HomeMy WebLinkAbout4.11 CivicCtrCertParticipationRefi
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CITY OF. DUBLIN
AGENDA STATEMENT
CITY COUNCIL MEETING DATE: May 10, 1993
SUBJECT: Approval' of Documents Associated with a Proposed 1993
Civic Center Certificate of Participation Refinancing
(Prepared by: Paul S. Rankin, Assistant City Manager)
EXHIBITS ATTACHED: 1 . ~xecuti ve Summary of the Transaction
2. ./. Draft Resolution
3. / Sketch of Site p;ncumberedby Lease
Note: Ci ty COuncil members have been provided under
separate cover with copies of certain legal documents.
Copies of these documents are also on file in the
Office of the City Clerk.
a. Lease Agreement
b. Trust Agreement
c. Escrow Agreement
d. Contract of PurchaSe
n~e. Preliminary Official Statement
RECOMMENDATION: ,- Adopt Resolution.
FINANCIAL STATEMENT:
The primary purpose of undertaking this
transaction is to obtain reduced.debt service
payments in the near term. The exact amount of
savings will not be determined until pricing
information is obtained.
DESCRIPTION: At the March 22, 1993 City COuncil meeting, the City
council authorized Staff to secure the services of Financial Underwriters
and Bond Counsel to initiate proceedings to refund the 1988 Certificates of
Participation. Staff and the consultants have prepared the documents which
will position the City to obtain specific pricing data on a refinancing.
As previously indicated to the City Council, market conditions can greatly
impact the outcome of any refinancing. Until the City has approved legal
documents, it is not possible to obtain the pricing information necessary
to complete the transaction. Approval of the documents which are described
in the Executive Summary prepared by Bond Counsel (Exhibit 1) are necessary
to take the next step in pursuing a reduction in the City's annual debt
service costs associated" with the Civic Center project.
DESCRIPTION OF DOCUMENTS
The basic structure of the transaction follows the existing 1988
Certificates of Participation. Dublin Information, Inc. is the property
owner and the City makes annual lease payments, which are used to payoff
the Certificates. An overview of all of the documents is provided for in
Exhibi t 1. The following points may be of particular interest.
Lease AQreement: In the proposed agreement, the City .may substitute
or release property currently encumbered by the lease. This provides
a certain amount of flexibility in the event that changing economic
conditions warrant this amendment. For example, certain tax
restrictions on tax exempt debt will limi t the pri vate use of the
portion of the project encumbered by the lease. This includes
approximately 2 acres of vacant land south of the Civic Center (See
Exhibit 3). If the City was able .to remove the lease conditions,
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COPIES
ITEM NO. 4~11
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greater flexibility for use by private entities could be considered.
There remain certain obligations which must be met to assure that the
property covered by the Lease has adequate value in relation to the
outstanding Certificates.
The term of the lease will remain the same as the lease under the 1988
Certificates. Outstanding COP's can be called beginning in 1998 at a
1% premium, or at par beginning in 1999.
Staff is anticipating that the proposed issue will include bond
insurance. This will result in a higher rating, which lowers the
City's interest rate. The certificate purchaser has more protection
to assure that timely payments will be made.
The insurance provisions in the lease follow the City's current
operation, with the purchase of insurance coverage from ABAG PLAN.
The City will be obtaining Title Insurance, which will be a cost of
issuance pursuant to the proposed transaction.
Trust AQreement: The Trust Agreement remains similar to the 1988
transaction. Based upon competitive proposals and references, Staff
is recommending the engagement of First Interstate Bank of California
to serve as Trustee.
The Certificates in this transaction will be held in book-entry form
by Depository Trust Company. (DTC) DTCserves as a clearinghouse
which provides for payment and transfer of Certificates. These
transactions are often completed electronically which reduces the
City's cost of issuance, as well as the ongoing Trustee expen~es.
Escrow AQreement: The Trustee for the 1988 COP is First Trust
California (FTC). This firm succeeded Bank of California and Bankers
Trust as a result of reorganizations. (Bank of California was the
original Trustee on the 1988 COP's.) Staff is proposing to retain
First Trust as the Trustee on the 1988 COP Escrow Fund, which will be
established as a result of this refinancing. First Trust is also the
escrow agent for the 1985 COP Escrow Fund.
As escrow agent, First Trust will hold a portion of the proceeds from
the 1993 COP issue. These funds are invested in Federal Securities
and the principal and interest will be sufficient to prepay the
refunded 1988 Certificates.
Through a request for proposals, Staff has identified the accounting
firm of Ernst & Young to act as ve:r:ification agent. The firm will
undertake a review to assure mathematical accuracy of the computations
shown in the schedules. A similar report was prepared with the 1988
COP offering.
Preliminary Official Statement: This document is utilized to provide
disclosure, as well as marketing of the proposed Certificates.
Provided that the transaction is successfully completed, a final
Official Statement will be prepared which will contain the final terms
of the financing.
Contract of Purchase: In consultation with Bond Counsel, Staff has
reviewed the proposed purchase contract with Rauscher Pierce Refsnes
(RPR). This document establishes the outside parameters under which
the transaction can be completed. The contract also identifies the
maximum discount rate as 1.4% (i.e. fee to be retained by the
Underwriter). Staff has noted that this is a very competitive fee,
when compared to other recent financings by public agencies. As
previously indicated, if the financing is not completed for any
reason, the City's liability is only for certain minor direct out of
pocket expenses.
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MARKET TIMING
The ability to successfully bring an issue to market requires that the City
have an authorized set of legal documents available. Approval of the
documents and authorization for Staff to undertake certain actions will
POsi tion the City to take advantage of declining interest rates. Staff
will be evaluating any savings after deducting the cost of issuance. This
will assure that the end result will be a significant savings to the City'S
Treasury.
At the March 22, 1993 meeting , the figures presented reflected market
conditions as of March 16, 1993. At that time, a refinancing would have
resulted in the following savings/yield:
Net Present Value as a% of Refunded Par:
True Interest Cost:
4.997%
5.53%
On May 3, 1993, RPR had noted some deterioration in the market. This was
viewed by the Underwriters as a market "adjustment, reflecting a very large
$300 million refunding proposed to be sold on May 4, 1993. The following
indicators would have applied to an issue on that date:
Net Present Value as a % of Refunded Par:
True Interest Cost:
2.754%
5.80%
Typically an agency would not undertake a refinancing if the Net Present
Value Savings was less than 3%. Based upon this benchmark, Staff will be
consulting with RPR, prior to the active marketing of a refunded issue.
RPR has indicated that the information contained in the Official statement
is the most time sensitive. Therefore, it is important to only release the
Preliminary Official Statement within six weeks of pricing. This assures
that potential certificate holders receive accurate information and also
assesses the level of interest in the issue. If information changes in a
material manner prior to the release of the Preliminary Official Statement
it may need to be updated. The City Council approval of the documents will
allow Staff the ability to proceed in consultation with the City'S
Consultants, once conditions indicate that proceeding could achieve a cost
savings.
RECOMMENDATION
Bond Counsel, as well as representatives of RPR, will be available to
respond to specific questions. Staff recommends that the City Council
adopt the resolution.
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ONE WORLC TRACE CENTER
NEW YORK, N.Y. 10048-0557
TELEPHONE: 212-839-5300
FACSIMILE: 212-839-5599
BROWN & WOOD
815 CONNECTICUT AVENUE, N.W.
WASHINGTON. D.C. 20006-4004
TELEPHONE: 202-223-0220
FACSIMILE: 202-223-0485
10900 WILSHIRE BOULEVARD
LOS ANGELES, CA. 90024-3959
TEL.EPHON E: 310-443-0200
FACSIMILE: 3'0-208-5740
555 CALI FORN IA STREET
SAN FRANCISCO, CA. 94104-1715
TELEPHONE: 4'5-398-3909
FACSIMILE: 415-397-4621
172 WEST STATE STREET
TRENTON, N.J. 08608-1104
TELEPHONE: 609-393-0303
FACSIMILE: 609-393-'990
SHIROYAMA,JT MORI BUILDING, 15TH FLOOR
3-1. TORANOMON 4-CHOM E, M I NATO-KU
TOKYO 105, JAPAN
TELEPHONE: 03-5472-5360
FACSIMILE: 03-5472-5058
BLACKWELL HOUSE
GUILDHALL YARD
LONCON EC2V SAB
TEL.EPHONE: 071-606-1888
F"ACSIMILE: 071-796-1807
CITY OF DUBLIR, CALIFORNIA
CERTIFICATE OF PARTICIPATIOR FIRARCIRG
Executive Summary of The Transaction
The City of Dublin, California (the -City-) is currently
considering entering into a Certificate of Participation
(-Certificate- or -COP-) financing. The purpose of this
transaction is to refund the City's previously issued 1988
Certificates of Participation (Civic Center Project) in the
original principal amount of $17,230,000 (the -Refunded
Certificates-). The proceeds of the Refunded Certificates were
used to refinance the City's Civic Center. This memorandum
provides a brief summary of the structure of the financing, as
well as an explanation of the financing documents and the
rights and obligations of the City under the financing
documents. The summaries of and references to all documents in
this Executive Summary do not purport to be comprehensive or
definitive, and this Executive Summary is qualified in its
entir~ty by reference to actual copies of such documents.
There are five main documents involved in this COP
financing. These are:
1. Lease Agreement,
2. Trust Agreement,
3. Assignment Agreement,
4. Escrow Agreement, and
5. Official Statement (and Preliminary
Official Statement).
EXHIBIT ~
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LEASE AGREEMERT
(Between City of Dublin and Dublin Information, Inc.)
The Lease Agreement is the central financing document. It
sets out the business terms of the financing and all other
documents are ancillary to it. To refinance certain public
facilities (collectively, the -Project-), the City and Dublin
Information, Inc., a nonprofit public benefit corporation (the
-Corporation-), will enter into a Lease Agreement, dated as of
June 1, 1993 (the -Lease-). Pursuant to the Lease, the
Corporation will lease the completed Project to the City and
the City will agree to make annual lease payments to the
Corporation. The Certificates sold to investors (the
-Certificate Owners-) will represent interests in the stream of
lease payments under the Lease. The portion of the lease
payments representing interest payments under the Lease are
exempt from federal and state income taxes, thus making the COP
the equivalent of a tax-exempt bond to an investor.
The Project and Interest in the Project
The Corporation currently holds title to the Project and
the Site during the term of the Lease. Upon satisfaction of.
certain criteria specified in the Lease, the City may
substitute or release all or a portion of the Project and
Site. However, upon the expiration of the term of the Lease,
after all payments due thereunder have been made, all right,
title and interest of the Corporation in the Project will
automatically-terminate and vest in the City.
Lease Term
The term of the Lease will commence on the date the Lease
is executed and end on a specified date on which all of the
lease payments and any additional sums required thereunder are
scheduled to have been paid. The Lease Payments may also be
prepaid, at the option of the City, beginning in 1998 from
amounts available to the City at such time. The Lease term may
also be shorter, however, if the City defaults on its
obligations under the Lease and as a consequence of such
default the Corporation elects to terminate the Lease.
Alternatively, the Lease term may be extended beyond the
specified date if the City has not met all of its obligations
to make lease payments as scheduled, or the lease payments
shall have been abated as a result of damage or destruction to
the Project, resulting in the Certificates having not been paid
in full by their maturity date.
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Lease Payments
Throughout the term of the Lease, the City will make lease
payments for the use and possession of the Project and the
Site. The City will make lease payments semiannually according
to a predetermined lease payment schedule. Lease payments will
be in amounts equal to the principal and interest due on the
Certificates and, for this reason, the lease payment schedule
will be determined at the time that the Certificates are sold
and the Certificate interest rate is determined. Lease
payments will be made directly to the trustee appointed under
the Trust Agreement (the -Trustee"), as assignee of the
Corporation under the Assignment Agreement. Any overdue lease
payments will bear interest at a rate equal to the interest
rate on the Certificates. The City covenants in the Lease to
include all lease payments in the City's annual budget, and to
certify to the Trustee that it has done so.
Abatement
Under California law, a lessee is required to make lease
payments only for the period during which the lessee has actual
use and possession of the subject property. As the lessee
under the Lease, the City's obligation to make lease payments
will be -abated- during any times in which the City does not
have use and possession of the Project. However, regardless of
whether or not the City's obligation to make lease payments has
been abated, Certificate Owners will expect to receive timely
payment of principal and interest on their Certificates.
Consequently, the Lease provides for other sources of lease
payments during periods of abatement. An example of one such
source is moneys available under the rental interruption
insurance pOlicy required to be carried by the City pursuant to
the Lease.
Damage, destruction, taking by eminent domain or
condemnation with respect to the Project or the Site will
result in abatement of the City's obligation to make lease
payments in proportion to the portion of the Project or the
Site damaged, destroyed, stolen, condemned or taken. The City
is required under the Lease to insure against certain of these
risks so that there will be moneys available with which to
rebuild or replace the Project (which replacement will make the
Project once again subject to lease payments), or to prepay the
Certificates if the City determines the moneys available from
such insurance, are not sufficient to pay the costs of
rebuilding or replacing the Project and repair or replacement
of the Project is not economically feasible or in the best
interest of the City. If the Project is to be restored, the
proceeds of rental interruption insurance will be used to make
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lease payments while the Project is being restored. If the
City determines that the Certificates will be prepaid and the
Project will not be rebuilt or replaced, the Certificates will
be prepaid without any prepayment penalty to the City.
Other Costs
During the term of the Lease, the City will pay all costs
of repair, replacement and maintenance of the Project and the
Site, as well as all taxes, assessments, utilities and other
charges incurred with respect to the Project or the Site. In
addition, the City also will be required to pay certain
administrative costs associated with the Certificates, such as
the Trustee's compensation, costs incurred by the Corporation
and premiums for insurance required by the Lease. These
obligations are in addition to the City's obligation to make
lease payments.
Events of Default
Failure by the City to meet certain of its obligations
under the Lease constitute -Events of Default.- Such Events of
Default include (1) the failure of the City to make lease
payments when due, (2) the failure of the City to perform any
warranty, covenant, condition or agreement under the Lease for
a period of 30 days after notice of such failure is given to
the City, and (3) the occurrence of certain events of
bankruptcy or insolvency with respect to the City. The
occurrence of an Event of Default gives the Trustee, as
assignee of the Corporation, the right to exercise certain
remedies on behalf of the Certificate Owners.
Remedies
The Trustee represents the interests of the Certificate
Owners and, as assignee of the Corporation's rights pursuant to
the Assignment Agreement, the Trustee has two remedies
available to it under the Lease should an Event of Default
occur. First, the Trustee may elect to keep the Lease in
effect and to repossess the Project and the Site and re-let it
for the account of the City. The City will remain liable for
all lease payments under the Lease, and will be obligated to
make such payments as they become due; however, any rent
received by the Trustee from the re-letting of the Project will
be used to offset the City's obligation to make lease
payments. Alternatively, the Trustee may elect to terminate
the Lease and to repossess and re-let the Project and the
Site. Should this option be chosen, the City will remain
liable for all costs and damages resulting from the termination
of the Lease, including any shortfall in the rent obtained by
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the Trustee upon re-letting and the lease payments that would
have been due under the Lease. In addition to these remedies
specifically provided by the Lease, the Trustee may also
exercise any other remedy available to it at law.
Upon default by the City, the Trustee will not have the
right under any circumstances to accelerate lease payments or
to declare lease payments not yet due to be immediately due and
payable.
Summary of the City's Duties Under the Lease
The City has the following duties under the Lease:
1) To make lease payments semiannually.
2) To include all lease payments in the City's
proposed and actual annual budgets.
3) To pay all taxes, assessments, utilities,
maintenance and repair costs and other charges relating to
the Project.
4) To pay all administrative costs relating to the
Project, including fees and expenses of the Trustee and the
Corporation, as well as the fees of any auditors,
accountants or engineers.
5) To obtain (a) title insurance, (b) rental
interruption insurance, (c) public liability and property
damage insurance, and (d) casualty and theft insurance, or
with respect to (c) and (d), to self-insure in an
actuarially responsible manner.
6) To indemnify the Corporation and its directors
and employees against any loss or claim to which such
parties may become subject in connection with the Lease.
TRUST AGREEMENT
(Among City of Dublin, Dublin Information, Inc.
and First Interstate Bank of California)
The Trust Agreement may be viewed as the mirror image of
the Lease, in that the Trust Agreement sets forth the terms
which translate the Lease obligations into Certificate rights
and obligations. The Trust Agreement is signed by the Trustee,
the City and the Corporation. The Trust Agreement sets out
instructions to the Trustee for the deposit, investment and
disbursement of the funds received from the sale of the
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Certificates. The Trust Agreement also sets forth the terms of
the Certificates and regulates the Trustee's actions vis-a-vis
the Certificate Owners. In this financing, individual
Certificates will be held in book-entry form by The Depository
Trust Company, which will handle all procedures relating to
payment and transfer of Certificates with respect to the actual
beneficial owners of the Certificates. This procedure should
lower the costs of the City with respect to printing of
Certificates and trustee services.
The Trustee
In any bond, COP or similar transaction in which evidences
of indebtedness are sold to the public, a trustee serves as a
neutral third party to receive and disburse funds in accordance
with the rules set forth in the trust agreement. In the City's
COP financing, the Trustee will be a commercial bank chosen by
the City to administer the funds received upon the sale of the
Certificates. The Trustee will be compensated by the City at
an annual rate to be agreed upon between the City and the
Trustee prior to the execution of the Trust Agreement. In
addition to this compensation, the Trust Agreement permits the
Trustee to collect additional fees from the City in the event
that the Trustee incurs costs in performing services beyond
those contemplated for the administration of the funds held
under the Trust Agreement. Such increased costs could be
incurred, for example, if the City defaults under the Lease and
the Trustee either repossesses and re-lets the Project or sues
the City for damages caused by its default.
Indemnification
The Trust Agreement provides for indemnification of the
Trustee by the City for all claims, losses and liabilities
incurred in its role as Trustee. The Trustee is not, however,
entitled to indemnification if its claims or losses are
attributable to its own willful misconduct or negligence.
Removal or Resignation
As long as the City is not in default under the Trust
Agreement, the City may remove the Trustee at any time and for
any reason, provided that a successor trustee meeting certain
requirements for minimum capitalization and the like are met.
The Trustee may resign for any reason after giving the City
written notice, but only upon the appointment of, and
acceptance by, a successor trustee.
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Funds
The Trust Agreement requires that the Trustee hold all
moneys that it receives in trust for the benefit of the
Certificate Owners and that the Trustee expend such moneys only
as provided in the Trust Agreement. The Trustee holds six
funds created under the Trust Agreement for the City:
1. Deliverv Costs Fund. An amount equal to all
items of expense directly or indirectly payable by or
reimbursable to the City or the Corporation relating to the
financing of the Project will be deposited in the Delivery
Costs Fund from the proceeds of the Certificates. Delivery
Costs are the costs of participating in a COP financing,
and include legal fees, initial Trustee fees, rating agency
fees, fees for printing the Official Statement, Preliminary
Official Statement and the Certificates, title insurance
premiums and any other costs to the City or the Corporation
relating to the COPs.
2. Lease Payment Fund. All Lease Payments and
Prepayments received by the Trustee, including but not
limited to any advance rental payments, unexpended .
Certificate proceeds and the rental interruption insurance
proceeds, will be deposited in the Lease Payment Fund.
These moneys will be used by the Trustee for the sole
purpose of paying the principal and interest with respect
to the Certificates. Lease payments will be made by the
City to the Trustee by the 25th day of the month preceding
the principal and interest payment dates for the
Certificates. Moneys in the Lease Payment Fund will be
invested and certain interest earnings thereon will be
transferred to the Rebate Fund.
3. Reserve Fund. The Reserve Fund is the -rainy
day- fund held by the Trustee and used to make payments to
Certificate Owners should the City fail to make a lease
payment. The Reserve Fund will be funded in an amount
equal to the lesser of (1) the maximum aggregate annual
lease payments payable under the Lease, (2) 125% of the
average annual lease payments payable under the lease, and
(3) 10% of the net proceeds from the sale of the
Certificates. -Moneys in the Reserve Fund will be invested
and interest earnings may be transferred to the Rebate Fund
or the Lease Payment Fund. .
4. Prepayment Fund. Moneys deposited in this fund
will be used to pay principal and interest represented by
the Certificates prior to their maturity dates. Such
prepayments may occur if the City exercises its option
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under the Lease to prepay all or part of the lease
payments. Prepayment of Certificates may also be made from
the proceeds of insurance or condemnation awards which are
not used to rebuild or replace lost or damaged parts of the
Project.
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5. Net Proceeds Fund. Any moneys received by the
Trustee or the City as a result of any damage, taking by
eminent domain or condemnation award with respect to the
Project will be deposited in the Net Proceeds Fund. Moneys
will be disbursed from this fund to pay the cost of any
repair or replacement of the Project undertaken by the
City. Should the City determine not to restore the
Project, such moneys will be transferred to the Prepayment
Fund and used to prepay Certificates.
6. Rebate Fund. Investment earnings on moneys held
in the Lease Payment Fund, if and to the extent required by
the Rebate Certificate, will be placed in this fund. The
City or the Certificate Owners have no rights in or claim
to such money, and the moneys in this fund is not pledged
to the payment of Certificates. All moneys at any time
deposited in the Rebate Fund will be held in trust for
payment to the United States of America as may be required
under the Rebate Certificate.
Tax Covenants
The City and the Corporation covenant in both the Lease and
the Trust Agreement that they will make no use of the proceeds
of the Certificates or of the Project which would jeopardize
the tax-exempt status of interest represented by the
Certificates. An example of an action which could jeopardize
the tax-exempt status of such interest would be the City or the
Corporation allowing the Project to be used for a purpose other
than a governmental or proprietary function authorized by state
law.
Defeasance
The rights and obligations of the parties to the Trust
Agreement will be discharged in one of the following ways:
1. By the City paying all principal~ interest and
prepayment premiums, if any, represented by the
Certificates as such amounts become due;
2. By the City depositing with the Trustee cash in
an amount which, together with other moneys held by the
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Trustee, is sufficient to pay all principal, interest and
prepayment premiums, if any, represented by the
Certificates before their stated maturity; or
3. By the City depositing federal securities (e.g.,
United States Treasury bills) and cash with the Trustee in
an amount which, together with interest earnings on such
federal securities and other funds held by the Trustee, is
sufficient to pay the principal, interest and premium, if
any, represented by the Certificates either at or before
their maturity.
ESCROW AGREEMERT
(Between City of Dublin and First Trust California)
Pursuant to the Escrow Agreement, the City will deposit a
portion of the net proceeds from the sale of the Certificates,
together with certain other moneys held in funds and accounts
relating to the Refunded Certificates, in a fund established
and known as the Escrow Fund. Such amounts are to be invested
in Federal Securities (i.e., U.S. Government Obligations, as
further defined under the Escrow Agreement), the principal o,f
and interest on which will be sufficient to prepay the Refunded
Certificates.
ASSIGRMEBT AGREEMERT
(Between Dublin Information, Inc. and
First Interstate Bank of California)
In order to allow the Trustee to sell the Certificates,
which represent interests in the stream of lease payments to be
made by the City under the Lease, and to perform certain other
acts with respect to the Certificates required by the Lease,
the Corporation assigns certain of its rights under the Lease
to the Trustee pursuant to the Assignment Agreement.
Specifically, the Corporation assigns its right to receive
lease payments, its right to receive the proceeds of certain
insurance on the Project and its right to enforce remedies
under the Lease.
PRELIMINARY OFFICIAL STATEMENT MID OFFICIAL STATEMENT
(Executed by City of Dublin)
The Preliminary Official Statement (the -POS-) and the
Official Statement (the -OS-) serve as disclosure and marketing
documents for the Certificates. The POS and the OS describe
the terms of the financing, the Project and the provisions of
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the legal documents. The POS and the OS also contain
financial, statistical and demographic data relating to the
City and its geographic area which would be of interest to
investors. The POS and the OS are prepared by the City in
conjunction with Rauscher Pierce Refsnes, Inc., the City's
underwriter, and its counsel, and are reviewed by Brown &
Wood. The OS, which will contain the final terms of the
financing, including the principal amount of the Certificates
and interest rates thereon, will be distributed to all actual
purchasers of the Certificates.
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RESOLUTION NO.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN
AUTHORIZING THE EXECUTION, DELIVERY AND SALE OF
RE~lJNDING CERTIFICATES OF PARTICIPATION, AND
AUTHORIZING THE EXECUTION AND DELIVERY OF A TRUST
AGREEMENT, A LEASE AGREEMENT, AN ESCROW AGREEMENT, A
PURCHASE CONTRACT AND AN OFFICIAL STATEMENT AND
CERTAIN OTHER ACTIONS IN CONNECTION THEREWITH
WHEREAS, the City of Dublin (the -City-) is a municipal
corporation duly organized and existing under the laws of the
State of California (the "State-)i and
WHEREAS, in order to refinance the acquisition,
construction, remodeling and/or improvement of certain real
property and public facilities comprising the City's Civic
Center (COllectively, the -Project-) the City and Dublin
Information, Inc. (the -Corporation-) have previously entered
into an Amended and Restated Lease Agreement, dated as of
March 1, 1988 (the -Prior Lease-), whereby the Corporation
agreed to lease the Project and the site thereof (the -Site-)
to the City and the City agreed to lease the Project and the
Site from the Lessor; and
WHEREAS, for the purpose of obtaining the moneys required
to be deposited by it with the Trustee (as defined below) for
refinancing the Project, the Lessee has previously caused to be
executed and delivered its 1988 Refunding Certificates of
Participation (Civic Center Project) in the original aggzegate
principal amount of $17,230,000 (the -Refunded Certificates-),
each evidencing the proportionate interests in lease payments
made by the City under the Prior Lease; and
WHEREAS, the City has determined that it is in the best
interests of the City to provide for the ref~nancing of the
City's obligations under the Prior Lease and, as a result
thereof, to refund the Refunded Certificates; and
WHEREAS, the City has determined that it is in its best
interests to sell and deliver pursuant to the Trust Agreement
(the -Trust Agreement"), by and among the City, the Corporation
and First Interstate Bank of California, as trustee (the
EXHIBIT J--
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-Trustee-) Certificates of Participation (1993 Civic Center
Refunding Project), in an aggregate principal amount not to
exceed $19,000,000 (the -Certificates-), evidencing the
proportionate interest in lease payments to be made by the
City, pursuant to the Lease Agreement (the -Lease Agreement"),
by and between the City and the Corporation; and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF DUBLIN AS FOLLOWS:
SECTION 1. Findinas. The City hereby specifically finds
and declares that the actions authorized hereby constitute and
are with respect to municipal affairs of the City.
SECTION 2. Authorization of Certificates. The City hereby
expresses its intention of refinancing the Project through the
preparation, sale and delivery of the Certificates in an amount
not to exceed $19,000,000.
SECTION 3. Lease Aareement. The form of Lease Agreement,
presented to this meeting and on file with the City Clerk of
the City (the -City C~erk-), is hereby approved. The City
Manager, the Assistant City Manager or the Finance Director or
such other person as shall have been designated by such
officers is hereby authorized and directed, for and in the name
and on behalf of the City, to execute, acknowledge and deliver
to the Corporation said Lease Agreement in substantially said
form, with such changes therein as such officer may require or
approve, such approval to be conclusively evidenced by the
execution and delivery thereof.
SECTION 4. Trust Aareement. The form of Trust Agreement
presented to this meeting and on file with the City Clerk is
hereby approved. The City Manager, the Assistant City Manager
or the Finance Director or such other person as shall have been
designated by such officers is hereby authorized and directed,
for and in the name and on behalf of the City, to execute and
deliver to the Corporation and the trustee thereunder (the
"Trustee") said Trust Agreement in substantially said form,
with such changes therein as such officer may require or
approve, such approval to be conclusively evidenced by the
execution and delivery thereof.
SECTION 5. Escrow Agreement. The form of Escrow Agreement
presented to this meeting and on file with the City Clerk is
hereby approved. The City Manager, the Assistant City Manager
or the Finance Director or such other person as shall have been
designated by such officers is hereby authorized and directed,
for and in the name and on behalf of the City, to execute and
deliver to the Trustee said Escrow Agreement in substantially
2
84420001/6
.
.
said form, with such changes therein as such officer may
require or approve, such approval to be conclusively evidenced
by the execution and delivery thereof.
SECTION 6. Contract of Purchase. The form of Certificate
Purchase Agreement (the -Purchase Contract-) providing for the
purchase of the Certificates by Rauscher Pierce Refsnes, Inc.
(the "Underwriter-) presented to this meeting and on file with
the City Clerk is hereby approved. The City Manager, the
Assistant City Manager or the Finance Director or such other
person as shall have been designated by such officers is hereby
authorized and directed, for and in the name and on behalf of
the City, to execute and deliver to the Underwriter said
Purchase Contrgct in substantially said form, with such changes
therein as such officer may require or approve, such approval
to be conclusively evidenced by the execution and delivery
thereof; provided, however, that the true interest cost with
respect to the Certificates shall not exceed 6.5\, the
underwriting discount (not including original issue discount)
with respect to the Certificates shall not exceed 1.4\ and the
principal amount of the Certificates shall not exceed
$19,000,000.
SECTION 7. preliminarv Official Statement. The form of
Preliminary Official Statement (the -Preliminary Official
Statement-) relating to the Certificates, presented to this
meeting and on file with the City Clerk, is hereby approved.
The Preliminary Official Statement in substantially said form,
with such changes as the officers designated below may require
or approve, such approval to be conclusively evidenced by the
execution and delivery thereof, shall hereinafter be referred
to as the -Official Statement.- The City Manager, the
Assistant City Manager or the Finance Director or such other
person as shall have been designated by such officers is hereby
authorized and directed, for and in the name and on behalf of
the City, to execute and deliver to the Underwriter said
Official Statement and to execute a certificate as to the
finality of the Preliminary Official Statement with respect to
SEC Rule l5c2-l2 under the Securities and Exchange Act of
1934. The Underwriter is hereby authorized to distribute
copies of the Preliminary Official Statement and the Official
Statement to persons who may be interested in the purchase of
the Certificates, and the Underwriter is further directed to
deliver copies of any final Official Statement to all actual
purchasers of the Certificates.
SECTION 8. Attestations. The City Clerk is hereby
authorized and directed to attest the signature of the City
Manager, the Assistant City Manager or the Finance Director and
to affix and attest the seal of the City, as may be required or
3
84420001/6
.
.
appropriate in connection with the execution and delivery of
said Lease Agreement, Trust Agreement, Escrow Agreement,
Purchase Contract or related documents.
SECTION 9. Other Actions. The City Manager, the Assistant
City Manager or the Finance Director and such other officers of
the City as have been designated by the City Manager, the
Assistant City Manager or the Finance Director are hereby
authorized and directed, jointly and severally, to do any and
all things which they may deem necessary or advisable in order
to consummate the sale of the Certificates, including, without
limitation, negotiations with and selection of an insurer to
provide bond insurance on the Certificates, including without
limitation approval of all changes to the Lease Agreement and
Trust Agreement requested by any such insurer which is
selected, and otherwise to carry out, give effect to and comply
with the terms and intent of this Resolution. Such actions
heretofore taken by such officers in connection with the
foregoing are hereby ratified, confirmed and approved.
SECTION 10. Effect. This Resolution shall take effect
immediately upon its passage.
PASSED AND ADOPTED this lOth of May, 1993 by the following vote:
AYES:
Councilmember:
NOES:
Councilmember:
ABSENT:
Councilmember:
Peter W. Snyder
Mayor
[SEAL]
Attest:
Kay Keck
City Clerk
4
84420001/6
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EXHIBIT "nAil
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Brown & Wood
Draft of 5/3/93
Recording Requested By: )
City of Dublin )
)
When Recorded Mail To: )
Brown & Wood )
555 California Street )
Suite 5060 )
San Francisco, California 94104 )
Attn: David G. Casnocha, Esq. ).
This document is recorded for the benefit of the City of Dublin
and recording is fee exempt under §27383 of the Government Code.
LEASE AGREEMENT
Dated as of June 1, 1993
between
DUBLIN INFORMATION, INC. ,
as Lessor
and the
CITY OF DUBLIN,
as Lessee
rymnq
4
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND EXHIBITS
SECTION 1. 1 Definitions and Rules of Construction 2
SECTION 1 . 2 Exhibits 2
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
SECTION 2 . 1 Representations, Covenants and Warranties
of the Lessee 3
SECTION 2 . 2 Representations , Covenants and Warranties
of the Lessor 5
ARTICLE III
PAYMENT OF ADDITIONAL PROJECT COSTS; SUBSTITUTION
SECTION 3 . 1 Deposit of Certificate Proceeds 6
SECTION 3 .2 Payment of Delivery Costs 6
SECTION 3 .3 Substitution and Release 6
SECTION 3 . 4 Further Assurances and Corrective
Instruments 7
ARTICLE IV
AGREEMENT TO LEASE; TERM OF
LEASE; LEASE PAYMENTS
SECTION 4 . 1 Lease 7
SECTION 4 . 2 Term - 7
SECTION 4 . 3 Extension of Lease Term 8
SECTION 4 . 4 Lease Payments 8
SECTION 4 . 5 No Withholding 9
SECTION 4 . 6 Fair Rental Value 9
SECTION 4 . 7 Budget and Appropriation 9
SECTION 4 . 8 Assignment of Lease Payments 10
SECTION 4 . 9 Use and Possession 10
SECTION 4 . 10 Abatement of Lease Payments in Event of
Loss of Use 10
SECTION 4 . 11 Additional Payments 11
SECTION 4 . 12 Net-Net-Net Lease 11
(i)
84420001/3
ARTICLE V
INSURANCE
SECTION 5 . 1 Public Liability and Property Damage 11
SECTION 5 .2 Fire and Extended Coverage Insurance 12
SECTION 5 .3 Rental Interruption Insurance 12
SECTION 5 .4 Title Insurance 12
SECTION 5 . 5 Insurance Net Proceeds; Form of Policies 13
SECTION 5 . 6 Cooperation 14
ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN;
USE OF NET PROCEEDS
SECTION 6 . 1 Application of Net Proceeds 14
ARTICLE VII
COVENANTS WITH RESPECT TO THE PROJECT AND THE SITE
SECTION 7 . 1 Use of the Project and the Site 16
SECTION 7 . 2 Interest in the Project and the Site 16
SECTION 7 . 3 Option to Purchase 17
SECTION 7 .4 Quiet Enjoyment 17
SECTION 7 . 5 Installation of Lessee ' s Personal
Property 17
SECTION 7 . 6 Access to the Project and the Site 17
SECTION 7 . 7 Maintenance, Utilities, Taxes and
Assessments 18
SECTION 7 . 8 Modification of the Project 18
SECTION 7 . 9 Encumbrances 19
SECTION 7 . 10 Lessor ' s Disclaimer of Warranties 20
ARTICLE VIII
ASSIGNMENT, SUBLEASING AND AMENDMENT
SECTION 8 . 1 Assignment by the Lessor 20
SECTION 8 .2 Assignment and Subleasing by the Lessee 20
SECTION 8 .3 Amendments and Modifications 21
(ii)
84420001/3
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9 . 1 Events of Default Defined 21
SECTION 9 .2 Remedies on Default 22
SECTION 9 . 3 No Remedy Exclusive _
SECTION 9 . 4 Agreement to Pay Attoreys ' Fees and
Expenses 25
SECTION 9 . 5 No Additional Waiver Implied by One
Waiver 25
SECTION 9 . 6 Application of the Proceeds from the
Re-Lease of the Project and the Site 25
SECTION 9 . 7 Trustee and Owners to Exercise Rights 25
ARTICLE X
PREPAYMENT OF LEASE PAYMENTS
SECTION 10 . 1 Security Deposit 26
SECTION 10 .2 Mandatory Prepayment From Net Proceeds 26
SECTION 10 .3 Optional Prepayment 26
SECTION 10 .4 Credit for Amounts on Deposit 27
SECTION 10 . 5 Effect of Prepayment 27
ARTICLE XI
MISCELLANEOUS
SECTION 11. 1 Notices 27
SECTION 11. 2 Binding Effect 28
SECTION 11. 3 Severability 28
SECTION 11 .4 Execution in Counterparts 28
SECTION 11 . 5 Applicable Law 28
Exhibit A - Schedule of Lease Payments A-1
Exhibit B - General Description of the Project B-1
Exhibit C - Lease Supplement Form C-1
Exhibit D - Legal Description of the Site D-1
(iii)
84420001/3
•
i
LEASE AGREEMENT
THIS LEASE AGREEMENT, dated as of June 1, 1993 , by and
between DUBLIN INFORMATION, INC. , a nonprofit public benefit
corporation duly organized and existing under the laws of the
State of California, including without limitation Section 5110
et sea. of the Corporations Code of the State of California, as
lessor (the "Lessor" ) , and the CITY OF DUBLIN, a municipal
corporation duly organized and existing under the laws of the
State of California (the "State" ) , as lessee (the "Lessee") ,
amending and restating in its entirety the Amended and Restated
Lease Agreement, dated as of March 1, 1988, by and between the
Lessor and the Lessee;
W I T N E S S E T H :
WHEREAS, in order to refinance the acquisition,
construction, remodeling and/or improvement of certain real
property and public facilities comprising the Lessee' s Civic
Center (collectively, the "Project" ) , the Lessee and the Lessor
have previously entered into an Amended and Restated Lease
Agreement, dated as of March 1, 1988 (the "Prior Lease" )
whereby the Lessor agreed to lease the Project and the site
thereof (the "Site" ) to the Lessee and the Lessee agreed to
lease the Project and the Site from the Lessor; and
WHEREAS, for the purpose of obtaining the moneys required
to be deposited by it with the Trustee (as defined below) for
refinancing the Project, the Lessee has previously caused to be
executed and delivered its 1988 Refunding Certificates of
Participation (Civic Center Project) in the original aggregate
principal amount of $17,230, 000 (the "Refunded Certificates" ) ,
each evidencing the proportionate interests in lease payments
made by the Lessee under the Prior Lease; and
WHEREAS, the Lessee has determined that it is in the best
interests of the Lessee, at this time to provide for the
refinancing of the Project; and
WHEREAS, the Lessee desires to continue to lease the Site
and the Project from the Lessor pursuant to the terms of this
Lease which amends and restates in its entirety the Prior
Lease; and
NOW, THEREFORE, in consideration of the above premises and
of the mutual covenants hereinafter contained and for other
good and valuable consideration, the parties hereto agree as
follows :
ARTICLE I
DEFINITIONS AND EXHIBITS
SECTION 1. 1 Definitions and Rules of Construction. Unless
the context otherwise requires, the capitalized terms used
herein shall, for all purposes of this Lease, have the meanings
specified in the Trust Agreement, dated as of the date hereof,
by and among First Interstate Bank of California, as trustee
thereunder (the "Trustee") , the Lessor, and the Lessee,
together with any amendments thereof or supplements thereto
permitted to be made thereunder; and the additional terms
defined in this Section shall, for all purposes of this Lease,
have the meanings herein specified. Unless the context
otherwise indicates, words importing the singular number shall
include the plural number and vice versa. The terms "hereby" ,
"hereof" , "hereto" "herein" , "hereunder" and any similar
terms, as used in this Lease, refer to this Lease as a whole.
"Permitted Encumbrances" means, as of any particular time:
(i) liens for general ad valorem taxes and assessments, if any,
not then delinquent, or which the Lessee may, pursuant to
provisions of Section 7 . 7 hereof, permit to remain unpaid;
(ii) the Assignment Agreement; (iii) this Lease and the Prior
Lease; (iv) any contested right or claim of any mechanic,
laborer, materialman, supplier, or vendor filed or perfected in
the manner prescribed by law; (v) easements, rights of way,
mineral rights, drilling rights and other rights, reservations,
covenants, conditions or restrictions which exist of record as
of the Closing Date and which the Lessee certifies in writing
will not materially impair the use of the Site or the Project
by the Lessee; and (vi) easements, rights of way, mineral
rights, drilling rights and other rights, reservations,
covenants, conditions or restrictions established following the
date of recordation of this Lease and to which the Lessor and
the Lessee consent in writing .
"Project" means the Project described in Exhibit B' hereto.
"Site" means the site described in Exhibit D hereto .
SECTION 1.2 Exhibits . The following Exhibits are attached
to, and by reference made a part of, this Lease:
Exhibit A: Schedule of Lease Payments to be paid by
the Lessee to the Lessor, showing the Certificate Payment Date
and amount of each Lease Payment .
Exhibit B: General Description of the Project .
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84420001/3
Exhibit C: Lease Supplement Form.
Exhibit D: Legal Description of the Site.
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
SECTION 2 . 1 Representations, Covenants and Warranties of
the Lessee. The Lessee represents, covenants and warrants to
the Lessor as follows :
(a) Due Organization and Existence. The Lessee is a
municipal corporation duly organized and existing under the
laws of the State.
(b) Authorization; Enforceability. The Constitution
and laws of the State authorize the Lessee to enter into this
Lease, the Escrow Agreement and the Trust Agreement, and to
enter into the transactions contemplated by and to carry out
its obligations under all of the aforesaid agreements ; the
Lessee has duly authorized and executed all of the aforesaid
agreements . This Lease, the Escrow Agreement and the Trust
Agreement constitute the legal, valid, binding and enforceable
obligations of the Lessee in accordance with their respective
terms, except. to the extent limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws or
equitable principles affecting the rights of creditors
generally.
(c) No Conflicts or Default; No Liens or
Encumbrances . Neither the execution and delivery of this
Lease, the Escrow Agreement or the Trust Agreement, nor the
fulfillment of or compliance with the terms and conditions
hereof or thereof, nor the consummation of the transactions
contemplated hereby or thereby, conflicts with or results in a
breach of the terms, conditions or provisions of any
restriction or any agreement or instrument to which the Lessee
is now a party or by which the Lessee is bound, or constitutes
a default under any of the foregoing, or results in the
creation or imposition of any lien, charge or encumbrance
whatsoever upon any of the property or assets of the Lessee, or
upon the Project or the Site except for Permitted Encumbrances
and the pledges contained in the Trust Agreement .
(d) Execution and Delivery. The Lessee has duly
authorized and executed this Lease in accordance with the
Constitution and laws of the State.
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84420001/3
(e) Indemnification of Lessor . The Lessee covenants
to defend, indemnify and hold harmless the Lessor and its.
directors and employees (collectively, the "Indemnified Party" )
against any and all losses, claims, damages or liabilities,
joint or several, including fees and expenses incurred in
connection therewith, to which such Indemnified Party may
become subject under any statute or at law or in equity or
otherwise in connection with the transactions contemplated by
this Lease, and shall reimburse any such Indemnified Party for
any legal or other expenses. incurred by it in connection with
investigating any claims against it and defending any actions,
insofar as such losses, claims, damages , liabilities or actions
arise out of the transactions contemplated by this Lease. In
particular, without limitation, the Lessee shall and hereby
agrees to indemnify and save the Indemnified Party harmless
from and against all claims, losses and damages, including.
legal fees and expenses, arising out of (i) the use,
maintenance, condition or management of, or from any work or
thing done on the Project or the Site by the Lessee, (ii) any
breach or default on the part of the Lessee in the performance
of any of its obligations under this Lease, (iii) any act or
negligence of the Lessee or of any of its agents, contractors,
servants, employees or licensees with respect to the Project or
the Site, or (iv) any act of negligence of any assignee or
sublessee of the Lessee with respect to the Project or the
Site. No indemnification is made under this Section or
elsewhere in this Lease for claims, losses or. damages,
including legal fees and expenses arising out of the willful
misconduct, negligence, or breach of duty under this Lease by
the Lessor, its officers, agents, employees, successors or
assigns .
(f) General Tax and Arbitrage Covenant . The Lessee
hereby covenants that, notwithstanding any other provision of
this Lease, it will make no use of the proceeds of the
Certificates or of any other amounts or property regardless of
the source or take any action or refrain from taking any action
that may cause the obligations of the Lessee under this Lease
to be "arbitrage bonds" subject to federal income taxation by
reason of Section 148 of the Internal Revenue Code of 1986, as
amended (the "Code") .
In addition, the Lessee covenants that it will not
make any use of the proceeds of the obligations provided herein
or in the Trust Agreement or any other funds of the Lessee or
take or omit to take any other action that would cause such
obligations to be a "private activity bond" within the meaning
of Section 141 of the Code, or "federally guaranteed" within
the meaning of Section 149 (b) of the Code. To that end, so
long as any Lease Payment is unpaid, the Lessee, with respect
4
84420001/3 - -
to such proceeds and other such funds, will comply with all
requirements of such Sections and all regulations of the United
States Department of the Treasury issued thereunder and under
Section 103 of the Internal Revenue Code of 1954 , as amended,
to the extent that such requirements are, at the time,
applicable and in effect .
SECTION 2 .2 Representations, Covenants and Warranties of
the Lessor . The Lessor represents, covenants and warrants to
the Lessee as follows :
(a) Due Organization and Existence; Enforceabilitv.
The Lessor is a nonprofit public benefit corporation duly
organized, existing and in good standing under and by virtue of
the laws of the State, has the power to enter into this Lease,
the Assignment Agreement and the Trust Agreement; is possessed
of full power to own and hold real and personal property, and
to lease and sell the same; and has duly authorized the
execution and delivery of all of the aforesaid agreements .
This Lease, the Assignment Agreement and the Trust Agreement
constitute the legal, valid, binding and enforceable
obligations of the Lessor in accordance with their respective
terms, except to the extent limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws or
equitable principles affecting the rights of creditors
generally.
(b) No Conflicts or Defaults ; No Liens or
Encumbrances . Neither the execution and delivery of this
Lease, the Assignment Agreement or the Trust Agreement, nor the
fulfillment of or compliance with the terms and conditions.
hereof or thereof, nor the consummation of the transactions
contemplated hereby or thereby, conflicts with or results in a
breach of the terms, conditions or provisions of the Articles
of Incorporation or Bylaws of the Lessor or any restriction or
any agreement or instrument to which the Lessor is now a party
or by which the Lessor is bound, or constitutes a default under
any of the foregoing, or results in the creation or imposition
of any lien, charge or encumbrance whatsoever upon any of the
property or assets of the Lessor, or upon the Project or the
Site except by Permitted Encumbrances and by the pledge
contained in the Trust Agreement .
(c) Execution and Delivery. The Lessor has duly
authorized and executed this Lease in accordance with the
Constitution and laws of the State.
(d) Maintenance of Corporate Existence. To the
extent permitted by law, the Lessor agrees that during the term
hereof it will maintain its existence as a corporation, will
5
84420001/3
not dissolve or otherwise dispose of all or substantially all _
of its assets, if any, will not become a general or limited
partner in any partnership or a joint venturer in any joint
venture and will not combine or consolidate with or merge into
any other entity or permit one or more other entities to
consolidate with or merge into it .
(e) Qualification in California . The Lessor agrees
that throughout the term hereof it will be qualified to do
business in the State.
(f) General Tax and Arbitrage Covenant . The Lessor
covenants that, notwithstanding any other provision of this
Lease, it will make no use of the proceeds of the Certificates
or of any other amounts or property regardless of the source or
take any action or refrain from taking any action that may
cause the obligations of the Lessee under this Lease to be
"arbitrage bonds" subject to. federal income taxation by reason
of Section 141 of the Code, or "federally guaranteed" within
the meaning of Section 149(b) of the Code. To that end, so
long as any Lease Payment is unpaid, the Lessor, with respect
to such proceeds and such other funds, will comply with all
requirements of such Sections and all regulations of the United
States Department of the Treasury issued thereunder and under
Section 103 of the Internal Revenue Code of 1986, as amended,
to the extent that such requirements are, at the time,
applicable and in effect .
ARTICLE III
PAYMENT OF ADDITIONAL. PROJECT COSTS; SUBSTITUTION
SECTION 3 . 1 Deposit of Certificate Proceeds . On the
Closing Date the Lessor agrees to pay or cause to be paid to
the Lessee moneys to be deposited with the Trustee as provided
in Section 2 . 07 of the Trust Agreement .
• SECTION 3 .2 Payment of Delivery Costs . Payment of the
Delivery Costs shall be made from the moneys deposited with the
Trustee in the Delivery Costs Fund as provided in Section 2 . 07
of the Trust Agreement, which shall be disbursed from the
Delivery Costs Fund in accordance and upon compliance with
Article III of the Trust .Agreement .
SECTION 3 .3 Substitution and Release. The Lessee shall
have the right to substitute alternate projects for the Project
listed in Exhibit B or alternate sites to the Site listed in
Exhibit D, but only by providing the Trustee with a supplement
to this Lease substantially in the form attached as Exhibit C
6
84420001/3
d
hereto. The Lessee shall also have the right to release a
portion or portions of the Project listed in Exhibit B or a
portion or portions of the Site listed in Exhibit D, but only
by providing the Trustee with a supplement to this Lease
substantially in the form attached as Exhibit C hereto. All
costs and expenses incurred in connection with any such
substitution or release shall be borne by the Lessee.
Notwithstanding any substitution or release pursuant to this
Section, there shall be no reduction in or abatement of the
Lease Payments due from the Lessee hereunder as a result of
such substitution or release.
SECTION 3 .4 Further Assurances and Corrective
Instruments . The Lessor and the Lessee agree that they will,
from time to time, execute, acknowledge and deliver, or cause
to be executed, acknowledged and delivered, such supplements
hereto and such further instruments as may reasonably be
required for correcting any inadequate or incorrect description
of the Project and the Site hereby leased or intended so to be
or for carrying out the expressed intention of this Lease.
ARTICLE IV
AGREEMENT TO LEASE; TERM OF
LEASE; LEASE PAYMENTS
SECTION 4 . 1 Lease. The Lessor hereby leases the Project
and the Site to the Lessee, and the Lessee hereby leases the
Project and the Site from the Lessor, upon the terms and
conditions set forth herein. The Lessor and the Lessee hereby
agree and acknowledge that this Lease constitutes an amendment
and restatement of the Prior Lease; provided, however, that the
provisions of the Prior Lease regarding defeasance of the
Refunded Certificates shall be given full force and effect as
set forth in Section 10 . 1 thereof .
SECTION 4 . 2 Term. The term of the Prior Lease shall not
terminate pursuant to Section 4 .2 thereof and the term of this
Lease as an amendment and restatement of the Prior Lease shall
commence on the date of execution hereof and shall end on
February 1, 2010, unless extended pursuant to Section 4 .3
hereof, or unless terminated prior thereto upon the earliest of
any of the .following .events :
(a) Default and Termination. A default by the Lessee
and the Lessor ' s election to terminate this Lease under
Section 9 .2 (b) hereof;
(b) Payment of All Lease Payments . The payment by
the Lessee of all Lease Payments required under Section 4 .4
hereof and any additional payments required under Section 4 . 11
hereof; or
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(c) Prepayment . The deposit of funds or Federal
Securities with the Trustee in amounts sufficient to pay all
Lease Payments as the same shall become due, as provided by
Section 10 . 1 hereof and as provided by Section 14 . 01 of the
Trust Agreement .
SECTION 4 . 3 . Extension of Lease Term. If on February 1,
2010, the Certificates shall not be fully paid, or if the Lease
Payments hereunder shall have been abated at any time and for
any reason, then the Term shall be extended until all
Certificates shall be fully paid, except that the Term shall in
no event be extended beyond May 31, 2033 .
SECTION 4 . 4 Lease Payments . -
(a) Time and Amount . Subject to the provisions of
Section 4 . 10 (regarding abatement in event of loss of use of
any portion of the Project or Site) and Article X (regarding
prepayment of Lease Payments) , the Lessee agrees to pay to the
Lessor, its successors and assigns, as annual rental for the
use and possession of the Project and the Site, the Lease
Payments (denominated into components of principal and
interest, the interest components being paid semiannually) in
the amounts specified in Exhibit A, to be due and payable in
arrears on the 25th day of the month (or if such day is not a
Business Day, the immediately preceding Business Day) preceding
the respective Certificate Payment Dates specified in Exhibit A
(the "Lease Payment Date") which are sufficient in both time
and amount to pay when due the annual principal and interest
represented by the Certificates .
(b) Credits . Any amount held in the Lease Payment
Fund on any Lease Payment Date (other than amounts resulting
from the prepayment of the Lease Payments in part but not in
whole pursuant to Section 10 . 2 hereof and other amounts
required for payment of past due principal with respect to any
Certificates not presented for payment or interest) shall be
credited towards the Lease Payment then due and payable. No
Lease Payment need be made on any Lease Payment Date if the
amounts then held in the Lease Payment Fund are at least equal
to the Lease Payment then required to be paid.
(c) Rate on Overdue Payments . In the event the
Lessee should fail to make any of the Lease Payments required
in this Section, the Lease Payment in default shall continue as
an obligation of the Lessee until the amount in default shall
have been fully paid, and the Lessee agrees to pay the same
with interest thereon,, to the extent permitted by law, from the
date such amount was originally payable at the rate equal to
the original interest rate payable with respect to each
Certificate.
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SECTION 4 . 5 No Withholding. Notwithstanding any dispute
between the Lessor and the Lessee, including a dispute as to
the failure of any portion of the Project or the Site in use by
or possession of the Lessee to perform the task for which it is
leased, the Lessee shall make all Lease Payments when due and
shall not withhold any Lease Payments pending the final
resolution of such dispute.
SECTION 4 . 6 Fair Rental Value. The Lease Payments and
Additional Payments shall be paid by the Lessee in considera-
tion of the right of possession of, and the continued quiet use
and enjoyment of, the Project and the Site during each such
period for which said rental is to be paid. The parties hereto
have agreed and determined that such total rental represents
the fair rental value of the Project and the Site. In making
such determination, consideration has been given to the market
value of the Site, the uses and purposes which may be served by
the Project and the benefits therefrom which will accrue to the
Lessee and the general , public . In the event that the Lessee
and the Lessor, agree subsequent to the date hereof that Lease
Payments and Additional Payments hereunder are less than the
fair rental value of the Project, the Lessee and the Lessor may
mutually agree that the Lessee shall increase the Lease
Payments and Additional Payments payable hereunder to reflect
such fair rental value.
SECTION 4 . 7 Budget and Appropriation. The Lessee
covenants to take such action as may be necessary to include
all Lease Payments and Additional Payments (to the extent such
Additional Payments are known to the Lessee at the time its
annual budget is proposed) , due hereunder in its annual budget
and to make the necessary annual appropriations therefor .
During the Term, the Lessee will annually furnish to the
Trustee a certificate of the Lessee Representative stating that
all Lease Payments and Additional Payments due hereunder for
the applicable Fiscal Year have been included in its annual
budget and the amount so included, such certificate to be filed
within thirty (30) days after the adoption of such budget and
in any event no later than September 1 in the calendar year in
which the Lessee adopts such budget . The covenants on the part
of the Lessee herein contained shall be deemed to be and shall
be construed to be duties imposed by law and it shall be the
ministerial duty of each and every public official of the
Lessee to take such action and do such things as are required
by law in the performance of the official duty of such
officials to enable the Lessee to carry out and perform the
covenants and agreements in this Lease agreed to be carried out
and performed by the Lessee.
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SECTION 4 . 8 Assignment of Lease Payments . Certain of the .
Lessor ' s rights under this Lease, including the right to
receive and enforce payment of the Lease Payments to be made by
the Lessee hereunder, have been assigned to the Trustee,
subject to certain exceptions, pursuant to the Assignment
Agreement, to which assignment the Lessee hereby consents . The
Lessor hereby directs the Lessee, and the Lessee hereby agrees
to pay to the Trustee at the Trustee' s corporate trust office
in San Francisco, California, or to the Trustee at such other
place as the Trustee shall direct in writing, all Lease
Payments or prepayments thereof payable by the Lessee
hereunder . The Lessor will not assign or pledge the Lease
Payments or other amounts derived from the Project and the Site
and from its other rights under this Lease except as provided
under the terms of this Lease, or its duties and obligations
except as provided under the Assignment Agreement and the Trust
Agreement.
SECTION 4 . 9 Use and Possession. The total Lease Payments
due in any Fiscal Year (other than the Lease Payments of
advance rental) shall be for the use and possession of the
Project and the Site for the rental period for which such Lease
Payments are due.
SECTION 4 . 10 Abatement of Lease Payments in Event of Loss
of Use. The obligation of the Lessee to pay Lease Payments
shall be abated during any period in which by reason of damage,
destruction or taking by eminent domain or condemnation with
respect to any portion of the Project or the Site there is
substantial interference with the use and possession of such
portion of the Project or the Site by the Lessee. The amount
of such abatement shall be agreed upon between the Lessee and
the Lessor, or alternatively, determined by an independent
market valuation, such that the resulting Lease Payments
represent fair consideration for the use and possession of the
portion of the Project or the Site not damaged, destroyed or
taken. Such abatement shall continue for the period commencing
with such damage, destruction or taking and ending with the
substantial completion. of the replacement or work or repair.
Except as provided herein, in the event of any such damage,
destruction or taking, this Lease shall continue in full force
and effect and the Lessee waives any right to terminate this
Lease by virtue of any such damage, destruction or taking .
There shall be no abatement of Lease Payments to the extent
that moneys derived from any person as a result of any defect
in the construction or installation, as applicable, of any item
or portion of the Project or the Site, are available to pay the
amount which would otherwise be abated. Notwithstanding the
foregoing sentence, however, there shall be no abatement if the
Reserve Fund and the Lease Payment Fund are available to pay
the amount which would otherwise be abated.
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SECTION 4 . 11 Additional Payments . In addition to the
Lease Payments, the Lessee shall also pay such amounts
("Additional Payments") as shall be required for the payment of
all administrative costs of the Lessor relating to the Project
or the Certificates, including without limitation all expenses,
compensation and indemnification of the Trustee payable by the
Lessee under the Trust Agreement, taxes of any sort whatsoever
payable by the Lessor as a result of its ownership of the
Project or undertaking of the transactions contemplated herein
or in the Trust Agreement, fees of auditors, accountants,
attorneys or engineers, and all other necessary administrative
costs of the Lessor or charges required to be paid by it in
order to maintain its existence or to comply with the terms of
the Certificates or of the Trust Agreement or to indemnify the
Lessor and its officers and directors .
SECTION 4 . 12 Net-Net-Net Lease. This Lease shall be
deemed and construed to be a "net-net-net lease" and the Lessee
hereby agrees that the Lease Payments shall be an absolute net
return to the Lessor, free and clear of any expenses, charges
or set-offs whatsoever, except as expressly provided herein.
ARTICLE V
INSURANCE
SECTION 5 . 1 Public Liability and Property Damage. The
Lessee shall maintain or cause to be maintained throughout the
Term of this Lease, but only if and to the extent available at
reasonable cost from reputable insurers, a standard
comprehensive general public liability and property damage
insurance policy or policies in protection of the Lessee, and
its officers, agents and employees . Said policy or policies
shall provide for indemnification of said parties against
direct or contingent loss or liability for damages for bodily
and personal injury, death or property damage occasioned by
reason of the operation of the Project . Said policy or
policies shall provide coverage in the minimum liability limits
of $1, 000, 000 for personal injury or death of each person and
$3, 000, 000 for personal injury or deaths of two or more persons
in each accident or event (subject to a deductible of not to
exceed $250, 000) , and in a minimum amount of $150, 000 (subject
to a deductible of not to exceed $75, 000) for damage to
property resulting from each accident or event. Such public
liability and property damage insurance may, however, be in the
form of a single limit policy in the amount of $3 , 000,000
covering all such risks, subject to a deductible of not to
exceed $250, 000 . Such liability insurance may maintained as
part of or in conjunction with any other l iability insurance
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•
coverage carried by the Lessee, and may be maintained in whole
or in part in the form of self-insurance by the Lessee, subject
to the provisions of Sections 5 . 5 and 5 . 7 hereof . The Net
Proceeds of such liability insurance shall be applied toward
extinguishment or satisfaction of the liability with respect to
which the Net Proceeds of such insurance shall have been paid.
SECTION 5 .2 Fire and Extended Coverage Insurance. The
Lessee shall procure and maintain, or cause to be procured and
maintained throughout the Term of this Lease, insurance against
loss or damage to the Project by fire and lightning, with
extended coverage and vandalism and malicious mischief
insurance. Said extended coverage insurance shall, as nearly
as practicable, cover loss or damage by explosion, windstorm,
riot, aircraft, vehicle damage, smoke and such other hazards as
are normally covered by such insurance. Such insurance shall
be 'in an amount at least equal to the lesser of (a) the
aggregate principal amount of the Outstanding Certificates, or
(b) the replacement cost of the Project . Such insurance may be
subject to deductible clauses of not to exceed $100, 000 for any
one loss . Such insurance may be maintained as part of or in
conjunction with any other fire and extended coverage insurance
carried by the Lessee and may be maintained in whole or in part
in the form of self-insurance by the Lessee, subject to the
provisions of Sections 5 . 5 and 5 . 7 hereof . The Net Proceeds of
such insurance shall be applied as provided in Section 6 . 1.
SECTION 5 .3 Rental Interruption Insurance. The Lessee
shall procure and maintain, or cause to be procured and
maintained throughout the Term of this Lease, rental
interruption or use and occupancy insurance to cover loss,
total or partial, of the use of the Project as a result of any
of the hazards covered in the insurance required by Section
5 .2, in an amount at least equal to the maximum Lease Payments
allocable to the Project and coming due and payable during any
two consecutive Fiscal Years . The Net Proceeds of such
insurance shall be paid to the Trustee and deposited in the
Lease Payment Fund, and shall be, credited towards the payment
of the Lease Payments in the order in which such Lease Payments
come due and payable.
SECTION 5 .4 Title Insurance. Prior to or concurrent with
the recordation hereof, the Lessee shall provide, at its own
expense, a CLTA title insurance policy in the amount of not
less than the aggregate principal amount of the Certificates,
insuring the Lessee' s leasehold estate in the Site hereunder .
All Net Proceeds received under such policy shall be deposited
with the Trustee in the Lease Payment Fund and shall be
credited towards the prepayment of the remaining Lease Payments
pursuant to Section 6 . 1 hereof .
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SECTION 5 . 5 Insurance Net Proceeds; Form of Policies .
Each policy of insurance required by Sections 5 .2 , 5 .3 and 5 .4
hereof shall name the Trustee as loss payee so as to provide
that all proceeds thereunder shall be payable to the Trustee.
The Lessee shall pay or cause to be paid when due the premiums
for all insurance policies required by this Lease. All such
policies shall provide that the Trustee shall be given thirty
(30) days ' notice of each expiration, any intended cancellation
thereof or reduction of the coverage provided thereby. The
Trustee shall not be responsible for the sufficiency of any
insurance herein required and shall be fully protected in
accepting payment on account of such insurance or any
adjustment, compromise or settlement of any loss . The Lessee
shall cause to be delivered to the Trustee annually, within
sixty (60) days following the close of each Fiscal Year, a
certificate stating that the insurance coverage required by
this Lease is in full force and effect .
In the event that any insurance required pursuant to
Sections 5 . 1 or 5 .2 hereof shall be provided in the form of
self-insurance, the Lessee shall file with the Trustee
annually, concurrent with the delivery of the certificate
described in the preceding paragraph, a statement of the risk
manager of the Lessee or an independent insurance advisor
engaged by the Lessee identifying the extent of such
self-insurance and stating the determination that the Lessee
maintains sufficient reserves with respect thereto . In the
event that any such insurance shall be provided in the form of
self-insurance by the Lessee, the Lessee shall not be obligated
to make any payment with respect to any insured event except
from such reserves .
The Lessee covenants that' so long as any insurance
maintained with respect to the Project is maintained in the
form of self-insurance, in the event that the Lessee terminates
any such program of self-insurance, it will maintain sufficient
reserves or obtain a replacement insurance policy to cover any
obligations that may thereafter arise during the Term hereof
with respect to occurrences during the period for which such
self-insurance was maintained. .
It is hereby acknowledged by the Lessee and the Lessor that
the Lessee may obtain insurance through the ABAG Plan
Corporation in satisfaction of the requirements of
Sections 5 . 1, 5 .2 and 5 . 3 hereof, so long as such insurance
shall be in compliance with the provisions of this Article V.
It is hereby further acknowledged by the Lessee and the Lessor
that such insurance obtained from the ABAG Plan Corporation
shall not constitute self-insurance pursuant to the terms of
this Article V.
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SECTION 5 . 6 Cooperation. The Lessor shall cooperate fully
with the Lessee at the expense of the Lessee in filing any
proof of loss with respect to any insurance policy maintained
pursuant to this Article and in the prosecution or defense of
any prospective or pending condemnation proceeding with respect
to the Project or any portion thereof .
ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN;
USE OF NET PROCEEDS
SECTION 6 . 1 Application of Net Proceeds,.
(a) Deposit in Net Proceeds Fund. Pursuant to
Section 7 . 01 of the Trust Agreement, the Trustee shall deposit
Net Proceeds of insurance which it receives in the Net Proceeds
Fund as provided in Section 5 .2 hereof (regarding fire and
extended coverage insurance) and Section 5 .4 hereof (regarding
title insurance) promptly upon receipt thereof . The Lessee
and/or the Lessor shall transfer to the Trustee any other Net
Proceeds received by the Lessee and/or Lessor in the event of
any accident, destruction, theft or taking by eminent domain or
condemnation with respect to the Project, for deposit in the
Net Proceeds Fund.
(b) Disbursement for Replacement or Repair of the
Project . Upon receipt of the certification described in
paragraph (1) below and the requisition described in
paragraph (2) below, the Trustee shall disburse moneys in the
Net Proceeds Fund to the person, firm or corporation named in
the requisition as provided in Section 7 . 02 of the Trust
Agreement.
(1) Certification. The Lessee Representative
must certify to the Lessor and the Trustee that :
(i) Sufficiency of Net Proceeds . The Net
Proceeds available for such purpose, together with any
other funds supplied by the Lessee for such purpose,
are sufficient therefor, and
(ii) Timely Completion. In the event that
damage or destruction results in an abatement. of Lease
Payments, such replacement or repair can be fully
completed within a period not in excess of the period
in which rental interruption insurance proceeds will
be available to pay in full all Lease Payments coming
due during such period as described in Section 5 . 3
hereof .
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(2) Requisition. The. Lessee Representative must
state with respect to each payment to be made (i) the
requisition number, (ii) the name and address of the
person, firm or corporation to whom payment is due,
(iii) the amount to be paid and (iv) that each obligation
mentioned therein has been properly incurred, is a proper
charge against the Net Proceeds Fund, has not been the
basis of any previous withdrawal, and specifying in
reasonable detail the nature of the obligation, accompanied
by a bill or a statement of account for such obligation.
Any balance of the Net Proceeds remaining after such
replacement or repair has been completed and after payment or
provision for payment of all Certificates as provided in
Section 7 . 02 of the Trust Agreement shall be paid to the Lessee .
(c) Disbursement for Prepayment . If the Lessee
Representative notifies the Trustee in writing of the Lessee' s
determination that the certification provided in
Section 6 . 1(b) (1) cannot be made and replacement or repair of
any portion of the Project is not economically feasible or in
the best interest of the Lessee, then the Trustee shall
promptly transfer the Net Proceeds to the Prepayment Fund as
provided in Section 7 . 02 of the Trust Agreement and apply them
to prepayment of the Certificates as provided in Section 4 . 02
of the Trust Agreement and prepayment of Lease Payments as
provided in Section 10 .2 hereof; provided that in the event of .
damage or destruction in whole of the Project and in the event
such Net Proceeds, together with funds then on hand in the
Lease Payment Fund and Reserve Fund are not sufficient to
prepay all the Certificates then Outstanding, then the Lessee
shall not be permitted to certify that repair, replacement or
improvement of all of the Project is not economically feasible
or in the best interest of the Lessee. In such event, the
Lessee shall proceed to repair, replace or improve the Project
as described herein from legally available funds in the then
current fiscal year and shall make the required notification to
the Trustee pursuant to Section 7 . 02 of the Trust Agreement and
the Trustee shall disburse moneys in the Net Proceeds Fund to
the person, firm, or corporation named in the Requisition as
provided therein. Notwithstanding the foregoing, as an
alternative to repair, replacement or improvement of the
Project as provided in the immediately preceding sentence, the
Lessee shall be permitted to substitute all or a portion of the
Project and the Site pursuant to Section 3 .3 hereof , in which
event any Net Proceeds not needed to repair, replace or improve
the Project as a result of such substitution shall be
transferred to the Lessee.
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ARTICLE VII
COVENANTS WITH RESPECT TO THE PROJECT AND THE SITE
SECTION 7 . 1 Use of the Project and the Site. The Lessee
represents and warrants that it has an immediate need for, and
expects to make immediate use of, all of the Project and the
Site, which need is not temporary or expected to diminish in
the foreseeable future. The Lessee agrees not to give priority
in the appropriation of funds for the acquisition or use of any
additional equipment or facilities, as the case may be,
performing functions similar to that performed by the Project
if such priority would adversely affect the interests of the
Owners of the Certificates .
SECTION 7 . 2 Interest in the Project and the Site.
(a) Lessor Holds Leasehold Interest During Term.
During the term of this Lease,, the Lessor shall hold title to
the Project, and any and all additions which comprise repairs,
replacements and modifications except for those modifications
which are added to the Project by the Lessee and which may be
removed without material damage to the Project and the Site.
Notwithstanding any provisions under the Prior Lease to the
effect that title to the Project and the Site shall vest in the
Lessee upon deposit of Federal Securities (as defined in the
Prior Lease) with the Trustee, including, Sections 4 . 6 and 10 . 1
thereof, the Lessor and the Lessee hereby acknowledge and agree.
that the title to the Project and the Site shall not vest with
the Lessee pursuant to the Prior Lease upon the deposit of
Federal Securities (as defined in the Prior Lease) with the
Trustee and that the Lessor ' s title to the Project and the Site
as provided under. the Prior Lease is continued and maintained
under this Lease as an amendment and restatement of such Prior
Lease. Notwithstanding the foregoing, title to the Project and
the Site shall vest with the Lessee pursuant to the terms of
Sections 7. 2 (b) and 10 . 1 hereof . The Lessor and the Lessee
shall take any and all actions reasonably required, including
but not limited to executing and filing any and all documents,
reasonably required to maintain and evidence their respective
interests in the Project and the Site at all times during the
Term of this Lease.
(b) Interest Transferred to Lessee at End of Term.
Upon ,expiration of the Term as provided in Section 4 . 2 hereof
(except if such expiration is caused by a default of the Lessee
as described in Section 4 . 2(a) ) , all right, title and interest
of the Lessor in and to all of the Project and the Site shall
be transferred to and vest in the Lessee without the necessity
of any additional document of transfer .
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SECTION 7 .3 Option to Purchase. The Lessee may exercise
an option to purchase the Lessor ' s interest in the Project by
paying a purchase price therefor equal to the amounts necessary
to cause the termination of the Term as provided in Section 4 .2
hereof .
SECTION 7. 4 Quiet Enjoyment . During the Term, the Lessor
shall provide the Lessee with quiet use and enjoyment of the
Project and the Site, and the Lessee shall during such Term
peaceably and quietly have and hold and enjoy the Project and
the Site, without suit, trouble or hindrance from the Lessor,
or any person or entity claiming under or through the Lessor
except as expressly set forth in this Lease. The Lessor will,
at the request of the Lessee, join in any legal action in which
the Lessee asserts its right to such possession and enjoyment
to the extent the Lessor may lawfully do so. Notwithstanding
the foregoing, the Lessor shall have the right to inspect the
Project and the Site as provided in Section 7 . 6 hereof .
SECTION 7. 5 Installation of Lessee' s Personal Property.
The Lessee may at any time and from time to time, in its sole
discretion and at its own expense, install or permit to be
installed other items of equipment or other personal property
in or upon any portion of the Site or the Project . All such
items shall remain the sole personal property of the Lessee,
regardless of the manner in which the same may be affixed to
such portion of the Site or the Project, in which neither the
Lessor nor the Trustee shall have any interest, and may be
modified or removed by the Lessee at any time; provided that
the Lessee shall repair and restore any and all damage to such
portion of the Site or the Project resulting from the
installation, modification or removal of any such items of
equipment . Nothing in this Lease shall prevent the Lessee from
purchasing items to be installed pursuant to this Section,
provided that no lien or security interest shall attach to any
part of the Site or the Project .
SECTION 7. 6 . Access to the Project and the Site. The
Lessee agrees that the Lessor, any Lessor Representative and
the Lessor ' s successors, assigns or designees shall have the
right at all reasonable times to enter upon the Project and the
Site or any portion thereof to examine and inspect the Project
and the Site. The Lessee further agrees that the Lessor, any
such Representative, and the Lessor ' s successors, assigns or
designees shall have such rights of access to the Project and
the Site as may be reasonably necessary to cause the proper
maintenance of the Project and the Site in the event of failure
by the Lessee to perform its obligations hereunder .
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SECTION 7 . 7 Maintenance, Utilities , Taxes and Assessments .
(a) Maintenance; Repair and Replacement . Throughout
the Term of this Lease, as part of the consideration for the
rental of the Project and the Site, all repair and maintenance
of the Project and the Site shall be the responsibility of the
Lessee, and the Lessee shall pay for or otherwise arrange for
the payment of the cost of the repair and replacement of the
Project and the Site resulting from ordinary wear and tear or
want of care on the part of the Lessee or any sublessee
thereof . In exchange for the Lease Payments herein provided,
the Lessor agrees to provide only the Project and the Site, as
hereinbefore more specifically set forth. The Lessee waives
the benefits of subsections 1 and 2 of Section 1932 of the
California Civil Code, but such waiver shall not limit any of
the rights of the Lessee under the terms of this Lease.
(b) Tax and Assessments ; Utility Charges . The
Lessee shall also pay or cause to be paid all taxes and
assessments, including but not limited to utility charges of
any type or nature charged to the Lessor or the, Lessee or
levied, assessed or charged against any portion of the Project
or the Site or the respective interests or estates therein;
provided that with respect to special assessments or other
governmental charges that may lawfully be paid in installments
over a period of years, the Lessee shall be obligated to pay
only such installments as are required to be paid during the
Term of this Lease as and when the same become due.
(c) Contests . The Lessee may, at its expense and in
its name, in good faith contest any such taxes, assessments,
utility and other charges and, in the event of any such
contest, may permit the taxes, assessments or other charges so
contested to remain unpaid during the period of such contest
and any appeal therefrom; provided that prior to such
nonpayment it shall furnish the Lessor and the Trustee with the
opinion of an Independent Counsel, to the effect that, by
nonpayment of any such items, the interest of the Lessor in
such portion of the Project or the Site will not be materially
endangered and that the Project or the Site will not be subject
to loss or forfeiture. Otherwise, the Lessee shall promptly
pay such taxes, assessments or charges or make provisions for
the payment thereof in form satisfactory to the Lessor . The
Lessor will cooperate fully in such contest, upon the request
and at the expense of the Lessee.
SECTION 7 . 8 Modification of the Project .
(a) Additions , Modifications and Improvements . The
Lessee 'shall, at its own expense, have the right to make
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additions , modifications, and improvements to any portion of
the Project if such improvements are necessary or beneficial
for the use of such portion of the Project. All such
additions, modifications and improvements shall thereafter
comprise part of the Project and be subject to the provisions
of this Lease. Such additions, modifications and improvements
shall not in any way damage any portion of the, Project or cause
it to be used for purposes other than those authorized under
the •provisions of State and federal law or in any way which
would impair the State tax-exempt status or the exclusion from
gross income for federal income tax purposes of the interest
components of the Lease Payments; and the Project, upon
completion of any additions, modifications and improvements
made pursuant to this Section, shall be of a value which is not
substantially less than the value of the Project immediately
prior to the making of such additions, modifications and
improvements .
(b) No Liens . Except for Permitted Encumbrances, the.
Lessee will not permit any mechanic ' s or other lien to be
established or remain against the Project or the Site for labor
or materials furnished in connection with any additions,
modifications or improvements made by the Lessee pursuant to
this Section; provided that if any such lien is established and
the Lessee shall first notify or cause to be notified the
Lessor of the Lessee' s intention to do so, the Lessee may in
good faith contest any lien filed or established against the
Project or the Site, and in such event may permit the items so
contested to remain undischarged and unsatisfied during the
period of such contest and any appeal therefrom and shall
provide the Lessor with full security against any loss or
forfeiture which might arise from the nonpayment of any such
item, in form satisfactory to the Trustee as assignee of the
Lessor . The Lessor will cooperate fully in any such contest,
upon the request and at the expense of the Lessee.
SECTION 7 . 9 Encumbrances . Except as provided in this
Article VII (including without limitation Section 7 . 8 hereof
and this Section 7 . 9) , the Lessee shall not, directly or
indirectly, create, incur, assume or suffer to exist any
mortgage, pledge, liens, charges, encumbrances or claims, as
applicable, on or with respect to the Project or the Site,
other than Permitted Encumbrances and other than the respective
rights of the Lessor and the Lessee as herein provided. Except
as expressly provided in this Article VII , the Lessee shall
promptly, at its own expense, take such action as may be
necessary to duly discharge or remove any such mortgage,
pledge, lien, charge, encumbrance or claim, for which it is
responsible, if the same shall arise at any time; provided that
the Lessee may contest such liens if it desires to do so. The
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Lessee shall reimburse the Lessor for any expense incurred by
it in order to discharge or remove any such mortgage, pledge,
lien, charge, encumbrance or claim.
SECTION 7 . 10 Lessor ' s Disclaimer. of Warranties .. THE
LESSOR MAKES NO 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 LESSEE OF THE PROJECT, THE SITE OR ANY
PORTION THEREOF. THE LESSEE ACKNOWLEDGES THAT THE LESSOR IS
NOT A MANUFACTURER OF PORTIONS OF THE PROJECT OR THE SITE, AND
THAT THE LESSEE IS LEASING THE PROJECT AND THE SITE AS IS. In
no event shall the Lessor be liable for incidental, indirect,
special or consequential damages, in connection with or arising
out of this Lease, the Escrow Agreement or the Trust Agreement
for the existence, furnishing, functioning or Lessee ' s use and
possession of the Project and the Site.
ARTICLE VIII
ASSIGNMENT, SUBLEASING AND AMENDMENT
SECTION 8 . 1 Assignment by the Lessor . Except as provided
herein, in the Trust Agreement and the Assignment Agreement,
the Lessor will not assign this Lease to any other person, firm
or corporation so as to impair or violate the representations,
covenants and warranties contained in Section 2 . 2 hereof .
SECTION 8 . 2 Assignment and Subleasing by the Lessee.
(a) Assignment . This Lease may be assigned by the
Lessee so long as such assignment does not, in the opinion of
Special Counsel, adversely affect the State tax-exempt status
or the exclusion from gross income for federal income tax
purposes of the interest component of the Lease Payments . In
the event that this Lease is assigned by the Lessee, the
obligation to make Lease Payments hereunder shall remain the
obligation of the Lessee.
(b) Sublease. The Lessee may sublease all or any
portion of the Project or the Site, subject to all of the
following conditions :
(i) This Lease and the obligation of the Lessee
to make Lease Payments hereunder shall remain -
obligations of the Lessee;
(ii) No sublease by the Lessee shall cause the
Project or the Site to be used for a purpose other
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than a governmental or proprietary function authorized
under the provisions of the laws of the State; and
(iii) No sublease shall cause the interest
component of the Lease Payments due with respect to
the Project and the Site to become subject to federal
income taxes or State personal income taxes .
SECTION 8 .3 Amendments and Modifications . This Lease may
be amended or any of its terms modified with the written
consent of the Lessee and the Trustee as assignee of the
Lessor, subject to and in accordance with Article X of the
Trust Agreement.
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
SECTION 9 . 1 Events of Default Defined. The following
shall be "events of default" under this Lease and the terms
"events of default" and "default" shall mean, whenever they are
used in this Lease, any one or more of the following events :
(a) Payment Default . Failure by the Lessee to pay
any Lease Payment required to be paid hereunder by the next
succeeding Certificate Payment Date following each
corresponding Lease Payment Date; provided, however, that
such failure shall not constitute an event of default if
the amounts so unpaid have been transferred from the
Reserve Fund or other special fund source to the Lease
Payment Fund to make such Lease Payments pursuant to the
terms of. the Trust Agreement .
(b) Covenant Default . Failure by the Lessee to
observe and perform any warranty, covenant, condition or
agreement on its part to be observed or performed herein or
otherwise with respect hereto or in the Trust Agreement,
other than as referred to in clause (a) of this Section,
for a period of 30 days after written notice specifying
such failure and requesting that it be remedied has been
given to the Lessee by the Lessor, the Trustee or the
Owners of not less than twenty percent (20%) in aggregate
principal amount of Certificates then Outstanding;
provided, however, if the failure stated in the notice
cannot be corrected within the applicable period, the
Trustee, as assignee of the Lessor, or such Owners, as the
case may be, shall not unreasonably withhold their consent
to an extension of such time if corrective action is
instituted by the Lessee within the applicable period and
diligently pursued until the default is corrected.
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(c) Bankruptcy or Insolvency. The filing by the
Lessee of a case in bankruptcy, or the subjection of any
right or interest of the Lessee under this Lease to any
execution, garnishment or attachment, or adjudication of
the Lessee as a bankrupt, or assignment by the Lessee for
the benefit of creditors, or the entry by the Lessee into
an agreement of composition with creditors, or the approval
by a court of competent jurisdiction of a petition
applicable to the Lessee in any proceedings instituted
under the provisions of the federal bankruptcy code, as
amended, or under any similar act which may hereafter be
enacted.
SECTION 9 . 2 Remedies on Default . Whenever any event of
default referred to in Section 9 . 1 hereof shall have happened
and be continuing, it shall be lawful for the Lessor to
exercise any and all remedies available pursuant to law or
granted pursuant to this Lease. Notwithstanding anything
herein or in the Trust Agreement to the contrary, THERE SHALL
BE NO RIGHT UNDER ANY CIRCUMSTANCES TO ACCELERATE THE LEASE
PAYMENTS OR OTHERWISE DECLARE ANY LEASE PAYMENTS NOT THEN IN
DEFAULT TO BE IMMEDIATELY DUE AND PAYABLE. After the
occurrence of an event of default hereunder, the Lessee will
surrender possession of the Project and the Site to the Lessor,
if requested to do so by the Lessor, the Trustee or the Owners,
in accordance with the provisions of the Trust Agreement .
(a) No Termination: Repossession and Re-Lease on
Behalf of Lessee. In the event the Lessor does not elect to
terminate this Lease in the manner hereinafter provided for in
subparagraph (b) hereof, the Lessor may, with the consent of
the Lessee, which consent is hereby irrevocably given,
repossess the Project and the Site and re-lease it for the
account of the Lessee, in which event the Lessee ' s obligation
will accrue from year to year in accordance with this Lease and
the Lessee will continue to receive the value of the use of the
Project and the Site from year to year in the form of credits
against its obligation to pay Lease Payments . The obligations
of the Lessee shall remain the same as prior to such default,
to pay fixed Lease Payments whether the Lessor re-enters or
not . The Lessee agrees to and shall remain liable for the
payment of all Lease Payments and the performance of all
conditions contained herein and shall reimburse the Lessor for
any deficiency arising out of the re-leasing of the Project and
the Site, or, in the event the Lessor is unable to re-lease the
Project or the Site, then for the full amount of all Lease
Payments to the end of the Term of this Lease, but said Lease
Payments and/or deficiency shall be payable only at the same
time and in the same manner as provided above for the payment
of Lease Payments hereunder, notwithstanding such repossession
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by the Lessor or any suit, brought by the Lessor for the
purpose of effecting such repossession of the Project and the
Site or the exercise of any other remedy by the Lessor .
The Lessee hereby irrevocably appoints the Lessor as the
agent and attorney-in-fact of the Lessee to repossess and
re-lease the Project and the Site in the event of default by
the Lessee in the performance of any covenants contained herein
to be performed by the Lessee and to remove all perscnal
property whatsoever situated upon the Project and the Site, to
place such property in storage or other suitable place in the
County of Alameda, for the account of and at the expense of the
Lessee, and the Lessee hereby exempts and agrees to save
harmless the Lessor from any costs, loss or damage whatsoever
arising or occasioned by any such repossession and re-leasing
of the Project and the Site. The Lessee hereby waives any and
all claims for damage caused or which may be caused by the
Lessor in repossessing the Project and the Site as provided
herein and all claims for damages that may result from the
destruction of or the injury to the Project and the Site and
all claims for damages to or loss of any property belonging to
the Lessee that may be in or upon the Project or the Site.
The Lessee agrees that the terms of this Lease constitute
full and sufficient notice of the right of the Lessor to
re-lease the Project and the Site in the event of such
repossession without effecting a surrender of this Lease, and
further agrees that no acts of the Lessor in effecting such
re-leasing shall constitute a surrender or termination of this
Lease irrespective of the term for which such re-leasing is
made or the terms and conditions of such re-leasing, or
otherwise, but that, on the contrary, in the event of such
default by the Lessee the right to terminate this Lease shall
vest in the Lessor to be effected in the sole and exclusive
manner provided for in subparagraph (b) below. The Lessee
further waives the right to any rental obtained by the Lessor
in 'excess of the Lease Payments and hereby conveys and releases
such excess to the Lessor as compensation to the Lessor for its
services in re-leasing the Project and the Site.
(b) Termination: Repossession and Re-Lease. In the
event of the termination of this Lease by the Lessor at its
option and in the manner hereinafter provided on account of
default by the Lessee (and notwithstanding any repossession of
the Project and the Site by the Lessor in any manner whatsoever
or the re-leasing of the Project and the Site) , the Lessee
nevertheless agrees to pay to the Lessor all costs, losses or
damages howsoever arising or occurring payable at the same time
and in the same manner as is provided herein in the case of
payment of Lease Payments . Any proceeds of the re-lease or
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other disposition of the Project or the Site by the Lessor
shall be deposited into the Lease Payment Fund and be applied
in accordance with the provisions of Section 5 . 04 of the Trust
Agreement . Any surplus received by the Lessor from such .
re-leasing shall be the absolute property of the Lessor and the
Lessee shall have no right thereto, nor shall the Lessee be
entitled to any credit in the event of a surplus in the rentals
received by the Lessor from the Project or the Site. Neither
notice to pay rent or to deliver up possession of the Project
and the Site given pursuant to law nor any proceeding taken by
the Lessor to recover possession of the Project and the Site
shall of itself operate to terminate this Lease, and no
termination of this Lease on account of default by the Lessee
shall be or become effective by operation of law, or otherwise,
unless and until the Lessor shall have given written notice to
the Lessee of the election on the part of the Lessor to
terminate this Lease. The Lessee covenants and agrees that no
surrender of the Project or the Site for the remainder of the
Term hereof or any termination of this Lease shall be valid in
any manner or for any purpose whatsoever unless stated or
accepted by the Lessor by such written notice. No such
termination shall be effected either by operation of law or act
of the parties hereto, except only in the manner herein
expressly provided.
The Lessor and Lessee hereby agree that Section 1951.2 of
the California Civil Code shall apply to this Lease and that
upon such termination, the Lessor may recover, in addition to
all other damages available by contract or at law, from the
Lessee: (i) the worth at the time of award of the unpaid
rental which had been earned at the time of termination;
(ii) the worth at the time of award of the amount by which the
unpaid rental which would have been earned. after termination
until the time of award exceeds the amount of such rental loss .
that the Lessor proves could have been reasonably avoided;
(iii) the worth at the time of award of the amount by which the
unpaid rental for the balance of the term after the time of the
award exceeds the amount of such rental loss that the Lessor
proves could have been reasonably avoided; and (iv) any other
amount necessary to compensate the Lessor for all the detriment
proximately caused by the Lessee' s failure to perform its
obligations under this Lease or which in the ordinary course of
things would be likely to result therefrom. The "worth• at the
time of award" of the amounts referred to in clauses (i) , (ii)
and (iii) above is computed by allowing interest at the. legal
rate of interest per annum at which judgments for money in the
State bear interest .
SECTION 9 . 3 No Remedy Exclusive. No remedy conferred
herein upon or reserved to the Lessor is intended to be
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exclusive and every such remedy shall be cumulative and shall
be in addition to every other remedy given under this Lease or
now or hereafter existing at law or in equity. No delay or
omission to exercise any right or power accruing upon any
default shall impair any such right or power or shall be
construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be
deemed expedient . In order to entitle the Lessor to exercise
any remedy reserved to it in this Article it shall not be
necessary to give any notice, other than such notice as may be
required in this Article or by law.
SECTION 9 .4 Agreement to Pay Attorneys ' Fees and
Expenses . In the event either party to this Lease should
default under any of the provisions hereof and the
nondefaulting party should employ attorneys or incur other
expenses for the collection of moneys or the enforcement of
performance or observance of any obligation or agreement on the
part of the defaulting party contained herein, the defaulting
party agrees that it will pay on demand to the nondefaulting
party the reasonable fees of such attorneys and such other
expenses so incurred by the nondefaulting party.
SECTION 9 . 5 No Additional Waiver Implied by One Waiver .
In the event any agreement contained in this Lease should be
breached by either party and thereafter waived by the other
party, such waiver shall be limited to the particular breach so .
waived and shall not be deemed to waive any other breach
hereunder.
SECTION 9 . 6 Application of the Proceeds from the Re-Lease
of the Project and the Site. All amounts received by the
Lessor under this Article IX (other than as provided in
Section 9 . 2 (b) herein regarding certain surplus) shall be
deposited by the Trustee in the Lease Payment Fund and credited
towards the Lease Payments .
SECTION 9 . 7 Trustee and Owners to Exercise Rights . Such
rights and remedies as are given to the Lessor under this
Article IX have been assigned by the Lessor to the Trustee
under the Trust Agreement and the Assignment Agreement, to
which assignment the Lessee hereby consents . Such rights and
remedies shall be exercised by the Trustee and the Owners as
provided in the Trust Agreement .
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ARTICLE X
PREPAYMENT OF LEASE PAYMENTS
SECTION 10 . 1 Security Deposit . Notwithstanding any other
provision of this Lease, the Lessee may, on any date, secure
the payment of Lease Payments by a deposit by it with the
Trustee of cash and/or Federal Securities as provided in
Section 14 . 01 of the Trust Agreement . In such event, all
obligations of the Lessee under this Lease, and all security
provided by this Lease for said obligations, shall cease and
terminate, excepting only the obligation of the Lessee to make,
or cause to be made, Lease Payments from such deposit . On the
date of said deposit title to the Project and the Site shall
vest in the Lessee automatically and without further action by
the Lessee or the Lessor (except as provided herein) ; provided
that title shall be subject to the subsequent payment of Lease
Payments made from said deposit in accordance with the
provisions hereof . Said deposit shall be deemed to be and
shall constitute a special fund for the payment of Lease
Payments in accordance with the provisions of this Lease. The
Lessor shall execute and deliver such further instruments and
take such further action as may reasonably be requested by the
Lessee for carrying out the title transfer of the Project and
the Site.
SECTION 10 .2 Mandatory Prepayment From Net Proceeds . The
Lessee shall be obligated to prepay the Lease Payments in whole
or in part, from and to the extent of any Net Proceeds
theretofore deposited in the Prepayment Fund pursuant to
Section 7 . 02 of the Trust Agreement . The Lessee and the Lessor
hereby agree that such Net Proceeds shall be credited towards
the Lessee' s obligations hereunder (except in the case of such
prepayment of the Lease Payments in whole) for the Lease
Payments due on the Lease Payment Dates designated by the
Lessee.
SECTION 10 .3 Optional Prepayment . Subject to the terms
and conditions of this Section 10 . 3 , the Lessor hereby grants
an option to the Lessee to prepay in whole or in part, the
principal amount of such Lease Payments specified in writing by
the Lessee subject to and in accordance with Section 4 . 03 of
the Trust Agreement, on the dates and at the prepayment prices
provided therein. The Lessee shall execute said option by
giving written notice to the Trustee thereof at least 60 days '
prior to the date of prepayment and depositing with said notice
(1) accrued interest on the principal amount to be prepaid to
the date of prepayment, plus (2) any Lease Payments then due
but unpaid, plus (3) any prepayment premium described in said
Section 4 . 03; provided that no such prepayment shall occur in a
principal amount of less than $20, 000 plus any premium
applicable.
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s
SECTION 10 . 4 Credit for Amounts on Deposit . In the event
of prepayment of the principal components of the Lease Payments
in full under this Article X such that the Trust Agreement
shall be discharged by its terms as a result of such
prepayment, all amounts then on deposit in the Lease Payment
Fund and the Reserve Fund shall be credited toward the amounts
then required to be so prepaid.
SECTION 10 . 5 Effect of Prepayment ..
(a) In Whole. In the event that the Lessee prepays
all remaining Lease Payments (including any amounts owed to the
Trustee) either by making a security, deposit with the Trustee
as provided in Section 10 . 1 hereof, from Net Proceeds as
provided in Section 10 . 2 hereof or from optional prepayment as
provided in Section 10 .3 hereof, the Lessee' s obligations under
this Lease shall thereupon cease and terminate, including but
not limited to the Lessee ' s obligation to continue to pay Lease
Payments under this Article X.
(b) In Part . In the event the Lessee prepays less
than all of the remaining principal components of the Lease
Payments pursuant to Section 10 .2 hereof (from Net Proceeds) ,
the amount of such prepayment shall be applied to reduce the
principal components of the remaining Lease Payments designated
by the Lessee, corresponding to the resulting prepayment of
principal with respect to the Certificates .
ARTICLE XI
MISCELLANEOUS
SECTION 11 . 1 Notices . All notices, certificates or other
communications hereunder shall be sufficiently given and shall
be deemed to have been received five Business Days after
deposit in the United States mail in certified form, postage
prepaid, to the Lessee or the Lessor, as the case may be, at
the following addresses :
If to the Lessee:
City of Dublin
100 Civic Plaza
Dublin, California 94568
Attention: City Manager
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If to the Lessor :
Dublin Information, Inc.
c/o City of Dublin
100 Civic Plaza
Dublin, California 94568
Attention: City Manager
The Lessor and the Lessee, by notice given hereunder, may
designate different addresses to which subsequent notices,
certificates or other communications will be sent .
SECTION 11.2 Binding Effect . This Lease shall inure to
the benefit of and shall be binding upon the Lessor and the
Lessee and their respective successors and assigns .
SECTION 11.3 Severability. In the event any provision of
this Lease shall be held invalid or unenforceable by a court of
competent jurisdiction, such holding shall not invalidate or
render unenforceable any other provision hereof .
SECTION 11.4 Execution in Counterparts . This Lease may be.
executed in any number of counterparts, each of which shall be
an original and all of which shall constitute but one and the
same instrument.
SECTION 11 . 5 Applicable Law. This Agreement shall be
governed by and construed in accordance with the laws of the
State of California .
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IN WITNESS WHEREOF, the Lessor has caused this Lease to be
executed in its name by its duly authorized officers , and the
Lessee has caused this Lease to be executed in its name by its
duly authorized officers, as of the date first above written.
DUBLIN INFORMATION, INC. ,
as Lessor
By
CITY OF DUBLIN,
as Lessee
By
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84420001/3
STATE OF CALIFORNIA )
) ss .
COUNTY OF )
On before me,
[insert date]
personally appeared of Dublin
Information, Inc. , personally known to me, or proved to me on
the basis of satisfactory evidence to be the person whose name
is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, or the entity
upon behalf of which person acted, executed the instrument .
WITNESS my hand and official seal .
Signature [Seal]
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STATE OF CALIFORNIA )
) ss .
COUNTY OF )
On before me,
[insert date]
personally appeared of the
City of Dublin, personally known to me, or proved to me on the
basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument and acknowledged to me that
he executed the same in his authorized capacity, and that by
his signature on the instrument the person, or the entity upon.
behalf of which person acted, executed the instrument.
WITNESS my hand and official seal .
Signature [Seal]
•
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EXHIBIT A
SCHEDULE OF LEASE PAYMENTS
Certificate
Payment Principal Interest Total
Date Component Component Payment
A-1
84420001/3
EXHIBIT B
GENERAL DESCRIPTION OF THE PROJECT
B-1
84420001/3
EXHIBIT C
LEASE SUPPLEMENT FORM
There is hereby subjected to the terms of that certain
Lease Agreement, dated as of June 1, 1993 (the "Lease") ,
between Dublin Information, Inc . ( "Lessor" ) and the City of
Dublin, California ("Lessee") the following items which shall
comprise the Project and/or the Site, as defined therein:
[Legal Description of Substituted Real Property and Facilities
Note that such description shall be a restated description
of the Project and Site which may constitute (i) the real
property and facilities substituted in whole or in part for the.
Project and Site as previously defined (along with any
remaining unsubstantiated portion of the Project and/or Site)
or (ii) a portion of the previous Project and Site after
release of a portion of such Project and Site. ]
I , the Lessee Representative, hereby certify that:
(1) the fair rental value and the useful life of the
above-described real property and facilities to be substituted
for the real property and facilities which previously
constituted all or a portion of the Project and the Site at
least equals the fair rental value and the useful life
represented by the Lease Payments (as defined under the Lease)
remaining to be paid under the Lease;
(2) the above-described substituted real property and
facilities are currently owned by the Lessee;
(3) to the extent such real property has been substituted,
the Lessee has obtained title insurance on the above-described
real property in compliance with the provisions of Section 5 . 4
of the Lease; and
(4) The above-described real property and facilities
constitute property which is essential to the operations of the
Lessee.
I , the Lessee Representative, hereby further certify that
the above-described real property and facilities being
substituted are free and clear of all liens or claims other
than Permitted Encumbrances (as defined under the Lease) ,
C-1
84420001/3
J
except for the lien of the Trust Agreement referred to in the
Lease and the rights of the Lessee under the Lease.
CITY OF DUBLIN
By:
Lessee Representative
DUBLIN INFORMATION, INC.
By:
Lessor Representative
C-2
84420001/3
EXHIBIT D
LEGAL DESCRIPTIONS OF THE SITE
D-1
84420001/3