HomeMy WebLinkAboutMC-306
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SAN BERNARD INO
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ORDINANCE NO. MC-306
5 ORDINANCE OF THE CITY OF SAN BERNARDINO
6 APPROVING THE FORMAL ACT OF ENTERING
7 INTO A LEASE WITH THE REDEVELOPMENT
8 AGENCY OF THE CITY OF SAN BERNARDINO
9 The Mayor and Common Council of the City of
10 San Bernardino do ordain as follows:
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Section I. Lease Approval. The act of
12 entering into a formal lease agreement by and between
13 the City of San Bernardino and the Redevelopment Agency
14 of the City of San Bernardino, which agreement is a
15 "public leaseback" as that term is defined by Govern-
16 ment Code ~54240(b), is hereby approved. A copy of the
17 lease dated as of October 1, 1983, entitled "Public
18 Facilities Lease (Central Library)" (hereinafter
19 "Lease"),' is on file with the City Clerk of the City,
20 it being the intent that the lease state the purpose
21 thereof and the maximum obligation to be undertaken by
22 the City and that it be suitably amended as necessary
23 in accordance with the necessities of financing.
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Section 2. Effective Date, Referendum. This
25 Ordinance is subject to the referendum requirements of
26 Government Code Sections 54240 to 54245, inclusive.
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SAN BERNARDINO
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The City Clerk shall cause this Ordinance to
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be published as provided in the City Charter and this
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Ordinance shall take effect on the thirty-first (31st)
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day after its approval of the Mayor.
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I HEREBY CERTIFY that the foregoing Ordinance
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was duly adopted by the Mayor and Common Council of the
adjourned
City of San Bernardino at Mregular meeting thereof,
held on the
26th day of September, 1983, by the fol-
12 lowing vote, to wit:
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Council
AYES: Members Reilly, Marks, Frazier,
Strickler
Council
NOES: Members None
Council Castaneda, Hernandez, Quiel
ABSENT: Members
ABSTAIN: Members None
23 Approved as to form:
2245 /?~~~
ity Attorney
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[SEAL]
/A$//,0'/~~Y
City Cler
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SAN BERNARDINO
(Central Library)
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4 PUBLIC FACILITIES LEASE
5 (CENTRAL LIBRARY)
6 THIS LEASE, dated for convenience as of
7 October 1, 1983, by and between THE REDEVELOPMENT
8 AGENCY OF THE CITY OF SAN BERNARDINO, CALIFORNIA
9 (herein called "Agency"), a public body, corporate and
10 politic, organized and existing under the laws of the
11 State of California, and the CITY OF SAN BERNARDINO,
12 CALIFORNIA (herein called "City"), a municipal corpo-
13 ration duly organized and existing under and by virtue
14 of the Constitution and laws of the State of Cali-
15 fornia,
16 WIT N E SSE T H:
17 That for and in consideration of the mutual
18 promises and agreements herein contained, the parties
19 hereto agree as follows:
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Section 1. Definitions.
21 The terms defined in this Section shall, for
22 all purposes of this Lease, have the following meanings
23 herein unless the context otherwise requires.
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(a) Base Rental
25 "Base Rental" means the total rental due
26 for the Project when completed (as more particularly
27 set forth in Section 4(a)) and is equal to the Agency's
28 debt service on its outstanding Bonds but does not
29 include Additional Rental.
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(b) Bonds
31 "Bonds" means the bonds to be issued by
32 the Agency under and pursuant to the Resolution.
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(c) Construction Contract
34 "Construction Contract" means the
35 construction contract or contracts providing for the
36 construction of the Facilities, including, without
37 limitation, the plans and specifications, any addenda
38 thereto, and other construction documents, a copy or
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SAN BERNARDINO
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4 copies of which is, are or will be on file in the
5 office of the Secretary of the Agency and the City
6 Clerk of the City.
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(d)
Faci Ii ties
8 "Facilities" means all improvements for
9 providing a Central Library on the Site, which, together
10 with the Site, will constitute the Project.
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(e) Fiscal Agent
12 "Fiscal Agent" means the trustee appointed
13 by the Agency pursuant to the Resolution, its successors
14 and assigns, and any other corporation or association
15 which may at any time be substituted in its place, all
16 as provided in the Resolution.
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(f) Fiscal Year
18 "Fiscal Year" means the year period
19 beginning on July 1st and ending on the next following
20 June 30th.
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(g) Project or Leased Premises
22 "Project" or "Leased Premises" means the
23 Site with the Facilities thereon, and includes the
24 acquisition, construction and equipping of a library
25 and the off-street public parking facilities necessary
26 therefor, including, without limitation, the acquisition
27 of land and permanent and construction easements and
28 rights-of-way and other property necessary therefor,
29 grading, leveling, paving, installing curbs, gutters,
30 sidewalks and driveways, striping of parking areas and
31 other necessary site improvements and appurtenances and
32 appurtenant work, hereinafter sometimes referred to as
33 the "Central Library".
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(h) Net-Net-Net Lease
35 "Net-Net-Net Lease" means a lease which
36 imposes all the obligations on the tenant, and includes,
37 but is not limited to, the following obligations: real
38 property taxes and assessments, repairs and maintenance,
39 insurance, and duty to restore in case of destruction.
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SAN BERNARDINO
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(i) Resolution
"Resolution" means the Resolution to be
adopted by the Agency providing for the issuance of its
Bonds entitled: "Resolution of the Redevelopment
Agency of the City of San Bernardino, California, Auth-
orizing the Issuance of $7,620,000 Public Facilities
Lease Revenue Bonds (Central Library), Issue of 1983,
Series A".
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(j) Site
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"Site" means the real property consist-
ing of the parcels on which the Facilities are to be
located, which are designated on the Map attached
hereto as Exhibit A. The specific legal descriptions
of such parcels will be completed prior to or concur-
rently with the final plans and specifications for the
construction of the Facilities involved and shall be
set forth in the records of the City and the Agency.
(k) Term
22 "Term" means the term of this Lease as
23 provided in Section 3 hereof.
24 Section 2. Lease and Leaseback of Site,
25 Lease of Facilities of Premises.
26 The City hereby leases the Site to the Agency
27 for the purposes hereof and the terms hereof, and the
28 Agency hereby leases the Project (the Site and the
29 Facilities) to the City, all subject to the terms and
30 conditions of this Lease.
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Section 3. Term.
32 The term of this Lease shall commence on its
33 execution, although rentals will commence at a later
34 date.
35 This Lease shall end on October 1, 2013, or
36 such other time when the Bonds issued by the Agency
37 pursuant to the Resolution or any Supplemental Resolu-
38 tion have been retired or provision for payment has
39 been provided for pursuant thereto, and, at such time,
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SAN BERNARDINO
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4 any surplus funds derived from Base Rental and Addi-
5 tional Rental hereunder remaining in the hands of the
6 Fiscal Agent shall be paid to the City.
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Section 4. Rental.
8 The City shall pay Base Rental and Additional
9 Rental to the Agency in the amounts, at the times and
10 in the manner set forth herein, said amounts constitut-
11 ing in the aggregate the total of the annual rentals
12 payable under this Lease as follows:
13 (a) Base Rental. For the period commencing
14 on (1) September 1, 1985, or (2) the date on which the
15 Central Library is substantially completed and written
16 notice thereof has been served to the City, or on any
17 later date of such substantial completion, including,
18 without limitation, any extension of the completion
19 date as may be provided under any Construction Con-
20 tract, whichever (1) or (2) occurs later, City agrees
21 to pay to the Fiscal Agent for the account of the
22 Agency, commencing on September 1, 1985, and on each
23 March 1 and September 1 thereafter, for each Fiscal
24 Year rent at the following amounts per annum:*
25 / / /
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35 * The amounts are subject to adjustment when the
36 interest rate or rates on Agency's Bonds are known.
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SAN BERNARDINO
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Fiscal Base Fiscal Base
Year Rental Year Rental
1985-86 $871,500 1998-99 $871,500
1986-87 871,500 1999-20 871,500
1987-88 871,500 2000-01 871,500
1988-89 871,500 2001-02 871,500
1989-90 871,500 2002-03 871,500 \Y'
1990-91 871,500 2003-04 871,500
1991-92 871,500 2004-05 871,500 {\~y
1992-93 871,500 2005-06 871,500
1993-94 871,500 2006-07 871,500 vJ ,y
1994-95 871,500 2007-08 871,500 "J-it"f\
1995-96 871,500 2008-09 871,500 ~\;
1996-97 871,500 2009-10 871,500
1997-98 871,500 2010-11 871,500
2011-12 871,500
2012-13 871,500
2013-14 871,500
22 Rent shall cease when the Bonds have been
23 paid or provision for payment has been made pursuant to
24 the Resolution. In the event that the liability of
25 City for rent for the Central Library does not commence
26 on September 1, 1985, the rent to be paid for the
27 Central Library for the remaining portion of the Fiscal
28 Year in which such liability commences shall be pro-
29 rated and shall be paid on the next following March 1
30 or September 1, as the case may be. During the re-
31 mainder of the term of this Lease, said rental shall be
32 due and payable in equal semiannual installments on
33 March 1 and September 1, respectively, in each Fiscal
34 Year for use of the Leased Premises during said Fiscal
35 Year. Although this contemplates all the parts of the
36 Central Library being substantially completed and the
37 City taking possession of it on September 1, 1985, it
38 shall not preclude the City from taking possession
39 thereof at an earlier date, prior to the other parts
40 thereof being substantially completed, and, in such
41 case, liability for the payment of rentals under this
42 Lease shall commence upon such possession and a pro
43 rata portion of the Central Library rent shall be paid
44 (determined on the basis that the proportion completed
45 bears to the total Central Library).
46 (b) Additional Rental. In addition to and
47 after the commencement of the Base Rental hereinabove
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4 set forth, the City shall pay to the Fiscal Agent for
5 the account of the Agency an amount or amounts (herein-
6 after called "Additional Rental") equivalent to the sum
7 of the following:
8 (i) All taxes and assessments of any
9 nature whatsoever, including, but not limited to,
10 excise taxes, ad valorem taxes, ad valorem and
11 specific lien special assessments and gross
12 receipts taxes, if any, levied upon the Project or
13 upon the Agency's interest therein or upon the
14 Agency's operation thereof or the Agency's rental
15 income derived therefrom.
16 (ii) All expenses (not otherwise paid or
17 provided for out of the proceeds of the sale of
18 Bonds of the Agency) incidental to the issuance of
19 the Bonds and all administrative costs of the
20 Agency, including, without limiting the generality
21 of the foregoing, salaries, wages, expenses,
22 compensation and indemnification of the Fiscal
23 Agent under the Resolution, fees and charges of
24 auditors, accountants, architects, attorneys and
25 engineers, and all other necessary administrative
26 charges of the Agency or charges required to be
27 paid by it in order to comply with the terms of
28 the Bonds or of the Resolution and to defend the
29 Agency and its members.
30 (iii) Insurance premiums, if any, on all
31 insurance required or permitted under the pro-
32 visions of Section 8 hereof.
33 (iv) All costs and expenses which the
34 Agency may incur in consequence of or because of
35 any default by the City under this Lease, includ-
36 ing reasonable attorneys' fees and costs of suit
37 in equity or action at law to enforce the terms
38 and conditions of this Lease.
39 (v) All sums necessary to maintain the
40 balance of the Reserve Fund established pursuant
41 to the Resolution at the levels provided for
42 therein.
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4 (vi) All sums necessary to maintain at
5 the amount of $2,500 the Administrative Expense
6 Fund established pursuant to the Resolution.
7 The Additional Rental payable hereunder shall
8 be paid by the City within thirty (30) days after
9 notice in writing from the Agency to the City stating
10 the amount of Additional Rental then due and payable
11 and the purpose thereof; provided that the City's
12 liability for Additional Rental shall be limited to the
13 balance due under the Resolution. Nothing herein
14 contained shall prevent the City from making from time
15 to time contributions or advances to the Agency for any
16 purpose now or hereafter authorized by law.
17 (c) Consideration. The payments of Base
18 Rental and Additional Rental hereunder for each Fiscal
19 Year of the term of this Lease shall constitute the
20 total rental for said Fiscal Year and shall be paid by
21 the City for and in consideration of the right of use
22 and occupancy, and the continued quiet use and enjoy-
23 ment, of the Leased Premises for and during said Fiscal
24 Year which the City receives. The parties hereto have
25 agreed and determined that such total rental represents
26 the fair rental value of the Leased Premises. In
27 making such determination, consideration has been given
28 to the costs of acquisition and financing the construc-
29 tion of the Facilities, the uses and purposes which
30 will be served by the Facilities and the benefits
31 therefrom which will accrue to the parties and the
32 general public by reason of the Facilities.
33 (d) Budget. The City shall take such action
34 as may be necessary to include and maintain all such
35 total rental payments due hereunder in each Fiscal Year
36 in its budget for such Fiscal Year and further shall
37 make the necessary appropriations for all such rental
38 payments. The City shall furnish to the Agency and to
39 the Fiscal Agent under the Resolution copies of the
40 budget at least fifteen (15) days before final adoption
41 thereof. The covenants on the part of the City herein
42 contained shall be deemed to be and shall be construed
43 to be ministerial duties imposed by law and it shall be
44 the ministerial duty of each and every public official
45 of the City to take such action and do such things as
46 are required by law in the performance of such official
47 duty of such officials to enable the City to carry out
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4 and perform the covenants and agreements in this Lease
5 agreed to be carried out and performed by the City.
6 (e) Payment. Each Base Rental payment and
7 each Additional Rental payment shall be paid in lawful
8 money of the United States of America, by warrant or
9 check drawn against funds of the City, at the office of
10 the Fiscal Agent in Los Angeles, or at such other place
11 or places as may be set forth in the Resolution. Each
12 annual Base Rental payment and each Additional Rental
13 payment which is not paid when due shall bear interest
14 at a rate which is the same as the average interest
15 rate per annum which the Bonds bear from the date on
16 which the Base Rental payment or Additional Rental
17 payment, as the case may be, becomes due until the same
18 is paid. Notwithstanding any dispute between Agency
19 and City hereunder, City shall make all rental payments
20 when due and shall not withhold any rental payments
21 pending the final resolution of such dispute. In the
22 event of a determination that City was not liable for
23 said rental payments or any portion thereof, said
24 payments or excess of payments as the case may be shall
25 be credited against subsequent rental payments due
26 hereunder.
27 (f) Credit on Base or Additional Rental.
28 There shall be credited against Base Rental or Addi-
29 tional Rental any amounts required to be so credited
30 under the Resolution.
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Section 5. Construction of Proiect.
32 Immediately following the delivery of the
33 Bonds the City shall delivery the Site to the Agency.
34 The City, as agent for the Agency, shall
35 construct, or cause to be constructed, the Central
36 Library on the Site.
37 For the purpose of paying the cost of the
38 acquisition and construction of the Central Library and
39 all costs and expenses incidental thereto, the Agency
40 shall issue its Bonds pursuant to the Resolution. The
41 City shall conform to and be bound by all of the
42 provisions of the Resolution relating thereto by which
43 the Agency would otherwise be bound.
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4 The City may order changes in the work during
5 construction without the consent of the Agency; pro-
6 vided, however, that unless sufficient additional funds
7 are provided therefor (i) the cost of the Central
8 Library shall not exceed that which is established at
9 the time when the Bonds are issued by the Agency, and
10 (ii) the cost of change orders shall not exceed the
11 reserve therefor established at such time. City shall
12 take no action which extends the period of construction
13 beyond the period for which the Agency has funded
14 interest on its Bonds unless sufficient additional
15 funds are provided therefor. Any moneys remaining in
16 the Construction Fund to be established under the
17 Resolution after the construction and completion of the
18 Central Library shall be applied by the Agency as
19 provided in the Resolution.
20 The Agency shall assume the obligations
21 relating to the employment contracts for professional
22 and expert services, including, without limitation,
23 bond counsel, financing consultants, accountants,
24 engineers, architects and other consultants and ad-
25 visors and the Agency shall become a client of said
26 firms in accordance with the terms of said contracts.
Section 6. Maintenance and Operation.
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28 The City shall, at its own expense, maintain
29 the Leased Premises and all improvements thereon in
30 good order, condition and repair. The City shall
31 provide or cause to be provided all security service,
32 custodial service, janitor service, power, gas, tele-
33 phone, light, heating and water, and all other public
34 utility services. It is understood and agreed that in
35 consideration of the payment by the City of the rental
36 herein provided for, the Agency is only obligated to
37 furnish the Leased Premises, and the Agency shall have
38 no obligation to incur any expense of any kind or
39 character in connection with the management, operation
40 or maintenance of the Leased Premises during the term
41 of this Lease. The City shall keep the Leased Premises
42 and any and all improvements thereto free and clear of
43 all liens, charges and encumbrances.
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Section 7. Additions and Improvements.
5 The City shall have the right during the term
6 of this Lease to make any additions or improvements to
7 the Leased Premises, to attach fixtures, structures or
8 signs, and to affix any personal property to the
9 improvements on the Leased Premises, provided the use
10 of the Leased Premises for the purposes contemplated in
11 this Lease are not impaired. Title to all personal
12 property placed in any of the improvements on the
13 Leased Premises shall remain in the City. The title to
14 any personal property, improvements or fixtures placed
15 on the Leased Premises by any sublessee or licensee of
16 the City shall be controlled by the concession con-
17 tracts entered into by the City.
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Section 8.
Insurance.
19 Agency shall, during the term of this Lease,
20 keep or cause to be kept the following policies of
21 insurance against loss or damage.
22 (a) Keep or cause to be kept the Leased
23 Premises covered by this Lease insured by a policy or
24 policies of insurance against loss or damage to the
25 property covered resulting from fire, lightning,
26 vandalism, malicious mischief, riot and civil com-
27 motion, and such perils ordinarily defined as "extended
28 coverage" and other perils as the Agency and the City
29 may agree should be insured against on forms and in
30 amounts satisfactory to each. Such insurance shall be
31 maintained in an amount not less than the full insur-
32 able value of the properties or the amount of the
33 Agency's outstanding Bonds or refunding bonds, which-
34 ever amount is less.
35 (b) Keep or cause to be kept earthquake
36 insurance (if such insurance is obtainable on the open
37 market from reputable insurance companies) against loss
38 or damage by earthquake in an amount not less than the
39 lesser of the following:
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(i) The full insurable value of such
properties (as defined above) with an 80% co-
insurance clause and with deductible conditions or
not to exceed 5% for anyone loss which is less
than the face amount of the policy; or
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(ii) The amount of the outstanding
Bonds; and
6 (c) Maintain or cause to be maintained use
7 and occupancy or business interruption or rental income
8 insurance against the perils of fire, lightning,
9 vandalism and malicious mischief and such other perils
10 ordinarily defined as "extended coverage" in an amount
11 equal to not less than two (2) years Base Rental and
12 Additional Rental; and
13 (d) Maintain or cause of be maintained
14 public liability insurance against claims for bodily
15 injury or death, and for damage to property occurring
16 upon, in or about the property, such insurance to
17 afford protection to a limit of not less than $250,000
18 with respect to bodily injury or death to anyone
19 person, not less than $1,000,000 with respect to bodily
20 injury or death to any number of persons in anyone
21 accident, and property damage liability insurance in an
22 amount not less than $50,000; and
23 (e) Maintain or cause to be maintained
24 workmen's compensation insurance issued by a respon-
25 sible carrier authorized under the laws of the State of
26 California.
27 City and Agency, as the case may be, shall be
28 named as an additional insured under such policies of
29 insurance as the construction contractor or contractors
30 may be required to carry during the construction of the
31 Facilities. Nothing herein shall be construed to
32 require insurance to be carried with respect to equip-
33 ment or fixtures on the Leased Premises which are not
34 part of the Facilities.
35 All premiums and charges due and payable by
36 Agency for all of the aforesaid insurance shall be paid
37 by the City in accordance with the provisions of
38 Section 4(b)(iii). Any such premium for a period
39 partly within such period shall be prorated.
40 At the option of the City, any insurance
41 required of the Agency hereunder may be provided by
42 the City.
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4 Section 9. Damage to or Destruction of
5 Leased Premises.
6 It is expressly understood and agreed that
7 the rentals hereunder shall become due only in con-
8 sideration of the right to occupy and use the Leased
9 Premises from year to year, and, except as herein
10 provided, it is the responsibility of Agency to provide
11 such right at all times.
12 In the event of destruction or damage to the
13 Leased Premises by fire or other casualty or events so
14 that they become wholly or partly unusable, Agency, at
15 its option, may do either of the following:
16 (1) Rebuild and repair the Leased
17 Premises so that they shall be restored to use, in
18 which case this Lease shall remain in full force
19 and effect. Any excess of insurance proceeds
20 resulting from such destruction or damage (other
21 than business ~rent~ interruption insurance) over
22 the amount expended for such repairing or re-
23 building, shall be paid to City; or
24 (2) Declare this Lease to City termi-
25 nated and use any money collected from insurance
26 against the destruction of or damage to the Leased
27 Premises to the extent necessary to retire any
28 outstanding securities or any debts or liabilities
29 which Agency may have; provided, however, that if
30 the Leased Premises can be repaired or rebuilt
31 within the period for which Agency has insurance
32 against business (rent) interruption, and if
33 Authority shall have sufficient funds from the
34 proceeds of insurance or otherwise for the neces-
35 sary repairing or rebuilding, Agency shall not
36 proceed under this option without the City's
37 consent.
38 During such time as the Leased Premises are
39 unusable, rent shall cease. No further rental payments
40 shall accrue until such Leased Premises are again ready
41 for occupancy and rental payments already made, if any,
42 shall be equitably abated and adjusted accordingly. In
43 the event of partial damage to, or destruction of, the
44 Leased Premises, so as to render a portion thereof
45 unusable by City, such rental payments (including those
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4 already made, if any) shall during the period of the
5 partial unusability of the Leased Premises be in an
6 amount that represents the fair market rental value of
7 the remainder of the Leased Premises usable by City.
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Section 10. Assignment, Sublease and Bonds.
9 Neither this Lease nor any interest of the
10 City herein shall, at any time after the date hereof,
11 without the prior written consent of the Agency, be
12 mortgaged, pledged, assigned or transferred by City by
13 voluntary act or by operation of law, or otherwise,
14 except as specifically provided herein. The City shall
15 at all times remain liable for the performance of the
16 covenants and conditions on its part to be performed,
17 notwithstanding any assigning, transferring or sub-
18 letting which may be made. The City shall have the
19 right to sublease or permit the use of all or any part
20 of the Leased Premises, but nothing herein contained
21 shall be construed to relieve the City from its obli-
22 gation to pay rental as provided in this Lease or
23 relieve the City from any other obligations contained
24 herein, including, without limitation, any taxes which
25 may be imposed upon Agency or City by reason of such
26 sublease or use. The Agency shall issue its Bonds
27 under and pursuant to the Resolution. Such Resolution
28 shall operate as an assignment of the Lease to the
29 Fiscal Agent for financing purposes. The Agency may
30 provide for the execution of any and all instruments
31 necessary and proper in connection therewith. Whenever
32 in this Lease any consent or approval is required, the
33 same shall not be unreasonably withheld. Any items
34 herein required or permitted to be done by the Agency
35 may, if so provided under the Resolution, be performed
36 by the Fiscal Agent thereunder. The City hereby
37 approves such Resolution and the sale of the Bonds
38 thereunder, and to the extent that any provision
39 thereof requires action by the City or any officer or
40 employee thereof, the City hereby promises to perform
41 or cause such action to be performed as required by
42 said Resolution.
43
Section 11. Eminent Domain.
44 If the whole of the Leased Premises, or so
45 much thereof as to render the remainder unusable for
46 the purposes for which the same was constructed, shall
47
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4 be taken under the power of eminent domain, then this
5 Lease shall terminate as of the day possession shall be
6 so taken. If less than the whole of the Leased Premi-
7 ses shall be taken under the power of eminent domain,
8 and the remainder is usable for the Project purposes,
9 then this Lease shall continue in full force and effect
10 and shall not be terminated by virtue of such taking
11 (and the parties waive the benefit of any law to the
12 contrary), in which event there shall be a partial
13 abatement of the rent hereunder in an amount equivalent
14 to the amount by which the annual payments of principal
15 of, and interest on, the outstanding Bonds of the
16 Agency will be reduced in any applicable year by the
17 application of the award in eminent domain to the call
18 for redemption of outstanding Bonds.
19 Any award made in eminent domain proceedings
20 for the taking or damaging of the Leased Premises in
21 whole or in part shall be paid to the Fiscal Agent for
22 the direct benefit of the Holders of the Bonds and
23 shall be used by the Fiscal Agent (together with any
24 other money which shall be or may be made available for
25 such .purpose) to call, as nearly as may be, a principal
26 amount of Bonds in each of the remaining maturities so
27 that as nearly as possible in the discretion of the
28 Fiscal Agent equal annual payments of principal and
29 interest on the outstanding Bonds will be maintained
30 after said call.
31 In the event the amount so paid to the Fiscal
32 Agent shall be more than sufficient to retire the Bonds
33 then outstanding, any such excess shall be paid by the
34 Fiscal Agent to the City.
35
Section 12. Right of Entry.
36 The Agency and its designated representatives
37 shall have the right to enter upon the Leased Premises
38 during reasonable business hours (and in emergencies at
39 all times) (i) to inspect the same, (ii) for any
40 purpose connected with the Agency's rights or obliga-
41 tions under this Lease, or (iii) for all other lawful
42 purposes.
43
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Section 13. Liens.
5 Except for payments made or required to be
6 made under the Resolution, the Agency and/or the City,
7 as the case may be, shall payor cause to be paid, when
8 due, all sums of money that may become due for, or
9 purporting to be for, any labor, services, materials,
10 supplies or equipment alleged to have been furnished or
11 to be furnished to or for, in, upon or about the Leased
12 Premises and which may be secured by any mechanics',
13 materialman's or other lien against the Leased Premi-
14 ses, and/or the Agency's interest therein, and shall
15 cause each such lien to be fully discharged and re-
16 leased; provided, however, that if the City and/or
17 Agency desires to contest any such lien, this may be
18 done, and if such lien shall be reduced to final
19 judgment and such judgment or such process as may be
20 issued for the enforcement thereof is not promptly
21 stayed, or if so stayed and said stay thereafter
22 expires, then, and in any such event, the City shall
23 forthwith pay and discharge said judgment.
24
Section 14. Taxes.
25 The parties understand and agree that the
26 Leased Premises constitute public property free and
27 exempt from all taxation; however, the Agency agrees to
28 take whatever steps may be necessary, upon written
29 request by the City, to contest any proposed tax or
30 assessment, or to take steps necessary to recover any
31 tax or assessment paid. The City agrees to reimburse
32 the Agency for any and all costs and expenses thus
33 incurred by the Agency.
34 Section 15. Quiet Enjoyment; Right of Sub-
35 stitution.
36 The parties hereto mutually covenant and
37 agree that the City, by keeping and performing the
38 covenants and agreements herein contained, shall at all
39 times during the term, peaceably and quietly, have,
40 hold and enjoy the Leased Premises. The Agency may,
41 however, with the consent of the City, retire or remove
42 a portion or portions of the Leased Premises from the
43 operation of this Lease; in which event, the Agency
44 shall, at its option, (1) substitute for said portion
45 or portions of the Leased Premises facilities of a like
46
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4 kind and nature at least as equally advantageous to the
5 purposes of the City as the portion removed, as deter-
6 mined by an opinion of an Independent Engineer (as more
7 particularly described in the Resolution), all to the
8 end that Base Rental hereunder will not be reduced, or
9 (2) deposit with the Fiscal Agent an amount of money to
10 be invested in Federal Securities (as defined in the
11 Resolution) which, together with interest to be earned
12 thereon, is sufficient to maintain debt service on the
13 same proportionate basis as prior to the deposit of
14 such money. All determinations pursuant to clause (2)
15 shall be made by an Independent Financial Consultant
16 (as more particularly described in the Resolution). In
17 the event the Agency proceeds under clause (2), the
18 Base Rental payable pursuant to Section 4(a) hereof
19 shall be correspondingly reduced to the amounts needed
20 to service the Bonds in each maturity which are not a
21 part of the aliquot portion thereof.
22
Section 16. Law Governing.
23 This Lease is made in the State of California
24 under the Constitution and laws of such State and is to
25 be so construed.
26
Section 17. Notices.
27 All notices, statements, demands, requests,
28 consents, approvals, authorizations, offers, agree-
29 ments, appointments or designations hereunder by either
30 party to the other shall be in writing and shall be
31 sufficiently given and served upon the other party, if
32 sent by United States registered mail, return receipt
33 requested, postage prepaid and addressed as follows:
34
35
36
City:
City Clerk
Ci ty Hall
City of San Bernardino, California
37
38
39
Agency:
Secretary of the Agency
Ci ty Hall
City of San Bernardino, California
40
Section 18. Waiver.
41 The waiver by the Agency of any breach by the
42 City of any term, covenant or condition hereof shall
43
44
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4 not operate as a waiver of any subsequent breach of the
5 same or any other term, covenant or condition hereof.
6
Section 19. Default by City.
7 If (a) City shall fail to pay any rental
8 payable hereunder within fifteen (15) days from the
9 date such rental is payable, or (b) City shall fail to
10 keep any such other terms, covenants or conditions
11 contained herein for a period of twenty-five (25) days
12 after written notice thereof from Agency to City, or
13 (c) City shall abandon or vacate the premises, or
14 (d) City's interest in this Lease or any part thereof
15 shall be assigned or transferred without the written
16 consent of Agency, either voluntarily or by operation
17 of law, or (e) City shall file any petition or insti-
18 tute any proceedings wherein or whereby City asks or
19 seeks or prays to be adjudicated a bankrupt, or to be
20 discharged from any or all of its debts or obligations,
21 or offers to City's creditors to effect a composition
22 or extension of time to pay City's debts, or asks,
23 seeks or prays for a reorganization or to effect a plan
24 of reorganization, or for a readjustment of City's
25 debts, or for any other similar relief, or (f) any such
26 petition or any such proceedings of the same or similar
27 kind or character shall be filed, instituted or taken
28 against City, then and in any of such events City shall
29 be deemed to be in default hereunder.
30 If City should, after notice of such default,
31 fail to remedy any default with all reasonable dis-
32 patch, in not exceeding thirty (30) days, then Agency
33 shall have the right, at its option, without any
34 further demand or notice (i) to terminate this Lease
35 and to re-enter the Leased Premises and eject all
36 parties in possession thereof therefrom, using all
37 necessary force so to do, or (ii) to re-enter the
38 Leased Premises and eject all parties therefrom, using
39 all necessary force so to do, and, without terminating
40 this Lease, re-Iet the Leased Premises, or any part
41 thereof, as the agent and for the account of City upon
42 such terms and conditions as Agency may deem advisable,
43 in which event the rents received on such re-letting
44 shall be applied first to the expenses of re-Ietting
45 and collection, including necessary renovation and
46 alteration of the Leased Premises, reasonable attor-
47 neys' fees, and any real estate commissions actually
48
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4 paid, and thereafter toward payment of all sums due or
5 to become due to Agency hereunder, and if a sufficient
6 sum shall not be thus realized to pay such sums and
7 other charges, City shall pay Agency annually any
8 cumulative net deficiency existing on the date when
9 Base Rental is due hereunder. The foregoing remedies
10 of Agency are in addition to and not exclusive of any
11 other remedy of Agency. Any such re-entry shall be
12 allowed by City without let or hindrance and Agency
13 shall not be liable in damages for any such re-entry or
14 be guilty of trespass.
15
Section 20. Option to the City.
16 In consideration of the mutual covenants and
17 promises contained herein, and other good and valuable
18 consideration, from the City to the Agency, receipt of
19 which is hereby acknowledged, the Agency hereby grants
20 to the City the sole and exclusive option to purchase
21 all right, title and interest of the Agency in the
22 Project, all in accordance with the terms and con-
23 ditions hereinafter set forth. The purchase price
24 shall be the aggregate of the following sums, payable
25 in cash to the Fiscal Agent:
26 A. A sum sufficient to pay and dis-
27 charge the entire indebtedness represented by any
28 then outstanding Bonds and Additional Bonds issued
29 pursuant to the Resolution to finance the Project,
30 including principal, premium, if any, and interest
31 to the stated maturity or earliest redemption
32 date, as the case may be, on such Bonds and
33 Additional Bonds, as well as Fiscal Agent's and
34 Paying Agent's fees and expenses payable under the
35 Resolution to the stated maturity or the earliest
36 redemption date, as the case may be, such funds to
37 be held in trust.
38 B. Such sums as may be required to pay
39 any obligations incurred by the Agency in connec-
40 tion with the sale of the Project to the City.
41 The term of this option shall commence as of
42 the date hereof and shall continue in force and effect
43 for the term of this Lease and for thirty (30) days
44 thereafter. This option is specifically subordinate to
45
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4 the lien and security interest held by the Fiscal Agent
5 under the Resolution.
6 The option may be exercised by the City at
7 any time prior to the expiration of the term as set
8 forth above by the City's delivering to the Agency, and
9 the Fiscal Agent if said option is exercised during the
10 -term of the Lease, written notice referring to this
11 option and reciting that the City is electing to
12 exercise the option, and within ten (10) days after
13 delivery of said notice the City shall open an escrow
14 with a title insurance company mutually acceptable to
15 the City and the Agency which escrow shall provide for
16 a closing not sooner than six (6) months, nor later
17 than twelve (12) months, after the date of the City's
18 delivery to the Agency of its written notice of exer-
19 cise of option. If for any reason said escrow estab-
20 lished above does not close, the option contained
21 herein shall survive and may be re-exercised at any
22 time thereafter prior to the expiration of the term of
23 the option as set forth above.
24 Escrow instructions shall provide for: (i)
25 ALTA standard title insurance coverage in an amount
26 equal to current fair market value, as determined by
27 the City, such title to be subject only to standard
28 printed exceptions in said form of policy, the lien of
29 property taxes and assessments not yet payable, and
30 such other exceptions as shall have been approved in
31 writing by the City; (ii) all escrow fees and customary
32 charges for document drafting, recording and real
33 estate transfer tax to be borne by the City; and, if
34 applicable, (iii) cash deposits to be made with the
35 Fiscal Agent to payor redeem principal and interest on
36 any Bonds and Additional Bonds and to pay all other
37 obligations under the Resolution.
38 In the event that the option contained herein
39 is exercised, the Agency agrees to execute any and all
40 documents and to perform any and all acts, all at the
41 expense of the City, necessary in order to permit the
42 escrow contemplated hereby to close in accordance with
43 the terms and conditions specified herein, including
44 the delivery of any instrument held by the Fiscal Agent
45 pursuant to the Resolution.
46
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4
Section 21. Net-Net-Net Lease.
5 This Lease shall be deemed and construed to
6 be a "Net-Net-Net lease" and the City hereby agrees
7 that the rentals provided for herein shall be an
8 absolute net return to the Agency, free and clear of
9 any expenses, charges or set-offs whatsoever.
10
Section 22. Execution.
11 This Lease may be simultaneously executed in
12 any number of counterparts, each of which when so
13 executed shall be deemed to be an original, but all
14 together shall constitute but one and the same Lease,
15 and it also understood and agreed that separate counter-
16 parts of this Lease may be separately executed by the
17 Agency and the City, all with the same full force and
18 effect as though the same counterpart had been executed
19 simultaneously by both the Agency and the City.
20
Section 23. Further Assurances.
21 The City shall make, execute and deliver any
22 and all such further resolutions, instruments and
23 assurances as may be reasonably necessary or proper to
24 carry out the intention or to facilitate the perfor-
25 mance of this Lease, and for the better assuring and
26 confirming unto the Agency and Holders of the Bonds
27 under the Resolution of the rights and benefits pro-
28 vided in this Lease.
29
Section 24. No Discrimination.
30 The City, as lessee hereunder, herein coven-
31 ants by and for itself, its assigns, and all persons
32 claiming under or through it, and this lease is made
33 and accepted upon and subject to the following con-
34 ditions:
35 That there shall be no discrimination against
36 or segregation of any person or group of persons,
37 on account of race, color, creed, religion, sex,
38 marital status, national origin, or ancestry, in
39 the leasing, subleasing, transferring, use,
40 occupancy, tenure, or enjoyment of the Leased
41 Premises, nor shall the City itself, or any person
42 claiming under or through it, establish or permit
43
44
45
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any such practice or practices of discrimination
or segregation with reference to the selection,
location, number, use, or occupancy, of tenants,
lessees, sublessees, subtenants, or vendees in the
Leased Premises.
9
Section 25. Validity.
10 If anyone or more of the terms, provisions,
11 promises, covenants or conditions of this Lease shall
12 to any extent be adjudged invalid, unenforceable, void
13 or voidable for any reason whatsoever by a court of
14 competent jurisdiction, each and all of the remaining
15 terms, provisions, promises, covenants and conditions
16 of this Lease shall not be affected thereby and shall
17 be valid and enforceable to the fullest extent per-
18 mitted by law.
19 If for any reason this Lease shall be held by
20 a court of competent jurisdiction void, voidable, or
21 unenforceable by the Agency or by the City, or if for
22 any reason it is held by such a court that the coven-
23 ants and conditions of the City hereunder, including
24 the covenant to pay rents hereunder, is unenforceable
25 for the full term hereunder, then and in such event for
26 and in consideration of the right of the City to
27 possess, occupy and use the Leased Premises, which
28 right in such event is hereby granted, this Lease shall
29 thereupon become, and shall be deemed to be, a lease
30 from year to year under which the annual rentals herein
31 specified will be paid by the City.
32 If the Treasurer of the Agency is substituted
33 for the Fiscal Agent pursuant to the Resolution, all
34 references herein to Fiscal Agent shall be deemed to
35 mean Treasurer.
36
Section 26. Headings.
37 Any headings preceding the texts of the
38 several Sections hereof shall be solely for convenience
39 of reference and shall not constitute a part of this
40 Lease, nor shall they affect its meaning, construction
41 or effect.
42
43
44
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4 IN WITNESS WHEREOF, the parties hereto have
5 caused this Lease to be executed and attested by their
6 proper officers thereunto duly authorized, and their
7 official seals to be hereto affixed, all as of the day
8 and year first above written.
9
10
11
12
13 Attest:
BY~/P/7/~~
/ Ci ty Clerk
14
15
[SEAL]
16 I hereby approve the form and legality of the
17 foregoing Lease this J $711. day of , .I/.LYi.,~~
18 1983. ~
19
20
~~..&
City Attorney
21
22
23
THE REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO,
CALIFORNIA
24
25
26
By
Chairman
Attest:
27
28
By
[SEAL]
Secretary
29 I hereby approve the form and legality of the
30 foregoing Lease this ____ day of
31 1983.
32
33
{l \) H-
J.
'],-t l veL
!~0~f/''; v'l.<t
IFf' ~ ,"'J
, v
'71 [71 Q
1-)' r
/()~1~
Agency Counsel
34
35
36
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4 STATE OF CALIFORNIA )
5 ) ss.
6 COUNTY OF SAN BERNARDINO )
7 On this day of in the
8 year, 1983, before me, a Notary
9 Public in and for the State of California, residing
10 therein, duly commissioned and sworn, personally
11 appeared and
12 the Mayor and City Clerk, respectively, personally
13 known to me (or proved to me on the basis of satis-
14 factory evidence) that executed the within instrument,
15 and known to me to be the persons who executed the
16 within instrument on behalf of said City therein named,
17 and acknowledged to me that such City executed the
18 within instrument pursuant to a resolution of the Mayor
19 and Common Council of the City of San Bernardino.
20 IN WITNESS WHEREOF, I have hereunto sub-
21 scribed my name and affixed my official seal in the
22 County of San Bernardino on the day and year in this
23 certificate first above written.
24
25 Notary Public in and for the
26 State of California
27 (Notarial Seal)
28 My Commission expires:
29
30
31
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4 STATE OF CALIFORNIA )
5 ) ss.
6 COUNTY OF SAN BERNARDINO )
7 On this day of in the
8 year, 1983, before me,
9 a Notary Public in and for the State of California,
10 residing therein, duly commissioned and sworn, person-
11 ally appeared , known to me to be
12 the Chairman, and , known
13 to me to be the Secretary, respectively, personally
14 known to me (or proved to me on the basis of satis-
15 factory evidence) of the Redevelopment Agency of the
16 City of San Bernardino, that executed the within
17 instrument, and known to me to be the persons who
18 executed the within instrument on behalf of said Agency
19 therein named, and acknowledged to me that such Agency
20 executed the within instrument pursuant to a resolution
21 of the Redevelopment Agency of the City of San Bernar-
22 dino.
23 IN WITNESS WHEREOF, I have hereunto sub-
24 scribed my name and affixed my official seal in the
25 County of San Bernardino on the day and year in this
26 certificate first above written.
27
28 Notary Public in and for the
29 State of California
30 (Notarial Seal)
31 My Commission expires:
32
33
34
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SITE MAP
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