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HomeMy WebLinkAbout5.2 Public Fac Cert of Part:;, ~~l~ .. CITY OF DUBLIN AGENDA STATEMENT CITY COtTNCIL MEETTNG DATE: December 1$, 19$5 SUBJECT PUBLIC HEARING;.' Resolution Approving the Issuance by `the City of its l9$5 Certif-cafes of Participation (Public Facilities Project No. 1) and the execution of certain. documents and approving the terms thereof EXHIBITS ATTACHED Resolution; Lease, Agency and Trust Agreements are identical to those Agreements attached to the- proceeding Ordinance RECOMMENDATION l} Open public hearing 2) Receive Staff Report and public testimony 3} Close public hearing 4.} Deliberate 5}.:Adapt. Resolution ~gZNANCIAL STATEMENT: This Resolution provides fax' the issuance of $11,96$,000 in Certificates of Participation for the financing of the acquisition and construction of `Public Facilities Project No. 1 DESCRIPTION 'The attached Resolution authorizes the issuance by the City of Dublin of ~$ll,9b$,000 in Certificates of Participation for the ' purpose of financing Public Facilities Project No. 1. This Certificates of Participation issue is in accordance with the Lease, Agency and Trust Agreements adopted by the City as part of its adoption of Ordinance This Resolution also approves the final form of the Lease Agreement, Agency Agreement and Trust Agreement subject to such changes, additions or deletions as nnay be recommended by Bond Counsel for the intended transaction. The Resolution also provides that a Preliminary Offering Statement is to be filed with the City Clerk and approved by the City Manager. The Preliminary Offering Statement will be prepared by tie purchaser of the Certificates. The Resolution also authorizes the modifications of the- Preliminary Offering Statement to a Final Official Statement subject to `the approval by Bond Counsel and the City Manager. The Reso~.ution also specifies how the proceeds of the Certificates are to be spent. The Resolution appoints Dublin Information, Inc., as Trustee for the City and the owners of the Certificates as provided for in the Trust .Agreement. The Resolution'approves the farm of the Certificates which wzll be presented to the Council at the meeting. ~'he Resolution provides that a `Purchase Contract be filed with the City' Clerk and approved by the Gity Manager and sobs Earth the purchase price of the Certificates and the payment schedule for the` interest on the Certificate as well as principal. -The Resolution provides that the City accepts the terms of the Certificates and authorizes 'the Mayor or the City Manager to accept the offer made in the Purchase Contract. `Mr. Robert Haight, Bond Counsel for the City, will be present to explain the `mechanics of th Resolution and answer any questions which the Council may have. COPIES T0: ,ITEM N0 .: ~• RESOLUTION NO. - $5 _ A RESOLUTION OF THE CITY COUNCIL. OF THE CITY OF .DUBLIN APPROVING THE ISSUANCE BY THE CITY OF DUBLIN OF ITS 19$5 CERTIFICATES OF PARTICIPATION (PUBLIC FACILITIES PROJECT N0. 1) AND THE EXECUTION OF CERTAIN DOCUMENTS AND APPROVING TERMS THEREOF WHEREAS, the City of Dublin, California (the "City"), a municipal corporation duly created and existing pursuant to the laws of the State of California, has previously undertaken actions preparatory to the incurring of certain obligations in connection with the construction, financing and .acquisition of .certain public facilities and.improvements within the City; and WHEREAS, the City, December. 9, 19$5, authorized Government Code Section 6066 considering a proposed lease complex and related facility December 1$, 19$5, by .and be and the City; and pursuant to Resolution No. 132-$5, on the publication of a notice in accordance with .concerning a public hearing for the purpose of transaction in connection with a civic center pursuant to the Lease Agreement dated as of tween Dublin Information, Inc. (the "Lessor"), WHEREAS, subject to such duly noticed public hearing, the City adopted Ordinance No. 3t,.-$5, on December 1$, 19$5, approving such lease transaction and approving and authorizing the execution of related financing documents in connection with such transaction as set forth in the Trust Agreement dated as of December 1$, 19$5, by and among the Lessor,. the Lessor as Trustee and the City providing for the. issuance by the Lessor as Trustee of $11,96$,000 Certificates of Participation (the "Certificate"J, Evidencing Proportionate Ownership nterst of the Holder Thereof in Payments to be Made by the City of Dublin .(County of Alameda, California) As the Rental for certain Real Property and Pursuant to a Lease Agreement, subject to final approval of any. amendments, modifications and changes as required to the Lease Agreement, the Trust Agreement of any other related document or agreement and subject further to the approval by the City of the financial provisions with respect to the issuance and delivery of the Certificates; and WHEREAS, the City deems it desirable to authorize the issuance of the Certificates to facilitate and finance such transaction as contemplated by the Lease Agreement and to approve the final financial terms with respect to the issuance and delivery of the Certificates. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF DUBLIN, CALIFORNIA, DOES HEREBY RESOLVE, DETERMINE AND ORDER AS FOLLOWS: Section 1. The issuance of a principal amount of $11,96$,000 of Certificates of Participation, Evidencing Proportionate Ownership Interest of the Holder Thereof in Payments to be Made by the City of Dublin (County of Alameda, California) As the Rental for certain Real Property and Pursuant to a Lease Agreement (the "Certificates"}, for the public purposes -1- of the City aiding in the financing of the Lease Agreement dated as of December 1$, 1g$5, and for other purposes related thereto, is hereby authorized and approved. .Section 2. The City hereby approves the final form of the Lease Agreement. by and between the City and Dublin Information, Inc. (the "Lessor"), substantially in the form as attached hereto as Exhibit "A", the Trust Agreement by and among the City, the Lessor and the Lessor as Trustess (the "Trustee"),.substantially in the form as attached hereto as Exhibit "B", and the Agency Agreement between the City and the Lessor, substantially in the form as attached hereto as Exhibit."C". The City further authorizes the execution of the final form of such documents when the same shall be presented for execution by the Mayor and the City Clerk or such other appropriate City official, subject to such changes, additions or deletions as may be recommended by Bond Counsel for the intended transaction contemplated therein. The. execution thereof by the Mayor and City Clerk or such appropriate City official shall be deemed to be conclusive as the approval thereof by and on behalf of the City. Section 3. The proposed form of the Trustee Agreement with the Trustee presented at this meeting and on file with the .City Clerk is hereby approved, and the Mayor and City Clerk are hereby authorized and directed, for and in the name of the City, to execute such Agreement with the Trustee. Said Agreement shall be executed in .substantially the form hereby approved, with such changes, additions or deletions. as may be recommeded by Bond Counsel. The execution thereof by the Mayor and City Clerk, or such other authorized officer, shall be deemed to be conclusive as to the approval thereof by and on behalf of the City. Section 1,.. The Preliminary Offering Statement relating to the Certificates is to be filed with the City Clerk and approved by the City Manager, and the prior distribution of such Freliminary Offering Statement by the purchaser of the Certificates is hereby ratified. ...,The City hereby authorizes and directs that the Preliminary Offering Statement may be converted to a Final Official Statement together with such changes or modifications as deemed desirable by Bond Counsel and the City Manager. The Mayor or City Manager is hereby authorized to execute and deliver said Fianl Offering Statement to the purchaser of the Certificates. Section 5. The Certificates shall be sold and issued as hereinafter provided in such aggregate principal amount, not to exceed $11,96$,000 as may be specified in the Purchase Contract hereinafter mentioned. The purposes for which the proceeds of the Certificates shall.. be expended .are the. use of Gertificate proceeds to undertake the capital expenditure project as described and as provided in the Lease Agreement and such other purposes as are set forth in the Trust Agreement.. Section 6. Dublin Information, Inc., Dublin, California, is hereby appointed as Trustee for the City and the owners of the Certificates, with the duties and powers of such Trustee as set forth in the Trust Agreement. Section 7. The form of the Certificates as set forth Agreement as the Trust Agreement may be modified pursuant to Resolution) is hereby approved. in the Trust this -2- ~ ~ Section $. The Purchase Contract is to be filed with the City Clerk and approved by the City Manager and Certificates to be issued pursuant thereto are hereby approved. As .set forth more fully in the Purchase Contract, the purchase price of the Certificates is $11,96$,ODO, representing an aggregate principal amount of $11,96$,000, plus accured interest thereon. from December 1$,.19$5, to date of delivery, and less a discount of ( ) to be established; interest on the Certificates sha11 be payable commencing August 1, 19$6, and semiannually thereafter on each. February 1 and August 1 until maturity; the Certificates shall mature on February 1 of each year and in the principal amounts and bear interest at the. rates of interest per annum set forth below:. Year Amount Rate 19$7 19$$ 19$9 1990 1991 1992 1993 1994 1995 1996 1997 199$ 1999 2000 2001 2002 2003 2004 2005 200.6 2007 200$ 2009 2010 $46$,000 $500,000 $500,.000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,000 $500,.000 $500,000 $500,000. $ 500 , 000 $500-, 000 $500,000 $500,000. $500,000 The City hereby accepts and approves the foregoing terms of the Certificates and the Purchase Contract of which such terms are a part, and the Mayor or the City Manager is herby authorized and directed to evidence the City's acceptance of the offer made by .said. Purchase Contract by executing and delivering said Purchase Contract in said form with such. .changes therein as the Officers executing the same may approve, such approval to be conclusively evidenced by the execution and delivery thereof . Section g. The City Manager or other authorized officer of the City is hereby authorized and directed to execute one or more requisitions authorizing the Trustee under the aforesaid Trust Agreement, to pay the casts of issuance of the Certificates. pursuant to the Trust Agreement. -3- Section 10. The officers of the City are hereby authorized and directed, joint y and severally, to do any and all things to execute and deliver any and all documents. which they may. deem. necessary or advisable in order to consummate the issuance, sale and delivery of the Certificates,... and otherwise to effectuate the purposes of this Resolution; and such actions. as previously taken by such officers are hereby ratified and confirmed . Section 11. This Resolution shall take effect upon adoption. PASSED, APPROVED AND ADOPTED this 1$th day of December, 19$5• AYES: NOES: ABSENT: Mayor o the City of Dublin, California ATTEST: City lerk o the City of Dublin, California STATE OF CALIFORNIA.) CITY CLERK'S CERTIFICATE OF AUTHENTICATION COUNTY OF ALAMEDA )ss CITY OF DUBLIN ) I, Richard C. Ambrose, City Clerk. in and for the City. of Dublin, DO HEREBY CERTIFY that the foregoing is a full, true and correct copy of Resolution No. of said City and that said Resolution was adopted at the time and by the vote stated on the above certificate, and has not. been amended or repealed. City Clerk of the City of Dublin, California _~,_ `f ,c ~ ~ ! f LEASE AGREEMENT RELATING TO PUBLIC FACILITIES PROJECT NO. l by-and between DUBLIN .INFORMATION, INC. and CITY. OF DUBLIN Dated as of December 18, 1985 CPrt~~+'.~_ates of Participation evidencing ownership intexests of the owners and holders thereof in and to thin Lease Agreement wi17. be delivered in accordance with the providions of a Trust Agreement datsd as of December 18, 1985. ~X.l~c ~or f'~{- -. ' TABLE OF CONTENTS 4 Section 1.01. Section 1.02. Section 1.03. Section 1.04. Section 1.05. Section 2.01. Section 2.02. Section 3.01. Section 3.02. Section 3.03. Section 3..04. Section 3.05. Section 3.06. Section 3.07. Section 3.08. Sectis~n 3.09. Section 3.10. Section 3..11. Section 3.12. Section 3.13. Section 3.14. Section 3.15. Sect~n 3.16. Section 3.17. Section 3.18. Section 4.01. Section 4.02. Section 4.03. Section 4.04. Section 4.05. Section 4.06. ARTICLE I RECITALS. Page Status and Powers of .the .Lessor 2 Status and Powers of the City 2 Purpose of Agreement 2 Public Benefit 2 Acknowledgment of Status of Land 2 ARTICLE II DEFINITIONS AND GENERAL PROVISIONS Defisiitions in General Rules of Construction ARTICLE ILL LEASE OF PROJECT; LEASE PAYMENTS Deposit of Moneys Grant of Easement for Access Construction of Project Payment of Project Costs Commencement of the Lease Term Termination of the Lease Term Enjoyment of Presject Payments to Constitute A Current Expense of the City Payment of Base Payments Interest Component Manner of Payment Continuation of Lease Non-appropriation Disposition of Base Payments and Additional Payments Additional Payments Title to the Project 8 Security Interest Payment in .Lawful Money; No Set Off ARTICLE IV COVENANTS Improvements rlaintenance and Utilities Public Liability Insurance Worker's Compensation Insurance Fore and Special Extended Coverage Endorsement - 2 - 3 .. 3 4 4 4 5 5 5 5 5 6 6 6 6 7 7 7 8 8 9 9 9 9 9 10 -. ~. 1 '~ Page Section 4.07. Form of Insurance Policies; Deliver 10 .Section 4.08. Inability try Obtain Earthquake Insurance 10 Section 4.09. Application of Net Proceeds of Insurance 10 Sect~n 4.10. Title Insurance 11 Section 4.11. Applicatit~n of Net Proceeds of Title Insurance or Condemnation 11 Section 4.12. Payment of Lease Payments 12 Section 4.13. Compliance with this Agreement 12 Section 4.14. Payment of Taxes 12 Section 4.15. Observance of Laws and Regulations 12 Section 4.16. Maintain and .Preserve the Project 13 Section 4,17. Other Liens 13 Section 4.18. Against Encumbrances of Sales 13 Section 4,19.. Prosecution and Defense of Suits ~ 13 Section 4.20. Recordation and Filing 14 5ectir~n 4.21. Waiver of Laws 14 Section 4.22. Compliance with Conditions Precedent 14 Section 4.23. Power to EntQx Into Agreement 14 Section 4.24. Further Assurance. 14 Section 4.25. Financial. Reports 14 Section 4 , 26 . Lessor Not Liable 14 Section 4.27. Operation of Project Section 4.28. Furnishing and Equipping. of .Project 15 Section 4.29. Furnishing Additional Information 15 Section 4.30. Value for Condemnation 15 ARTICLE V DISCLAIMER OF WARRANTIES; ACCESS; ASSIGNMENT Section 5.01. Disclaimer of Warranties 16 Section 5.02. Lessor Access to the Project 16 ARTICLE VI EVENTS OF DEFAULT AND REbIEDIES Seen 6.01. Events. of Default Defined 17 Section 6.02. , Remedies on Default 17 Section 6.03. Suits at Law or in Equity and Mandamus 18 Section 6.04. Non-Waiver 18 Section 6.05. Remedies Not Exclusive 19 Section 6.06. Status Quo 19 ARTICLE VIL ADMINISTRATIVE PROVISIONS Section 7.01. Preservation and Inspection of Documents 20 Section 7.02. Parties of Interest 20 Section 7.03. No Recourse: Under Agreement 21 Section 7.04. Notices 21 _ 3 Section .7.05. Binding `Effect 21 Section 7.06. Severability ~ 21 Section 7.07. Headings 21 Section 7.08. Applicable Law 21 Section 7.09. Lessor and City Representatives 21 Section 7.10. Form of Certificates of Officers 21 Section 7.11. Successor to Lessor 21 Exhibit "A" Definition Exhibit "B" Description Exhibit "C" Lease Term and Lease Payment Amounts - 4 _ t LEASE AGREEMENT RELATING TO PUBLIC FACILITIES PROJECT NO. 1 THIS LEASE AGREEMENT RELATING TO PUBLIC. FACILITIES PROJECT N0. 1, made and entered into as of December 18, 1985, by and between. Dublin Information, Inc. , a public benefit nonprofit corporation duly organized .and existing under the laws of the State of California (herein called the "lessor") , and the City of Dublin (herein called the "City") , a mut"dal corporation of the State of California. WITNESSETH: In consideration of the mutual covenants hereinafter contained and for other valuable consideration, the parties hereto do hereby agree as follows: - 1 - -- ARTICLE I RECITALS Section 1.01. Status and Powers of the Lessor. The Lessor is a corporation duly authorized and existing under the laws of the. State of California. Seen 1.02. .Status and Powers of the City . The .City is a municipal corporation of the State of California duly organized and operating pursuant to the laws of the State of California. The City is desirous of leasing certain facilities in order to provide improvements to the Dublin Civic. Center .Complex and Related Facility (the °Project") . The City is authorized by Government Code Sections. 37350 and 373$0 to lease real and personal property in order to achieve its public purposes. Section 1.03. Purpose of Agreement. The City desires to lease the Project from the Lessor and the Lessor desires to lease the Project to the City . The purpose of this Agreement is to effectuate said transaction by setting forth the terms and conditions relating thereto. Section 1.04. Public Benefit. This Agreement is for the benefit of the public and is in furtherance of the public purposes of the City . Section 1.05. Acknowledgment of Status of Land. The Lessor and the City acknowledge. that the Lessor is the owner of the land more particularly described on Exhibit "B" attached hereto and by this reference incorporated herein . - 2 - ARTICLE II DEFINITIONS AND GENERAL. PROVISIONS Section 2.01. Defis~itions in .General. The terms defined in Exhibit "A" attached heretA and by this reference incorporated herein, as used and capitalized herein, shall, for all purposes of this Agreement, have the meanings ascribed to them in said Exhibit "A", unless the context clearly requires some other meaning.. In addition, the term "Agreement" as used herein means this Lease Agreement Relating to Public Facilities .Project No. 1. Section 2.02. Rules of Construction. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context otherwise. indicates, words importing. the singular number shall include the plural number and vice versa, and words importing persons shall include corporations and associations, including public bodies, as well as natural persons. The farms "hereby" , "hereof ' , "here" , "herein" , "hereunder" , .and any similar terms,. as used in this Agreement, refer to this Agreement. - 3 ARTICLE ILI LEASE OF PROJECT; LEASE PAYMENTS Seen 3.01. Deposit of Moneys. In order tp induce the City to lease the Project from the Lessor and to assure the City that the moneys needed to pay the Project Costs will be available for this purpose without delay, the Lessor immediately fallowing recordation. of this Agreement by the City, shalll deposit with the Trustee, or cause to be deposited with the Trustee, the sum of $11, X68,000. Of this amount, approximately $11,968,000 .less discount, is required to be deposited. in the Acqui_~ition and Construction Account held by the Trustee pursuant to the Trust Agreement for the City and any remaining amount is required to be deposited in the Lease Payment Account held by the Trustee pursuant to the Trust Agreement for the City. In addition, accrued. interest will be deposited with the Trustee in the. Lease Payment Account. Sectifln 3.02. Grant of Easement for Access. In order to enable the Lessor to carry out the terms of this Agreement, to provide for the acquisii-ion and construction of the Project and to exercise remedies in the event of a default by the City under this Agreement, and for other valuable consideration, the City hereby grants and conveys to the Lessor, its agents and its assigns a nonexclusive easement. for vehicular and pedestrian ingress and egress upon and over the land identified in Exhibit "B" attached hereto, and all necessary easements for the construction, maintenance, use and operation of the Project. The City represents that it is empowered to grant and convey such easement and that such grant and conveyance does not violate the terms of any lease, indenture or other agreement to which it is a party. The terms of such easement. shall be for a period of fifty (50) years commencing on the date of this Agreement. Lease Payments may be earlier paid in full, in which case such easement shall terminate upon the date on which Lease Payments have been paid in full. Section 3.03.. Construci~on of Project. The Lessor agrees to acquire and construct the Project pursuant to the plans and specifications submitted to and approved by the City. The Lessor shall appoint the City as its agent for the purposes of construction of the Project. The Lessor recognizes that the City has heretr~fore performed a portion of the work for the Project and acknowledges that such is hereby deemed to have been performed by the City on behalf of the Lessor. The City, as agent of the Lessor shall cause the construction to be performed. diligently to the end that the Project wilt be substantially competed in accordance with the aforesaid plans and speofications on or prior to the Completion Date. The City agrees that upon, substantial completion of any .portion of the Project it will take possession of that portion of the Project under the terms and provisions of this Agreement. No changes shalt be made in such plans and specifinations unless such changes are approved in writing by the City . Upon completion of construct~n of the Project satisfactory try the City, the City sha71 deliver to the Lessor a certificate of completion thereof executed by an Authorized Officer of the City. If the Lessor, for any reason whatsoever, cannot deliver possession of the completed Project try the City by the Completion Date, this Agreement shall not be void or voidable, nor shall the Lessor be liable to the City for any loss or damage resu]#~ng therefrom;. but in such.. event the remaining Lease Payments pertaining to the Project shall be abated, in the proportion that the construct~n - 4 - cost of the portion of the Project not so delivered bears to the entire Project Costs of the Project, with respect try the period between the Completion Date and the time when the Lessor is able to deliver possession of such portion of the Presject. Section 3.04. Payment of Project Costs. Payment for the construction of the Project, as well as all other Project Costs, shall be made from the moneys deposited with the Lessor as Trustee as provided in Section 3.01,. which moneys shall be disbursed for such purpose in accordance and upon compliance with Article IV of the Trust Agreement. Section 3.05. Commencement of the Lease Term. The Lease Term shall commence as of December 18, 1985, and shall terminate on February 1, 2010. The Lease Term shall continue from year-to-year as shown on Exhibit "C" attached hereto and made a part hereof, upon appropriation by the City of sufficient legally available funds try make payment of the Base Payments, .Additional Payments and any other payments due hereunder payable during such Lease Term.. The Base Payments shall be as provided in Exhibit "C" of this Lease. Payments of interest due under this Lease shalt be due and payable to the Lessor semiannually on July 15 and January 15, commencing July 15, 1986, as set forth in Exhibit "C" of this Lease. Payments of princapat shall. be due and payable to the Lessor on January 15, 1987, and each January 15 thereafter through January 15, 2010 as set forth in Exhibit "D" of this Lease. Section 3.06. Termination of the Lease Term. The Lease Term shall terminate upon the earliest of any of the following events: (a) the occurrence of an Event of Non-appropriation pursuant. to this Lease; (b) an Event of Default and the Lessor's election to terminate this Lease under Article VI of this Lease; or (c) the last day of the Lease Term of this Lease, upon payment of all Base Payments and all ether payments due hereunder. Section 3.07. Enjoyment of Project. The Lessor hereby covenants that the City shall during the Lease Term peaceably and. quietly have and hold and enjoy the Project without suit, trouble or hindrance from the Lessor, except as expressly required or permitted herein.. The Lessor shalt not interfere with the quiet use and enjoyment of the Project by the City during the Lease Term so long as no Event of Non-appropriation or Event of Default sha11 have occurred.. The Lessor shall, at the request of the City .and at the cost of the City, join and cooperate fully in any legal action in which the City asserts its right to such possession and enjoyment to the extent that the Lessor may lawfully do so. In addition,. the City asserts its right to such possession and. enjoyment to the extent that the Lessor may lawfully do so. In addition, the City may at its own expense join in any legal action affecting its possession and enjoyment of the Project and shall be joined in any action affecting its ~i~il;t-;Ps hereunder. The Lessor shalt. have the right at all reasonable times upon reasonable notice during business 1 hours to enter into and upon the Project for the purpose of .inspecting the same.: Section 3.08. Payments to Constitute a Current Expense of the City. The City and the Lessor understand and intend that the obligatipn of the City to pay Base Payments, Additional Payments and other payments hereunder constitutes _ 5 a current expense of the City and shall not in any way be construed to be a debt of the City in contravention of any applicable constitutional or statuix~ry limitation or other requirements concerning the creation of indebtedness by the City, nor shall anything contained herein. constitute a pledge of any revenues, funds or moneys of the City. Base payments and Additional Payments. due hereunder shall be be payable only from current funds which are budgeted and appropriated, or otherwise legally available, for the purpose of paying Base Payments, Additional Payments or other payments due hereunder as consideration for use of the Project during the Fiscal Year of the City for which such funds were budgeted and appropriated or otherwise. made legally available for such purpose. This Lease shall not create an immediate indebtedness for any aggregate payments which may become due hereunder in the event that the Lease Term is continued. Neither the City, nor the Lessor on its behalf, has pledged the fu11 faith and credit of .the. City, the Stag of California or any agency or department thereof tc> the payment of the Base Payments, Addit~nal Payments, any other payments due hereunder,. or the interest thereon. Section 3.09.. Payment of Base Payments. The City shall pay Base Payments to the Lessor for distribution to the Certificate Holders in accordance with this Lease and the Trust Agreement during the Lease Term as herein provided. The Base Payments during the Lease Term shall be the amounts in the "Total Base Payment" column as set forth in Exhibit "C" of this Lease. Payments of interest due under this Lease shall be due and payable to the lessor semiannually on July 14 and January 15, commencing July 15, 1986, as set forth in Exhibit "C" of this Lease. .Payments of principal sha11 be due and payable on January 15, 1987, and each January 15 thereafter through January set forth in Exhibit "C" of this Lease. 15, 2010, as Section 3.10. Interest Component. A portion. of each Base Payment is paid as, and represents payment of, interest, and Exhibit "C" of this Lease sets forth the interest component of each Base Payment. Section 3.11. Manner of Payment. Each Base Payment, Additional Payment and Optir~nal Prepayments, if any, shall be paid exclusively. from general funds of the City and .from other funds legally available and in lawful money of the United States of America to the Lessor at its grinci_pal office. The obligations of the City to make payment of the Base Payments and Additional Payments required hereunder and to perform and observe the other covenants and agreements contained herein shall be absolute and- uncondi.#sonal in a71 events except as expressly provided under the Lease. Notwithstanding any dispute between the City and the Lessor, any contractor or subcontracts~r retained with respect to the construction of the Project, any supplier of labor or materials in connection therewith or any other person, the City shall make all payments of Base Payments and Additional Payments when due and shall not withhold any Base Payments and Additional Payments pending final resolution of such disputes nor shall the City assert any right of setoff or counterclaim against its obligation ts~ make such payments required under this. Lease. The ob]igation of the City to make Base Payments and Additional Payments during the Lease Term shall be absolute and unconditional and in all events, except as expressly provided in this Lease, payment of the Base Payments shall not be abated through accident or unforeseen circumstances . Section 3.12. Continuation of Lease. The City intends to continue to Igase the Presject for the entire Lease Term and to pay the Base. Payments .and Additional Payments hereunder. .The City reasonably believes that legally available - 6 - funds of an amount sufficient to make all Base Payments and Additional Payments during the Lease Term can be obtained. The City covenants that it will take all procedural steps .lawfully within its power to obtain and maintain funds. from which all payments may be made, including provisions for such payments to the extent necessary in each budget approved and exhausting all available admini.~trative reviews and appeals in .the event such portion of the budget is not approved.. Section 3.13. Non-appropriation. In the event that sufficient funds shall not be appropriated and budgeted for the payment of Base Payments and Additional Payments required to be paid in the next occurring Fiscal Year, and if the City has no funds legally available from other sources, an event of non-appropriation shall be deemed to have cccurred, and the City may terminate this Lease at the end of the then current Fiscal Year. In that event, the City shall not be obligated to make payment of the Base Payments and Additional Payments beyond the then current Fiscal Year. The City agrees to deliver notice of such germination to the Lessor at least ninety (90) days prior to the end of the then current Fiscal Year, but .failure tra give such notice shalt not extend the Lease Term beyond the end of such Fiscal Year. Upon the occurrence of an event of non-appropriation, the City sha11 continue to be liable try the Lessor for the Base Payments, Additional Payments and any other payments due hereunder which are allocable to any period during which the City shalt continue to occupy the Project. The City shall in all events. vacate the Project no later than ninety (90) days subsequent to a termination of this Lease by reason of an event of non-appropriation or an event of default. Neither the failure of the City to vacate the Project immediately upon the occurrence of an event of non-appropriation or an event of default, nor the acceptance by the Lessor of any .Base Payments or any other payments allocable to any period durng which the. City shall remain on the Project shalt be deemed a renewal of this. Lease or a waiver of any such event of non-appropriation or .event of default. The .Lessor shall, upon the occurrence of an event of non-appropriation, be entitled to all moneys then on hand and being held in all funds created hereunder as Trustee for the benefit of the holders of the Certificates. All property, funds and rights acquired by the Lessor upon the termination of this Lease by reason of an event of non-apprcpriation or an Event of Default as provided herein, less any moneys due and owing to the Lessor for services performed as Lessor and Trustee, sha11 be held by the Lessor as Trustee for the benefit of the C ertificat~ Holders . . Section 3.14. Disposition of Base Payments and Additional Payments. Upon receipt by the Lessor of each Base Payment or any Additional Payments, the Lessor shall apply the amount of such Base. Payments and. such Additional Payments as provided in the Trust Agreement. Section 3.15. Additional Payments. A]1 taxes, charges, costs and expenses which the City assumes or agrees to pay pursuant try the Lease (including all indemnification hereunder or pursuant to the Trust. Agreement) together with all interest and penalties that may accrue thereon in the event of failure by the City to pay the same as herein provided, all other damages, costs and expenses which the Lessor may suffer or incur, and any and all other sums. which may become due by reason of any failure by the City to comply with: the 7 ~_ - ~ ~_ agreements, terms, covenants and conditions of this Lease shall be deemed to be "additional Payments" payable by the City to the Lessor and, in the event of nonpayment of the Additional Payments, the Lessor shall have all the rights and remedies as are herein provided in the case of nonpayment of Base Payments.. Additional Payments are payable as of the date the next Base Payment is due from the City. All amounts payable as Additional Payments sha11 be payable only from general funds of the City, or other funds legally available,. without setoff or deduction . Section 3.16. Title to the Project. Title to the Project sha11 remain in the Lessor, subject to the leasehold interest of the City . Title to the Project and any and all additions, repairs, replacements (excluaing personal property which has been replaced by reason of normal wear and tear) or modifications thereto and the leasehold interest of the City in and to the Project sha11 be held in the name of the Lessor, as Trustee for the benefit of the holders of the Certzf~cates notwithstanding: (i) a termination of this Lease Agreement by the City by reason of an event of non-appropriation as provided in this Lease; (ii.) the occurrence of one or more Events of Default; or {iii) the violation by the Lessor of any provision of this Lease Agreement. Any deed. or sinuaar document evidencing ownership of the Project shall provide thereon the following legend: "The property described herein is owned by Lessor under that certain Trust Agreement dated as of December 18, 1985, subject to a Lease Agreement dated as of December 18, 1985, between Dublin Information, Inc. , as Lessor and the City of Dublin. The property. described herein may not be sold, transferred or encumbered except in accordance with _ the terms of said Lease Agreement and said Trust Agreement. " The City .shall have no right, title or interest in the Project or any additions, repairs, replacements, modifications or fixtures thereto, except as expressly set forth in this Lease Agreement... In the event that the City shall pay : all Base Payments and Additional Payments due hereunder during the Lease Term, then the Lessor shall. quitclaun title to the Site and .the Project, free from any lien or encumbrance created by or ari~ng through the Lessor, .but without other warranties, to the City, and the Lease shalt terminate pursuant to the terms and conditions thereof. Section 3.17. Security Int~xest. To secure the payment of all of the obligations of the City to the Lessor under this Lease, the City hereby grants to the Lessor, as Trustee for the benefit of the holder of the Certificates, a security interest in this Lease Agreement and the rights to receive payments from the City hereunder. Section 3.18. Payment in Lawful Money; No Set Off. Each Lease Payment shall be paid by the City in lawful money of the United States of America, which at the time of payment is legal tender for the payment of public and private debts. Any such Lease Payments accruing .hereunder which shall not be paid when due shall bear interest at the rate of twelve percent (12~) per annum from the Payment Date try which such Lease Payment pertains until. the date when said Lease .Payment is paid. Notwithstanding. any .dispute between the City and the 8 t (' _-_- , Lessor, the City shalt make each and all Lease Payments .when and as due and. shall not withhold any Lease Payments pending the final resolution of .such dispute. The City shalt not assert any right of set-off or counterclaim against its obligation to make Lease Payments as set forth herein. --- ~ ARTICLE IV COVENANTS Section 4.01. Improvements.. The City shall have the right during the term of this Agreement to make additions or improvements to the .Project, or to permit such additions and improvements to be made. Section 4.02.. rlaintenance and Utilities. The City shalt maintain and repair the Project and shalt pay for all utility services supplied to the Project (which services shall include security services, power, gas, telephone, light, heating, .water, sewer and alt other utility services) , alt costs of operation of the Project and alt costs of repair and replacement of the Project .resulting from ordinary wear and tear or want of care. In exchange for the Lease Payments herein provided, the Lessor agrees to provide only the Project. Sect~nn 4.03. Public hiability Insurance. Throughout the term of this agreement the City shalt maintain liability insurance in protection of the. Lessor, the Trustee and the City, and their respective members, officers, .agents, employees, assignees and sublessees. Said insurance shall pay on .behalf of said. parties against loss or ]lability for damages for personal injury, death or property damage occasis~ned by reasons of the construction or operation of the Project. Such insurance shalt provide coverage of not less than $1,000,000 combined single limit of bodily injury, personal injury and property damage, subject to deductible clauses providing for deductible amounts of $100,000 for bodily injury or personal injury. Such liability insurance may be maintained as part of, or in conjunction with, any other liability insurance coverage carried by the City, and. may be maintained in the form of self-insurance by the City. Section 4.04. Worker's Compensation Insurance. The City shall maintain or cause to be maintained, throughout the term of this Agreement, Workers' Compensation protection to cover alt persons employed in connection with the Project .who are not otherwise covered and to cover full liability under the Workers' Compensation Insurance and Safety Act in force in the Stag of California, or any act hereafter enacted as amenda-tnry thereof or supplemental thereto or in lieu thereof. Such. protnction shall be provided by a responsible insurance corner authorized under the .laws of the State of California to insure employers against such liability or by a self insurance program adopted by the City pursuant to a plan acceptable by the State. of California under the Labor Code. Section 4.05. Fire and Special Extended Coverage Endorsement. The City shalt maintain, throughout the term of this Agreement, fire and lightning insurance and specia]_ extended coverage endorsement which includes vandalism and malicious mischief endorsement and extended coverage endorsement and earthquake assumption endorsement on all structures constituting any part of the .Project in an amount (less the appropriate deductible amount} equal to the greater of (i) the replacement cost of such structures or (ii.) at least the aggregate unpaid principal component of Lease Payments. Each such. policy of insurance shall contain an inflation clause, a standard replacement cost endorsement providing .for no deduction for depreciation, and a stipulated amount endorsement. Such insurance may be maintained in conjunction with or separate from any other similar insurance carried by the City and may be maintained in the form of self-insurance by the City . -10-: Section 4.06.. Section 4.07. Form of Insurance Policies; Delivery. (a) All insurance required by this Agreement shall require and provide that. all Net Proceeds thereunder shall be payable to the Lessor as Trustee. The City may cause the Lessor as Trustee to adjust, collect and receive all moneys which may become due and payable under any such poli.c~ies, and to compromise any and all claims thereunder. Net Proceeds of such insurance shall be applied as provided in this Agreement. All policies. of insurance required by this Agreement shall provide that the Lessor as Trustee and the City shall be given thirty-five (35) days' notice of any intended cancellation thereof or reduction of the coverage provided thereby. (b) The .City sha11 deliver to the Lessor as Trustee in the month of January in each year a schedule, in such detail. as the Trustee may request, set~ng forth the insurance. policies then in force and self-insurance in effect pursuant to this Agreement, .the names of the insurers.. which have issued the policies, the amounts thereof and the property and risks covered thereby. If so requested in writing by the Lessor as Trustee, the City shall also deliver to the Lessor as Trustee duplicate originals or cert~.fied copies of each insurance. policy and such statements of self-insurance described in such schedule, provided, however, that delivery of the insurance polices or statements under the provisions of this Section shall not confer responsibility upon. the Lessor as Trustee as to the sufficiency of coverage or amounts of said palicas or of such self insurance. Section 4.08. Inability to Obtain Earthquake Insurance. Notwithstanding the provisions of Section 4..05, if at any tune the City shall be unable to obtain earthquake insurance t~ the extent required by such Section on the open market from reputable insurers at a reasonable cost, the failure to maintain such insurance shall not constitute a breach of this Agreement if the City shall cause the employment of an independent insurance consultant having a favorable repute for skill and experience in such matters, for the purpose of reviewing such insurance requirement and making recommendations respecting the amount and provisions of reasonably obtainable insurance, including self insurance, or the establishment of another generally accepted form of altexnative earthquake protection that should be carried in lieu thereof, or the infeasibility of obtaisvng earthquake insurance at a reasonable cost from a reputable insurer, and if the City shall comply with the recommendatis~ns made in such report. A signed copy. of the report of the insurance consultant shall be filed with the Lessor and the earthquake insurance requirement specified in Section 4.05 shall be deemed to be modified to conform. with the recommendations in such report. Section 4.09. Ap plication of Net Proceeds of Insurance. Any Net Proceeds of any such insurance required by this Agreement relating to accident to or destruction of any part of the Project .which is callect~d by the Lessor as Trustee shall be deposited in a special fund to be held by the. Lessor as Trustee and applied and disbursed as set forth below (a) If the City .determines that such Net :Proceeds are sufficasnt to repair, reconstruct. or replace the damaged or destroyed portifln of the Project, which determination shall be evidenced by a certincate executed by an Authorized Officer of the City and filed with the Lessor as Trustee, then. the City shall cause such portion of the Project to be repaired, reconstructed or replaced to at Least 11 "'~`~ f 3 the same good order, repair and condition ` as it was in prior to the damage or destruction, insofar as .the same may be accomplished by the use of said Net Proceeds, and the City shall .direct the. Lessor as Trustee to disburse said .Net Proceeds .for said purpose.. In the event that any balance of said Net Proceeds .remains after such repair, reconstruction or replacement, the City shall direct the Lessor as Trustee to deposit said balance in the Lease Payment Account .and to apply sair3 balance to .the prepayment of Lease Payments in accordance with Section 6.15 (a) of the Trust Agreement. Subject to the provisions of subsections (b) and (c) of this Section 4.09, .the City shall be obligated to continue to .make Lease Payments required by this Agreement notwithstanding accident to or destruction of all or a portion of the Project; provided, however, that in the event that accident or damage to any- portion of the Project is such as to cause such portion not to be usable, then such Lease. Payments shall be abated, in the proportion to which the unusable portion of the Project bears to the entire Project, until repair of such damaged portion is completed to such an extant as to enable use thereof. (b) In the event that such Net Proceeds are not sufficient to repair, reconstruct or replace the damage or destroyed portion of the Project, as evidenced by a certificate executed by an 'Authorized .Officer of the City and filed with the Lessor as Trustee,: the City shalt direct the Lessor as Trustee to deposit said Net Proceeds in the Lease Payment Account and to apply said Net Proceeds to the prepayment of Lease Payments in accordance with Section 6.15 (a) of the Trust Agreement. (c) Net Proceeds of business interruption insurance required by this Agreement shalt be used first to :reimburse the City for .Lease Payments theretofore paid under this Agreement notwithstanding accident try or destruction of all or a portion of the Project. In the event that any balance. of said Net Proceeds remains after such reimbursement, the City shall direct the Lessor as Trustee to deposit said balance to the prepayment of Lease Payments in accordance with Section 6.15 (a) of the Trust Agreement. Sectir~n 4.10. Title Insurance. The Zessor will provide title insurance under one or more palic3es, in the form of American Land Title Assoc:iatinn Policy of Title Insurance. Such policy. shall insure the Lessor's fee title to the land described in Exhibit "B" attached hereto, subject. only to Permitted Encumbrances, shalt insure the City's leasehold interest in the Project and shall be in a principal amount equal to .the total stipulated .value set forth in Exhibit "C" . Said title insurance policy shall be issued by a title insurance company licensed to do business in California and shall provide for an endorsement upon completion. of construction .of the Project, stipulating. that title to the Project i.s held by the Lessor. Section 4.11. Application of Net Proceeds of Title Insurance or Condemnation. All Net Proceeds receiaed under the title insurance policy provided for by Section 4.10 hereof or in any condemnation proceeding undertaken by any governmental agency relating to all or a portion of the Project shalt be deposited in a special. fund to be held by the Lessor as .Trustee. and shall be applied and disbursed as set forth below (a) If the City determines that such title .defect or condemnation has not matsria]ly affected the operation of the Project or the ability of the City to meet any of its obligations hereunder, as set forth in a certificate executed by an Authorized Officer of the City and filed with the Lessor as Trustee, and that such 12 r Net Proceeds are insufficient to enable the City to prepay Lease Payments by paying the stipulated value of the Project in full on the next succeeding Payment Date. (b) If the City determines that such title defect or condemnation has materially affected the operation of the Project or the ability of the City to meet any of its obligations hereunder as set forth in a certificate executed by an Authorized Officer of the .City and filed with the Lessor as Trustee, or if such Net Proceeds are sufficient to enable the City tra prepay Lease Payments in full by paying .the stipulated value of the Project on the next succeeding Payment Date, the City shall direct the Lessor as Trustee to deposit said Net Proceeds in the Lease Payment Account and to apply .such Net Proceeds to the prepayment in full or (tom the extent that such title defect or condemnation pertains only to a portion of the Project) in part on the next succeeding Payment Date of Lease Payments in accordance with Section 6.15 (a) of the Trust Agreement. Sect~n 4.12.. Payment of Lease Payments.. The City shall duly and gunctually pay or cause to be paid the Lease Payments, at the dates and. places and in the manner provided in this Agreement according to the true intent and meaning hereof and shall not directly or indirectly e.~nd or assent to the extension of the Payment Dates of any Lease Fayments. Section 4.13. Compliance with this Agreement. The Lessor and the City will faithfi~lly observe and perform all of the covenants, conditiDns and requirements of this Agreement, and will not suffer or permit any default to occur hereunder, nor do or permit to be done in, upon or about the Project or any part thereof, anything that might in any way weaken, c3iminiSh or impair the operatir~n thereof. Neither the Lessor nor the City will do, or permit anything to be done, or omit or refrain from doing anything, in any such omission of or refraining frcm action, would or might be a ground for cancellation. or termination of this Agreement. Section 4.14. Payment of Taxes. The City will pay or cause to be paid all taxes, assessments and other governmental charges, if any, that may be levied, assessed or charged upcn the. Project or .any part thereof,.. promptly as and when the same shall become due and payable; provided, however, that the .City shall be required to pay any such tax, assessment, or charge, if the validity thereof shall concurrently be contested in good faith by appropriate proceedings, and if the City. shall set aside reserves deemed by it to be adequate with respect thereto and provided further, that the City, .upon the commencement. cf any .proceedings to foreclose the lien of any such tax, assessment,. or charge, will forthwith pay, or cause try be paid, any such tax, assessment or .charge, unless contested in good faith as aforesaid. The City will not suffer the Project or .any part thereof to be sold for any .taxes, assessments or other charges whatsoever, or to be forfeited therefor. Nothing herein contained shall be deemed to impose .any liability to pay taxes, assessments or charges where none is imposed by Iaw. Section 4.15. Observance of Laws and Regulations. The City will well and truly keep, observe and perform or cause to be kept, observed and performed all valid and lawful obligations. or regulations now or hereafter imposed on it by contract, or prescribed by any law of the United States, or of the State of California, or any officer, board or commission .having jurisdi.ct~on or control,. as a condition of the continued enjoyment of any and every right, privilege or franchise now owned or hereaft~x .acquired. by the City, including. its right to exist and -13-~ ~~ ~:. carry on business as a public body and- municipal corporation, to the end that such rights, privileges .and franchises shall be maintained and preserved, and shall not become abandoned, forfeited or in any manner impaired. Section 4.16. Maintain and Preserve the Project. The City will operate, maintain and preserve .the Project in good repair and working .order and will. operate the Project in an efficient and economical manner. Section 4.17. Other Items. The City shall keep the Project .and all parts thereof free from judgments, from mechanics and materialmen's liens (except those ari~;ng from construction of the Project) .and free from alt liens, clauns, demands .and encumbrances of whatsoever nature or character, other .than Permitted Encumbrances and the City shall keep the Project free from any claim or liability which. might impair of impeded the operations of the Project; provided, however, that the City shall not be required to pay any such .liens, .claims or demands if the validity thereof shalt concurrently be contested in good faith by appropriate proceedings, and if the City shall set aside reserves deemed by it to be .adequate with respect thereto and provided further, :that the City upon the commencement of any proceedings to .foreclose.: the lien of any such charge or claim, will forthwith pay any such charge or claim uriless contested in good faith as aforesaid. The Lessor or its assignee, may, (after first giving the City ten (10) days' w~tten notice to comply therewith and failure of the City to so comply within said ten-day period) defend against any and all actions or proceedings in which the validity of this Agreement is or might be questioned, or may pay or compromise any claim or demand asserted in any such actions or .proceedings; provided, however, that, in defending against such actions or proceedings or in paying or compromising such .claims or demands, the Lessor shall not in any event be deemed to have waived or released the City from liability. for or on account of any of its covenants and warranties contained herein, or .from its. liability hereunder to defend the validity of this agreement and to perform such covenants and warranties. Section 4.18.. Against Encumbrances or Sales. The City shalt not create or suffer try be created any mortgage, pledge,. lien, charge or encumbrance upon the Project, or upon any real or personal property essential to the operatiDn of the Presject, other than Permitted Encumbrances. The City will not sett or otherwise dispose of any property .essential to the proper operation of the Project, except as otherwise permitted by this Agreement. Section. 4.19. Prosecution .and Defense of Suits. The City shall, promptly upon request of the Lessor from time to time take such .action as may be necessary or proper to remedy or cure any defect in or cloud upon the title to the. Project .whether now existing or hereafter. developing and shalt prosecute all such suits, actions and other proceedings as may be appropriate for such purpose and shall indemnify and save the .Lessor and its assignee harmless from alt loss, cost, damage and expense, including attr~rneys' fees, which they or any of them may incur by reason of any such defect, cloud, suit, action or proceedings. Section 4.20. Recordation and Filing.. The City shalt record and file this Agreement and all such .documents as may be required by law (together with whatever else may be necessary or be reasonably required by the Lessor) , in such manner, at such dunes and in such places as may be required by law in order fully to preserve and protect the rights. of the Lessor under this Agreement. -14-_ r- ~- Section 4.21. Waiver of Laws. The City shall not at any time insist upon or plead in any manner whatsoever, or claim or take the benefit or advantage of, or suffer any stay or extension law now or at any time hereafter in .force which .may adversely affect. .the covenants and agreements contained in this Agreement and the benefit and advantage of any such law or laws is hereby expressly waived by the City to the extend that the City may legally make such waiver. Section 4.22. Compliance with Conditions Precedent. Upon the date of delivery of this Agreement, alt conditions, acts and things required by law or by this Agreement to have happened or to have been performed precedent to or in the execution of this Agreement shall exist, have happened and have been performed, and this Agreement shall be within every limit prescribed by law . Section 4.23. Power to Enter Into Agreement. The City is duly authorized pursuant to the. law to enter into this Agreement and to covenant to make annual appropriations for the payment of Lease Payments. The .provisions of this Agreement are and will be the valid and legally enforceable special obligations of the City in accordance with their terms and the teams of this Agreement. Section 4.24. Further Assurances. Whenever and. so often as requested so to do by the Lessor, the .City wilt promptly execute and deliver or cause to be executed and delivered all such other and further instruments,. documents, or assurances, and promptly do or cause to be done all such. other and further things, as may be necessary or reasonably required in order further and more fully to vest in the Lessor all rights, interests, powers, benefits, privileges and advantages conferred or intended to be conferred upon the Lessor by this Agreement. Section 4.25. Financ-aa]. Reports. Within one hundred eighty (180) days after the close of each Fiscal Year of the City, the City will. furnish, or cause to be furnished, to the Lessor detailed, certif~d reports of auai_t, based on an examination sufficiently completed, prepared by an independent. public accountant,. covering the operations of the City and its general fund. Such audit report shall include statements of the status of each account pertaining to the Project, showing the purpose of the withdrawals therefrom and the balance therein at the .beginning and end of said Fiscal Year. Section 4.26. Lessor Not Liable. Neither the Lessor nor its members, officers, agents or employees shall be liable to the City or to any other party whomsoever for any death, injury or damage that may result to any person or property by or from any cause whatsoever in, on or about the Project. The City sha11 indemnify, or cause indemnification of, and hold the Lessor, its members, officers, agents and emp]oyees harmless from,. and defend each of them against, any and all claims, liability, liens and judgments for death of on injury to any person or damage to property :whatsoever occurring in, on or about the Project. Section 4.27. Operatir~n of Project. The City shall assure that the Presject is operated pursuant to compete and lawful authority. No permits, .rights, franchises or privileges relating theretA shall be allowed to lapse or be forfeited so long as the same .shall be necessary for the operation of the Project. The City shall procure the extension or renewal of each and every permit, right, franchise or privilege so expiring and necessary or desirable for the ownership or operation of the Project as such. -15-~ ("~ (`~ -_ ~ Section 4.28. Furnishing and Equipping of Project. The City shall continuously furnish and equip the Project, or cause the Project to be furnished. and equipped, so that the Projec-t shall at all times constitutes complete and operational facilities. Section 4.29. Furnishing Additional Information. The City shall, from time to time, .furnish try the Lessor such data regarding the Project as shalt be reasonably requested in order to enable the Lessor to determine whether there has been compliance with the covenants, terms and provisions of this Agreement. Section 4.30. Value for Condemnation. The City agrees that in the event that condemnation proceedings are taken by another governmental agency with respect to the Project, the City shall. to the extent legally appropriate, declare that the fair market value of the Project is .not less than an amount equal to the .aggregate unpaid principal component of Lease Payments. -16-~ - ARTICLE V DISCLAIMER OF WARRANTIES; ACCESS; ASSIGNMENT Sect~n 5.01. Disclaimer of Warranties. THE LESSOR DOES NOT MAKE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR FITNESS .FOR THE USE CONTEMPLATED BY THE CITY OF THE PROJECT OR ANY PORTION. THEREOF, OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE PROJECT OR ANY PORTION THEREOF . In no .event shall the Lessor be liable for incidental, indirect, speciel or consequential damages in connection with this Agreement or the existence, damages in connection with this Agreement or the existence,. furnishing, or functir~ning of the Project or the City's use of the Project, except such damages as may arise by reason of a .breach of this Agreement by the Lessor. Section 5.02. Lessor Access to the Project.. The City agrees that the Lessor shall have the right at alt reasonable times try enter upon and to examine and inspect the Project. The City further .agrees that the Lessor shall have such rights of access try the .Project as may be reasonably necessary to cause the proper maintenance of the Project in the event of failure by the City to perform its obligatwns for maintenance set forth herein. -17-~ ~- Z ~- ARTICLE. VI EVENTS OF. DEFAULT AND REbIEDIES Section. 6.01. .Events of Default Defined. The folls~wing shall be "events of default under this Agreement and the terms "events of default" and "default" shall mean, whenever they are used in this Agreement, with respect to the Project, any one or more ofthe following events. Immediately. upon the occurrence of an event of default or a condition which, with the passing of time will become an event of default, the City sha11 provide the Trustee with written notice thereof. (a) Failure by the City to pay any Lease Payment or other ..payment required to be paid hereunder at the time specified herein; (b) Failure by the City to observe and perform any covenant, condition or agreement on its part to be observed or performed, other than as referred t~ in clause (a) of this Section, for a period of thirty (30) days aftex written notice specifying such failure and requesting that. it be remeaisd has been given. to the City by the Lessor; provided, however, .that the Lessor may, upon written request of the City prior to the expiration of such thirty (30) day period, consent. to an extension of such time in order to cure such failure if corrective action has been instituted by the City and is being diligently pursued and will, in the judgment of the Lessor be diligently pursued until the default is corrected; (c) A court having jurisdiction in the premises shall enter a decree or order for relief in respect of the City in an involuntary case under any applicable bankruptcy, insolvency or other Gmilar -law now or hereafter in effect, or appointing a sequestrator (or similar official) of the City or for any substantial part of its property, or "ordering the winding up or liquidation of i_ts affairs, and such decree or order shall remain unstayed and in effect for a period of sixty (60) days. or (d) The City shall commence a voluntary case under any app]icable bankruptcy, insolvency or other similar law now or hereafter in .effect, or .shall consent try the entry of any order for relief in an involuntary ease under any such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, .assignee, trustee, custodian, sequestrator (or similar official) of .the City for any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail generally is pay its debts as they become due or shall take any corporate action in furtherance of any of the foregoing. Season 6.02. Remedies on Default. Upon the happening. of any of the events of default specified in Section 6.01 hereof, the Lessor may exercise any and all remedies available pursuant to law or in .equity or the following granted pursuant to this Agreement: (a) With or without termination of this Lease Agreement reenter and take possession of the Sits and terminate and. revert in the Lessor all right, .title and interest of the City in the Project and the leaseholr3 interest of the City in the Project Site, holding the City liable for alt Base Payments and Additional Payments due during the then current Fiscal Year; and (b) Lease or sublease the Project for. the account of the City, for terms not to exceed the: then remaining term of the Lease, ha1~3.ing the City liable -18-s for all Base Payments and Additional Payments due during the then current Fiscal Year;. and (c) Terminate this Lease Agreement; and (d) Take whatever action at ]aw or in equity may appear necessary or desirable to collect the payments when .due and thereaft~x to become due,. or to enforce performance and observance of any obligation, agreement or covenant of the City under this Lease Agreement. The City hereby expressly authorized the Lessor to lease or sublease the Project, .for terms not to exceed the then remaining t~xm of the Lease, .:for commercial or other purposes. The City covenants and agrees that it has or wilt take .all necessary action in accordance with the laws.. of the State of California, and any charter, resolution or ordinance applicable to the City, .including but not limited to zoning. laws and ordinances,. to authorize such lease or sublease. Section 6.03. Suits at Law or in Equity and Mandamus. In addition to the remedies set forth in Section 6.02 hereof, in case one or more of the .events of default shall happen,. then and in every. case, the Lessor shall be entitled ~ proceed to protect and. enforce the rights. vested in the Lessor by this Agreement by such appropriate judisa~-il proceeding as the Lessor shall deem most effectual try protect and enforce any such right, either by suit in equity or by action at law, whether for the specific performance of any covenant or agreement contained in this Agreement, or in aid of the exercise of .any power granted in this Agreement, or to .enforce any other legal or equitable right vested in the Lessor by this Agreement or by law. The provisions of this Agreement and the duties of the City and of the officers, agents and employees thereof shalt be enforceable by the Lessor by mandamus or other appropriate suit, action or proceeding in any court of competent jurisdiction. (a) Without linsting, the generality of the foregoing, the Lessor shall have the .right -to: (i) Accounting. By action or suit in equity to require the City and its officers, agents and employees to account as the trustee of an .express trust. (ii) Injunction. By action or suit in equity to enjcvn any acts or thing which may be unlawful or in violation of the rights of the Lessor. (iii) Mandamus. By mandamus or other suit, action or proceeding at law or in equity to enforce its or their .rights against the -City and its and any of its officers, agents .and employees, and to compel it or them to perform and carry out its and their duties and obligations under the law and its. and their covenants and agreements with the City as provided herein. Section 6.04. Non-Waiver. Nothing in this Article VI or in any .other provision of this. Agreement shall affect or impair the obligation of the City,.. which is to pay the Lease Payments, as hereuz provided. No .delay or-omission of the Lessor to exerc~ e any right or power. ari~-ing upon the happening of any event of default. shall impair any .such right or power. or shall be construed to be a waiver -19-_ ,• of any such event of default or any acquiescence therein, and every power and T remedy given by this Article VI to the Lessor may be exercised from time tD time as often as shall be deemed expedient by the Lessor. Sectir~n 6.05. Remedies Nat .Exclusive. No remedy herein or by law conferred upon or reserved to the Lessor is intended to be exclusive of any other remedy, but each such remedy is cumulative and in addition to every other remedy, and every remedy given hereunder or now or hereafter existing, at law or in equity or by statute or otherwise, may be exercised without exhausting anal without regard try any other remedy conferred herein or by any law . Sect~n 6.06. Status Quo. In case. any suit, actifln or proceeding to enforce any right or exercise any remedy shall be brought or taken and then discontinued or abandoned, or shall be determined adversely to the Lessor, then, and in every such. case, the Lessor shall be restAred to its former position and rights and remedies as if no such suit.,. action or proceedings had been brought or taken. -20- r ARTICLE VII ADMINISTRATION PROVISIONS Section 7.01. Preservatifln and Inspection of Documents. All documents received by the Lessor or the City under the provisions of .this Agreement shall be retained in their respective possessions and shall be subject. at all reasonable times to the inspection of the other party hereto and its assigns, agents .and representatives, any of whom may make copies thereof. Section 7.02. Parties of Interest. Nothing in this Agreement, expressed or implied, is intended to or shall be construed to confer upon or to give to any person or party other than the Lessor and the City any rights, remedies or claims under or by reason of this Agreement or any covenants, conditions or stipulation hereof; and all covenants, stipulations, promises and agreements in this Agreement made by or on behalf .of the Lessor or the City shall be for the .sole and exclusive benefit of the Lessor and the City . Section 7.03. No Recourse Under Agreement. All covents, stipulations, promises, agreements and obligations of the parties hereto contained in this Agreement shall be deemed try be the covenants., stipulations, promises, agreements and obligations of the parties hereto, respectively, and nat. of any member, officer, employee or agent of the. parties hereto in an individual capacity, and no recourse shall be had for the payment of the Lease Payments or for any c1~-iim based thereon or under this Agreement. against any member, officer, employee or agent of the parties hereto. Section 7.04. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or deposited in the United Stags mail in certif~,ed or registered form with postage fully prepaid: If to the Lessor. Dublin Information, Inc.. 6500. Dublin Avenue Dublin, .California 94568 If to the City : City of Dublin 6500 Dublin Boulevard Dublin, California 94568 The parties hereto, by notice given hereunder, may, respectively, designate different addresses to which subsequent notices, certif~~ates or other communications will be sent. Section 7.05. Binding Effect. This Agreement shall inure to the benefit of and sha11 be binding upon the Lessor and. the City and their respectsve successors and assigns. Section 7.06. Severability. If any one or more of the covenants, stipulations, promises, agreements or obligations provided in this. Agreement on the part of the Lessor or the City to be performed should be determined by a court of competent jurisdiction to be contrary try law , then such covenant, stipulation, - 21 -_ _- zs promise, agreement and obligation shall be deemed and construed to be severable from the remaining covenants, .stipulations, promises, agreements and obligations herein contained and shall in no .:way affect the validity of the other provisions of this Agreement. Section 7.03.. Headings. Any headings preceding the text of the several Articles and Sections hereof, and any table of contents or marginal notes appended to copies hereof, shall be solely for convenience or reference and shalt not constitute a part of this Agreement, nor shall they affect ifs meaning, construction. or effect. Section 7.08. Applicable Law . This Agreement shall be governed by and construed in accordance .with the laws of the State of California. Section 7.09. Lessor and City Representatives. Whenever under the provisions of this Agreement the approval of the Lessor or the City is required, or the Lessor or the City are required, or the Lessor or the City are required t~ take some action at the request of the other, such approval of such request may be given for the Lessor by an Authorized Officer of the Lessor, and for the City by an Authorized Off cer of the City, and any party hereto shall be authorized to rely upon any such approval. or request. Section 7.10. Form of Cert~.ixates of Offdcers. Every certificate with respect to compliance wifh a condition or covenant provided for in this Agreement and which is precedent to the taking of any action under this Agreement shalt include (a) A statement that the person .making or giving such certificate has read such covenant or condition :and the definitions herein. relating thereto; (b) A brief statement as to the nature and sccpe of the examination or investigation upon which the statements or opinions contained in such certificate are based; (c) A statement that, in the opinion of the signer, he has made or caused to be made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such. covenant or condition has been complied with;. and (d) A statement as to whether, in the opinion of the signer, such condition or covenant has been complied with. A certificate may be based, insofar as it relates to legal matters, upon a cerd.ficate or opinion of or representations by counsel, unless the persons providing the certificate know that the certificate or representations with respect to the matters upon which the certificate may be based are erroneous, or in the exercise of reasonable care should have known that the same were erroneous. Section 7.11. Successor to the Lessor. The Lessor may, at any time, and at the request of the City., shall assign ifs rights and .obligations under this Lease Agreement and the other agreements peztaining to the Project to which it is a party to a successor, provided that the City must consent. to any such assignment and that .the assignment will oat adversely materially affect the rights. -22- x IN WITNESS WHEREOF, the parries have -executed this Agreement by their ofi~ers thereunto duly authorized as of the date and year first written above. DUBLIN INFORMATION, INC. as Trustee and Lessor By: Title: (SEAL) ~ . By: Title CITY OF DUBLIN By: Title: Mayor Attest: (SEAL) By: Title : City Clerk -23- J D STATE OF CALIFORNIA SS- COUNTY OF ALAMEDA ) I, a Notary Public in and for said County in the State aforesaid, do hereby certify that and the and respectively, of Dublin Information, Inc. , appeared before me this day in person and acknowledged that, being duly authorized, such. officers signed, sealed, attested and delivered the foregoing Lease Agreement. Given under my hand and natural seal. this day of 1985. Notary Public in and for the State of California (SEAL) My Commission expires: STATE OF CALIFORNIA SS. COUNTY OF ALAMEDA ) I, a Notary Public in and for said County in the State aforesaid, do hereby certify that and the and respectwely, of the City of Dublin, .appeared before me this day in person and acknowledged that, being duly authorized, such officers signed, sealed, attested and. delivered the foregoing Lease Agreement. Given under my hand and natural seal this day of 1985. Notary Public in and for the State of California (SEAL) My Commissis~n expires: -24-= EXHIBIT "A" DEFINITIONS (a) Authorized Newspaper. The term "Authorized Newspaper" means a financial paper, or a newspaper of general circulation in .the City of Dublin and County of Santa Cruz, California, which is customarily published on each business day. and. is printed in the English language. (b) Authorized Officer. The term "Authorized Officer", when used with respect to the City, means the Mayor, Vice Mayor, City Clexk, City Adminis-txator or any other officer of the City which is, designated by the City Council of the City as an Authorized Officer. The term "Authorized Officer" , when used with respect to the Lessor, means any officer of the Lessor. (c) Certificate Register. The term "Certificate Register" means the books for registration maintained by the Lessor as Trustee pursuant to Section 6:10 of the Trust Agreement. (d) Certificates. The term "Certificates. Means the certificates of participation prepared and delivered by the Lessor as Trustee pursuant to the Trust Agreement. (e) Completion Date. The term. "Completion Date" means September 1, 1988, or the date of final acceptance. of the Project by the City whichever date first occurs. (f) Construction Account. The .term "ConsLsuctis~n Account" means the account by that name established under, and held by the Lessor as Trustee pursuant to, Section 4.02 of the .Trust Agreement. (g) Federal Securities. The term "Federal Securities" means bills, certificates of indebtedness, notes, bonds, or similar securities. which are direct obligations of, or by the principal and .interest of which securities are secured by, the United States, whether issued in book entry form or otherwise. (h) Fiscal Year. The term "Fiscal Year" means a fiscal year of the City, commencing on July 1 of each calendar year and ending on June 30 of the subsequent calendar year. (i.) Fully Registered Cert~.ficates. . The term "Fully Registered Certificates" means Certificates registered as to .principal and interest and payable to the registered owner. (k) Lease or Lease Agreement. The Germ "Lease" or "Lease Agreement" means that certain Lease Agreement Relating to Public Facilities Project No. 1, dated as of December 18, 1985, by and between the Lessor and the City. (1) Lease Payment Account.. The term "Lease Payment Account" means the account. by that name established under,. and held by the Lessor as Trustee pursuant t~ Section 4.03 of the Trust Agreement. -25- _~ ~` (m) Lease Payments. The term "Lease Payments" means lease payments payable by the City to the Lessor as Base Payments or Additional Payments pursuant to the Lease Agreement with Base Payments more particularly set forth in Exhibit "D" attached to the Lease Agreement.. (n) Net Proceeds. The team "Net Proceeds," when used. with respect to any- insurance or condemnation award, means the gross .proceeds from the insurance or condemnation award with respect to. which that t~xm is used remaining after payment of all expenses incurred in the collection of such gross proceeds. (o) Original Purchaser. The term "Original Purchaser" means First California Regional Securities, Inc. (p) Outstanding. The term "Outstanding" when used with reference to the CP~fi~-ates and as of any partscular date means all CP~*~~~tes theretofore delivered. except: (a) any Certificate cancelled by the Lessor as Trustee at or before said data and . (b) any Certifscate in lieu of or in substitution for which another Certificate shall have. been delivered pursuant to the Trust Agreement. (q) Owner. The term "Owner" or "Certificate Owner" or "Owner of Certi.f~icates" or any similar term, when used with respect to the Certificates, means any person who shall be the registered owner of any Outstanding Fully Registered Certificate. (r) Payment Dates. The term "Payment Dates" means February 1 ana August 1 of each year, commencing August 1, 1986, and terminating on February 1, 2010. (s) Permitted Encumbrances. The term "Permitted Encumbrances" means: (i) Ad valorem taxes and assessments not then due and payable. (ii) The Lease Agreement. (iii) Easements, rightsrof-way and other rights, covenants, conditions or runs which do .not impair or impede construction or operation of the Project. (t) Permitted Investments. The term "Permitted Investments" means: (i) United States Treasury notes, bonds, bi11s, or certificates of indebtedness, or those for which the faith and credit of the United States are pledged for the payment of principal and interest. (ii) Obligations issued by federal land banks, federal home lean banks, the Federal Home Loan Bank Board, the Tennessee Va]ley Authority, or in obligations, participatis~ns, or other instruments of or issued by, or fully guaranteed as to principal and interest by, the Federal National Aiortgage Association; or in obligations, participations, or other instruments of or issued by a federal agency or a United States government sponsored enterprise. - 26 - {iii) Investments in repurchase agreements under the terms of which the securities are transferred to the possession of the Lessor as Trustee of any securities authorized by paragraphs (i) and (ii) above. (iv) Non-negotiable. certificates of deposit issued by a nationally chartered bank (including the Trustee) or a bank chartered by the State of California or a foreign banking .corporation authorized pursuant to Season .1756 of the California Financial Code to transact business in the State of California by accepting deposits of a State of California or federal savings and loan. assoc:~ation provided that such certificates of deposit are fully collatera]ized in the manner required for callateralization of trust funds. (v) As other. defined in Seci=ion 53601 of the Government Code of the State of California. (u) Principal Office. The term "Principal Office" when used with respect to the Lessor as Trustee., means the principal office of the Lessor as Trustee situated at City Hall, Dublin , California . (v) Prot. The t~xm "Project" means the Public Facilities including the Dublin Civic Center Complex and Related Facility to be leased to the City pursuant to the Lease Agreement. (w) .Project Costs. The term "Project Casts" :means all costs of payment of, or reimbursement for, acquisitson, construction and financing of the Project, including but not limited to, architect and engineering fees, construction contractor payments, costs of feasibility and other reports, inspection costs, permit fees, filing and recording costs, printing costs, reproduction .and binding costs, financing discounts, legal fees and charges, financial and other professional consultant fees, costs of rating agencies. or creait ratings, fees for execution, transportation and safekeeping of Certificates and .charges and fees in connection with the foregoing. (x) Public Facilities Project Trust Fund. The term "Public Facilities Project Trust Fund" means the fund by that name established under, and held by the Lessor as Trustee pursuant to Section 4.01. of the Trust Agreement. (w) _Redemption Fund. The term "Redemption Fund" means. the fund by that name established under, and held by the Lessor as Trustee pursuant to Section 6.16 of the Trust Agreement. {z) Sites. The term "Site" means the land. as described in Exhibit "B" and the leasehold which the Lessor is leasing to the City pursuant to this Agreement. (aa) Trust Agreement. The term "Trust .Agreement" means that certain Trust Agreement Relating to Public Facilities Project dated the data hereof, by and among the Lessor as Trustee, the City and the Lessor. (bb) Trustee or Lessor as Trustee. Trustee" means Dublin Information, Inc. or its trustee under the Trust Agreement. The term " Trustee or Lessor. as successor. in interest acting as - 27 - ~~ • i ., ~. ' ORDER NO. 54668 f (CONTINUED) ~ j ALSO EXCEPTING THEREFROM THE FOLLOWING DESCRIBED PARCEL OF LAND: REAL PROPERTY SITUATED IN THE TOWNSHIP OF PLEASANTON, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND BEING A PORTION OF THE LAND DESCRIBED IN THE DEED FROM VOLK-MC LAIN COMMUNITIES INC. , FORMERLY THE VOLK-MC LAIN CO., TO MURRAY SCHOOL DISTRICT OF ALAMEDA COUNTY, DATED OCTOBER 14, 1966 AND RECORDED OCTOBER 28, 1966 IN REEL 1864 OF OFFICIAL RECORDS AT IMAGE 533, THEREOF (AY 123533) RECORDS OF ALAMEDA COUNTY, CALIFORNIA, ..DESCRIBED. AS FOLLOWS: COMMENCING AT'A POINT AT THE NORTHEAST CORNER OF SAID PARCEL OF LAND REEL 1864, IMAGE 533 ON THE COMMON LINE BETWEEN SAID PARCEL OF LAND AND TRACT "B" OF PARCEL NO. 6 DESCRIBED IN THE FINAL JUDGMENT RENDERED JULY 24, 1944 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, CASE NO. 22460-G, ENTITLED, "UNITED STATES OF AMERICA VS. 105.19 ACRES OF .LAND", A CERTIFIED COPY OF YJHICH JUDGMENT WAS RECORDED APRIL 4, 1945 IN BOOK 4681, PAGE 234 OFFICIAL RECORDS OF ALAMEDA COUNTY; AND FROM WHICH POINT THE CENTER LINE OF SAID DUBLIN BOULEVARD BEARS NORTH 17° 16' 06" EAST 42.00 FEET; THENCE FROM SAID A~INT OF COMMENCEMENT AND ALONG SAID COMMON LINE SOUTH 21° 59' 10" EAST 184.39 FEET TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE CONTINUING ON SAID COMMON LINE SOUTH 21° 59' 10" EAST 152.67 FEET; THENCE NORTH 72 ° 43 ' S4 " WEST 96.61 FEET; TEiENCE NURTH 17 ° 16 ' 06 " EAST 118.22 FEET TO THE POINT OF BEGINNING. PARCEL TWO: AN EASEMENT FOR ACCESS PURPOSES OVER THE FOLLOWING DESCRIBED PARCEL OF LAND: A PORTION OF TRACT "B" OF PARCEL N0. 6 AND DESCRIBED IN THE FINAL JUDGMENT RENDERED JULY 24, 1944 IN THE UNITED STATES DISTRICT COURT, FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION IN CASE NO. 224670-G, ENTITLED, "UNITED STATES OF AMERICA V. 105.19 ACRES OF LAND", A CERTIFIED COPY OF WHICH JUUGFfEN'T WAS RECORDED APRIL 4, 1945 IN BOOK 4681, PAGE 234, OFFICIAL RECORDS OF ALAMEDA COUNTY. COMMENCING AT THE. NORTHWESTERLY CORNER OF SAID TRACT "B" OF PARCEL NO. 6 SAID NORTHWESTERLY CORNER BEING ALSO ON THE SOUTHERN LINE OF COUNTY ROAD N0. 35 (FORMERLY ROAD IV, ALAMEDA COUNTY, ROUTE 5, SECTION B), BEING ALSO KNOWN AS DUBLIN BOULEVARD; THENCE ALONG SAID SOUTHERN LINE SOUTH 72 ° 43 ' S4 " EAST 356.53 FEET ~TO THE TRUE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE .LEAVING LAST SAID LINE SOUTH 17 ° 16' 06" WEST 436.30 FEET TO THE NORTHEASTERLY LINE OF THE LAND DESCRIBED IN THE DEED FROM VOLK-MC LAIN COMr1UNITIES, INC., FORMERLY THE VOLK-MCLAIN COMPANY TO MURRA Y SCHOOL DISTRICT OF ALAMEDA COUNTY, STATE OF CALIFORNIA, A PUBLIC CORPORATION, .RECORDED OCTOBER 28, 1966 IN REEL 1864 IMAGE 533, UNDER RECORDER'S SERIES N0. AY/123533 IN OFFICIAL RECORDS OF ALAMEDA COUNTY; THENCE ALONG SAID ORDER NO. 54668 (CONTINUED) NORTHEASTERLY LINE OF LAST SAID PARCEL OF LAND AND THE DIRECT EXTENSION NORTHWESTERLY THEREOF NORTH Z1° 59' 10" WEST 81.39. FEET; THENCE NORTH 17° 16' 06" EAST 373.28 FEET TO AFORESAID SOUTHERN LINE OF DUBLIN BOULEVARD; THENCE ALONG SAID SOUTHERN LINE SOUTH 72° 43' 54" EAST 51.50 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM. SA ID STRIP OF LAND 17.00 FEET IN WIDTH ADJACENT TO THE NORTHEAST LINE OF SAID PROPERTY FOR THE WIDENING OF DUBLIN BOULEVARD. PARCEL THREE: REAL PROPERTY SITUATED IN THE TOWNSHIP OF PLEASANTON, COUNTY OF ALAMEDA, STATE OF CALIFORNIA, AND BEING A PORTION OF THE LAND DESCRIBED IN THE RETRANSFER AGREEMENT MADE AND EXECUTED AS OF MARCH 18, 1974, ON .BEHALF OF THE UNITED .STATES OF AMERICA BY THE SECRETARY OF HEALTH, EDUCATION, AND WELFARE, ACTING THROUGH THE ASSISTANT REGIONAL DIRECTOR FOR SURPLUS PROPERTY UTILIZATION FOR REGION IX OF THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, UNDER THE AUTHORITY OF THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF .1949 (63 STAT. 377) , AS AMENDED, FROM AND. ON BEHALF OF MURRAY SCHOOL DISTRICT OF ALAMEDA COUNTY, CALIFORNIA, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA, TO AND ON BEHALF OF At4ADOR VALLEY JOINT UNION HIGH SCHOOL DISTRICT OF ALAMEDA COUNTY AND CONTRA COSTA COUNTY, CALIFORNIA, A POLITICAL SUBDIVISION OF THE STATE OF CALIFORNIA, RECORDED JUNE 14, 1974 ON REEL 3706 AT IMAGE 210 UNDER RECORDER'S SERIES NUMBER 74-77258, ALAMEDA COUNTY RECORDS DESCRIBED AS FOLLOWS: A PORTION OF TRACT "B" OF PARCEL NO. 6 AND DESCRIBED IN THE FINA L JUDGMENT RENDERED JULY 24, 1944, IN THE .UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SOUTHERN DIVISION, IN CASE NO. 22460-G, ENTITLED: "UNITED STATES OF AMERICA V. 105.19 ACRES OF LAND", A CERTIFIED COPY OF WHICH JUDGMENT WAS RECORDED APRIL 4, 1945. IN BOOK 4681, PAGE 234, OFFICIAL RECORDS OF ALAMEDA COUNTY: COMFIENCING AT THE NORTH47ESTERLY CORNER OF SAID TRACT "B" OF PARCEL N0. 6 SAID NORTHti•7ESTERLY CORNER BEGIN ALSO ON THE SOUTHERN LINE OF COUNTY ROAD N0. 35 (FORMERLY ROAD. IV, ALAMEDA COUNTY, ROUTE 5, SECTION B) BEING ALSO KNOWN AS DUBLIN BOULEVARD; AND FROM WHICH POINT THE CENTERLINE OF SAID DUBLIN BOULEVARD BEARS NORTH 17 ° 16' 06" EAST 33.00 FEET; THENCE FROM SAID POINT OF COMMENCEMENT AND ALONG THE SOUTHWESTERN ZINE OF SAID TRACT "B" OF PARCEL NO. 6, SOUTH 21° 59' 10" EAST 21.95 FEET TO A FOINT ON A LINE WHICH IS PARALLEL TO AND MEASURES 50.00 FEET SOUTHWESTERLY. AT RIGHT ANGLES FROM SAID CENTERLINE OF DUBLIN BOULEVARD AND BEING THE TRUE-POINT OF BEGINNING OF THIS DESCRIPTION; THENCE ALONG THE LAST NAMED LINE 1' ORDER NO. 54668 PAGE 2 At the date hereof exceptions to coverage in addition to the printed exceptions and exclusions. in said policy form would be as follows: 1. THE LIEN OF SUPPLEMENTAL TAXES, IF ANY, ASSESSED PURSUANT TO THE PROVISIONS OF CHAPTER 3.5, REVENUE AND TAXATION CODE, SECTIONS 75 ET SEQ. 2. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1985 - 1986 1ST INSTALLMENT: $14,593.58 PAID 2ND INSTALLMENT: $14,593.58 OPEN LAND $.2,326,556.00 A.P. N0. .941-1401-014-05 CODE AREA 26-000 3. COUNTY AND CITY TAXES FOR THE FISCAL YEAR 1985 - 1986 1ST INSTALLMENT: $175.05 OPEN 2ND INSTALLMENT: $175.05 OPEN A.P. NO. 941-1401-014-05 CODE AREA 26-000 (SPECIAL ADDITIONAL ASSESSMENT) 4. EASEMENT, UPON THE TERMS,. COVENANTS AND CONDITIONS THEREOF, FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED IN THAT CERTAIN INSTRUMENT RECORDED JULY 10 , 1930 , BOOK 2367 , PAGE 410 , SERIES NO . AA-42775, OFFICIAL RECORDS GRANTED TO ELISABETH NEVIN PURPOSE ROADWAY AFFECTS THE WESTERLY 25 FEET OF PARCEL THREE 5. EASEMENT, UPON THE TERMS, COVENANTS AND CONDITIONS THEREOF, FOR THE PURPOSES STATED HEREIN AND INCIDENTAL PURPOSES AS CREATED IN THAT CERTAIN INSTRUMENT RECORDED JULY 26, 1945, BOOK 4756, PAGE 175, SERIES NO. SS-47710 GRANTED TO PACIFIC. GAS AND ELECTRIC COMPANY, A CALIFORNIA CORPORATION PURPOSE i~4IRES AND CROSSARMS AFFECTS A PORTION OF PARCEL ONE TERMS AND CONDITIONS CONTAINED IN THE INSTRUMENT LAST ABOVE. REFERRED TO. .K DATE July 15, 1986 Jan. 15, 1987 July 15, 1987 Jan. 15, 1988 July 15, 1988 Jan, l5, 1989 July 15, 1989 Jan. 15, 1990 July 15, 1990 Jan. 15, 1991 .July 15, 1991 Jan. 15, 1992 July 15, 1992 Jan. 15, 1993 July 15, 1993 Jan. 15, 1994 July 15, 1994 Jan. 15, 1995 July 15, 1995 Jan. 15, 1996 July 15, 1996 Jan. 15, 1997 July 15, 1997 Jan.. 15, 199.8 July 15, 1998 Jan. 15, 1999 July 15, 1999 Jan. 15, 2000 July 15, 2000 Jan. 15, 2001 July 15, 2001 Jan. 15, 2002. July 15, 2002 Jan. 15,. 2003 July 15, 2003 Jan. 15, 2004 July 15, 2004 Jan. 15, 2005 July 15, 2005. Jan. 15, 2006 .July 15, 2006 Jan. 15, 2007 July 15, 2007 Jan. 15, 2008 July 15, 2008 Jan. 15, 2009 July 15, 2009 Jan. 15, 2010 EXHIBIT nC° LEASE TERM ,_ INTEREST PRINCIPAL TOTAL BASE PAYMENT $46 8, 000.00 $500,000.00 $500,000.00 $500,000.00. $500,000.00 $500,000.00 $500,000..00 $.500,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00. $500,000.00 $500.,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00 $500,000.00. s ~ ~ - r ~ x s ~ 2,087-14/0002Ckm 11/19/85 TRUST AGREEMENT RELATING TO PUBLIC FACILITIES PROJECT NO. 1 by and among DUBLIN INFORMATION,. INC., as Lessor and Trustee and CITY OF DUBLIN Dated as of December 18, 1985 This Trust Agreement contains provisions relating to $11, 968, 000 aggregate principal amount of Certi.fscates of Participation, evidencing ownership interest of the Certificate Holders in and to that certain Lease Agreement dated as of December 18, 1985, by and between the City of Dublin, California, as Lessee thereunder. and. Dublin Information,. Inc. , as Lessor thereunder and as Trustee under this Trust Agreement. j sC~Je ~at"f"I3 ~ /~ _ /- i~ n TRUST AGREEMENT TABLE OF CONTENTS (This Table of Contents if for convenience of reference only and is not a part of the Trust Agreement) PAGE ARTICLE I RECITALS AND REPRESENTATIONS Section 1.01. Lease Agreement ~ 2 Section 1.02. Deposit of Moneys 2 Section 1.03. Lease Payments 2 Section 1.04. Conditions Precedent Satisfied 2 ' ARTICLE II DEFINITIONS AND RULES OF CONSTRUCTION Section 2.01. Definitions 3 Section 2.02. Rules of Construction 3 ARTICLE ]II APPOINTMENT OF TRUSTEE Sectis~n 3.01. Appointment of Trustee 4 Section. 3.02. Acceptance of Appointment. 4 ARTICLE IV ESTABLISHMENT AND ADMINISTRATION OF FUNDS AND ACCOUNTS Section 4.01. Pub]ib Facilities Project Trust: Fund 5 Section 4.02. Estab]ishment and Application of - Construction Account 5 Section 4.03. Estab]ishment and Application of Lease Payment Account 6 Section 4.04. No Authorized Transfers '7 Section 4.05. Deposit and .Investment of .Moneys. in Funds 7 i V ARTICLE V THE TRUSTEE Section 5.01. Trustee; Duties, Removal and Resignation 8 Section. 5.02. Compensation of the Trustee 8 Section. 5.03.. Protection fo the Trustee 9 Section 5.04. Paying Agents 10 ARTICLE VI CERTIFICATES;. TERMS AND PROVISIONS Section 6.01. Preparation of Certificates 11 Section 6.02. Fcrm; Denominations; Medium of Payment 11 Section 6.03. Date of Certificates 11 Section 6.04. Payment of Principal and Interest with Respect to Certificates 11 Section 6.05. Legends 12 Section 6.06. Execution 12 Section 6.07. Negotiability, Transfer and .Registry 12 Section 6.08. Transfer of Fully Registered Certificates 12 Section 6.09. Regulation with Respect. to Exchange and Transfers 12 Section 6.10. Certificate Register 13 Section 6.11. Temporary Certifioat~s 13 Section 6.12. Certificates; riutilated, Lost Destroyed or Stolen 13 Section 6.13. Place of Payment ~ 14 Section 6.14. Evidence of Signatures of Certificate Owners and Ownership of Certificates. 14 Section 6.15. Redemption 15 Section 6.16. Redemption Fund 15 Section 6.17. Notice of Redemption 15 Section 6.18. Payment of Certificates 16 ARTICLE VII COVENANTS; LIMITATION OF LIABILITY Section 7.01. City to Perform Agreement 17 Section 7.02. Lessor to Perform Agreement 17 Section 7.03. Action on Default 17 Section 7.04. No Obligation by the City. t:o Owners 17 Section 7.05. No Obligation to Performance. by the Trustee 17 Section 7.06. No Liability to Owners for Payment 17 Section 7.07. No Responsibility for Sufficiency 17 Section 7.08. Trustee May Require Opinion of Counsel 18 Section 7.09. Indemnification to Trustee 18 Section 7.10. No Arbitrage 18 ~I s ,_ ARTICLE V11I AMENDMENT: DEFEASANCE; ADMINISTRATIVE PROVISIONS Section 8.01. Amendment 19 Section 8.02. Defeasance 19 Section 8.03. Recording and Filing 19 Section 8.04. Trustee to Keep Records 19 Section 8.05. Notices 20 Sectien $ . 06 . California Law 20 Section 8.07. Severabi]ity 20 Section 8.08. Binding on Successors 20 Section 8.09. Headings 20 Signatures 21 EXHIBIT "A" Definitions EXHIBIT "B" Certificate Form THIS TRUST AGREEMENT RELATING TO PUBhLC FACILITIES PROJECT NO. 1, made and entered into as of December 18, 1985 (this "Agreement") by and among .Dublin Informat~n, Inc. , a California non-profit public benefit corporation .duly organized and existing under the Taws of the State of California and qualified to accept trusts of the type herein set forth (herein called the "Trustee" or "Lessor as Trustee" or "Lessor") and the CITY 0 F DUBLIN , a municipal corporatism of the State of California (herein called the ,~ City~~ ) WITNESSET H Iri consideratis~n of the mutual covenants herein contained and for other valuable consideration,. the parf~es hereto do hereby agree as follows: 3 - 1 - ~~, ARTICLE I RECITALS. AND REPRESENTATIONS Section 1.01. Lease Agreement. The Lessor and the City have entered intx~ a Lease Agreement Relating to Public Facilities Project. No. 1 and the City has agrees to lease the Project from the lessor. Section 1.02. Deposit of Moneys. Under the Lease Agreement, in order to induce the City to lease the Project from the lessor and to assure the City that the Project Costs will be paid without delay and that the Project will be available for lease without delay, the ]~ssor is required to deposit, or cause ~ be deposited on its behalf, $11, 968, 000. Section 1.03. Lease Payments. Under the Lease Agreement, the. City. is obligated to pay to the lessor or its assignee certain lease Payments for the use and occupancy of the Project. Section 1.04. Conditions Precedent Satisfied. All acts, conditions and things required by law to exist, happen and be performed .precedent to and in connectiDn with the execution and .entering into of this Agreement have happened and have been performed in regular and. due time, form and manner as required by law and the parties hereto are now duly empowered to execute and enter into this Agreement. -2-~. ARTICLE 1T DEFINITIONS AND RULES OF CONSTRUCTION Section 2.01. Definitions. The terms defined in Exhibit A attached heretA and by this reference incorporated herein, as used and capitalized herein, shall, for all purposes of this Agreement, have .the meanings .ascribed ~ them in said Exhibit A, unless the context clearly requires some other meaning. In addition,. the term "Agreement" as used herein means this Trust Agreement Relating to Public Facilities Project No. 1. Section 2.02. Rules of Construction. Words of the masculine gender shall be deemed and construed to include correlative words of the feminine and neuter genders. Unless the context otherwise indicates, words importing the singular number shall include the plural number and vice versa, and words importing persons shall include corporations and associations, including public bodies, as well as natural persons. The terms "hereby" , "hereof" , "hereto" , "herein" , "hereunder" and any Similar terms, as used i11 this Agreement, refer to this Agreement. R - 3 - . _ ;, ARTICLE III APPOINTMENT OF TRUSTEE Section 3.01. Appointment of Lessor as Trustee. In consideration of the recitals hereinabove set forth and for other valuable consideration, the Lessor and the City hereby agree to appmnt the Lessor as Trustee to receive, hold, invest and disburse the moneys to be paid to it pursuant to the Lease Agreement for credit to the various funds and accounts established by this Agreement; to prepare, execute,. deliver and deal with the Certificates; and to apply and disburse the Lease Payments to the Owners of Certificates; and to perform certain other functions; all as hereinafter provided and subject. to the terms and condi#~ons of this Agreement. Section 3.02. Acceptance of Appointment. The Lessor as Trustee accepts the appointment above referred to subject to the terms and condi#zons of this Agreement. - 4 - ARTICLE IV ESTABLISHMENT AND ADMINISTRATION OF FUNDS AND ACCOUNTS ~_ Section 4.01. Public Fames Project Trust Fund No. 1. There is hereby established with the Lessor as Trustee a spef"~al trust fund to be designated the "City of Dublin Public Facilities Project No. 1 Trust Fund". The Lessor as Trustee shall hold said Fund for the benefit of the Certificate Owners and keep .said Public Fatalities Project No. 1 Trust Fund separate and apart from all other funds and moneys held by it. Within the Public Facilities Project No. 1 Trust Fund, there are hereby established, for the benefit of the City, the Construction Account more particularly described in Sectis~n 4.02 hereof and the Lease Payment Account more particularly described in Section 4.03 hereof. On the date of recordation of the Agreement in the Office of the County Recorder of Alameda County, the. Lessor as Trustee. agrees try deposit in the Public Fad_lities Project No. 1 Trust Fund the .sum of $11, 968, 000 and to transfer approximately $11, 968, 000 thereof the the Construction Account, and any remaining amount trhereof to the Lease Payment Account. In addition, accrued interest will. be deposited with the. Lessor as Trustee in the Lease Payment Account. Section 4.02. Establishment and Application of Construction Account. (a) Within the Public Facilities Project No. 1 Trust Fund, there is hereby established a special account to be designated the "Public Facilities Project No. 1 Construction Account" (herein referred to as the. "Construction Account") . The Lessor as Trustee shall hold said Fund for the benefit of the Certificate Owners and keep the Construction Account separate and apart from all other funds and accounts held by it and shall administer the Constructis~n Account as provided in this Section 4.02. (b) Amounts in the Construction Account shall be disbursed for Project Costs. Disbursements from the Construction Account sha11 be made by the Lessor as Trustee upon receipt of a certificate requesting disbursement executed or approved by an Authorized Officer of the City. Subject to subsections (c) and (d) hereof, each such certificate sha11: (ia set for the amounts tp be disbursed for payment or reimbursement of previous payments of Project Costs and the person or persons to whom said amounts are to be aisbursed; (ii) state that the amounts to be disbursed constitute Project Costs as said term is defined in Exhibit "A" attached to this Agreement, that said amounts are required to be disbursed .pursuant to a contract entered into therefor by or on behalf of the Lessor or the City, or were necessarily and reasonably incurred; and that said amounts are not being paid in advance of the .time, if any, fixed for payment; (iii) state that no amount set forth in the certificate was .included in any certificate requesting disbursement previously filed with the. Lessor as Trustee pursuant to this Section; and - 5 - (iv) state that the amount remaining in the Construction Account, together with interest earnings thereon, will., after payment of the amount set forth in the cert~ficats requesting disbursement, be sufficient to pay all remaining Project Costs as then estimated. (c) Prier to the initial disbursement of funds from the Construction Account for the purpose of payments to a contractor for construction. of the Project, the City shall deposit with the Lessor as Trustee; (i) the certi3~oate of an Authorized Officer of the City stating: that all approvals, consents, licenses, certificates or permits, which are conditions precedent to the construction of the Project, whichever is applicable, of any government or agency or bureau thereof having jurisdiction with respect thereto have been obtained; (ii_) the certificate of an Authorized Officer of the City stating the final plans and specifications providing for the construction portions of the Project, have been; completed and approved by the City; and (iii) the certificate of an architect or engineer employed by the City stating. that the site on which the construction portion of the Project is to be constructed pursuant to the plans and specif~.cations is the site. described in Exhibit "B" attached to the Lease Agreement, and that the construction contracts for the Project provide for the construction of the Project in accordance with the plans and specifications therefor. (d) Each certificate .requesting disbursement. which is submitted pursuant to subsection (b) and which relates to disbursement for construction of a construction portion of the Project shalt be accompanied by the certificate of an architect or engineer employed by the City approving the certificate requesting disbursement and certifying that (i) insofar as such certificate relates t~ payment for work, materials, .equipment or supplies, such work was actually performed, or such materials, equipment or supplies were actually installed in furtherance of the construction of the Project or delivered to the sites for such purpose., or delivered for storage or fabrication at a place approved by the City, and (ii) as of the date of said certificate requesting disbursement an identified percentage of the Project has been completed. (e) Any amounts remaining in the Cons~uction Account upon payment of the entire Project Costs shalt be deposited by the Lessor as .Trustee in the Lease Payment Account and the Construction Account shall be closed. Upon deposit of said amounts into the Lease Payment Account, said amounts shall be applied as a credit against the next subsequent Lease Payments due by the City. Section 4.03. Establishment and Application of Lease Payment Account. (a) Within the Public Facilities Project No. 1 Trust Fund, there is hereby established a separate account to be designated the "Public Facilities Project No. 1 Lease Payment Account" (herein referred to as the "Lease Payment Account") . Such account shall be maintained by the Lessor as Trustee for the benefit of the Certificate Owners until the Lease Payments are paid in full pursuant to the terms. of the Lease Agreement. Lease Payments paid to the Lessor as Trustee pursuant to the Lease Agreement sha11 be deposited by the Lessor as Trustee in the Lease Payment Account. - 6 - (b) The Lessor as Trustee shall withdraw from the Lease Payment Account, on each Payment Date, an amount equal to the Lease Payment due on or before such Payment Date, and .shall cause the same to be applied to the payment of principal and interest payments due on the Cerd.ricates on such Payment Date.. Section 4.04. No Unauthorized Transfers. No amount shall be withdrawn or transferred from or paid out of any fund or account except as in this Agreement expressly provided. Section 4.05. Deposit and Investment of Moneys in Funds. (a) All moneys held by the Lessor as Trustee 'in any of the funds or accounts established pursuant to this Agreement shall be deposited or invested in Permitted Investments. The Lessor as Trustee shall invest such funds in Permitted Investments so as to obtain the highest yield which the Lessor as Trustee deems practicable, having due regard for the safety of such funds and for the date upon which such funds will be required for uses and purposes specified in this Agreement: Notwithstanding any provision of this subsection (a) , in the event that written instructions for investment of any fund or account in Permitted Investments are provided by the City, the Lessor as Trustee shall invest moneys in said fund or account in accordance with said instructions. (b) All interest or income received by the Lessor as Trustee on investment of the Lease Payment Account established pursuant to Section 4.03 hereof shall, prier to the Completion Date, be deposited in the Constructson Account and, after the Completion Date, be retained in said Account. and be applied to the payment of delinquent payments due on the Certificates, if any, and otherwise as set forth herein. Transfers to the Lease Payment Account. shall be made by the Lessor as Trustee on or prior to the fifteenth (15th) day of the month preceding each Payment Date, commencing with the first Payment Date fallowing the Completion Date, and shall be applied as set forth herein. Amounts retained or deposited in the Lease Payment Account pursuant to this subsect~n (b) shall be applied as a credit against the Lease Payment due by the City pursuant to the Agreement on the Payment Date following the date of deposit. At the time of deposit of said moneys in the Lease Payment Account, the Lessor as Trustee shall report the amount of said deposit: to the City, and the amount of the Lease Payment payable by the City on .the next following Payment Date shall be reduced by an amount equal tn. said deposit. In tY~~e event that said- moneys exceed the Lease Payment due on said Payment Date, the amount of such excess shall be applied as a credit against subsequent Lease Payments. All interest or income on the Construction Account sha11 be retained in the Construction Account until the Construction Account is closed pursuant to Section 4.02 (e) hereof. (c) .The Lessor as Trustee shall act only as agent. in making or disposing of any investment. As long as the Lessor as Trustee makes investments using ordinary care, the Lessor as TrustQe shall not be liable for any loss resulting from the making or disposition of any investment pursuant to this Section, and any such losses sha11 be charged. to the .account with .respect to which such investment was made. _~`~ _ ARTICLE V THE LESSOR AS TRUSTEE Section 5.01. Lessor as Trustee; Duties, Removal and Resignation. By executing and .delivering this Agreement, the Lessor as Trustee accepts the duties and obligations of the Lessor as Trustee provided in this Agreement, but only upon the terms and conditions set forth in this Agreement. The Lessor and the City may by written agreement between. themselves, or the Owners of a majority. in aggregate principal. amount of all Certificates Outstanding may by written request, .remove the Lessor as Trustee initially a party to this Agreement, and any successor thereto and may appoint a successor Trustee, but any such successor shall be a bank or trust company doing business and having an of~e in California, authorized to do business in the State of California in compliance with all applicable laws and regulations of the Stats of California and the federal government and subject try supervisis~n or examination by federal or state authority. If such. bank or trust company publishes a report of condition at least annually, pursuant to law or to the requirements of any supervising or examining authority above referred to, then for the purposes of this Section the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. The Lessor as Trustee may at any time resign by giving written notice to the Lessor and the City of its intent to resign and, fallowing thirty (30) days after said notice of intent, by giving written notice of resignation to the Certificate owners by publication of such resignation at bast once in an Authorized Newspaper. .Upon receiving such notice of resignation, the City shall promptly appoint a successor Trustee by an instrument in writing; provided, however, that in the event that the City does not appoint a successor Trustee within thirty (30) days thereafter, the resigning Trustee may petition the appropriate court having jurisdiction to appoint a successor Trustee.. Any resignation or removal of the Lessor as Trustee and appointment of a successor Trustee shall become effective upon acceptance of appointment by the successor Trustee. Section 5.02. Compensation of the Trustee. The City shall from time to time on demand reimburse the Trustee for all its advances and expenditures, including but not limited try advances to and fees and expenses of independent appraisers, accountants, consultants, counsel, agents and attorneys-at-law or other experts employed by it in the exercise and performance of its powers and duties hereunder and the Lessor as Trustee sha11 have a lien therefor on any and all funds at any time held by it under this Agreement, which lien shall be prior and superior to the lien of the Certificate Owners . The City's obligation hereunder shall remain valid and binding notwithstanding maturity and payment of the Cerd.fscates. No indemnificat~.on will be made try the Trustee for willful misconduct, negligence,. or breach of duty by the Trustee, its officers, agents, employees, successors or assigns. - 8 - Section 5.03. Protectir~n to the Trustee. The Lessor as Trustee shall be protected and shall incur no liability in acting or proceeding in good. faith upon any resolution, notdce, telegram, request, consent, waiver, certificate, statement, affidavit, voucher, bond, requisii~on, or other paper or document which it shall in good faith believe to be genui-~e and to have been passed or signed by the proper board or person or to have been prepared and furnished pursuant to any of the provisions of this Agreement, and the Lessor as Trustee shall be under no duty to make any investigation or inquiry as to any statements. contained or mattexs referred to in any such instrument, but may accept and rely upon the same as conclusive evidence of the truth and accuracy cf such statements. The. Lessor as Trustee shalt not be bound to recognize any persons as an Owner of any Certificate or to take any action at his request unless such Certificate shall be deposited with the Lessor as Trustee or satisfactory evidence of the ownership of such Certificate shall be furnished to the Lessor as Trustee. The Lessor as Trustee may consult with counsel with regard to legal questions and the opinion of such counsel shall be full. and complete authorization and protection in respect of any action .taken or suffered by it .hereunder in good faith in accordance therewith. Except as to counsel who customarily acts as counsel to the Lessor as Trustee in the performance by the Lessor as Trustee of duties under this Agreement, in the event of a second counsel with respect to the same matter, the Lessor as Trustee shall provide to each counsel a copy of any written opinion provided by the other counsel with respect. to such matter. Whenever in the administration of its duties under this Agreement, the Lessor as Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering any action hereunder, such matter (unless other evidence in respect thereof be herein specifically prescribed) shalt be deemed to be conclusively proved and established by the certificate of an Authorized Officer of the City or the Lessor as Trustee and such certificate shalt be full warranty to the Lessor as Trustee for any such action taken or suffered under the provisions of this Agreement upon the faith thereof, but in its discretion the Lessor as Trustee may, in lieu tY,.ereof, accept other evidence of such matter or may require such additional evidence as to it may. seem reasonable. The Lessor as Trustee may buy, sett, own, held and .deal in any of the Certificates provided pursuant to this Agreement, and may join in any action which any Owner may be entitled tp take with like effect as if the Lessor as Trustee were not a party to this Agreement. The Lessor as Trustee, either as principal or agent, may also engage in or be interested in any financial. or other transaction with the City or the Lessor, and may .act as deposifory, trustee, or agent for any committee or body of Owners of Certificates or other obligations of the City as freely as if it were not the Lessor. as Trustee hereunder. The Lessor as Trustee may execute any of the trusts or powers hereof and perform the duties required of it hereunder by or through attorneys, agents or receivers, and sha11 be entitled. to advice of counsel concerning all matters of trust and its duty hereunder, and the Lessor as Trustee shalt not be answerable for the default or misconduct of any such attorney, agent or receiver selected by it with reasonable care. The Lesscr as Trustee shall not be answerable for the exercise of any discretion. or power under this Agreement or for anything whatever in connection .with the funds and accounts established hereunder, except only for ifs own willful misconduct or gross negligence or breach of duty under this Agreement. -~9 - The Lessor as Trustee will act in a mini and passive capacity in the exercise of its duties as set forth herein, except with respect to its exercise of the rights of the Lessor under the Lease .Agreement in the event of default. thereunder,. in which case it shall act in the manner set forth in Section 7.03 of this Agreement. Section 5.04. Paying Agents. The City may appoint paying agents. Each such agent sha11 be a bank or trust. company having a combined capital. (exclusive of borrowed capital) and surplus of at least Fifty Million Dollars ($50,000,000) and subject to supervision or examination by federal or state authority. If such bank or trust company publishes a report of condign at least annually, pursuant to law or to the requirements of any supervisuig or exam;n;r,q authority above referred to, then for the purpose of this Section the combined capital and surplus of such bank or trust company shall be deemed to be its combined capital and surplus as set forth in its most recent report of conditions so published. - ~10 - ~~ J ARTICLE VI CERTIFICATES: TERMS AND PROVISIONS Section 6.01. Preparation of Certificates. The Lessor as Trustee is hereby directed to prepare, execute and deliver to the Original Purchaser, Certificates in an aggregate principal amount of Eleven Million Nine Hundred Sixty-eight Thousand Dollars ($11,968,000) evidencing .undivided ownership interests in the Lease Payments to be paid by the City under the Lease Agreement. Section 6.02. Form; Denomination; Medium of Payment. The Certificates shall be delivered in the form of Fully Registered Certificates in the denomination of Five Thousand Dollars ($5,000). each or any whole multiple thereof (which form shall be substantially in the form set forth in Exhibit "B" hereto attached and by this reference herein incorporated) or in any combination of such forms. The Certificates shall be payable in lawful money of the United States of America which at the time of payment is legal tender for the payment of public and private debts. • Section 6.03. Date of Certificates. Fully .Registered Certificates delivered prior to December 31, 1985, shall be dated as of December 1, 1985. Fully Registered Certificates delivered on or after December 31,.1985, shall be dated as of the preceding Payment Date unless such date of delivery shall be a Payment Date, in which case with respect to Fully Registered Certificates shall be payable from their date. Section 6.04. Payment of Principal and Interest with Respect to Certificates. (a) The Certificates shall be payable from the principal. component of Lease Payments due and payable by the City on the fifteenth (15th) day of the month preceding each February 1 in the years and amounts and bear interest at the rate(s) per annum as follows: YEAR AMOUNT 1987 $468,000 1988 $500,000 1989 $500,000 1990 $500,000 1991 $500,000 1992 $500,000 1993 $500,000 1994 $500,000 1995 $500,000 1996 $500,000 1997 $500,000 1998 $500,000 1999 $500,000 2000 $500,000 2001 $500,000 2002 $500,000 2003 .$500,000 2004 $500,000 2005 $500,000 2006 $500,000 2007 $500,000 2008 $500,000 2009 $500,000 2010 $500,000 RATE - 11 - /, _ sr. (b) Interest with respect to the Certificates shall be payable on August 1, 1986, and semiannually thereafter on February 1 and August 1 of each year to and including the date of maturity or redemption, whichever is earlier. Said interest shall represent the portion of Lease Payments designated as interest coming due and payable by the City on the. fifteenth (15th) day of the month preceding each of said August 1 and February 1 dates. Section 6.05. Legends. The Certificates may contain or have endorsed thereon such provisions, specifications and descriptive words not inconsistent with the provisions of this Agreement as may be necessary or desirable to comply with custom, or otherwise, as .may be determined by the City prior to the delivery thereof. Section 6.06. Execution. The Certificates shall be executed in the name of, and by, the Lessor as Trustee under this Agreement, by the manual signature of an authorized offscer of the Lessor as Trustee. Sectien 6.07. Negotiability, Transfer and Registry. All of the Certificates issued pursuant to this Agreement shall be negotiable as provided by law subject to the provisions for registration and transfer contained in this Article VI and in the Certifcates. Section 6.08. Transfer of Fully Registered Certificates. (a) The registration of each Fully RegisL~ered Certificate shall be transferable only upon the Certificate Register, which sha11 be kept for that purpose at the. Principal Office of .the Lessor as Trustee, upon surrender thereof together with a written instrument of transfer satisfactr~ry to the Lessor as Trustee duly .executed by the registered .Owner or -his duly authorized attorney Upon the registration of the transfer and the surrender of any such Fully Regist~x'ed Certificate, the Lessor as Trustee shall provide, in the name of the transferee, a new Fully Registered Cexti.fi~ate or Certificates. (b) The Lessor as Trustee shall deem and treat the person in whose name any Outstanaing Fully Registered Certificate shall be registered upon the Certificate. Register as the. absolute owner of such Certificate, whether such. Certificate shall be overdue or not, for the purpose of receiving payment of, or on account of, the principal and .interest payments. with respect t~ such Certificate for all other purposes, and all such payments so made to any such regis-texed Owner cr upon his order sha11 be .valid and effectual to satisfy and discharge the liability upon such Certificate to the extent of the sum or sums so paid, and neither the City nor the Lessor as Trustee shall be affected by any notice to the contrary. The City agrees to indemnify the Lessor as Trustee or cause the Lessor as Trustee to be indemnified against any and ail loss, cost, charge, expense, judgment or liability incurred by it, acting in good faith and without gross negligence hereunder, in so treating such registered Owner. Section. 6.09. Regulation with Respect to Exchange and Transfers. In alt cases in whirh the privilege of transferring Fully Registered Certificates is exercised, the Lessor as Trustee shall execute and .deliver Certi~cat~s in accordance with the provisions of this Article VI. All Fully Registered Certificates surrendered in any such exchanges or transfers shall forthwith be cancelled and destroyed by the Lessor as Trustee. For every such transfer; of Certificates, whether temporary or defsnitive, the City and the Lessor as Trustee - ~2 - may make a charge suffisaent try reimburse it for any tax, fee or other governmental charge, other than one imposed by the City, required to be paid with respect try such exchange or transfer, which sum. or sums shall be paid by the person requesting such exchange or transfer, as a condition precedent to the exercise of the privilege of making such exchange or transfer. Notwithstanding any other provision of this Agreement the .cost of preparing Fully Registered Certificate upon the first exchange or transfer following delivery pursuant to Section 6.01 hereof, and any other expenses of the City or the .Lessor as Trustee incurred in connection therewith (except any applicable tax, fee. or other governmental charge other than one imposed by the City} shall be paid by the City . Section 6.10. Certificate Registex. The .Lessor as Trustee shalt. keep or cause to be kept at the Principal Office of the Lessor as Trustee a Certi.fioate Register; and, upon presentation for such purpose, the Lessor as Trustee shall, under such reasonable regulations as it may prescribe, register or transfer or cause to be registered or transferred, on the Certificate Register, Certificates as hereinbefore provided. The information contained in the Certificate Register with respect to the ownership of or security interest in the Certficates shall not be subject tQ inspection or copying by the public as provided. in Section 5060 (a) of Chapter 1.5 of .Division 6 of Title 1 of the Government Code of the Stats of California; provided, however, that the City shall have access to such records. Section 6.1.1. Temporary Certitzcat~s. Pending preparation of the definitive Certificates, any Certificates delivered under this Agreement may. be initia]ly delivered in temporary form exchangeable for definitive Certificates when ready for delivery. The temporary Certificates may be printed, lithographed or typewritten, sha11 be of such .denominations as may. be determined by the City, and may contain such reference to any of the provisions of this Agreement as may be appropriate. Every temporary Certificates shall be executed by the Lessor as Trustee and be delivered by the Lessor as .Trustee upon the same conditions and in substantially the same manner as .definitive Fully Registered Certificates. If the Lessor as Trustee delivers temporary .Certificates, it shall execute and furnish definitive Certificates without delay and, thereupon, the temporary Certificates shall be surrendered for cancellation at the Principal Office of the Lessor as Trustee and the Lesscr as Trustee shalt deliver in exchange for such temporary Certificates an equal aggregate principal amount of definitive Fully Registered Certificates, of authorized denominations and of the same maturity and interest rate or rates. Until so exchanged, the temporary Certificates shall be entitled to the same benefits under this Agreement as definitive Certificates delivered pursuant hereto. Section 12. Certificates; Mutilated, Lost, Destroyed or Stolen. If any Certificates shall become mutilated or defaced so as to impair its value to the Owner thereof, .the Lessor as Trustee, at the expense of the Owner of said Certificates, shall execute and deliver a new Certif~oatr~ of like tenor and maturity and numbered as the Lessor as Trustee shall determine in exchange and substitution for the Certificates so mutilated,.. but only upon surrender to the Lessor as Trustee of the Certificates so mutilated. Every mutilated Certif-i.cate so surrendered t~ the Lessor_ as Trustee shall be cancelled by it and either destroyed of delivered upon the order of the City. If any Certificates shall be lost, .destroyed or stolen, .evidence of .such .loss, .destruction or theft may be - ~3 - submitted to the Lessor as .Trustee and if such evidence is satisfactory to the Lessor as Trustee and if an indemnity satisfactory to the Lessor as Trustee shall be given, the Lessor as Trustee, at the expense of the Certificate owner, shall.. execute and deliver a new Certificates of ]ike tenor and maturity and numbered as the Lessor as Trustee shall determine in lieu of and in substitution for the Certificate so last, destroyed or stolen'. The Lessor as Trustee may require payment of an appropriate fee for each new Certificates delivered under this Section and of the expenses which may be incurred by the Lessor as Trustee in carrying out the duties under this Section. Any Certificates issued under the provisions of this Section in ]isu of any Certificates alleged to be lost, destroyed or stolen shalt be equally and proportionat:ety entitled tp the benefits of the Trust Agreement. The Lessor as Trustee shall not be required to treat both the oricrinal Certificates and env duplicate Certificates as bP~ncr nutstancl;ncr fnr i-hP purpose of determining the principal amount of Certificates which may be issued hereunder or for the purpose of determi ni n q any percentage of Certificates Outstanding hereunder. Notwithstanding any other provision of this Section, in lieu of delivering a new Certificate fora Certiricate which has been mutilated, lost, destroyed or stolen and which has matured, the Lessor as Trustee may make payment of such Certificates . Section 6.13. Place of Payment.. Pacific Trust Company is hereby appointed as paying agent for the Certificates. The principal of and interest on all Certificates shall. be payable when due by check or draft of the Paying Agent. mailed to the Owner of record as of the close of business on the fifteenth (15th) day of the month next preceding an interest Payment Date at the address .shown on the Certificate Register. Section 6.14. Evidence of Signatures of Certincate Owners and Ownership of Certificates. Any request, direction, consent, revocation of consent or other instrument in writing required or permitted by this Agreement to be signed or executed by Certificates Owners may be in any number of concurrent instruments of similar tenor, and may be signed or executed by such Certificates Owners in .person or by their attorneys or agents appointed by an instrument in writing for that purpose. Proof of the execution of any such instrument, or of any instrument appointing any such attorney or agent, and of the holding and ownership of Certificates shall be sufficient for any purpose of this Agreement (except as otherwise herein provided.) , if made in the fallowing manner: (a) The fact and date of the execution by any Certificate. Owner or his atmrney , or agent cf any such instrument and of any instrument appointing any such attorney or agent, may be proved by a certificate, which need not be acknowledged or verified, of any officer of any bank or trust company located within the United States of America, or of any notary public, or other officer authorized to take acknowledgments of deeds to be recorded in such jurisdictions that the persons signing such instruments acknowledged .before hirn the execution thereof. Where any such instrument is executed by an officer of a corporation or association or a member of a partnership on behalf of such corporation, assocriation or partnership, such certificate shalt also constitutes sufficient proof. of his authority . (b) The ownership of . Certificates shall be proved by the Certificate Register held by the Lessor. as Trustee under the. provisions of this. Agreement. - 14 - Nothing contained in this Article shall be construed as limiting the Lessor as Trustee to such proof, it being intended that the Lessor as Trustee. may accept any other evidence of the matters herein stated which may seem _ sufhrient. Any request or consent of the Owner of any Certifyate shall bind every future Owner of the same Certi.fdcate in respect of anything done or suffered to be done. by the City or the Lessor as Trustee in pursuance of such request or consent. Section 6.15. Redemption (a) The Certificates are subject to extraordinary mandatAry redemption in whale or in part (but not in a--total redemption amount of less than Twenty Thousand Dollars ($20,000) , in inverse order of maturity and by 1nt within a maturity on any Payment Date, without premium, at the principal amount thereof, together with accrued interest to the date fixed .for redemption from the. proceeds of insurance or condemnation transferred by the Lessor as Trustee from the special. fund in which such proceeds are held to the Lease Payment Account or if, in the event of default,. the City pays the Lease Payments .in full, or causes the Lease Payments to be paid in full pursuant to the Lease Agreement. The Certificates maturing on or after February 1, 1988, are subject to redemption from any source of funds on any interest payment date in part or as a whale beginning February 1, 1988, at their par value, plus accrued intexest. Certificates maturing on February 1, 1987, are not subject to redemption other than as above provided. (b) Redemption by lot shall be in such manner as the Lessor as Trustee shall determine; provided, however, that the portion of any Fully Registered Certificate to be redeemed shall be in the principal amount of Five Thousand DaUars ($5,000) or any integral multiple thereof, .and that in selecting portions of Fully Registered Certif~nates for redemption, the Lessor as Trustee shall treat each such Fully Registered Certifdcate as representing that number of Certificates which is obtained by di_vi~ding the principal .amount of such Fully Registered Certificate by Five Thousand. Dollars ($5,000) . Section 6.16. Redemption Fund. .Moneys to be used .for redemption pursuant to this Article VI hereof shall. be transferred by the Lessor as Trustee from the Lease Payment Account and deposited in a Redemption Fund, which shall be a special fund to be held by the Lessor as Trustee, separate and apart from all other funds, for the benefit of the Certii~.cate Owners. Said moneys shall be set aside in the Redemption Fund solely for .the purpose of redeeming. the Certificates in advance of their maturity and shall be app]ied on or after the Payment Date designated pursuant to Article VI to the payment of principal and interest with respect to the Certificates to be redeemed upon presentation and surrender of such Certificates. Section 6.17. Notice of Redemption. When redemption is required pursuant to this Article VI, the Lessor as Trustee shall give to the Certincate Owners notice at the expense of the City of the redemption of the Certificates. Such notice shall specify: (a) that the whole or a designated portion of the Certificates are to be redeemed, (b) the Payment Date of redemption, and (c) the place or places where the redemption .will be made. Such notice shall further state that on the specdfied Payment Date there shall become due and payable upon - 15 - each Certificate to be redeemed, the princzipal thereof and premium,. if any, together with interest accrued to said Payment Date, and that from and' after such Payment Dates interest thereon shall cease to accrue and be payable. Since Fully Registered Certificates constitute alt of the Certifscates then to be redeemed, it sha11 be suff~ri,ent notice of any redemption of such Certificates that notice thereof stating the applicable Payment Dates by mailed, postage prepaid, not more than sixty (60) days nor less than thirty (30) days prior to such Payment Date to the Registered Owners of such Certificates. Section 6.18.. Payment of Certificates. Notice having been given as aforesaid, and the moneys for the redemption, .including interest to the applicable Payment Date, having been set aside in the Redemption Fund, the Certificates to be redeemed shall become due and payable on said Payment Date, and, upon presentatifln and surrender thereof at the office or offices specified in said .notice said Certzficat~s shall. be paid at the unpaid principal amount thereof, plus any unpaid and accrued interest. to said Payment Date. If, on said Payment Date, moneys .for the redemption of all the Certi~eates to be redeemed, together with interest to said Payment Date, shalt be held by .the Lessor as Trustee so as to be available therefor on such Payment Date, and, if notice of redemption thereof shall have been given as .aforesaid, then, from and after said Payment Date, interest on the Certificates to be redeemed shall cease to accrue and become payable. If said moneys shalt not be so available on said Payment Date, such. Certificates shall continue to ..bear interest until paid at the same rates as they would have borne had. they not been notified for redemption. AlI. moneys .held by or on behalf of the Lessor as Trustee for the redemption of particular. Certificates shall be held in trust for the account of the Owners of the Certificates so to be redeemed. - 16 - ~ -~. ARTICLE VII COVENANTS.; ISr'lITATION OF LIABIhITY Section 7.01. City to Perform Agreement. The City covenants and agrees with the Owners of the Ce 'fixates, to perform all obligations and duties imposed on it under. the Lease Agreement to the extent so imposed. Section 7.02.. Lessor to Perform Agreement. The Lessor covenants and agrees with the Owners of the Certificates, to perform all. obligations and duties imposed on it under the Lease Agreement. Section 7.03. Actir~n on Default. Upon the Lessor as Trustee's receipt of the actual notice of the occurrence of an event of default by the City under Section 6.01 of the Lease .Agreement, and in each and every such case during the continuance of such event of default, the Lessor as Trustee shall, with respect to any event of default other than a default pursuant.. to subsection (b) o~ Section 6.01 of the Lease AGreement, and may, with respect try an event of default. pursuant to said. subsection (b) of Section 6.01 of the Lease Agreement. (or shall, in the event of a request therefor by the owners of not less than twenty-five percent (25~) in .aggregate principal amount of Certificates at the time Outstanding) , upon notice in writing tp the City and the Lessor exercise the remedies provided to the Lessor in the Lease Agreement. Section 7.04. No Obligation by the City t~ Owners. Except for .the.. payment of Lease Payments when due in accordance with the Lease Agreement and the performance of the other covenants and the agreement of the City .contained in said Agreement, the City shall have no obligation or liahilit-y to any of the ether parties or to the Owners of the Certificates with respect tp this Agreement or the terms., execution, delivery or transfer of the Certificates, or the distribution of Lease Payments to the Owners by the Lessor as Trustee. Section 7.05. No Ob]igatis~n to Performance by the Lessor as Trustee. Neither. the City nor the Lessor shall have any obligation or liahility to any of the other parties or to the Owners of the Certificates with respect tp the performance by the Lessor as Trustee of any. duty imposed upon it under this Agreement. Section 7.06. No Liability to Owners for Payment. Except as provided in this. Agreement, neither the Lessor nor the Lessor as Trustee sha11 have any obligation or liability. to the Owners of the. Certificates with respect to the payment of the Lease Payments by the City from revenues when -due, or with respect to the performance by the City of any other covenants made by it in the Lease Agreement. Section 7.07. No Responsibility for Sufficiency. The Lessor as Trustee shall not be responsible for the suffis:iency of the Lease Agreement or the value of or title to the premises upon which the Project is located or the Project. The Lessor. as Trustee shall not be .responsible or ]fable for any loss suffered in connection with any investment of funds made by it under the terms of and in accordance with this Agreement provided that it has used ordinary care in making such investments. i~ - 17 - f- , - Section 7.08. Lessor as Trustee May Require Opinion of Counsel. Before being required to take any action the Lessor as Trustee may require an opinion of counsel acceptable to the Lessor as Trustee, which counsel may be counsel to any of the parties hereto, or a verified certificate of any party hereto, or both, concerning the proposed action. If it does so in good faith, the Lessor as Trustee shall be absolutely .protected in relying thereon. Section 7.09. Indemnification to Lessor as Trustee. The City shall indemnify and save the Lessor as Trustee harmless from and against all claims, losses, costs, expenses, liability and damages,. including legal fees and expenses, ariG?ng out of (i) the use, maintenance, condition or management of, or from any work or thing done on, the Project by the City, (i>a any breach or default on the part of the City in the performance of any of its obligations under this Agreement and any other .agreement made and entered into for purposes of the Project, (iii) any act of negligence of the City or of any of its agents, contractors, servants, employees or licensees with respect to the Project, (iv) any act of negligence of any assignee of, or purchaser from, the City or of any of its or their agents, contractors, servants, employees or licensees with respect to the Project or, (v) the acquisition or construction of the Project or the authorization of payment of the Project Costs by the .City, (vi) the actions of any other party to this Agreement including but not .limited to the ownership, operation or use of the Project by the City, or (vii) or in the exercise and performance of its powers and duties hereunder alt to the extent permitted by law. No indemnification wilt be made under this Section or elsewhere in this Agreement for willful misconduct, negligence, or breach of duty under this Agreement by the Lessor as Trustee, its officers, .agents, employees, successors or assigns. The City's obligations hereunder shall remain valid and binding notwithstanding maturity and payment of the Certificates. Sectior. 7.10. No Arbitrage. The City shalt not make, or permit to be made, any .use of the proceeds of the sale of the Certificates which, if such use had been made on the .date of delivery hereof, would cause the obligation of the Lease Agreement to become an arbitrage bond within the meaning of Sectson 103 (c) of the Internal Revenue Code, as amended. -~8 - r; _ __ k ~~ f ARTICLE VIII AMENDMENT; DEFEASANCE; ADMINISTRATIVE PROVISIONS Sectifln 8.01. Amendment. This Trust .Agreement may be amended in writing by agreement of the City and the Lessor as Trustee for the purpose of (a) curing any ambiguity or of curing, correctdng, or supplementing any defective provision contained herein, or (b) in regard to questions ariG-ing under this Agreement which the City may deem necessary or desirable .anal not inconsistent with the provisions of this. .Agreement, .provided that no such amendment pursuant to (a) or (b) of this Section 8.01 shall adversely .affect the interest of the Certificate Owners.. This Agreement may also be amended upon approval of a majority in aggregate principal amount of the Owners of the Certificates then Outstanding; provided that no such amendment. shall impair the right of any owner to .receive his proportionate share of any Lease Payment in accordance with his Certificate. Section 8.02. Defeasance. If and when all Outstanding Certdficates shall be paid and discharged in any one or more. of the following ways: (a) by well and .truly. paying or causing to be paid the principal of and interest with respect to alt Certificates Outstanding, as and when the same become due and payable; (b) by depositing with the Lessor as Trustee, in trust, at or .before maturity, money which, together with .the amounts then on deposit in the Lease. Payment Account is fully sufficient to pay all Certificates Outstanding, including all principal and interest and premium, if any, or; (c) by depositing with the Lessor as Trustee, in trust, Federal Securities in such amount as the Lessor as Trustee sha11 determine will, together with the interest to accrue thereon and moneys then on deposit in the Lease Payment Account together with the interest to accrue thereon, be fully suffic:i.ent to pay and discharge alt Certificates (including all principal and interest) at or before their respective maturity dates; notwithstanding that any .Certificates shall not have been surrendered for payment, all obligations of the Lessor and the Lessor as Trustee with respect to all Outstanding Certificates shall cease and terminate, except only the obligation of the Lessor as Trustee to pay or cause to be paid to the Owners of the Cerd.ficates not so surrendered and .paid all sums due thereon. The funds held by the Trustee, at .the. tune of one of the events described above in subsect~ns (a) , (b) or (c) , which are not required for the payment to be made to Owners, shall be paid over to the .City. Section 8.03. Recording and Filing. .The Lessor as Trustee shalt not be responsible for the recording and filing of the Agreement and financing statements (or continuation statements in connectson therewith) or of any supplemental instruments or documents of further assurance as may.. be required by law in order to perfect the security interest created by this Agreement. - ~19 - Section 8.04. Lessor as Trustee to Keep Records. The Lessor as Trustee shall keep books and records of all moneys received and disbursed under this Agreement, which shalt be avai]able for inspection by .the City and the _ Lessor, or five percent (5~) in aggregate principal amount of Certificate Owners or their respective designees, at any time during regu]ar business hours. Section 8.05. Notices. All w>~n .notices tp be given under this Agreement shall be given by mail to the party entitled thereto at its address set forth below, or at such address as the party may provide to the other party in writing from time to tune. If to Lessor as Trustee: Dublin Information, Inc .. _ 6500 Dublin Boulevai~rl ; Suite 101 c,__Dublin,_-CA _ 94568 _ If to City: Dublin Information, Inc. 6500 Dublin Boulevard, Suite 101 .Dublin, CA 9456$ Section 8.06. California Law. This Agreement shall be construed and governed in accordance with the laws of the State of California. Section 8.07. Severability. If any .one or more of the covenants, stipulations, promises, agreements or obligations provided in this Agreement on the part of the Lessor or the City to be performed should be det~xmined by a court of competent jurisdiction to be contrary to law , then such covenant, stipulation, promise, agreement, obligation shall be deemed and construed to be severable from the remaining covenants, stipulations, promises, agreements and obligations herein contained and shall in no way affect the validity of .the other provisions of this Agreement. Section 8..08. Binding on Successors. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Section 8.09. Headings. Headings preceding the text of the several Articles and Sections hereof, and the table of contents, are solely for convenience or reference and shall not constitute a part of this Agreement or effect its meaning, constructior_ or effect. -20- IN WITNESS WHEREOF, the parties have executed this Agreement by their officers thereunto duly authorized as of the date and year first written above. (SEAL) {SEAL) DUBLIN INFORMATION, INC. as Trustee and Lessor By: Title: Byz Title CITY OF DUBLIN By: Title: Mayor Attest: By: Title : City Clerk - 21 - s.. EXE~iIBIT ..B.. The Certificate Form will be presented at the meetings of the City Council and Dublin Information, Inc. on December 18, 1985. _ l _ •^~ _ __•~ >~ 1 RECORDING REQUESTED BY ) AND WHEN RECORDED RETURN T0: ) (Space above for .Recorder's use only) AGENCY AGREENIENT RELATING TO CONSTRUCTION AND ACQUISITION OF PUBLIC FACILITIES PROJECT NO. 1 by and between DUBLIN INFORMATION, INC. as Lessor and the CITY OF DUBLIN DATED AS OF DECEMBER 18, 1985. ~xl~~lo~-~-~ AGENCY AGREEMENT RELATION TO CONSTRUCTION AND ACQUISITION OF PUBLIC FACILITIES PROJECT THIS AGENCY AGREEMENT RELATING TO CONSTRUCTION AND ACQUISITION OF THE PUBLIC FACILITIES PROJECT NO. 1, made and entered into as the 18th day of December, 1985, by and between Dublin Information, Inca (the "Lessor") , anon-profit public benefit corporation duly organized and existing under the laws of the State of California and the. CITY O F DUBLIN , a municipal corporation of the State of California (the "City") . WITNESSET H WHEREAS, the Lessor and the City have entered into a Lease Agreement Relating To Public Facilities Project No. 1 (the "Lease Agreement") dated as of the date hereof, whereby the Lessor agrees to lease. certain facilities (the "Project") to be located on premises described in Exhibit B attached to the Lease Agreement,. to the City and the City agrees to lease the Project from the Lessor; and WHEREAS, it is in the interest of the Lessor and the City that the Lessor appoint the City as its agent for the purposes of construction, acquisitis~n and operation of the Project, and the Lessor has agreed in the Lease Agreement to appoint the City as its agent for said purposes. NOW , THEREFORE , in consideration of the above premises and of the mutual convenants herein contained :and .for other valuable consideration , the parties hereto DO HEREBY AGREE as follows: Section 1. Definitions. The terms capitalized. in this Agency Agreement shall have the meanings ascribed. to them in Exhibit A attached to the Lease Agreement. Section 2. Appointment of the City.. The Lessor hereby appoints the City as its agent to .carry out all phases of the supervisor, construction, reconstruction, acquisition or operation of the Project. and the City, as agent of _ _2_-` ', `~~ the Lessor, assumes all rights, duties and responsibilities of the Lessor regarding : supervision, construction, acquisition or operation of the Project, except as limited herein . Section 3. Contracts and Payments. The City, as agent of .the Lessor, may enter into any purchase order, construction management agreement, construction contract or any other :contract or arrangement required for construction, completion, acqu~ition or operation of the .Project upon being assured that moneys sufficient for the payment thereof are then on deposit in the Construction Account created pursuant to Secion 4.02 of the Trust Agreement or are otherwise available. If the City shall enter into. any such contract or order for which such moneys .are not available, it shall be solely responsible far payment thereof. Section 4. Project Description. The City, as agent for the Lessor, shall have the right to make. any changes in the description of the Project or of any component thereof, whenever the City deems such changes to be necessary and appropriate; provided, however, that any such change shall not apex the essential nature of the Project, or impair the availability:. of the City to make Lease Payments under the Lease Agreement. Section 5. Supervision of Construction and Installation. The City, as agent of the Lessor, shall have so]e responsibility for and shall supervise construction and acquisition of the Project and the purchase and installation of -any personal. property constituting apart of the PrcJject. The City shall monitor the performance by any construction manager and by the construction contractors to the extent the City deems appropriate. The City shall permit the Lessor to inspect construction at any and all reasonable times which are deemed appropriate by the Lessor. Section 6. Enforcement of Contract. The Lessor hereby assigns tQ the City alt rights. and powers to enforce in its own name or the name of the Lessor such purchase orders or contracts as are required for the construction, completion, acquisition and operation of the Project which enforcement may be at law or in equity; provided, however, that the assignment. made by the Lessor herein shall not prevent the Lessor from asserting said rights and powers in its own behalf. -3-~ Section 7. Fixed Construction Price. The Lessor shall not be responsible for, nor shall it pay nor permit to be paid by the Lessor pursuant to the Trust Agreement, more than Eleven. Million Nine Hundred Sixty-eight Thousand Dollars ($11,968,000) for the construction and acquisition of the Project. Section 8. Inspection of Records.. The Lessor shall have the right to inspect periodically the. books and records of the City relating to the construction and acquisition of the Project, and the City shall permit the Lessor to make such inspections thereof at all reasonable times as the City shall deem appropriate. Section 9. Time of Completion and Liquidated Damages. The construction of the Project shall be completed by September 1, 1988. The City shall provide in the construction contract that liquidated damages will be assessed against the construction contractors or construction manager-for each day completion is delayed. The City shall assure that all construction contracts or a construction management agreement, whichever the City deems appropriate, shall or does contain provision for liquidated damages in compliance with this Section 9. Section 10. Prevailing Wages. Each contract entered into between the City as the agent for the Lessor, and any contractor shall provide that such contractor shall pay not less than the general prevailing rate of wages, as determined in accordance with Labor Code Section 1770, et seq. Section 11. Nondiscrimination. Each contract entered into between the City as the agent for the Lessor, and any contractor shall provide that such contractor shall not discriminate against. any other contractor or any employee or applicant for employment. because of the race, religious creed,. color, national origin, or sex of such person, unless based upon a bona fide occupational qualification. In addition, in determining contractors, or in employing persons for the purposes of construction or construction management, the City shall not discriminate on the basis of race, religious creed, color, national origin, or sex. of such person, unless based upon a bona fide occupational qualification. Section 12. Performance Security. Eaeh contractor hired by the City on behalf of the Lessor, shall be required to provide payment and performance bonds in amounts equal to the maximum price under the contracts. - 4 - Y +( ~ • IN WITNESS WHEREOF, .the Lessor and the City have caused this Agreement to be executed in their respective names by their. duly authorized ofE~ers, all as of the date first above written. DUBLIN INFORMATION, INC. By: Title (SEAL) By: Title CITY OF DUBLIN, .CALIFORNIA By: Mayor (SEAL) Attest: ..City Clerk - 5 -~ ~~~ STATE OF CALIFORNIA } SS. COUNTY OF ) The undersigned, a Notary Public, does hereby certdfy that and' , whose names as and respectively, of the City of Dublin, are .signed to the. Agency Agreement, and who are each known to me ar~d known to be such officers of said City, acknowledged before me on this day under oath that, being informed of the contents of this Agency Agreement, they, in their capacities as officials of said City and with full authority, executed and delivered the same voluntarily for and as the act of said City on the day the same bears date. Given under my hand and seal of office this , 198 day of Notary Public My Commission expires: STATE OF CALIFORNIA ) SS. COUNTY OF } The undersigned, a Notary Public, does hereby certify .that and whose names as and respectively, of Dublin Information, Inc. , are signed to the Agency Agreement, and who are each known to me and known to be such officers of said Corporation acknowledged before me on this day under oath that, being informed of the contents of this Agency Agreement, they, in their capacities as of~Cials of said Corporation and with full authority, executed and delivered the same voluntarily for and as .the act of said City on the day. the same bears date. Given under my hand and seal of office this 198 Notary Public My Commission expires: day of ,} -6-~