease Payment Account" means
the account b~' that name estmbl/shed under, and hm-]d_ by ~he Lessor as Trustee
pursuant to Section 4.03 of the Trust Agreement.
(m) Lease Payments. The term "Lease Payments" means lease payments
payable by the City to the Lessor as Base Payments or AdS~+~nnal Payments
pursuant to the Lease Agreement with Base Payments-more partkm31arly set forth in
Exhibit "D" attached to the Lease Agreement.
(n) Net Proceeds. The term "Net Proceeds," when used with respect
to any insurance or condemnation award, means the gross proceeds from the
insurance or condemnat/on award with respect to which that term is used rema/ning
after payment of ~11 expenses incurred in the collection of such gross proceeds.
(o) O~iginal Purchaser. The term "Oziginal PUrchaser" means First
C~l~forn/a Regional Secu~s, Inc.
(p) Outstanding. The term "Outstanding" when used w/th reference to
the Cer~cates and as of any particular date means all Cerebrates theretofore
d~l~vered except: (a) any Cerebrate cancelled by the Lessor as Trustee at or
before said date and .(b) any C~ate in l~u of or in sdbstitution for which
another C~ate sh~11 have been delivered pursuant to the Trust Agreement.
(q) Owner. The term "Owner" or "Cerebrate Owner" or "Owner of
Cer~cates" or any si~l~r term, when used with respect to the Cer~c~ates,
means any person who shall be the registered owner of any Outstanding Fully
Registered C er~cate.
(r) Payment Dates. The term "Payment Dates" means February 1 and
~. August 1 of each year, commencing August 1, 1986, and terminating on February
-~'~ '" 1, 2010.
·
(s) Permitted Encumbrances. The term "Permitted Encumbrances"
means:
(i) Ad valorem taxes and assessments not then due and payable.
(ii) The Lease Agreement.
(i~i) Easements, zig hts-of-way and other zig hts, covenants,
cond/iions or restuictions which do not impair or impede construction or operathon
of the Pr~ect.
(t) Permitted Investments. The term "Permitted Investments" means:
(i) United States Treasury notes, bonds, b~11~, or cer~cates of
indebtedness, or those for which the f~*h and cred~_ of the United States are
pledged for the payment of pzin~_'pal and interest.
(ii) Obligatkons issued by federal land banks, federal home loan
banks, the Federal Home Loan Bank Board, the Tennessee Valley Authority, or in
obligations, p~at/ons, or other instruments of or issued by, or f~l]y
guaranteed as to pnincipal and interest by, the Federal Nat/onal Mortgage
Asso~__'athon; or in obligations, partk~ations, or other instruments of or issued by
a federal agency or a United States government-sponsored ente_rp~e,
~iii) Investments in repurcha~.e agreements under the terms of which
the sec~r~s are transferred to the possession of the Lessor as Trustee of any
secuzit/es authoz/zed by paragraphs (i) and (ii) above.
(iv) Non-negot~'~ble cer~f4cates of depo~_ issued by a nationally
chartered bank (including the Trustee) or a bank chartered by the State of
C~l~fornJa or a foreign banking corporation autho~.ed pursuant to Section 1756 of
the California Financial Code to transact business in the State of California by
accepting deposits of a State of California or federal savings and loan asscc~/ation
provided that such cerebrates of dep0~t are fully collateral~.ed in the manner
required for colla~ation of trust funds.
(v) As other d~f4ned in Section 53601 of the Government Code of
the State of Cal~Forn/a.
(u) Pnin.cipal O~ce. The term "Pz/ncipal O~c-e"- when used with
respect to the Lessor as Trustee, means the pzincipal o~ce of the Lessor as
Trustee situated at City Hall, Dublin, C~l~orn/a.
(v) p. roject. The term "Project" means the Public Fa~l~s including
the Dublin Civic Center Complex and Related Fa~li~y to be leased to the City
pursuant to the Le~se Agreement. o
(w) Project Costs. The term "Project Costs" means all costs of payment
of, or reimbursement for, acquisition, construction and financing of the Project,
including but not limitsd to, architect and engineering fees, construction
contractor payments, costs of feasib~li~ty and cther reports, inspection costs,
permit fees, f/ling and recording cos~, printing costs, reproduction and binding
costs, financing discounts, legal fees and charges', financial and other professional
consultant fees, costs of rating agen~es or credit ratings, fees for execution,
transportation and safekeeping of Cer~Hcates and charges and fees in conneCd_on
with the foregoing.
(x) Public Fac~l~s Project Trust Fund. The term "P~blic Fac~_s
Project Trust Fund" means the fund. by that name established under, and held by
the Lessor as Trustee pursuant to Section 4.01 of the Trust Agreement.
(w) Redemption Fund. The term "Redemp~_on Fund" means the fund by
that name estsbl~hed under, and held by the Lessor as Trustee pursuant to
Section 6.16 of the Trust Agreement.
(z) Site. The term "Site" means the land as desczibed in Exhibit "B"
and the leasehold which the Lessor is leasing to the City pursuant to this
Agreement.
(aa) Trust Agreement. The term "Trust Agreement" means that ce~ta~n
Trust Agreement Relating to Public Fa~]~-s Project datad the date hereof, by and
among the Lessor as Trustee, the City and the Lessor.
(bb) Trustee or Lessor as Trustee. The term" Trustee or Lessor as
Trustee" means Dublin Information, Inc. or its successor in interest acting as ~
trustee under the Trust Agreement.
_ 27~
ORDER NO. 54668 '
"EXHIBIT B" ~.
The land referred to in this report is situated in the state of
California, County of AL3~IEDA, and is described as follows:
CITY OF DUBLIN
PARCEL ONE:
COMMENCING AT THE INTERSECTION OF THE WESTERLY LINE OF DOUGHERTY
ROAD, AS IT EXISTED IN OCTOBER, 1964 AND THE NORTHERLY LINE OF
DUBLIN BOULEVARD (FORMERLY KNOWN AS "OLD STATE HIGHWAY LEADING FROM
DUBLIN TO LIVERMORE) AS IT EXISTED IN OCTOBER, 1964; SAID WESTERLY
LINE OF DOUGHERTY ROAD BEING 25 FEET FROM THE MEASURED AT RIGHT
ANGLES TO THE CENTER LINE OF DOUGHERTY ROAD AND SAID NORTHERLY LINE
OF DUBLIN BOULEVARD BEING 47 FEET FROM AND MEASURED AT RIGHT ANGLES
TO THE CENTER LINE OF DUBLIN BOULEVARD; SAID POINT OF COMMENCEMENT
ALSO BEING THE EASTERLY TERMINUS OF THE COURSE DESIGNATED AS NORTH
73" 30' 00" WEST 3839.81 FEET IN THE DEED BY C. M. DOUGHERTY TO THE
COUNTY OF ALAMEDA, DATED MARCH 23, 1917, RECORDED MAY 3, 1917, IN
BOOK 2565 OF DEEDS, PAGE 182, ALAMEDA COUNTY RECORDS (R-17126);
THENCE ALONG SAID NORTHERLY LINE OF DUBLIN BOULEVARD NORTH 72° 43'
54" WEST 2299.89 FEET; THENCE SOUTH 17" 16' 06" WEST 89.00 FEET TO
THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE SOUTH 21"
59' 10" EAST 866.67 FEET; THENCE SOUTH 67" 42' 00" WEST 374.23 FEET
TO A POINT ON THE ARC OF A 3000.28 FOOT RADIUS CURVE, SAID POINT
ALSO BEING ON THE NORTHEASTERLY RIGHT OF WAY LINE OF THE STATE
FREEWAY ROUTE 680, ALAMEDA COUNTY; THENCE ALONG SAID NORTHEASTERLY
RIGHT OF WAY LINE FROM A TANGENT THAT BEARS SOUTH 88"' 22' 51.33"
WEST AND ALONG SAID 3000.28 FOOT RADIUS CURVE TO THE LEFT 370.95
FEET THROUGH AN ANGLE OF 7" 05' 02.33"; THENCE TANGENT TO SAID CURVE
SOUTH 81" 17' 49" WEST 112.10 FEET; THENCE NORTH 12° 23' 14" WEST
36.60 FEET TO THE BEGINNING OF A TANGENT 124.000 FOOT RADIUS CURVE
TO THE RIGHT; THENCE ALONG SAID CURVE 90.97 FEET THROUGH AN ANGLE OF
42" 02' .09"; THENCE NON-TANGENT TO SAID CURVE NORTH 25" 57' 36" EAST
217.80 FEET; THENCE NORTH 29" 38' 55" EAST 550.22 FEET TO THE
BEGINNING OF A TANGENT 562.06 FOOT P~DIUS CURVE TO THE LEFt; THENCE
ALONG SAID CURVE 86 64 FEET THROUGH AN ANGLE OF 8" 49' 55"- THENCE
· ·
NON-TANGENT TO SAID CURVE NORTH 21" 49' 23" EAST 142.29 FEET TO A
POINT ON THE RIGHT OF WAY OF DUBLIN BOULEVARD, AS IT NOW EXISTS;
THENCE ALONG SAID RIGHT OF WAY SOUTH 72° 43' 54" EAST 40.83 FEET TO
THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION.
EXCEPTING THEREFROM THAT PORTION THEREOF DESCRIBED IN THE DEED TO
COUNTY OF ALAMEDA, RECORDED JULY 23, 1975 ON REEL 4043, IMAGE 20,
ALAMEDA COUNTY RECORDS.
ORDER NO. 54668
(CONTINUED)
'~ .....ALSO EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL OF LAND:
-.
REAL PROPERTY SITUATED IN THE TOWNSHIP OF PLEASANTON, COUNTY OF
ALAMEDA, STATE OF CALIFORNIA, AND BEING A PORTION OF THE LAND
DESCRIBED IN THE DEED FROM VOLK-MC LAIN COMMUNITIES INC., FORMERLY
THE VOLK-MC LAIN CO., TO MURRAY SCHOOL DISTRICT OF ALAMEDA COUNTY,
DATED OCTOBER 14, 1966 AND RECORDED OCTOBER 28, 1966 IN REEL 1864 OF
OFFICIAL RECORDS AT IMAGE 533, THEREOF (AY 123533) RECORDS OF
ALAMEDA COUNTY, CALIFORNIA, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT AT THE NORTHEAST CORNER OF SAID PARCEL OF LAND
REEL 1864, IMAGE 533 ON THE COMMON LINE BETWEEN SAID PARCEL OF LAND
AND TRACT "B" OF PARCEL NO. 6 DESCRIBED IN THE FINAL JUDGMENT
RENDERED JULY 24, 1944 IN THE UNITED STATES DISTRICT COURT 'FOR THE
NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, CASE NO.
22460-G, ENTITLED, "UNITED STATES OF AMERICA VS. 105.19 ACRES OF
LAND", A CERTIFIED COPY OF WHICH JUDGMENT WAS RECORDED APRIL 4, 1945
IN BOOK 4681, PAGE 234 OFFICIAL RECORDS OF ALAMEDA COUNTY; AND FROM
WHICH POINT THE CENTER LINE OF SAID DUBLIN BOULEVARD'BEARS NORTH 17°
16' 06" EAST 42.00 FEET; THENCE FROM SAID POINT OF COMMENCEMENT AND
ALONG SAID COMMON LINE SOUTH 21 ° 59' 10" EAST 184.39 FEET TO THE
TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE CONTINUING ON
SAID COMMON LINE SOUTH 21" 59' 10" EAST 152.67 FEET; THENCE NORTH
72~ 43' 54" WEST 96.61 FEET; THENCE NORTH 17° 16' 06" EAST 118.22
FEET TO THE POINT OF BEGINNING.
PARCEL TWO-:
AN EASEMENT FOR ACCESS PURPOSES OVER THE FOLLOWING DESCRIBED PARCEL
OF LAND:
A PORTION OF TRACT "B" OF PARCEL NO. 6 AND DESCRIBED IN THE FINAL
JUDGMENT RENDERED JULY 24, 1944 IN THE UNITED STATES DISTRICT COURT,
FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION IN CASE
NO. 224670-G,. ENTITLED, "UNITED STATES OF AMERICA V. 105.19 ACRES OF
LAND", A CERTIFIED COPY OF WHICH JUDGMENT WAS RECORDED APRIL 4, 1945
IN BOOK 4681, PAGE 234, OFFICIAL RECORDS OF ALAMEDA COUNTY.
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID TRACT "B" OF PARCEL
NO. 6 SAID NORTHWESTERLY CORNER BEING ALSO ON THE SOUTHERN LINE OF
COUNTY ROAD NO. 35 (FORMERLY ROAD IV, ALAMEDA COUNTY, ROUTE 5,
SECTION B)', BEING ALSO KNOWN AS DUBLIN BOULEVARD; THENCE ALONG SAID
SOUTHERN LINE SOUTH 72~ 43' 54" EAST 356.53 FEET 'TO THE TRUE POINT
OF BEGINNING OF THIS DESCRIPTION; THENCE LEAVING LAST SAID LINE
SOUTH 17° 16' 06" WEST 436.30 FEET TO THE NORTHEASTERLY LINE 'OF THE
LAND DESCRIBED IN THE DEED FROM VOLK-MC LAIN COMMUNITIES, INC.,
FORMERLY THE VOLK-MCLAIN COMPANY TO MURRAY SCHOOL DISTRICT OF
ALAMEDA COUNTY, STATE OF CALIFORNIA, A PUBLIC CORPORATION, RECORDED
OCTOBER 28, 1966 IN REEL 1864 IMAGE 533, UNDER RECORDER'S SERIES NO.
AY/123533 IN OFFICIAL RECORDS OF ALAMEDA COUNTY; THENCE ALONG SAID
ORDER NO. 54668
(CONTINUED)
NORTHEASTERLY LINE OF .LAST SAID PARC'EL OF LAND AND THE DIRECT
EXTENSION NORTHWESTERLY THEREOF NORTH 21° 59' 10" WEST.81.39 FEET;
THENCE NORTH 17° 16' 06" EAST 373.28 FEET TO AFORESAID SOUTHERN LINE
OF DUBLIN BOULEVARD; THENCE ALONG SAID SOUTHERN LINE SOUTH 72" 43'
54" EAST 51.50 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM SAID STRIP OF LAND 17.00 FEET IN WIDTH ADJACENT
TO THE NORTHEAST LINE OF SAID PROPERTY FOR THE WIDENING .OF DUBLIN
BOULEVARD.
PARCEL THREE:
· REAL PROPERTY SITUATED IN THE TOWNSHIP OF PLEASANTON, COUNTY OF
ALAMEDA, STATE OF CALIFORNIA, AND BEING A PORTION OF THE LAND
DESCRIBED IN THE RETRANSFER AGREEMENT MADE AND EXECUTED AS OF MARCH
18, 1974, ON BEHALF OF THE UNITED STATES OF AMERICA BY THE SECRETARY
OF HEALTH, EDUCATION, AND WELFARE, ACTING THROUGH THE ASSISTANT
REGIONAL DIRECTOR .FOR SURPLUS PROPERTY UTILIZATION FOR REGION IX OF
THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, UNDER THE
AUTHORITY OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF
1949 (63 STAT. 377), AS AMENDED, FROM AND ON BEHALF OF MURRAY SCHOOL
DISTRICT OF ALAMEDA COUNTY, CALIFORNIA, A POLITICAL SUBDIVISION OF
THE STATE OF CALIFORNIA, TO AND ON BEHALF OF 'A/4ADOR VALLEY JOINT
UNION HIGH SCHOOL DISTRICT OF ALAMEDA COUNTY AND CONTRA COSTA
COUNTY, CALIFORNIA, A POLITICAL SUBDIVISION OF THE STATE OF
CALIFORNIA, RECORDED JUNE 14, 1974 ON REEL 3706 AT IMAGE 210 UNDER
RECORDER'S SERIES NUMBER 74-77258, -ALAMEDA COUNTY RECORDS DESCRIBED
AS FOLLOWS:
A PORTION OF TRACT "B" OF PARCEL NO. 6 AND DESCRIBED IN THE FINAL
JUDGMENT RENDERED JULY 24, 1944, IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, IN CASE
NO. 22460-G, ENTITLED: "UNITED STATES OF AMERICA V. 105.19 ACRES OF
LAND", A CERTIFIED COPY OF WHICH JUDGMENT WAS RECORDED APRIL 4, 1945
IN BOOK 4681, PAGE 234, OFFICIAL RECORDS OF ALAMEDA COUNTY:
COMMENCING AT THE NORTHWESTERLY CORNER OF SAID TRACT "B" OF PARCEL
NO. 6 SAID NORTHWESTERLY CORNER BEGIN ALSO ON THE SOUTHERN LINE OF
COUNTY ROAD NO. 35 (FORMERLY ROAD IV, ALAMEDA COUNTY, ROUTE 5,
SECTION B) BEING ALSO KNOWN AS DUBLIN BOULEVARD; AND FROM WHICH
POINT THE CENTERLINE OF SAID DUBLIN BOULEVARD BEARS NORTH 17° 16'
06" EAST 33.00 FEET; THENCE FROM SAID POINT.OF COMMENCEMENT AND'
ALONG THE SOUTHWESTERN LINE OF SAID TRACT "B" OF PARCEL NO. 6, SOUTH
21° 59' 10" EAST 21.95 FEET TO A POINT ON A LINE WHICH IS PARALLEL
TO AND MEASURES 50.00 FEET SOUTHWESTERLY AT RIGHT ANGLES FROM SAID
CENTERLINE OF DUBLIN BOULEVARD AND BEING THE TRUE POINT OF BEGINNING
OF THIS DESCRIPTION; THENCE ALONG THE LAST NAMED LINE
ORDER NO. 54668
(CONTINUED)
SOUTH 72" 43' 54" EAST 160.14 FEET T6 A POINT OF CUSP; THENCE FROM A
TANGENT THAT BEARS NORTH 72" 43' 54" WEST ALONG THE ARC OF A 50 FOOT
RADIUS CURVE TO THE LEFT 78.54 FEET THROUGH A CENTRAL ANGLE OF 90"
00' 00 "; THENCE TANGENT TO SAID CURVE SOUTH 17" 16' 06" WEST 84.78
FEET TO A POINT ON- THE COMMON LINE BETWEEN SAID TRACT "B" OF PARCEL
NO. 6 AND THE LAND DESCRIBED IN THE ~DEED FROM VOLK-MC LAIN
COMMUNITIES, INC. FORMERLY THE VOLK-MC LAIN CO. TO MURRAY SCHOOL
DISTRICT OF ALAMEDA COUNTY, STATE OF CALIFORNIA, A PUBLIC
CORPORATION, RECORDED OCTOBER 28, 1966 ON REEL 1864, IMAGE 533,
UNDER RECORDER'S SERIES NO. AY/123533 IN OFFICIAL RECORDS OF ALAMEDA
COUNTY; THENCE ALONG SAID COMMON LINE NORTH 21" 59' 10" EAST 174.06
FEET TO THE TRUE POINT OF BEGINNING.
ASSESSOR'S PARCEL NO. 941-1401-014-05
ORDER NO. 54668
PAGE 2
At the date hereof exceptions to coverage in addition to the printed
exceptions and exclusions in said policy form would be as follows:
1. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE
PROVISIONS OF CHAPTER 3.5, REVENUE AND TAXATION CODE, SECTIONS
75 ET SEQ.
2. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1985 - 1986
lST INSTALLMENT: $14,593.58 PAID
2ND INSTALLMENT: $14,593.58 OPEN
LAND : $2,326,556.00
A.P. NO. : 941'-1401-014-05
CODE AREA : 26-000
3. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1985 - 1986
1ST INSTALLMENT: $175.05 OPEN
2ND INSTALLMENT: $175.05 OPEN
A.P. NO. : 941-1401-014-05
CODE AREA : 26-000
(SPECIAL ADDITIONAL ASSESSMENT)
4. EASEMENT, UPON THE TERMS, COVENANTS AND CONDITIONS THEREOF, FOR
THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED IN
THAT CERTAIN INSTRUMENT
RECORDED : JULY 10, 1930, BOOK 2367, PAGE 410, SERIES NO.
AA-42775, OFFICIAL RECORDS
GRANTED' ~O : ELISABETH NEVIN
PU RPOS E : ROADWAY
AFFECTS : THE WESTERLY 25 FEET OF PARCEL THREE
5. EASEMENT, UPON THE TERMS, COVENANTS AND CONDITIONS THEREOF, FOR
THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED
IN THAT CERTAIN INSTRUMENT
RECORDED : JULY 26, 1945, BOOK 4756, PAGE 175, SERIES NO.
SS-47710
GRANTED TO : PACIFIC GAS AND ELECTRIC COMPANY, A CALIFORNIA
CORPORATION
PURPOSE : WIRES AND CROSSARMS
AFFECTS : A PORTION OF PARCEL ONE
TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT LAST ABOVE
REFERRED TO.
ORDER NO. 54668
PAGE 3
6. WAIVER OF ANY CLAIMS FOR DAMAGES' TO SAID PROPERTY BY REASON OF
THE LOCATION, CONSTRUCTION, LANDSCAPING OR MAINTENANCE OF THE
FREEWAY ADJOINING SAID PROPERTY, AS CONTAINED IN THE DEED TO THE
STATE OF CALIFORNIA, RECORDED JUNE 30, 1952, BOOK 6767, PAGE 21,
SERIES NO. AG-53698, OFFICIAL RECORDS.
(THE ABOVE MATTER AFFECTS PARCEL ONE)
7. LAdK OF ABUTTER'S RIGHTS IN AND TO THE FREEWAY ADJACENT TO THE
SOUTHERLY LINE OF SAID PROPERTY, SAID RIGHTS HAVING BEEN
CONDEMNED BY FINAL DECREE OF CONDEMNATION IN SUPERIOR COURT
ALAMEDA COUNTY, CASE NO. 331088, IN FAVOR OF THE STATE OF
CALIFORNIA, A CERTIFIED COPY OF SAID DECREE RECORDED MARCH 16,
1964, REEL 1150, IMAGE 357, SERIES NO. A~-42457, OFFICIAL
RECORDS ·
8. DEED OF TRUST TO SECURE AN INDEBTEDNESS OF
AMOUNT : $ 3,490,000.00
DATED : MARCH 14, 1985
TRUSTOR : GALCOR DEVELOPMENT (CALIFORNIA), INC., A
CALIFORNIA CORPORATION
TRUSTEE : FIRST BANCORP., A CALIFORNIA CORPORATION
BENEFICIARY : LLOYDS BANK CALIFORNIA, A CALIFORNIA
CORPORAT ION
ADDRESS : REAL ESTATE INDUSTRIES DIVISION, 1777 N.
CALIFORNIA BLVD., %320, WALNUT CREEK,
CALIFORNIA 94596
LOAN NO. : LL# WC-85-102
RECORDED : MARCH 15, 1985, SERIES NO. 85-052864, OF. FICIAL
RECORDS
NOTE:
ACCORDING TO THE PUBLIC RECORDS, NO DEED CONVEYING THE PROPERTY
DESCRIBED IN THIS REPORT HAS BEEN RECORDED WITHIN A PERIOD OF
SIX MONTHS PRIOR TO THE DATE OF THIS REPORT, EXCEPT AS SHOWN
HEREIN:
NONE
BQ/gce
1063-C
12-12
?Z-QQ4
RANCHO SAN RAMON (J-M. Amador}ce,~,at
JEREMIAH FALLON TRACT
P.M. 786 ~e~.~
P M. 843 ak 7e ~.~)
E M. 1102 (~.
Rev. Acrmge (a, ee,g.5~}
EXHIBIT "C"
LEASE TERM
INTEREST
~RINCIPAL
TOTAL BASE PAYMENT
July 15, 1986
Jan. 15, 1987
July 15, 1987
Jan. 15, 1988
July 15,'1988
Jan. 15, 1989
July 15, 1989
Jan. 15, 1990
July 15, 1990
Jan. 15, 1991
July 15, 1991
Jan. 15, 1992
July 15, 1992
Jan. 15, 1993
July 15, i993
Jan. 15, 1994
July 15, 1994
Jan. 15, 1995
July 15, 1995
Jan. 15, 1996
July 15, 1996
Jan. 15, 1997
July 15, 1997
~.i..-~n. 15, 1998
~i-c~Uly 15, 1998
Jan. 15, 1999
July 15, 1999
Jan. 15, 2000
July 15, 2000
Jan. 15, 2001
July 15, 2001
Jan. 15, 2002
July 15, 2002
Jan. 15, 2003
July 15, 2003
Jan. 15, 2004
July 15, 2004
Jan. 15, 2005
July 15, 2005
Jan. 15, 2006
July 15, 2006
Jan. 15, 2007
July 15, 2007
Jan. 15, 2008
July 15, 2008
Jan. 15, 2009
July 15, 2009
Jan. 15, 2010
$46~,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
$500,000.00
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
:
(Space above for Recorder's use only)
AGENCY AGREEMENT
RELATING TO CONSTRUCTION AND ACQUISITION
OF PUBLIC FACILITIES PROJECT NO. 1
by and between
DUBLIN INFORMATION, INC. as Lessor
and the
CITY OF DUBLIN
DATED AS OF DECEMBER 18, 1985
AGENCY AGREEMENT
RELATION TO CONSTRUCTION AND ACQUISITION
OF PUBLIC FACtLTTIES PROJECT
THIS AGENCY AGREEMENT RELATING TO CONSTRUCTION AND
ACQUISITION OF THE PUBLIC FACILITIES PROJECT NO. 1, made and entered
'.
into as the 18th day of December, 1985, by and between Dublin Informat~Dn, Inc.
(the "Lessor"), a non-pro~t public ben~_~ corporat~n duly organized and ex~sting
under the laws of the State of C~]~fornia and the CITY OF DUBLIN, a muD~pal
corporatiDn of the State of C~]~fornia (the "City").
WITNESSETH:
WHEREAS, the Lessor and the City have entered into a Lease Agreement
Relating To Public.Fa~]~s Project No. 1 (the "Lease Agreement") dated as of the
date hereof, whereby the Lessor agrees to lease ce~ facilities (the "Project") to
be located on premises described in Exhibit B attached to the Lease Agreement, to
the City and the City agrees to lease the P~ from the Lessor; and
WHEREAS, it is in the interest of the Lessor and the City that the
Lessor appoint the City_ as its agent 'for the purposes of construction, acqu~tion
and operation of the Project, and the Lessor has agreed in the Lease Agreement to
appoint the City as its agent for said purposes.
NOW, THEREFORE, in consideration of the above premises and of the
mutual convenants herein contained and for other valuable consideration, the
parties hereto DO HEREBY AGREE as follows:
Section 1. Definitions. The tarms cap~]~ed in this Agency Agreement
shall have the meanings ascribed to them in Exhibit A attached to the Lease
Agreement.
Section 2. Appointment of the City. The Lessor hereby appoin~ the
City as its agent to carry out all phases of the supervision, construction,
reconstruct~n, acq~~n or operation of the Pr~ and the C~y, as agent of
-2
the Lessor, assumes all zights, duties and.respon~b~l~s of the Lessor regarding
superv~on, construction, acqu~nn or operation of the Prc~, except as limited
herein o
Section 3. Contracts and Payments. The Cihy, as agent of the Lessor,
may enter into any purchase order, construct/on management agreement,
construction contract or any other contract or arrangement req~fred for
construction, completion, acq~~n or operation of the Pr~ect upon being
assured that moneys su~nt for '~e payment thereof are then on deport in the
Construction Account created pursuant to Sechon 4.02 of the Trust Agreement or
are otherwise available. If the City shall enter Lnto any such contract or order
for which such moneys are not avm~mble, it shall be ~1~1_y respon~ble for payment
Section 4. .Pr~ect Desc~?tion. The City, as agent for the Lessor,
shal~ have the zight to make any changes in the descz~tion of the Pr~ect or of
any component thereof, whenever the C~y deems such changes to be necessary
and appropriate; provided, however, that any such change shall not alter the.
essential nature of the Project, or impair the av~l~hi~ty of the City to make Lease
Payments under the Lease Agreement.
Section 5. Superv~on of Cons~u~n and In_~%lla~n. The City, as
agent of the Lessor, shall have sole responsibili~f for and shsdl supervise
construction and acq~nn of the Pro~ct and the purchase and installation of any
personal property constituting a part of the Project. The City shall monitor the
performance by any construction manager and by the construction contrac~ors to
the extent the Cihy deems appropziate. The C~y shall permit the Lessor to
inspect con-~ruction at any and all reasonable times which are deemed appropniate
by the Lessor.'
Section 6. Enforcement of Contract. The Lessor hereby assigns to t2qe
City all nights and powers to enforce in its own name or the name of the Lessor
such purchase orders or contracts as are required for the construction,
completion, acq~m~nn and operation of the Pr~ect which enforcement may be at
law or in eqUity; provided, however, that the assignment made by the Lessor
herein shall not prevent the Lessor from asserting s~d_ zights and powers in
own behalf.
- 3 -
Section 7. Fixed Construction Price. The Lessor shall not be
responsible for, nor shall it pay nor pormit to be paid by the Le~or pursuant to
the Trust Agreement, more than Eleven Million Nine Hundred Sixty-eight Thousand
Dollars ($11,968,000) for the construction and acquisition of the Projc:~2t.
Section 8. Inspection of Records. The Lessor shall have the right
to inspect periodically the books and records of the City relating to the
construction and acquisition o'f the Project, and the City shall permit the Lessor
to make such inspections thereof at all reasonable times as the City shall deem
appropriate.
Section 9. Time of Completion and Liquidated Damages. The
construction of the Project shall be ccmpleted by September, 1, 1988. The City
shall provide in the construction contract that liquidated damages will be
assessed against the construction contractors or construction manager for each day
·
completion is delayed. The City shall assure that all construction contracts or a
construction management agreement, whichever the City deems appropriate, shall or
does contain provision for liquidated damages in compliance with this Section 9.
Section 10. Prevailing Wages. Each contract entered into between
the City as the agent for the Lessor, and any contractor shall provide that such
contractor shall pay not less than the general prevailing rate of wages, as
determined in accordance with Labor Code Section 1770, et seq.
_
· Section 11. Nondiscrimination. Each contract entered into between
the City as the agent for the Lessor, and any contractor shall provide that such
contractor shall not discriminate against any other contractor or any employee or
applicant for employment because of the race, religious creed, color, national
origin, or sex of such person, unless based upon a bona fide occupational
qualification. In addition, in determining contractors, or in employing persons
for the purposes of construction or construction manag~t, the City shall not
discriminate on the basis of race, religious creed, color, national origin, or sex
of such person, unless based upon a bona fide occupational qualification.
Section 12. Performance Security. Each contractor hired by the City
on behalf of the Lessor, shall be required to provide payment and performance
bonds in amounts equal to the maximum price under the contracts.
- 4 -
. ,..-.,
.
IN WITNESS WHEREOF, the Lessor and the City have caused th~s
Agreement to be executed in their respective names by their duly autho~-ed
..
o~-ers, ~ll as of the date ~rst above w~it~en.
DUBLIN INFORMATION, .INC.
(SEAL)
By:
Title:
By:
Title:
(SEAL)
CITY OF DUBLIN, CALIFORNIA
By:
Mayor
City Clerk
STATE OF CALIFORNIA )
)
COUNTY OF
SS.
T he undersigned, a Notary Public, does hereby certify that
and , whose names as
and respectively, of the City of
Dublin, are signed to the Agency Agreement, and who are eaCh known to me and
known to be such o~cers of said City, acknowledged before me on this day under
oath that, being informed of the contents of this Agency Agreement, they, in their
capacit/ms as o-F-F-~rH~I~ of said City and with full authoz/ty, executed and delivered
the same volun~n~ly for and as the act of said City on the day the same bears
date.
Given under my hand and seal of o~e this
, 198 .
,,
day of
My Commission ~xp/res:
STATE OF CALIFORNIA )
) ss.
COUNTY OF )
Notary Public
T he undersigned, a Notary Public, dces hereby certLfy that
and , whose names as
and respectively, of D ub!in
Informatkpn, Inc., are signed to the Agency Agreement, and who are each known
to me and known to be such o~cers of said CorporatkDn acknowledged before me
on th/s day under oath that, being informed of the contents of this Agency
Agreement, they, in their capacit~s as of~'~als of said Corporation and with B~ll
author/fy, executed and d~livered the same voluntma/ty for and as the act of said
C~y on the day the same bears date.
Given under my hand and seal of or--ce tb/s
, 198 .
day of
My Commis~on expires:
'-2,087-1~/0002 C km
11/19/85
TRUST AGREEMENT RELATING TO
PUBLIC FACTI.TTIES PROJECT NO. 1
·
by and among
DUBLIN INFORMATION, INC., as Lessor and Trustee
and
'CITY OF DUBLIN
Dated as of December~ 18, 1985
This Trust Agreement cont~ns prov~ons r~]a~ng to $11,968,000 aggregate
principal amount of CerM~ates of Partk~ation, evidencing ownership interest cf
the CertM~cate Holders in and to that cer~n Lease Agreement dated as of
December 18, 1985, by and between the City'of Dublin, California, as Lessee
thereunder and Dublin Information, Inc., as Lessor thereunder and as Trustee
under this Trust Agreement.
Section 1.01.
Section 1.02.
Section 1.03.
Section 1.04.
S ect~n 2.01.
Section 2.02.
Section 3.01.
Section 3.02.
· Section 4.01.
Section 4.02.
Section 4.03.
Section 4.04.
Section 4.05.
TRUST AGREEMENT
TABLE OF CONTENTS
(This Table of Contents if for convenience of
reference only and ~s not a part of
the Trust Agreement)
ARTICLE I
RECITALS AND REPRESENTATIONS
..
Lease Agreement
Deposit of Moneys
Lease Payments
Conditions Precedent S~d
ARTICLE II
DEFINITIONS AND RULES OF CONSTRUCTION
D~n~+~nns
Rules of Construction
ARTICLE T~
APPOINTMENT OF TRUSTEE
Appc~ntment of Trustee
Acceptance of Appointment
ARTICLE IV
ESTABLISHMENT AND ADMINISTRATION
OF FUNDS AND ACCOUNTS
.
Public Fa~l~t~s Pr~ Trust Fund
Est~h~l~shment and Application of
Construction Account
Estsblishment and Application of
Lease Payment Account
No Authonized Transfers
Deposit and Investment of Moneys
in Funds
PAGE
Section 5.01.
Section 5.02.
Sect~n 5.03.
Section 5.04.
Section 6:'01.
Section 6.02.
Section 6.03.
Section 6.04.
Section 6.05.
Sect~n 6.06.
Section 6.07.
Sect~n 6.08.
Section 6.09.
Section 6.10.
Section 6.11.
Section 6.12.
Sect93n 6.13.
Section 6.14.
Sect~n 6.15.
Section 6.16.
Section 6.17.
Section 6.18.
Section 7.01.
Section 7.02.
Section 7.03.
Section 7.04.
Section 7.05.
Section 7.06.
Section 7.07.
Section 7.08.
Section 7.09.
Section 7.10.
ARTICLE V
THE TRUSTEE
Trustee; Duties, Removal and
Resignation
Compensation of the Trustee
Protection fo the Trustee
Paying Agents
ARTICLE VI
CERTIFICATES; TERMS AND PROVISIONS
Preparatk3n of Cer~c~__tes
Form; Denominations; Medium of Payment
Date of Cer~cates 11
Payment of Pmincipal and Interest
with Respect to Cer~c~__tes
Legends
Execut~n
Negotiab~, .Transfer and Re~
Transfer of Fully Registered
Cer~-ates
Regulation with Respect
Exchange and Transfers
Cereal_ate Register
Temporary Certificates
Cer~oates; Mu~l~ted, Lost
Destroyed or Stolen
Place of Payment
Evidence of Signatures of C erthScate
Owners and Ownership of CerH~ates
Redemption
Redemption Fund
NCd~e of Redemption
Payment of Cer~-ates
ARTICLE VII
COVENANTS; T.T~IITATION OF LIABILITY
City to Perform Agreement
Lessor to Perform Agreement
Action on Default
No Obligation by the City to Owners
No Obligat~n to Performance by
the Trustee
No T.~h~l~y to Owners for Payment
No Responsib~ for S~ncy
Trustee May Require Opinion of Counsel
IndemD~cation to Trustee
No Arbitrage
8
8
9
10
11
11
11
12
12
12
12
12
13
13
13
14
14
15
15
15
16
17
17'
17
17
17
17
17
18
18
18
.o
Section 8.01.
Section 8.02.
Section 8.03.
Section 8.04.
Sect~n 8.05.
Section 8.06.
Section 8.07.
Section 8.08.
Sect~n 8.09.
Signatures
EXHIBIT "A"
EXHIBIT "B"
ARTICLE VTTT
AMENDMENT: DEEEASANCE;
AD MINIS T RA TIVE PRO VISION S
Amendment
Defeasance
Recording and ~l~ng
Trustee %o Keep Records
Notices
C~l~fornia Law
Sever~h~]~y
Binding on Successors
Headings
D~uitions
Certific'ate Form
19
19
19
19
20
20
20
20
20
21
THIS TRUST AGREEMENT RELATING TO PUBLIC FACILITrM. S
,~. PROJECT NO. 1, made and entered into-as of December 18, 1985 (th/s
~?'~--. ~.~.~-~- "Agreeme.nt") by and among Dublin Information, Inc., a C~ml~Fornia non-prcf/t
public bene~f- corporation duly organized and existing under the laws of the
State of Csl4{orrda and qu~l~d to accept trusts of the type herein set forth
(herein called the "Trustee" or "Lessor as Trustee" or "Lessor") and the CITY
OF DUBLIN, a municipal corporation of the State of Ca]iforn/a (herein c~ll~_d the
"C'ity");
WITNESSETH:
,,
..
In consideration of the mutual covenants herein con*~ned and for
other valuable consideration, the parties hereto do hereby agree as follows:
-1-
.m
ARTICLE I
RECITALS. AND REPRESENTATIONS
Section 1.01. Lease Agreement. The Lessor and the City have
entered into a Lease Agreement Relating to Public Fa~l~+~s P~ No. 1 and
the City has agrees to ]ease the Pr~ from the lessor.
Section 1.02. Deposit of Moneys. ~3nder the Lease Agreement, in
order to induce the City to lease the Project from the lessor and to assure the
City that the Project Costs will be paid without d~l~y and that the Project will
be av~labl~ for lease without delay, the lessor is required to deposit, or cause
to be deposited on its behalf, $11,968,000.
Section 1.03. Lease Payments. Under the Lease Agreement, the City
is obligated to pay to the lessor or its assignee certain lease Payments for the
use and occupancy of the Prc~ect.
Section 1.04. Conditions Precedent Sa~fed. All acts, conditions
and things required by law to e.~ist, happen and .be performed precedent to and
in connection with the execution and enten/ng, into of ~ Agreement have
happened and have been performed in regular and due time, form and manner
as required by law and the parties hereto are now duly empowered to execute
and enter into this Agreement.
-- 2 -- '
ARTICLE II
DEFINITIONS AND RULES OF CONSTRUCTION
section 2.01. Definit~ns. The 'terms d~-~ned in Exhibit A att_~ached
hereto and by th/s reference incorporated herein, as used and capital/zed
here/n, shall, for all purposes of this Agreement, have the meanings ascmibed
to them in said Exhibit A, und~ss the context clsarly req~res some other
meaning. In addition, the term "Agreement" as used herein means this Trust
Agreement R~lating to Public Fa~l~.s Pr~ No. 1.
,
..
Section 2.02. Rules of Construct/on. Words of the masCU~!~ne gender
shall be deemed and construed to include corr~l~_tive words of the fern/nine and
neuter genders. Unless the context otherwise indicates, words importing the
singular number shall include the plural number and vice versa, and words
importing persons shall include corporations and associations, including public
boa~s, as well as natuzral persons.
"hereto" "herein" "hereunder" and
The terms "hereby", "hereof', , ,
any sim/Jar terms, as used in th/s Agreement, refer to this Agreement.
-3-
ARTICLE
APPOINTMENT OF TRUSTEE
Section 3.01. Appointment of Lessor as Trustee. In consideration of
~he re_~t~l$ hereinabove set forth and for other valuable 'consideration, the
Lessor anal the City hereby agree to appoint the Lessor as Trustee to receive,
hold, invest and d~burse the moneys to be paid to it pursuant to the Lease
Agreement for credit to the vanious ~unds and accounts established by this
Agreement; to prepare, execute, d~l~ver, and deal with the Cerebrates; and to
apply and d~burse the' Lease Payments to the Owners of CerH~'f~ates; and to
-perform certain other functions; all as hereinafter provided and subject to the
terms and cond~ons of th~s Agreement.
Section 3.02. Acceptance of Appointment. The Lessor as Trustee
accepts the appointment above referred to subject to the terms and cond~ons
of this Agreement.
-4-
ARTICLE IV
ESTABLISHMENT AND ADMINISTRATION
OF FUNDS AND ACCOUNTS
Section 4.01. Public Fa~]~os P~ Trust Fund No. 1. There is
hereby est_~b_]i-~_hed with the Lessor as Trustee a special trust fund to be
designated the "City of Dublin Public FailUres Project No. 1 Trust Fund".
The Lessor as Trustae shall hold s~ Fund for the benefit of the CerH~te
Owners and keep said Public Fa~l~.s P~ No. 1 Trust Fund separate and
apart from ~]] other funds and moneys held by it. Within the Public FacL]/t~s
P~ No. 1 Trust Fund, there are hereby established, for the benoit of the
City, the Construction Account more particularl_v described in Section 4.02
hereof and the Lease Payment Account more part/cularly descI/bed in Section
4.03 hereof. On the date of recordation of the Agreement in the O~ce of the
County Recorder of Alameda County, the Lessor as Trustee agrees to deposit
in the Public Facilities Project No. 1 Trust Fund the sum of $11,968,000 and to
transfer approximately $11,968,000 thereof the the Construction Account, and
any remaining amount thereof to the Lease Payment Account. In ad~+~nn,
accrued intarest will be depo.~-d with the Lessor as Trustee in the Lease
Payment Account.
Sect/on 4.02. Est_~b~-~hment and Application of Construction Account.
(a) Within the Pub_]~- Fa~-'.]~s Project No. 1 Trust Fund, there is
hereby estab_]~shed a spec/al account to be designated the "Public Fa~]~s
Project No. 1 ConstructiOn Account" (herein referred to as the "ConstructgDn
Account"). The Lessor as Trustee shall hold said Fund for the benm_~ of the
Cerf~cate Owners and keep the Construction Account separate and apart from
_~11 other funds and accounts held by it. and shall adm/nister the Con_~cru~n
Account as provided in t_his Section 4.02.
(b) Amounts in the Constru~n 'Account shall be ddsbursed for
Project Costs. Disbursements from the Construction Account sh-~ll be made by
the Lessor as Trustee upon receipt of a cerH~cate requesting disbursement
executed or approved by an Authorized Of~c_er of the City. Subject to
subsectkDns (c) and (d) hereof, each such cer~-ate shall:
(i) set for the amounts to be d~_=bursed for payment or
reimbursement of previous payments of Project Costs and the person or
persons to whom said amounts are to be disbursed;
(/i) st=ts that the amounts to be disbursed Cons~dtute Project Costs
as said term is do~ned in Exhibit "A" a~ached to this Agreement, that
said amounts are required to be disbursed pursuant to a contract
entered into therefor by or on behalf of the Lessor or the City, or
were necessa~ly and reasonably incurred; and that said amounts are
not being paid in advance of the time, if any, f/xed for payment;
(/ii) state that no amount set forth in the cerH~cate was included
in any cerH~o_ate requesting d~$bursement previously ~o.d with the
Lessor as Trustee pursuant to this Section; and
(iv) state that the amount remaining in the Construct~n Account,
together with interest earnings 'thereon, will, after payment of the
amount set forth in the cer~cate requesting d~sbursement, be
s,~~nt to pay all remaining Project Cos~ as then est[mated.
(c) P~or to the in~ H~bursement of funds from the Construction
Account for the purpose of payments to a contractor for construction of the
Project.,. the City shall deposit with the Lessor as Trustee:
(i) the cer~H~ate of an Authorized O~er of the City s~ting
that all approvals, consents, licenses, cerebrates or perm~_~, which are
conH~Hnns precedent to the construction of the Project, whichever is
applicable, of any government or agency or bureau thereof having
jurisdiction with respect thereto have been obtained;
(ii) the cer~cate of an Authozized O.~er of the City stating the
final plans and spa~ations providing for the constructkon portions of
the ProSport, have been completed and approved by the City; and
(ii~') the cer~nate of an architect or engineer employed by the Cit_v
stating that the site on which the construction portion of the Project is
to be constructed pursuant to the plans and spec~ations is the ~.
described in Exhibit "B" a~ttached to the Lease Agreement, and that the
construction contracts for the Project provide for the construct_on of
the Project in accordance with the plans and spe~cations therefor.
(d) Each cerebrate requesting disbursement which is submitted
pursuant to subsec~2o' n (b) and which relates to disbursement for cons~u~n of
a construction portion of the Project shall be accompanied by the cerebrate of an
architect or engineer employed by the City approving the cerebrate reques~g
8~bursement and c~g that (i) insofar as such cer~cate relates to payment
for work, mate~l~, equipment or supp ~l~es, such work was actually performed, or
such mat~, equipment or supplies were actually ins~.~l~d in furtherance of the
construction of the Pro,act or delivered to the ~te' for such purpose, or d~l~vered
for storage or fabnication at a place approved by t.he City, and (ii) as of the
date of said cerebrate requesting d~bursement an iden~ed percentage of the
Project has been completed.
(e) Any amounts remaining in the Construc~n Account upon payment
of the entire Pr~ect Costs shall be deported by the Lessor as Trustee in the
Lease Payment Account and the Construc~n Account shall be closed. Upon
deposit of said amounts into the Lease Payment Account, said amounts shsdl be
applied as a credit against the next subsequent Lease Payments due by the City.
Section 4.03. Estsblishment and Aool~cation of Lease Payment Account.
,,
(a) Within the Public Facilities Project No. 1 Trust Fund, there is
hereby estsbl~hed a separate account to be designatad the "Public Fa~lC~_es
Project No. 1 Lease Payment Account" (herein referred to as the "Lease Payment
Account"). Such account shall be maintained by the Lessor as Trustee for the
bene~t~ of the Cer~cate Owners until the Lease Payments are paid in ~ll
pursuant to the terms of the Lease Agreement. Lease Payments paid to the
Lessor as Trustee pursuant to the Lease Agreement shall be deposited by the
Lessor as Trustee in the Lease Payment Account.
(b) The Lessor as Trustee shall withdraw from the Lease Payment
Account, on each Payment Date, an amount-equal to the Lease Payment due on or
before such Payment Date, and .sh~]] cause the same to be appl~d to the payment
of p~incipal and interest payments due on the Cer~cates on such Payment Date.
Section 4.04. No Unauthorized Transfers. No amount sh~]! be
withdrawn or transferred from or pai~_ out of any fund or account except as in
this Agreement expressly provided.
Section 4.05. Deposit and Investment of Moneys in Funds.
(a) All moneys held by the Lessor as Trustee in any of the funds or
accounts establ~hed pursuant to th~ Agreement shall be deported or invested in
P~d Investments. The Lessor as Trustae shall invest such funds Un
Permitted Investments so as to obtain the highest y~'e]d which the Lessor as
Trustee deems practicable, having due regard for the safety of such funds and
for the date upon which such funds will be required for uses and purposes
spe~.d in thJ~ Agreement. Notwithstanding any provision of ~ subs~n
(a), in the event that w~itten instructions for investment of any fund or account
in P~d Investments are provided by the City, the Lessor as Trustee shall
invest moneys in said fund or account in accordance with said inst~c~ons.
(b) All interest or income received by the Lessor as Trustae on
investment of the Lease Payment Account established pursuant to Section 4.03
hereof sh~]]~ p~ior to the Completion Date, be deposited in the Construction
Account and, after the CompleX_on Date, be retained in said Account and be
applied to the payment of d~]~nquent payments due on the Certificates, if any,
and otherwise as set forth herein. Transfers to the Lease Payment Account shall
be made by the Lessor as Trustee on or prior to the ~enth (15th) day of the
month preceding each Payment Date, commencing with the f/rst Payment Date
following the Completion Date, and shall be app]~d as set forth herein. Amounts
ret~ned or deposited in the Lease Payment Account pursuant to this subsec~Dn
(b) shall be applied as a credit against the Lease Payment due by the City
pursuant to the Agreement on the Payment D~te following the date cf deposit. At
the time of depo~ of said moneys in the Lease Payment Account, the Lessor as
Trustse shall report the amount of s~id deposit to the City, and the amount cf
the Lease Payment payable by the City on the n~t'fol!owing Payment Date shall
be reduced by an amount equal to said deposit. In the event that said moneys
exceed the Lease Payment due on said Payment Date, the amount of such excess
sh~]] be app]~d as a credit against subsequent Lease Payments. AIl interest cr
income on the Construction Account sh~]! be retained in the Construction Account
until the Construction Account ~s closed pursuant to S~n 4.02 (e) hereof.
(c) The Lessor as Trustee shall act only aS agent in making or
disposing of any investment. As long as the Lessor as Trust-=e makes
investments using ordinary care, the Lessor as Trustee shall not be liable for any
loss resulting from the making or disposition of any investment pursuant to this
Section, and any such losses shall be charged to the account with respect to
which such investment was made.
ARTICLE V
THE LESSOR AS TRUSTEE
Section 5.01. Lessor as Trustee; Dut~s, Removal and. Resignation. By
executing and delivering this Agreement, the Lessor as Trustee accepts the
duties and obligations of the Lessor as Trustee provided in this Agreement, but
only upon the terms and conditions set forth in this Agreement.
The Lessor and th~ City may by written agreement between themselves,
or the Owners of a majo~y in aggregate principal amount of all Cerebrates
Outstanding may by wzitten request, remove the Lessor as Trustee ~y a
party to this Agreement, and any successor thereto and may appoint a successor
Trustee, but any such successor shall be a bank or trust company doing business
and having an oeM-~e in C~lifornia, autho~ed to do business in the State of
C~lifornia in compliance with all applicable laws and reg~lations of the State of
Cmliforrda and the federal government and subject to superv~nn or examination
by federal or stata autho~y. If such bank or trust company publishes a report
of condit~n at /mast annually, pursuant to law or to the requirements of any
supervising or examining autho~ty above referred to, then fo~ the purposes of
this Section the combined capital and surplus of such bank or trust company shall
be deemed to be ~ combined capital and surplus as set forth in ~t~ most recent
report of conditions so pub~shed.
The Lessor as Trustee may at any time re~'gn by giving wr~t_en notice
to the Lessor and the City of its intent to resign and, following thirty (30) days
after s-~id notice of intent, by giving wzitten notice of resignation to the
Cer~cate owners by publication of such resignation at least once in an
Authorized Newspaper. Upon receiving such notice of resignation, the City shall
promptly appoint a successor Trustee by an instrument in w~iting; provided,
however, that in the event that the City does not appoint a successor Trustae
within thirty (30) days thereaftar, the resigning Trustee may petition the
approp=iate court having jur~diction to appoint a successor Trustee. Any
resignation or removal of the Lessor as Trustee and appointment of a successor
Trustae shall become m~fective upon acceptance of appointment by the successor
Trustee.
Sect/on 5.02. .Compensation of the Trustee. The City shall ~rom time
to time on demand reimburse the Trustee for all i~ advances and ~xpenditures,
including but not limited to advances to and fees and expenses of independent
appraisers, accountants, cons~l~mnts, counsel, agents and a~orneys-at-!aw or
other experts employed by it in the exer~se and performance of its powers and
duties hereunder and the Lessor as Trustee shadl have a ]i~n therefor, on any and
mil funds at any time held by it under this Agreement, which lien shall be pz/or
and supez/or to the lien .of the Cerebrate Owners. The City's obligation
hereunder shm]] remain valid and binding notw~s~nnding matu~ty and payment of
the Cer~cates. No indempi~mation will be made to the Trustee for willful
misconduct, negligence, or breach of duty by the Trustee, its of~cers, agents,
employees,~ successors or assigns.
-8-
Sect/on 5.03. Protection to the Trustee. The Lessor as Trustee shall
be protected and shall incur no ]Jab/]ity in acting or proceeding in good faif~h
upon any resolut/on, notice, t~]~gram, request, consent, waiver, cer~i{imate,
statement, ~eFidavit, voucher, bond, reqtdsJJzkon, or other paper or document
which it shall in good faith believe to be genu/ne and to have been passed or
signed by the proper board or person or to have been prepared and furnished
pursuant to any of the provisions of this Agreement,. and the Lessor as Trustee
sh~l] be under no duty to make any ~investigation or/nquiwy as to any statements
contained or matters referred to in any such instrument, but may accept and rely
upon the same as conclusive evidence of the ~uth and accuracy of such
statements. The Lessor as Trustee shall not be bound to recognize any persons
as ~n owner 'of any cer~fi~ate or to take any action at his request unless such
Cerf~ate shall be deposited with the Lessor as Tru~=e or satisfactory evidence
of the ownership of such Certif/uate shall be furnished to the Lessor as Trustee.
The Lessor as Trustee may consult with counsel w'~th regard to legal questions
and the opinion of such counsel shall be full and complete authori~.ation and
protect/on in respect o~ any action taken or suffered by it hereunder in good
faith in accordance therewith. Except as to counsel who customarily acts as
counsel to the Lessor as Trustee in the performance by the Lessor as Trustee of
duties under this Agreement, in the event of a second counsel with respect to the
same matter, the Lessor as Trustee shall provide to each counsel a copy of any
wiitten opinion pro~-ided by the other counsel w~ respect to such matter.
Whenever in the admirdstrat/on of its duties under this Agreement, the
Lessor as Trustee shall deem it necessary or de-~=ble that a matter be proved or
established prior to taking or s~ffering any ac~Dn hereunder, such matter
(unless other evidence in respect thereof be herein specifio_~lly prescribed) shs1]
be deemed to be conclusively proved and estsbiished by the.. cerfi~ate of an
Authorized OfFicer of {he City or the Lessor as Trus=~e and such ce_~zificate shall
be full warranty to the Lessor as Trustee for any such act/on taken or su~ered
under the provisions of this Agreement upon %he faith thereof, but in if~
di.~cretion the Lessor as Trus~ may, in lieu tkereof, accept other evidence of
such matter or may require such add/tional evidence as to it may seem reasonable.
.The Lessor as Trustee may buy, s~]l, own, held and deal in any of tb.e
Cerf~c_ates provided pursuant to thJ~ Agreement, and may join in any ac~_on
which any Owner may be entitled to take with 1C<e e_~ect as if the Lessor as
Trustee were not a party to this Agreement. The Lessor as Trustee, either as
p~incipal or agent, may also engage in or be interes'-~d in any f/nandml or other
transaction with the City or the Lessor, and may act as deposifory, true, or
agent for any committee or body of Owners of Ce_~-.=icates or other obligat/ons of
the City as freely as if it were nct the Lesscr as Trustee hereunder.
The Lessor as Trustee may execute any of the trusts or powers hereof
and perform the duties required of it hereunder by or through attorneys, agents
or receivers, and shall be entit/ed to advice of counsel concerning all matters of
trust and its duty hereunder, and the Lessor as Trustee shall not be answerable
for the default or misconduct of any such a_t~_orney, agent or receiver s~l~cted by
it with reasonable care. The Lessor as Trustee shall not be answerable for the
exercise of any ai-~cretion or power under this Agreement or for. anything
whatever in connection with the funds and accounts estsbli~hed hereunder, except
only for its own w_illful ntisconduct or gross negligence or breach of duty under
this Agreement.
The 'Lessor as Trustee will act in a ~ 'and passive capacity in
the exercise of ~ duties as set fozth herein, .ex.pt with respect to ~-~ exer~e
Of the zights of the Lessor under the Lease Agreement in the event of de~ul~_
thereunder, in which case it shall act in the manner set forth /n Sect/on 7.03 of
this Agreement.
Sect/on 5.04. Pay/rig Agents. The City may appoint paying agents.
Each such agent shall be a bank or trust company having a comb/ned capital
(exclusive of borrowed capital) and surplus of at least F/fry M~ll~n D~ll~rs
($50,000,000) and subject to superv~nn or ~xaminat~n by federal or state
authozity. -If such bank or trust company publishes a report of condit/on at least
annually, pursuant to law or to the requirements of any superv~ng or examin/ng
authozity above referred to, then for the purpose of this Section the combined
capital and surplus of such bank or trust company shall be deemed to be its
combined cap~nl and surplus as set forth in its most recent report of condit/ons
so publ~-~hed.
ARTICLE VI
CERTIFICATES; TERMS AND PROVISIONS
Section 6.01. Preparation of Certif/cates. The Lessor as Trustee is
hereby directed to prepare, execute and deliver to the Original Purchaser,
Cert~ates in an aggregate principal amount of Eleven Million Nine Hundred
Sixty-eight Thousand Dol]ars ($1,968,000) evidencing undivided ownership
interests in the Lease Payments to be paid by the City under the Lease
Agreement.
Section 6.02. Form; Denomination; Medium of Payment. The
Cer~'~ates sh~]] be delivered in the form of Fully Re~stered' 'Cerebrates in the
denomination of Five Thousand Dollars ($5,000) each or any whole m~]~ple thereof
(which form shall be substantially in the form set forth in Exhibit "B" hereto
attached and by this reference herein incorporated) or in any combination of such
forms. The Cerebrates sha]~ be payable in ]awful money of the United States of
America which at the time of payment is legal tender for the payment of public
and private debts.
Section 6.03. Date of Cer~cates. F,~]]y Registered Cer~'~cates
delivered prior to December 31, 1985, sh~]] be dated as of December 1, 1985.
Fully Re~red Certificates de/ivered on or after December 31, 1985, shall be
dated as of the preceding Payment Date unless such date of delivery shall be a
Payment Date, in which case with respect to .Fully Registered Certificates shall be
payable from their date.
Sect[on 6.04. Payment of ~incipal and Interest with Respect to
Cer~cates.
(a) The Cer~cates shall be payable from the pl/ncipal component of
Lease Payments due and payable by the City on the fifteenth (15th) day of the
month preceding each February 1 in the years and amounts and bear interest at
the rate(s) per annum as follows:
YEAR AMOUNT
1987 $ 138,000
1988 $ 150,000
1989 $ 165,000
1990 $ 180,000
1991 $ 195,000
1992 $ 220,000'
1993 $ 240,000
1994' $ 265,000
1995 $ 290,000
1996 $ 320,000
1997 $ 350,000
1998 $ 385,000
1999 $ 425,000
2000 $ 465,000
2001 $ 515,000
2002 $ 565,000
2003 $ 620,000
2004 $ 685,000
2005 $ 750,000
2006 $ 825,000
2007 $ 910,000
2008 $1,000,000
2009 $1,100,000
2010 $1,210,09011 _
RATE
ARTICLE VI ~'~
CERTIFICATES: TERMS AND PROVISIONS
Section 6.01. Preparation of Certificates. The Lessor as Trustee is
hereby directed to prepare, execute and deliver to the Original Purchaser,
Certificates in an aggregate principal amount of Eleven Million Nine Hundred
Sixty-eight Thousand Dollars ($11,968,000) evidencing undivided ownership
interests in the Lease Payments to be paid by the City under the Lease
Agreement.
Section 6.02. Form; Denomination; M~dium of Payment. The
Certificates shall be delivered in the form of Fully Registered Certificates
in the denomination of Five Thousand Dollars ($5,000) each or any whole
multiple thereof (which form shall be substantially in the form set forth in
Exhibit "B" hereto attached and by this reference herein incorporated) or in
any combination of such forms. The Certificates shall be payable in lawful
money of the United States of America which at the time of payment is legal
tende~ for the payment of public and private debts.
Section 6.03. Date of Certificates. Fully Registered Certificates
delivered prior to December 31, 1985, shall be dated as of December 1, 1985.
Fully Registered Certificates delivered on or after December 31, 1985, shall
be dated ~as of the preceding Payment Date unless such date of delivery shall
be a Payment Date, in which case with respect to Fully Registered Certificates
shall be payable from their date.
Section 6.04.
Certificates.
Payment of Principal and Interest with Respect to
(a) The Certificates shall be payable from the principal component
of Lease Payments due and payable by the City on the fifteenth (15th) day of
the monthpreceding each February 1 in the years and amountsandbear interest
at the rate(s) per annum as follows:
YEAR AMOUNT
1987 $468,000
1988 $500,000
1989 $500,000
1990 $500,000
1991 $500,000
1992 $500,000
1993 $500,000
1994 $500,000
1995 $500,000
1996 $500,000
1997 $500,000
1998- $500,000
1999 $500,000
2000 $500,000
2001 $500,000
2002 $500,000
2003 $500,000
2004 $500,000
2005 $500,000
2006 $500,000
2007 $500,000
2008 $500,000
2009 $500,000
2010 $500,000
- 11 -
(b) Interest with respect to the CerH~ates shall be payable on
August 1, 1986, and semiannuslly thereafter on February 1 and August 1 of each
year to and including the date. of matu~+3~ or redemption, whichever is emrl~r.
Sa~d interest shall represent the portion of Lease Payments designated as interest
coming due and payable by the City on the f/fteenth (15th) day of the month
preceding each of said August 1 and February 1 dates.
Section 6.05. Legends. The Certificates may con*a~n or have endorsed
thereon such provisions, spe~tions and desc~p~ve words not incon~-~cent
with the prov~'~ons of this Agreement as may be necessary or de-~rable to comply
with custom, or otherwise, as may be determined by the City pzior to the
d~livery thereof. ..
Section 6.06. Execution. The CerH~cates shall be executed in the
name of, and by, the Lessor as Trustee under tkis Agreement, by the manual
signature of an autho~"~ed o~er of the Lessor as Trus~=e.
Section 6.07. Negotiab~itY, Transfer and Reg~ry. All of the
CertiScates issued pursuant to this Agreement shall be negotiable as provided by
law subject to the prov~'~ons for registra~n and transfer con~ined in this
Article VI and in the CerH~ates.
Section 6.08. Transfer of Fully Regain_red Cerebrates.
(a) The registration of each Fully Regis~ed CerH~ate shs]l be
transferable only upon the CerH~cate Register, which shall be kept for that
purpose at the Pzinc~pal O~ce of the Lessor as Trustee, upon surrender thereof
together with a w~en instrument of transfer satisfactory to the Lessor as
Trustee duly executed by the registared Owner or'his duly authorized a~orney.
Upon the registra~n of the transfer and the surrender of any such Fully
Re~ed CerH~cate, the Lessor as Trustee shall provide, in the name of the
transferee, a new Fully Registered CerH~ate or CerH~cates.
(b) The Lessor as Trustee shall deem and treat the' person in whose
name any Outstanding Fully Registered CerH~ate sh~11 be registered upon the
Cer~cata Reqister as the absolute owner of such CerH~ate, whether such
Cerebrate sh~11 be overdue or not, for the purpose of receiving payment of, or
on account of, the pnLncipal and interest payments with respect to such
Cer~'~ate for ail other purposes, and all such payments so made to any such
registered Owner or upon his order shall be valid and effectual to satisfy and
d~charge the liability upon such CerH~ate to the extent of the sum or sums so
paid, and neither the City nor the Lessor as Trustee shall be a~fected by any
not[ce to the contrary. The City agrees to indemnify the Lessor as Trustee or
cause the Lessor as Trustee to be indemn~ed against any and all loss, cost,
charge, expense, judgment or l~abi~ty incurred by it, acting in good fmith and
without gross negligence hereunder, in so treating such registered Owner.
Section 6.09. Regulation with Respect to Exchange and Transfers. In
_~11 cases in which the pnivilege of transf~g Fully RegJstared Cert~ates is
exercised, the Lessor as Trustee sba1! execute and deliver CerH~ates in
accordance with the provisions of this ArHcl~ VI. All Fully Reg/stsred
Cer_~_'~ates surrendered in any such exchanges or transfers shall forthwith be
cancelled and destroyed by the Lessor as Trustee. For every such transfer, of
Cerebrates, whether temporary or de~n~ve, the City and the Lessor as Trustee
may make a charge su~~nt to reimburse it for any tax, fee or other
governmental charge, other than one imposed by the City, required to be paid
with respect to such exchange .or transfer, which sum or sums shall be paid by
the person requesting such exchange or transfer, as a condition precedent to the
~xercise of the privilege of making such ~xchange or transfer. Notwithstanding
any other prov~nn of this Agreement the cost of preparing Fully Re~ed
CerM~cate upon the first exchange or transfer following delivery pursuant to
Section 6.01 hereof, and any other expenses of the City or the Lessor as Trustee
incurred in connection therewith (except any applicab]~ tax, fee or other
governmen~] charge other than one imposed by the City) sha]! be paid by the
c y.
Sect/on 6.10. CerM~cate Register. The Lessor as Trus~ shall keep
or cause to be kept at the Principal Or--ce of the Lessor as Trustee a CerM~ate
Re~; and, upon presentat~n for such purpose, the Lessor as Trustee sha~,
under such reasonable regulations as it may presc~__be, register or transfer or
cause to be registered or transferred, on the Certif~ate Register, Certificates as
hereinbefore provided.
The information cone_a~ned in the Certi~rate Re~ with respect to the
ownership of or secuMey interest in the CerM~ates shall not be subject to
inspection or copying by the public as provided in Sec~don 5060 (a) of Chap=tar 1.5
of Dive--on 6 of T~]~ 1 of the Gove_~nment Code of the State of California;
provided, however, that the City shall have access to such records.
SectgDn 6.11. .Temporary Cerebrates. Pending preparation of t_he
d~nitive Ceztif~ates, any CerM~cates d~]~vered under this Agreement may be
io~M~]]y delivered in temporary form exchangeable for de~n~+~ve CerM~ates when
ready for delivery. The temporary Cer~cates may be printed, lithographed or
typewritten, 'shall be of such denominations as may be determined by the City_,
and may cont~n such reference to any of the prov~ons of this Agreement as may
be appropriate. Every temporary CerM~ates shall be executed by the Lessor as
Trustee and be d~]fvered by the Lessor as Trus~-e upon the same conditions and
in substantially the same manner as d~'ve Ful!v_ Re~ed CerM~ates. If
the Lessor as Trustae delivers temporary Ce_~M~cates, it shall executa and
furnish dm~n~Mve Cezng~cates without dm]~y and, thereupon, the temporary
Certif~ates shm]! be surrendered for cancm]]ation at the Principal O~e of the
Lessor as Trustee and the Lessor as Trustee sh~]~ d ~e!iver '.mn exchange for such
temporary CerM~cates an. equal aggregate pr/n~pa! amount of definitive Fully
Re~ed CerM~mates, of authorized denominat~ns and of the same matur~+v and
interest rate or rates. Until so exchanged, the tamporary CerM~cates sh~l be
entitled to the same bene~ts under thJ~ Agreement as defio~Mve CerM~cates
delivered pursuant hereto.
Section 12. CerM~cates; Mutilated, Lo~, Destroyed or Stolen. If any
CerM~cates shall become mu~]ated or defaced so as to impair its value to ~he
Owner thereof, the Lessor as Tru.~tee, at the expense of the Owner of said
CerM~mates, shall execute and deliver a new CerM~'~ate of like tenor and maturJ~y
and numbered as the Lessor as Trustee shall demtermine in exchange and
substitu~n for the CerM~mates so muM]mted, but only upon surrender to the
Lessor as Trustee of the CerM~ates so mutilated. Every muMq~ted CerM~cate so
surrendered to the Lessor. as Trustee shall be cancm]]ed by it and either
destroyed of dm]]vered upon the order of the City. If any Certificates shall be
lost, destroyed or stolen, evidence of such loss, destruct/on or theft may be
subm~d, to the Lessor as Trustee and if Such evidence is satL~factory to the
Lessor as Trustee and if an indemnity sat~ctory to .the Lessor as Trustee shall
be ~ven, the Lessor as Trustee, at the expense of the CerM~te owner, shall
execute and deliver a new Cer~cates of like tenor.and matu~ty and numbered as
the Lessor as Trustee shall determine in l~u of and in substitution for the
Cerebrate so lost, destroyed or stolen. The Lessor as Trustee may require
payment of an appropziate fee for each new Cer~cates delivered under this
Section and of the expenses which may be incurred by the Lessor as. Trusta~ in
carrying out the duties under this Section. Any Cerebrates issued under the
prov~nns of this Section in lieu of any Cerebrates ~11~.ged to be lost, destroyed
or stol~n shall be equally and proportkonately enabled to the benefits of the Trust
Agreement. The Lessor as Trustee shall not be required to treat both the
oziginat Cer~cates and any duplicate Cert~tes as being Outstanding for the
purpose of determining the pz/nc~al amount of CerVantes which may' be issued
hereunder or for the purpose of determining any percentage of Cerebrates
Outstan~g hereunder. Notwithstanding any other prov~on of this Section, in
~]~eu of deliven/ng a new Ce~te for a Cer~at~ which has been mu~]~ted,
lost, destroyed or sto]~n' and which has matured, the Lessor as Tru_~=e may make
payment of such Cerebrates.
Section 6.13. Place of Payment. Panic Trust Company is hereby
appointed as paying agent for the Cerebrates. The pzincipal of and interest on
~11 Certif~tes shal! be payable when due by check or draft of the Paying Agent
m_m~l~d to the Owner of record as of the close of business on the ~fteenth (15th)
day of the month next preceding an interest Payment Date at the address shown
on the Cerebrate Register.
Section 6.14. Evidence of Signatures of Cer~cate Owners and
Ownership of Cer~r~tes. Any request, direction, consent, revocation o~
consent or other instrument in wziting required or per~d by this Agreement to
be signed or executed by Cerebrates Owners may be in any number of
concurrent instruments of sial]ar tenor, and may be signed or executed by such
Certi~tes Owners in person or by their atiorneys or agents appointed by an
instrument in wzitLng for that purpose. Proof of the execution of any such
instrument, or of any instrument appointing any such attorney or agent, and of
the holding and ownership of Cer~'~catas shall be suf~nt for any purpose of
this Agreement (except as otherwise herein provided), if made in the following
manner:
(a) The fact and date of the execution by any Certi~ate Owner or his
a_ttorney, or agent of any such instrument and of any instrument appointing any
such attorney or agent, may be proved by a cer~te, which need not be
acknowledged or ve~md, of any of~j~'cer of any bank or trust company located
within the United States of Amen/ca, or of any notary Public, or other oeMr~er
autho~xed to take acknowledgments of deeds to be recorded in such jurisdictions
that the persons signing such instruments acknowledged before him the execution
thereof. Where any such instrument is executed by an of~'cer of a corporation or
assocda~n or a member of a partnership on behalf of such corporation,
association or partnership, such cerebrate shall also constitute su~r~ent proof of
h~ autho~y.
(b) The ownership of .Cer~cates shall be proved by the Cer~cate
Register held by the Lessor as Trustee under the prov~nns of tb/s Agreement.
Nothing ~n~ned in this Article shall be construed as lim~ing the
Lessor as Trustee to such proof, it being, intended that the Lessor as Trustee
may accept any other evidence of the matters herein stated which may seem
s~f~_"~nt. Any request or consent of the Owner of any Cer~cate sh~ll bind
every future Owner of the same Cer~o~te in respect of anything done or
su~ered to be done by the City or the Lessor as Trustee in pursuance of such
request or consent.
Section 6.15. Redemption.
(a) The Cer~oates are sub, ct to ex~craordinary mandatory redemption
in whole or in part (but not in a total redemption amount of less than Twenty
Thousand Dollars ($20,000), in inverse order of matu~ty and by lot within a
maturity on any Payment Date, without premium, at the p~inc~al amount thereof,
together with accrued interest to the date f/xed for redemption from the proceeds
of insurance or condemnation transferred by the Lessor as Trustee fIom the
spe~__'a] fund in which such proceeds are held to the Lease Payment Account or if,
in the event of default, the City pays the Lease Payments .in full, or causes the
Lease Payments to be paid in full pursuant to the Lease Agreement.
The Cer~oates matu~/ng on or after February 1, 1988, are subject to
redemption from any source of funds on any intere~ payment date in part or as a
who~ beginning February 1, 1988, at their par value, plus accrued interest.
Certificates maturing on February 1, 1987, are not subject to redemption other
than as above provided.
(b) Redemp~/on by. lot shall be in such manner as the Lessor as
Trustee shall determine; provided, however, that the port/on of any Fully
Registered ~Cer~oate to be redeemed sh~]] be in the p~incipal amount of Five
Thousand Dollars ($5,000) or any integral mu]~ple thereof, and that in s~cting
port/ons of Fully Reg~ered Cerebrates for redemp~/on, the Lessor as Trus~u~e
shall treat each such F~]~y Registered Cer~cate as representing that number of
Certi~tes which is obtained by divid/ng the p~incipal amount cf such Fully
Reg/stered Cer~cate by Five Thousand Dol~s ($5~000).
Sect/on 6.16. Redemption Fund. Moneys to be used for redemption
pursuant to this Article VI hereof shall be transferred by the Lessor as Trustee
from the Lease Payment Account and deposited in a Redemption Fund, which shall
be a spe_~_'s] fund to be held by the Lessor as Trustee_, separate and apart from
~]] other funds, for the bene~t of the Certificate Owners. Said moneys shall be
set aside in the Redemption Fund'so]~]y for. the purpose of redeeming the
Cer~oates in advance of their maturity and shall be applied on or after the
Payment Date designated pursuant to Articl~ VI to the payment of p~in~pal and
interest with respect to the Cer~cates to be redeemed upon presentation and
surrender of such Cer~cates.
Sect/~n 6.17. Notice of Redemption. When redemption is requ4red
pursuant to th/s Article VI, the Lessor as Trustse shall give to the Cert~cate
Owners notice at the expense of the City of the redemption of the Cer~cates.
Such notice shall spe~'fy: (a) that the wholm or a designated portion of the
Cer~/~cates are to be redeemed, (b) the Payment Date of redemption, and (c) the
place or places where the redemption will be made. Such notice shall further
state that on the spe~-d Payment Date there shall become due and payable upon
each Cer~cate to be redeemed, the p~incipal thereof and premium, if any,
together with interest accrued to said Payment Date, and that from. and after
such Payment Date interest thereon shall cease to accrue and be payable.
,
Since Fully Registered Certif/cates constitute all of the Cer~mates then
to be redeemed, it shall be s~~nt notice of any redemption of such
Cerebrates that notice thereof stating the app~le Payment Date by m~l~d,
postage, prepaid, not more than sixty (60) days nor less than thirty (30) days
p~ior to such Payment Date to the Registered Owners of such Cerebrates.
Section 6.18. Payment of Cerebrates. Notice having been given as
aforesaid, and the moneys for the redemption, including interest to the applicable
Payment Date, having been set a~ide in the Redempt~n Fund, the Certi~tes to
be redeemed shall become due and payable on said Payment Date, and, upon
presentation and surrender thereof at the of~ce or o~ces spe~'~d in said notice
said Cer~cates shall be paid at the unpaid p~incipal amount thereof, plus any
unpaid and accrued interest to said Payment Date.
If, on said ~ayment Date, moneys for the redemption of ~]] the
Certificates to be redeemed, together with interest to said Payment Date, sh_a]l be
held by the Lessor as Trusta~ so as to be availabl~ therefor on such Payment
Date, and, if notice of redemption thereof shall have been given as aforesaid,
then, from and afb_er said Payment Date, interest on the Cer~cates to be
redeemed shall cease to accrue and become payable. If said moneys sh~]] not be
so available on said Payment Date, such Cer~c~tes sh~l] continue to bear
interest until paid at the same rates as they would have borne had they not bee_n
n~d for redemption. All moneys held by or on behalf of the Lessor as
Trustee for the redempt~n of particular C~ates shall be-held in trust for the
account of the Owners of the Cer~cates so to be redeemed.
ARTICLE VII
COVENANTS; LT~iITATION OF LTABILITY
Section 7.01. City to Perform Agreement. The City covenants and
agrees ~ ~-~ b~s of the Cer~d~c~tes, to perform all obligations and duties
imposed on it under the Lease Agreement to the extent so imposed.
Section 7.02. Lessor to Perform Agreement. The Lessor covenants and
agrees with the Owners of the Cerebrates, to perform all obligations and duties
imposed on it under the Lease Agreement.
Section 7.03. Action on Default. Upon the Lessor as Trustee's receipt
of the actual notice of the occurrence of an event of default by the City under
Section 6.01 of the Lease Agreement, and in each and every such case du~ing the
continuance of such event of defa~]*, the Lessor as Trustee shall, with respect to
any event of default other than a default pursuant to subsection (b) of Section
6.01 of the Lease AGreement, and may, with respect to an event of default_
pursuant, to said subsection (b) of Section 6.01 of the Lease Agreement (or sh~]l,
in the event of a request therefor by the owners cf not less than twenty-five
percent (25%) in aggregate p~incipal amount of Cerebrates at the time
Outstanding), upon notice in wvd~dng to the City and the Lessor exercise the
remedies provided to the Lessor in the Lease Agreement.
Section 7.04. No Obligation by the City. to Owners. Except for the ~m~
payment of Lease Payments when due in accordance with the Lease Agreement and
the performance of the other covenants and the agreement of the City con~ned
in said Agreement, the City shall have no 6bligation or l~_h~l~ty to any of the
other parties or to the Owners of the Cer~cates with respeCt ~t~ this Agreement
or the terms, execution, delivery or transfer of the Cer~d~tes, or the
di~_~tz/bution of Lease Payments to the Owners by the Lessor as Trustee.
Section 7.05. No Obli, at/on 'to Peiformance by the Lessor as Trustee.
Neither the City nor the Lessor s~hall have any obligation' or l~b~l~ty to any of the
other parties or to the Owners of the Certif/cates with respect to the performance
by the Lessor as Trustee of any duty imposed upon it under this Agreement.
Section 7.06. No T.~ability to Owners for Payment. Except as provided
in this Agreement, neither the Lessor nor the Lessor as Trustee shall have any
obligation or liability to the Owners of the Ce_~fdcates with respect to the
payment of the Lease Payments by the City ~rom revenues when due, or with
respect to the performance by the City of any other covenants made by it in the
Lease Agreement.
Section 7.07. No Responsib~ for Su~ency. The Lessor as
Trustae shall not be responsible for the suf~rd~ncy of the Lease Agreement or the
value of or title to the premises upon which the Pr~ is located or the Pro~ct.
The Lessor as Trustee shall not be respon~ble or 15eble for any loss suffered in
connection With any investment of funds made by it under the terms of and in
accordance with this Agreement provided that it has used ordinary care in making
such investments.
Section 7.08. Lessor as Trustee May Require opinion of counsel.
Before being req~ired to take any action the Lessor as Trustee may require an
opinion of counsel acceptable to the Lessor as Trustee, which counsel may be
counsel to any of the parties hereto, or a v~r~d cerM~cate of any party hereto,
or both, concerning the proposed action. If it does so in good fmith, the Lessor
as Trustee shall be absolutely protected in relying thereon.
Section 7.09. Indemni~ation to Lessor as Trustee. The City sh~]l
indemnify and save the Lessor as Trustee harmless from and against all claims,
losses, costs, expenses, ~ and damages, including legal fees and expenses,
~r~ng out of (i) the use, maintenance, condition or management of, or from any
work or thing done on, the Project by the City, (i~ any breach or default on the
part of the City in the performance of any of J~-~ obligations under this Agreement
and any other agreement made and entered into for purposes of the Project, (i~)
any act of negligence of the City or of any of ~es agents, contractors, servants,
employees or licensees with respect to the Project, (iv) any act of negligence of
any assignee of, or purchaser from, the City or of any of its or their agents,
contractors, servants, employees or licensees with respect to the Project or, (v)
the acquJ~Mon or cons~naction of the Project or the authoM~ation of payment of
the Pr~ Costs by the City, (vi0 the actions of any other party to this
Agreement including but not limited to the ownership, operatk~n or use of the
P~ by the City, or (vi~ or in the exercise and performance of its powers
and duties hereunder all to the extent p~d by law. No indemD~cation will
be made under thJ~ Section or ~]~ewhere in this Agreement for w~]leul misconduct,
negligence, or breach of duty under this Agreement by the Lessor as Trustee.,
its oeec-ers, agents, employees, successors or assigns. The City's obligations
hereunder shall remain valid and binding notwithstanding matu~_ty· and payment of
the CerM~catms.
Section 7.10. No Arbitrage. The City sha]! not make, or permit to be
made, any use of the proceeds of the sale of the CerMM~ates which, if such use
had been made on the date of delivery hereof, wo~ld cause the obligation of the
Lease Agreement to become an arbJ_~rage bond within the meaning of Section
103 (c) of the Internal Revenue Code, as amended.
.ARTICLE
AMENDMENT; DEFEASANCE;
ADMINISTRATIVE PROVISIONS
Section 8.01. Amendment. This Trust Agreement may be amended in
w~ng by agreement of the City and the Lessor as Trustee for the purpose of
(a) curing any ambiguity or of cuzing, correcting, or supplementing any
defective provision contained here/n, or (b) in regard to questions a~ng under
this Agreement which the City may deem' necessary or de~rable and not
incon~tent with the prov~ons of this A'greement, provided that no such
amendment pursuant to (a) or (b) of this Section 8.01 shall adversely affect the
interest of the Cerebrate. Owners. This Agreement may also be amended upon
approval of a majo~y in aggregate pzincipal amount of the Owners of the
Cer~f~ates then Out_~t~nding; provided that no such amendment shall impair the
zight of any owner to receive his proportionate share of any Lease Payment in
accordance with his Cer~cate.
Section 8.02. Defeasance. If and when all Outstanding Cerebrates
shall be paid and ~charged in any one or more of the following ways:
(a) by well and truly paying or causing to be paid the pzincipal of
and interest with respect to all Cer~ficates Outstanding, as and when the same
become due and payable;
(b) by depositing with the Lessor as Trus~=e, in trust, at or before
matuzity, money which, together with the amounts then on deposit in the-Lease
Payment Account is fully su~nt to pay ~11 Ce_~cates Outstanding, includin~
all pnincipal and interest and premium, if any, or;
(c) by depositing with the Lessor as Trustse, in trust, Federal
Secuzities in such amount as the Lessor as Trustee shall determine w~11~, together
with the interest to accrue thereon and m~neys then on depot* in the Lease
Payment Account together with the interest to accrue thereon, be fully su~nt
to pay and discharge all Cerebrates (including edi principal and interest) at or
before th~_~r respective matuzity dates; notwithstanding that any Cer~cates sh~11
not have been surrendered for payment, all obligations of the Lessor and the
Lessor as Trustee with respect to all Out_~t~ndin9 Cer~catas shall cease and
terminate, except only the obligation of the Lessor as Trustee to pay or cause to
be paid to the Owners of the Cerebrates not so surrendered and paid all sums
due thereon.
The funds held by the Trustee, at the time of one of the events
descnibed above in subsections (a), (b) or (c), which are not required for the
payment to be made to Owners, shall be paid over to the City.
Section 8.03. Recordin9 and F~l~nq. The Lessor as Trustee sha~l! not
be responsible for the recording and ~l~ng of the Agreement and finan~_ng
statements (or continuation statements in connection therewith) or of any
supplemental instruments or documents of further assurance as may be required
by law in order to perfect the secunity interest created by th~ Agreement.
Section 8.04. Lessor as Trustee to Keep Records. The Lessor as
Trustee shall keep books and records of all moneys received and disbursed under
·
this Agreement, which shall be availab]~ for inspection by the City and the
Lessor, or five percent (5%) in aggregate pzincipal amount of Cerebrate Owners
or their respective designees, at any time du~Lng regular business hours.
Section 8.05. Notices. All w~++~n notices to be given under this
Agreement shall be given by mail to the party entit/ed thereto at ~ address set
forth below, or at such address as the party may provide to the other party in
wziting from time to time.
If to Lessor as Trustee:
Dublin InformatLon, 'Inc.o
6500 Dublin Boulevard: Suite 101
If to ci :
Dublin Information, Inc.
6500 Dublin Boulevard, Suite 101
. .Dublin; CA 94568
Section 8.06. C~liForn/a Law. This Agreement shall be construed and
governed in accordance with the laws of the State of C~liFornia.
Section 8.07. Severabili~v. If any one or more of the covenants,
stipulations, promises, agreements or obligations provided in tb/s Agreement on
the part of the Lessor or the City to be performed should be determined by a
court of competent ju~is~n to be contrary to law, then such covenant,
stipulation, promise, agreement, obligation sh~ll be deemed and construed to be
severable from the remaining covenants, s~pulations, prom/ses, agreements and
obligations herein cont~ned and shall in no way a~fect the validity of the other
prov~nns of ~ Agreement.
Section 8.08. Bindin9 on Successors. This Agreement shall be binding
.upon and inure to the benefit of the parties and their respective successors and
assigns.
Section 8.09. Headings. Headings preceding the text of the several
Articles and Sections hereof, and the t~ble of contents, are solely for convenience
or reference and shall not constitute a part of this Agreement or effect ~s
meaning, construc~on or effect.
IN WITNESS WHEREOF, the parties have executed ~ Agreement by
their ~s thereunto duly autho~.ed as of the date and year first w]~tten
above.
DUBLIN INFORMATION, INC.
as 'Trustee and Lessor
(SEAL)
By:
Titl~:
By:
T~le:
CITY OF DUBLIN
(SEAL)
By:
Title:
By:
Title:
Mayor
City Clerk
STATE OF CALIFORNIA
COUNTY OF
SS~
I, a Notary Public in and for said County in the State aforesaid, do
hereby certify that and ' the
and respectively, of Dublin
Information, Inc. , appeared before me th~ day in person and acknow-
ledged that, being duly autho~ed, such of~cers ~-'gned, sealed, attested and
delivered the foregcing Trust Agreement.
Given under my hand and notarial seal this
, 198' ...
day of
Notary Public in and for the
State of CaliforrJa
My commis~n expires:
STATE OF CAT.tWORNIA )
) SS.
COUNTY OF )
I, a Notary Public in and for said Count_; in the State aforesaid, do
hereby certify that and the
and respectively, of the City
o~ Dublin appeared before me th~ day in -person and acknowledged that, being
duly authoz/zed, such of~cers signed, seadmd, a~ested and delivered the fore-
going Trust Agreement.
Given under my hand and notarial seal this
., 198 .... .
day of
Notary Public in. and for the
State of Cal~*orn/a
My commis~on expires:
.i,
~ r * ~
EX~TB_ IT "A"
TO TRUST AG~~
DEFINITIONS
(a) Authorized Newspaper. The term "Authorized Newspaper" means a
financial paper, or a newspaper of general circulation in the City and County of
Alameda , California, which is customarily published on each business day and is
printed in the English language.
..
(b) Authorized Officer. The term "Authorized Officer", when used with
respect to the City, n~ans the b~yor, Vice M~yor, City Clerk,, City Administrator
or any other officer of the City which is, desig~mted by the City. Council of the
City as an Authorized Officer. The Authorized Officer", when used with respect
to the Lessor, means any officer of the Lessor.
(c) Certificate. Register. The term "Certificate Register" ~ the
books for registration maintained by the Lessor as Trustee pursuant to Article VI
of the Trust Agreement.
(d) Certificates. The term "Certificates" ~%ns the certificates of
participation prepared and delivered by the Lessor as Trustee pursuant to the
Trust Agreement.
(e) Ccmpletion Date. The term "Ccmpletion Date" means December 1,
1985, or the date of f~al accep~ce of th Project by the City whichever date first
OCCLlrs o
(f) Construction Account. The term "Construction Account" m~ans the
account by that nam~ es~_ablished under, add held by the Lessor as Trustee
pursuant to Section 4.01 of the Trust Agr~t.
.
(g) Federal Securities. The term "Federal Securities" means bills,
certificates of indebta~ess, notes, bonds, or similar securities which are direct
obligations of, or the principal and interest of which securities are guaranteed by
the United States,' whether issued in book entry form or otherwise.
(h) .Fully .Registered Certificates. The term "Fully Registered
Certificates" means Certificates registered as to principal and ~terest and payable
to the registered cwner.
(i) Lease Agreement. The term "Lease Agre~_ment" ~eans that certain
Lease Agreement Relating to Public Facilities Project No. 1 dated as of the date
hereof,, by and between the Lessor and the City.
(j) Lease Payment Account. The term "Lease Payment Account" means
the account by that name established under, and held by the Lessor as Trustee
pursuant to, Section 4.03 of the Trust Agre~t.
(k) Lease Payments. The term "Lease Payments" ~eans lease payments
payable by the City to the Lessor pursuant to tb~ Lease Aqreen~nt as more
"~ .... particularly set forth in Exhibit C attached to the Lease Agreem~t.
-- 1
1) Net Proceeds. The term "Net Proceeds", when used with respect to
any /nsurance or condemnation award, .means the gross proceeds from the
insurance or condemnation award, with respect to wkich that term is used rema/ning
aftmr payment of all expenses incurred in the col]~Yc~n of such gross proceeds.
(m) Oziginal Purchaser. The term "Oziginal Purchaser" means First
Cal~forn/a Reg/onal Secu~s, Inc.
(n) Outstandinq. The term "Outstanding" when used with reference to
the Cer~cates and as of any particular date means all Cer~cates theretofore
d~l~vered except: (a) any Cer~eate cancelled by the Lessor as Trus~=e at or
before said date and (b) any Cer~cate in lieu of or in' substitution for which
another CertkScate sh~11 have been d~l~vered pursuant to the Trust Agreement.
(o) Owner. The term "Owner" or "Cer~oate Owner" or "Owner of
Certd~oates" or any similar term, when used with respect to the Cerebrates,
means any person who shall be the registered owner of any Outstanding Fully
Registered C ertif/cate.
(p) Payment Dates. The term "Payment Dates" means February 1 and
'August 1 of each year, commencing August 1, 1986, and terminating on February
1, 2010.
means"
(q) Permitted Encumbrances.
The term "Permitted Encumbrances"
(i) Ad valorem taxes and assessments not then due and payable.
(ii) The Lease Agreement.
(iii) Easements, zig hts-of-w ay and other zig hts, covenants,
conditions or restnictk~ns which do not impair or impede construct/on or
operation of the Project.
(r) Permitted Investments. The term "Permitted Investments" means:
(D United States Treasury notes, bonds, b~ll~, or cer~-ates of
indebtedness, or those for w.hich the f~-~eh and credit of the Un/ted
States are pledged for the payment of pzinc/pal and interest.
(i~ Obligat/ons issued by federal land banks, federal home loan
banks, the Federal Home Loan Bank Board, the Tennessee V_~ll~y
Autho~ty, or in obligations, partk~ations, or other in~uments of or
issued by, or ~lly guaranteed as to p~/nc~al and interest by, the
Federal National Mortgage Assord~tion; or in obligations, par~_'~pations,
or other instruments of or issued by a federal agency or a United States
government-sponsored ente_rp~e.
(~ii) Investment in repurchase agreements under the terms of which
the securd~_s are transferred to the posses~n of the Lessor as Trustee
of any secuzities authorized by paragraphs (i) and (i~ above.
(iv) Non-negotiable cer~atss of deposit issued by a nation~l]_y
chartered bank (including the Trustee) or a bank chartered by the Stat~
of California or a foreign banking corporation authozized pursuant to
Section 1756 of the Cal~orn/a Financial Code to transact business in the
Stats of California by accepting deports of a State of C~l~fornJa or
federal savings and loan association provided that such cer~c~tes of
deport are ~lly c~ll~terml~ed in the manner required for coll~e~ml~ation
of trust funds.
(v) As otherwise defined in Section 53601 of the Government Code
of the State of California.
..
(s) Pnincipal Office. The term "Principal Or'ce", when used with
respect to the Lessor as Trustee, means the pzinc~.al or corporate trust o~ce of
the Lessor as Trustse situated at City Hall, Dublin, C~l~ornia.
(t) Project. The term "Project" means the Dublin Civic ~enter
Compe~ and r~lated facility to be leased to th~
City pursuant to the Lease Agreement.
(u) Pro, ct Costs. The term "Prc~ject Costs" means ail costs of payment
of, or reimbursement for, acquisition, construction and f~nancing of the Project,
including but not limited to, architect and engineez/ng fees, construction
contractor payments, costs of fea~b~l~y and other reports, inspection costs,
permit fees, ~l~ng and recording costs, p~inting costs, reproduction and binding
costs, f/nancing discounts, legal fees and charges, financial and other professional
consultant fees, costs of rating agen~s or credit ratings, fees for execu~_on,
transportation and safekeeping of Cerebrates and charges and fees in ~onnection
with the foregoing.
(v) Public Fa~l~s Pr~ect Trust Fund. The term "Pub]~ Facf/it/ss
Pr~ect Trust Fund" means the fund by that name est_abl~shed under, and held by
the Lessor as Trustee pursuant to Section 4.01 of the Trust Agreement.
(w) Redemotion Fund. The term "Redemption Fund" means the fund by
that name established under, and held by the Lessor as Trustee pursuant to
Article VI of the Trust Agreement.
(x) Trust Agreement. The term "Trust Agreement" means that certain
Trust Agreement relathug to Public Facilities Project No. 1 dated the date hereof,
by and among the Lessor as Trustse, the City and the Lessor.
(y) Lessor as Trustee. The term" Tru_~=e" or "Lessor as Tru_~=e"
means Dublin Information, Inc. or ~s successor in interest actin~ as
trustee under the Trust Agreement.
EXHIBIT "B"
The Certificate Form will be presented at the meetings of the City Council and
Dublin Information, Inc. on December 18, 1985.