HomeMy WebLinkAbout1982-014San Bernardino
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RESOLUTION NO. 82-14
RESOLUTION OF THE CITY OF SAN BERNARDINO, CALIFORNIA,
APPROVING AND AUTHORIZING THE EXECUTION OF A
PUBLIC FACILITIES LEASE WITH THE REDEVELOPMENT
AGENCY OF THE CITY OF SAN BERNARDINO
WHEREAS, the City of San Bernardino is a municipal
corporation duly organized and existing under and by virtue
of the Constitution and laws of the State of California; and
WHEREAS, the Redevelopment Agency of the City of
San Bernardino (the "Agency") is a redevelopment agency (a
public body, corporate and politic) duly created, estab-
lished and authorized to transact business and exercise its
powers, all under and pursuant to the Community Redevelop-
ment Law [Part 1 of Division 24 (commencing with Section 33000)
of the Health and Safety Code of the State of California]
and the powers of the Agency include the power to issue
bonds for any of its corporate purposes; and
WHEREAS, the Mayor and Common Council adopted
Ordinance No. MC -121 on December 16, 1981 (the "Public
Leaseback Ordinance"), entitled "An Ordinance Of The City of
San Bernardino Approving The Formal Act Of Entering Into A
Lease With The Redevelopment Agency Of The City of San Ber-
nardino," which said Ordinance was approved on the day of
its introduction as an urgency measure to take advantage of
a favorable bid for the construction of the fire station and
approved the act of the City entering into a formal lease
agreement with the Redevelopment Agency of the City of
San Bernardino; and
WHEREAS, the Public Leaseback Ordinance provided
for a lease of a fire station and also for certain public
parking facilities, and it now appears that the lease of the
public parking facilities will be delayed, but the public
safety of the citizens of the City requires proceeding
pursuant to the Public Leaseback Ordinance to acquire, 11
construct and equip the fire station and the acquisition of
land, rights-of-way, and easements necessary therefor (defined
in the Public Facilities Lease as the "Project" to wit:
"The acquisition, construction and equipping of a fire
station and the off-street public parking facilities neces-
sary therefor, including, without limitation, the acquisi-
tion of land and permanent and construction easements and
rights-of-way and other property necessary therefor, grad-
ing, leveling, paving, installing curbs, gutters, sidewalks
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and driveways, striping of parking areas and other necessary
site improvements and appurtenances and appurtenant work."
WHEREAS, pursuant to the Community Redevelopment
Law a public hearing was duly and regularly held by the
Mayor and Common Council of the City of San Bernardino.
NOW, THEREFORE, BE IT RESOLVED, DETERMINED AND
ORDERED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF
SAN BERNARDINO, CALIFORNIA, AS FOLLOWS:
Section 1. Findings and Determinations.
The Mayor and Common Council of the City of
San Bernardino hereby determine that the fire station is
essential to the public safety of the citizens of the City,
is of benefit to the Project Area in which it is located and
to the rest of the City,`and no reasonable means other than
those referred to herein (namely, the issuance by the
Aqency of its lease revenue bonds, the proceeds of which
will be used to acquire, construct and equip the "Project"
to be leased to the City pursuant to the Public Facilities
Lease for its use in providing public fire protection) of
financing the Project are available to the Agency or the City.
Section 2. Approval and Authorization.
That the Mayor and Common Council hereby approve
the Public FacilitiesLease, dated for convenience as of
January 1, 1982, with the Redevelopment Agency of the City
of San Bernardino, for the fire station tkierein described,
and the Mayor is hereby authorized to execute the same on
behalf of the City of San Bernardino.
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The foregoing resolution is hereby a
approved this .1,A day of January ,'19
E
Approved as to form:
VityAttorneGy
fSEAL)
San Bernardino
601005-57-4
I HEREBY CERTIFY that the foregoing resolution was
duly adopted by the Mayor and Common Council of the City of
San Bernardino at a regular meeting thereof, held on the
__de- day of January 1982, by the following vote,
to wit:
AYES: Council Members Castaneda, Reilly,
Botts, Hobbs, Strickler
NAYS: None
ABSENT: Council Member Hernandez
ABSTAIN: None
3
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Id
PUBLIC FACILITIES LEASE
THIS LEASE, dated for convenience as of January 1,
1982, by and between THE REDEVELOPMENT AGENCY OF THE CITY OF
SAN BERNARDINO, CALIFORNIA (herein called "Agency"), a
public body, corporate and politic, organized and existing
under the laws of the State of California, and the CITY OF
SAN BERNARDINO, CALIFORNIA (herein called "City"), a muni-
cipal corporation duly organized and existing under and by
virtue of the Constitution and laws of the State of Cali-
fornia,
W I T N E S S E T H:
That for and in consideration of the mutual prom-
ises and agreements herein contained, the parties hereto
agree as follows:
Section 1. Definitions.
The terms defined in this Section shall, for all
purposes of this Lease, have the following meanings herein
unless the context otherwise requires.
(a) Base Rental
"Base Rental" means the total rental due for
the Project when completed (as more particularly set forth
in Section 4(a)) and is equal to the Agency's debt service
on its outstanding Bonds but does not include Additional
Rental.
(b) Bonds
"Bonds" means the bonds to be issued by the
Agency under and pursuant to the Resolution.
(c) Construction Contract
"Construction Contract" means the construc-
tion contract or contracts providing for the construction of
the Facilities, including, without limitation, the plans and
specifications, any addenda thereto, and other construction
documents, a copy or copies of which is, are or will be on
file in the office of the Secretary of the Agency and the
City Clerk of the City.
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(d) Facilities
"Facilities" means all improvements for
providing a Fire Station on the Site, which, together with
the Site, will constitute the Project.
(e) Fiscal Agent
"Fiscal Agent" means the trustee appointed by
the Agency pursuant to the Resolution, its successors and
assigns, and any other corporation or association which may
at any time be substituted in its place, all as provided in
the Resolution.
(f) Fiscal Year
"Fiscal Year" means the year period beginning
on July 1st and ending on the next following June 30th.
(g) Project or Leased Premises
"Project" or "Leased Premises" means the Site
with the Facilities thereon, and includes the acquisition,
construction and equipping of a fire station and the off-
street public parking facilities necessary therefor, includ-
ing, without limitation, the acquisition of land and perma-
nent and construction easements and rights-of-way and other
property necessary therefor, grading, leveling, paving,
installing curbs, gutters, sidewalks and driveways, striping
of parking areas and other necessary site improvements and
appurtenances and appurtenant work, hereinafter sometimes
referred to as the "Fire Station".
(h) Net -Net -Net Lease
"Net -Net -Net Lease" means a lease which
imposes all the obligations on the tenant, and includes, but
is not limited to, the following obligations: real property
taxes and assessments, repairs and maintenance, insurance,
and duty to restore in case of destruction.
(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, Authorizing the
Issuance of $3,200,000 Public Facilities Lease Revenue
Bonds, Issue of 1982, Series All.
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(j) Site
"Site" means the real property consisting 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 com-
pleted prior to or concurrently 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
"Term" means the term of this Lease as pro-
vided in Section 3 hereof.
Section 2. Lease of Premises.
The Agency hereby leases the Project (the Site and
the Facilities) to the City, subject to the terms and
conditions of this Lease.
Section 3. Term.
The term of this Lease shall commence on its
execution, although rentals will commence at a later date.
This Lease shall end on January 1, 2007, or such
other time when the Bonds issued by the Agency pursuant to
the Resolution or any Supplemental Resolution have been
retired or provision for payment has been provided for
pursuant thereto, and, at such time, any surplus funds
derived from Base Rental and Additional Rental hereunder
remaining in the hands of the Fiscal Agent shall be paid to
the City.
Section 4. Rental.
The City shall pay Base Rental and Additional
Rental to the Agency in the amounts, at the times and in the
manner set forth herein, said amounts constituting in the
aggregate the total of the annual rentals payable under this
Lease as follows:
(a) Base Rental. For the period commencing on
(1) January 1, 1983, or (2) the date on which the Fire
Station is substantially completed and written notice thereof
has been served to the City, or on any later date of such
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substantial completion, including, without limitation, any
extension of the completion date as may be provided under
any Construction Contract, whichever (1) or (2) occurs
later, City agrees to pay to the Fiscal Agent for the account
of the Agency, commencing on June 1, 1983, and on each June
1 and December 1 thereafter, for each Fiscal Year rent at
the following amounts per annum:*
Fiscal
Base
Fiscal
Base
Year
Rental
Year
Rental
1983-84
$ 40,000
1996-97
$165,000
1984-85
40,000
1997-98
185,000
1985-86
45,000
1998-99
205,000
1986-87
55,000
1999-20
230,000
1987-88
60,000
2000-01
255,000
1988-89
65,000
2001-02
290,000
1989-90
75,000
2002-03
325,000
1990-91
80,000
2003-04
360,000
1991-92
90,000
2004-05
405,000
1992-93
105,000
2005-06
455,000
1993-94
115,000
2006-07
510,000
1994-95
130,000
2007-08
570,000
1995-96
145,000
Rent shall cease when the Bonds have been paid or provision
for payment has been made pursuant to the Resolution. In
the event that the liability of City for rent for the Fire
Station does not commence on January 1, 1983, the rent to be
paid for the Fire Station for the remaining portion of the
Fiscal Year in which such liability commences shall be
prorated and shall be paid on the next following June 1 or
December 1, as the case may be. During the remainder of the
term of this Lease, said rental shall be due and payable in
equal semiannual installments on June 1 and December 1,
respectively, in each Fiscal Year for use of the Leased
Premises during said Fiscal Year. Although this contemplates
all the parts of the Fire Station being substantially completed
and the City taking possession of it on January 1, 1983, it
shall not preclude the City from taking possession thereof
at an earlier date, prior to the other parts thereof being
substantially completed, and, in such case, liability for
the payment of rentals under this Lease shall commence upon
such possession and a pro rata portion of the Fire Station
* The amounts are subject to adjustment when the interest
rate or rates on Agency's Bonds are known.
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rent shall be paid (determined on the basis that the propor-
tion completed bears to the total Fire Station.)
(b) Additional Rental. In addition to and after
the commencement of the Base Rental hereinabove set forth,
the City shall pay to the Fiscal Agent for the account of
the Agency an amount or amounts (hereinafter called "Addi-
tional Rental") equivalent to the sum of the following:
(i) All taxes and assessments of any nature
whatsoever, including, but not limited to, excise
taxes, ad valorem taxes, ad valorem and specific lien
special assessments and gross receipts taxes, if any,
levied upon the Project or upon the Agency's interest
therein or upon the Agency's operation thereof or the
Agency's rental income derived therefrom.
(ii) All expenses (not otherwise paid or
provided for out of the proceeds of the sale of Bonds
of the Agency) incidental to the issuance of the Bonds
and all administrative costs of the Agency, including,
without limiting the generality of the foregoing,
salaries, wages, expenses, compensation and indemnifi-
cation of the Fiscal Agent under the Resolution, fees
and charges of auditors, accountants, architects,
attorneys and engineers, and all other necessary admin-
istrative charges of the Agency or charges required to
be paid by it in order to comply with the terms of the
Bonds or of the Resolution and to defend the Agency and
its members.
(iii) Insurance premiums, if any, on all
insurance required or permitted under the provisions of
Section 8 hereof.
(iv) All costs and expenses which the Agency
may incur in consequence of or because of any default
by the City under this Lease, including reasonable
attorneys' fees and costs of suit in equity or action
at law to enforce the terms and conditions of this
Lease.
(v) All sums necessary to maintain the
balance of the Reserve Fund established pursuant to the
Resolution at the levels provided for therein.
(vi) All sums necessary to maintain at the
amount of $2,500 the Administrative Expense Fund estab-
lished pursuant to the Resolution.
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The Additional Rental payable hereunder shall be
paid by the City within thirty (30) days after notice in
writing from the Agency to the City stating the amount of
Additional Rental then due and payable and the purpose
thereof; provided that the City's liability for Additional
Rental shall be limited to the balance due under the Reso-
lution. Nothing herein contained shall prevent the City
from making from time to time contributions or advances to
the Agency for any purpose now or hereafter authorized
by law.
(c) Consideration. The payments of Base Rental
and Additional Rental hereunder for each Fiscal Year of the
term of this Lease shall constitute the total rental for
said Fiscal Year and shall be paid by the City for and in
consideration of the right of use and occupancy, and the
continued quiet use and enjoyment, of the Leased Premises
for and during said Fiscal Year which the City receives.
The parties hereto have agreed and determined that such
total rental represents the fair rental value of the Leased
Premises. In making such determination, consideration has
been given to the costs of acquisition and financing the
construction of the Facilities, the uses and purposes which
will be served by the Facilities and the benefits therefrom
which will accrue to the parties and the general public by
reason of the Facilities.
(d) Budget. The City shall take such action as
may be necessary to include and maintain all such total
rental payments due hereunder in each Fiscal Year in its
budget for such Fiscal Year and further shall make the
necessary appropriations for all such rental payments. The
City shall furnish to the Agency and to the Fiscal Agent
under the Resolution copies of the budget at least fif-
teen (15) days before final adoption thereof. The covenants
on the part of the City herein contained shall be deemed to
be and shall be construed to be ministerial duties imposed
by law and it shall be the ministerial duty of each and
every public official of the City to take such action and do
such things as are required by law in the performance of
such official duty of such officials to enable the City to
carry out and perform the covenants and agreements in this
Lease agreed to be carried out and performed by the City.
(e) Payment. Each Base Rental payment and each
Additional Rental payment shall be paid in lawful money of
the United States of America, by warrant or check drawn
against funds of the City, at the office of the Fiscal Agent
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in Los Angeles, or at such other place or places as may be
set forth in the Resolution. Each annual Base Rental pay-
ment and each Additional Rental payment which is not paid
when due shall bear interest at a rate which is the same as
the average interest rate per annum which the Bonds bear
from the date on which the Base Rental payment or Additional
Rental payment, as the case may be, becomes due until the
same is paid. Notwithstanding any dispute between Agency
and City hereunder, City shall make all rental payments when
due and shall not withhold any rental payments pending the
final resolution of such dispute. In the event of a deter-
mination that City was not liable for said rental payments
or any portion thereof, said payments or excess of payments
as the case may be shall be credited against subsequent
rental payments due hereunder.
(f) Credit on Base or Additional Rental. There
shall be credited against Base Rental or Additional Rental
any amounts required to be so credited under the Resolution.
Section 5. Construction of Project.
Immediately following the delivery of the Bonds
the Agency shall acquire the Site.
The City, as agent for the Agency, shall construct,
or cause to be constructed, the Fire Station on the Site.
For the purpose of paying the cost of the acquisi-
tion and construction of the Fire Station and all costs and
expenses incidental thereto, the Agency shall issue its
Bonds pursuant to the Resolution. The City shall conform to
and be bound by all of the provisions of the Resolution
relating thereto by which the Agency would otherwise be
bound.
The City may order changes in the wort: during
construction without the consent of the Agency; provided,
however, that unless sufficient additional funds are pro-
vided therefor (i) the cost of the Fire Station shall not
exceed that which is established at the time when the Bonds
are issued by the Agency, and (ii) the cost of change orders
shall not exceed the reserve therefor established at such
time. City shall take no action which extends the period of
construction beyond the period for which the Agency has
funded interest on its Bonds unless sufficient additional
funds are provided therefor. Any moneys remaining in the
Construction Fund to be established under the Resolution
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after the construction and completion of the Fire Station
shall be applied by the Agency as provided in the Resolution.
The Agency shall assume the obligations relating
to the employment contracts for professional and expert
services, including, without limitation, bond counsel,
financing consultants, accountants, engineers, architects
and other consultants and advisors and the Agency shall
become a client of said firms in accordance with the terms
of said contracts.
Section 6. Maintenance and Operation.
The City shall, at its own expense, maintain the
Leased Premises and all improvements thereon in good order,
condition and repair. The City shall provide or cause to be
provided all security service, custodial service, janitor
service, power, gas, telephone, light, heating and water,
and all other public utility services. It is understood and
agreed that in consideration of the payment by the City of
the rental herein provided for, the Agency is only obligated
to furnish the Leased Premises, and the Agency shall have no
obligation to incur any expense of any kind or character in
connection with the management, operation or maintenance of
the Leased Premises during the term of this Lease. The City
shall keep the Leased Premises and any and all improvements
thereto free and clear of all liens, charges and encumbrances.
Section 7. Additions and Improvements.
The City shall have the right during the term of
this Lease to make any additions or improvements to the
Leased Premises, to attach fixtures, structures or signs,
and to affix any personal property to the improvements on
the Leased Premises, provided the use of the Leased Premises
for the purposes contemplated in this Lease are not impaired.
Title to all personal property placed in any of the improve-
ments on the Leased Premises shall remain in the City. The
title to any personal property, improvements or fixtures
placed on the Leased Premises by any sublessee or licensee
of the City shall be controlled by the concession contracts
entered into by the City.
Section 8. Insurance.
Agency shall, during the term of this Lease, keep
or cause to be kept the following policies of insurance
against loss or damage.
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(a) Keep or cause to be kept the Leased Premises
covered by this Lease insured by a policy or policies of
insurance against loss or damage to the property covered
resulting from fire, lightning, vandalism, malicious mis-
chief, riot and civil commotion, and such perils ordinarily
defined as "extended coverage" and other perils as the
Agency and the City may agree should be insured against on
forms and in amounts satisfactory to each. Such insurance
shall be maintained in an amount not less than the full
insurable value of the properties or the amount of the
Agency's outstanding Bonds or refunding bonds, whichever
amount is less.
(b) Keep or cause to be kept earthquake insurance
(if such insurance is obtainable on the open market from
reputable insurance companies) against loss or damage by
earthquake in an amount not less than the lesser of the
following:
(i) The full insurable value of such prop-
erties (as defined above) with an 80% co-insurance
clause and with deductible conditions or not to exceed
5% for any one loss which is less than the face amount
of the policy; or
(ii) The amount of the outstanding Bonds; and
(c) Maintain or cause to be maintained use and
occupancy or business interruption or rental income insur-
ance against the perils of fire, lightning, vandalism and
malicious mischief and such other perils ordinarily defined
as "extended coverage" in an amount equal to not less than
two (2) years Base Rental and Additional Rental; and
(d) Maintain or cause of be maintained public
liability insurance against claims for bodily injury or
death, and for damage to property occurring upon, in or
about the property, such insurance to afford protection to a
limit of not less than $250,000 with respect to bodily
injury or death to any one person, not less than $1,000,000
with respect to bodily injury or death to any number of
persons in any one accident, and property damage liability
insurange in an amount not less than $50,000; and
(e) Maintain or cause to be maintained workmen's
compensation insurance issued by a responsible carrier
authorized under the laws of the State of California.
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City and Agency, as the case may be, shall be
named as an additional insured under such policies of insur-
ance as the construction contractor or contractors may be
required to carry during the construction of the Facilities.
Nothing herein shall be construed to require insurance to be
carried with respect to equipment or fixtures on the Leased
Premises which are not part of the Facilities.
All premiums and charges due and payable by Agency
for all of the aforesaid insurance shall be paid by the City
in accordance with the provisions of Section 4(b)(iii). Any
such premium for a period partly within such period shall be
prorated.
At the option of the City, any insurance required
of the Agency hereunder may be provided by the City.
Section 9. Damage to or Destruction of Leased
Premises.
It is expressly understood and agreed that the
rentals hereunder shall become due only in consideration of
the right to occupy and use the Leased Premises from year to
year, and, except as herein provided, it is the responsi-
bility of Agency to provide such right at all times.
In the event of destruction or damage to the
Leased Premises by fire or other casualty or events so that
they become wholly or partly unusable, Agency, at its option,
may do either of the following:
(1) Rebuild and repair the Leased Premises
so that they shall be restored to use, in which case
this Lease shall remain in full force and effect. Any
excess of insurance proceeds resulting from such destruc-
tion or damage (other than business [rent] interruption
insurance) over the amount expended for such repairing
or rebuilding, shall be paid to City; or
(2) Declare this Lease to City terminated
and use any money collected from insurance against the
destruction of or damage to the Leased Premises to the
extent necessary to retire any outstanding securities
or any debts or liabilities which Agency may have;
provided, however, that if the Leased Premises can be
repaired or rebuilt within the period for which Agency
has insurance against business (rent) interruption, and
if Authority shall have sufficient funds from the
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proceeds of insurance or otherwise for the necessary
repairing or rebuilding, Agency shall not proceed under
this option without the City's consent.
During such time as the Leased Premises are unusa-
ble, rent shall cease. No further rental payments shall
accrue until such Leased Premises are again ready for occu-
pancy and rental payments already made, if any, shall be
equitably abated and adjusted accordingly. In the event of
partial damage to, or destruction of, the Leased Premises,
so as to render a portion thereof unusable by City, such
rental payments (including those already made, if any) shall
during the period of the partial unusability of the Leased
Premises be in an amount that represents the fair market
rental value of the remainder of the Leased Premises usable
by City.
Section 10. Assignment, Sublease and Bonds.
Neither this Lease nor any interest of the City
herein shall, at any time after the date hereof, without the
prior written consent of the Agency, be mortgaged, pledged,
assigned or transferred by City by voluntary act or by
operation of law, or otherwise, except as specifically
provided herein. The City shall at all times remain liable
for the performance of the covenants and conditions on its
part to be performed, notwithstanding any assigning, trans-
ferring or subletting which may be made. The City shall
have the right to sublease or permit the use of all or any
part of the Leased Premises, but nothing herein contained
shall be construed to relieve the City from its obligation
to pay rental as provided in this Lease or relieve the City
from any other obligations contained herein, including,
without limitation, any taxes which may be imposed upon
Agency or City by reason of such sublease or use. The
Agency shall issue its Bonds under and pursuant to the
Resolution. Such Resolution shall operate as an assignment
of the Lease to the Fiscal Agent for financing purposes.
The Agency may provide for the execution of any and all
instruments necessary and proper in connection therewith.
Whenever in this Lease any consent or approval is required,
the same shall not be unreasonably withheld. Any items
herein required or permitted to be done by the Agency may,
if so provided under the Resolution, be performed by the
Fiscal Agent thereunder. The City hereby approves such
Resolution and the sale of the Bonds thereunder, and to the
extent that any provision thereof requires action by the
City or any officer or employee thereof, the City hereby
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promises to perform or cause such action to be performed as
required by said Resolution.
Section 11. Eminent Domain.
If the whole of the Leased Premises, or so much
thereof as to render the remainder unusable for the purposes
for which the same was constructed, shall be taken under the
power of eminent domain, then this Lease shall terminate as
of the day possession shall be so taken. If less than the
whole of the Leased Premises shall be taken under the power
of eminent domain, and the remainder is usable for the
Project purposes, then this Lease shall continue in full
force and effect and shall not be terminated by virtue of
such taking (and the parties waive the benefit of any law to
the contrary), in which event there shall be a partial
abatement of the rent hereunder in an amount equivalent to
the amount by which the annual payments of principal of, and
interest on, the outstanding Bonds of the Agency will be
reduced in any applicable year by the application of the
award in eminent domain to the call for redemption of out-
standing Bonds.
Any award made in eminent domain proceedings for
the taking or damaging of the Leased Premises in whole or in
part shall be paid to the Fiscal Agent for the direct bene-
fit of the Holders of the Bonds and shall be used by the
Fiscal Agent (together with any other money which shall be
or may be made available for such purpose) to call, as
nearly as may be, a principal amount of Bonds in each of the
remaining maturities so that as nearly as possible in the
discretion of the Fiscal Agent equal annual payments of
principal and interest on the outstanding Bonds will be
maintained after said call.
In the event the amount so paid to the Fiscal
Agent shall be more than sufficient to retire the Bonds then
outstanding, any such excess shall be paid by the Fiscal
Agent to the City.
Section 12. Right of Entry.
The Agency and its designated representatives
shall have the right to enter upon the Leased Premises
during reasonable business hours '(and in emergencies at all
times) (i) to inspect the same, (ii) for any purpose con-
nected with the Agency's rights or obligations under this
Lease, or (iii) for all other lawful purposes.
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Section 13. Liens.
Except for payments made or required to be made
under the Resolution, the Agency and/or the City, as the
case may be, shall pay or cause to be paid, when due, all
sums of money that may become due for, or purporting to be
for, any labor, services, materials, supplies or equipment
alleged to have been furnished or to be furnished to or for,
in, upon or about the Leased Premises and which may be
secured by any mechanics', materialman's or other lien
against the Leased Premises, and/or the Agency's interest
therein, and shall cause each such lieq to be fully discharged
and released; provided, however, that if the City and/or
Agency desires to contest any such lien, this may be done,
and if such lien shall be reduced to final judgment and such
judgment or such process as may be issued for the enforcement
thereof is not promptly stayed, or if so stayed and said
stay thereafter expires, then, and in any such event, the
City shall forthwith pay and discharge said judgment.
Section 14. Taxes.
The parties understand and agree that the Leased
Premises constitute public property free and exempt from all
taxation; however, the Agency agrees to take whatever steps
may be necessary, upon written request by the City, to
contest any proposed tax or assessment, or to take steps
necessary to recover any tax or assessment paid. The City
agrees to reimburse the Agency for any and all costs and
expenses thus incurred by the Agency.
Section 15. Quiet Enjoyment; Right of Substitution.
The parties hereto mutually covenant and agree
that the City, by keeping and performing the covenants and
agreements herein contained, shall at all times during the
term, peaceably and quietly, have, hold and enjoy the Leased
Premises. The Agency may, however, with the consent of the
City, retire or remove a portion or portions of the Leased
Premises from the operation of this Lease; in which event,
the Agency shall, at its option, (1) substitute for said
portion or portions of the Leased Premises facilities of a
like kind and nature at least as equally advantageous to the
purposes of the City as the portion removed, as determined
by an opinion of an Independent Engineer (as more particularly
described in the Resolution), all to the end that Base
Rental hereunder will not be reduced, or (2) deposit with
the Fiscal Agent an amount of money to be invested in Federal
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Securities (as defined in the Resolution) which, together
with interest to be earned thereon, is sufficient to maintain
debt service on the same proportionate basis as prior to the
deposit of such money. All determinations pursuant to
clause (2) shall be made by an Independent Financial Consul-
tant (as more particularly described in the Resolution). In
the event the Agency proceeds under clause (2), the Base
Rental payable pursuant to Section 4(a) hereof shall be
correspondingly reduced to the amounts needed to service the
Bonds in each maturity which are not a part of the aliquot
portion thereof.
Section 16. Law Governing.
This Lease is made in the State of California
under the Constitution and laws of such State and is to be
so construed.
Section 17. Notices.
All notices, statements, demands, requests, con-
sents, approvals, authorizations, offers, agreements, appoint-
ments or designations hereunder by either party to the other
shall be in writing and shall be sufficiently given and
served upon the other party, if sent by United States regis-
tered mail, return receipt requested, postage prepaid and
addressed as follows:
City - City Clerk, City Hall, City of San Bernardino,
California
Agency - Secretary of the Agency, City Hall, City
of San Bernardino, California
ection 18. Waiver.
The waiver by the Agency of any breach by the City
of any term, covenant/or condition hereof shall not operate
as a waiver of any subsequent breach of the same or any
other term, covenant or condition hereof.
Section 19. Default by City.
If (a) City shall fail to pay any rental payable
hereunder within fifteen (15) days from the date such rental
is payable, or (b) City shall fail to keep any such other
terms, covenants or conditions contained herein for a period
of twenty-five (25) days after written notice thereof from
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Agency to City, or (c) City shall abandon or vacate the
premises, or (d) City's interest in this Lease or any part
thereof shall be assigned or transferred without the written
consent of Agency, either voluntarily or by operation of
law, or (e) City shall file any petition or institute any
proceedings wherein or whereby City asks or seeks or prays
to be adjudicated a bankrupt, or to be discharged from any
or all of its debts or obligations, or offers to City's
creditors to effect a composition or extension of time to
pay City's debts, or asks, seeks or prays for a reorganiza-
tion or to effect a plan of reorganization, or for a read-
justment of City's debts, or for any other similar relief,
or (f) any such petition or any such proceedings of the same
or similar kind or character shall be filed, instituted or
taken against City, then and in any of such events City
shall. be deemed to be in default hereunder.
If City should, after notice of such default, fail.
to remedy any default with all reasonable dispatch, in not
exceeding thirty (30) days, then Agency shall have the
right, at its option, without any further demand or notice
(i) to terminate this Lease and to re-enter the Leased
Premises and eject all parties in possession thereof there-
from, using all necessary force so to do, or (ii) to re-enter
the Leased Premises and eject all parties therefrom, using
all necessary force so to do, and, without terminating this
Lease, re -let the Leased Premises, or any part thereof, as
the agent and for the account of City upon such terms and
conditions as Agency may deem advisable, in which event the
rents received on such re -letting shall be applied first to
the expenses of re -letting and collection, including neces-
sary renovation and alteration of the Leased Premises,
reasonable attorneys' fees, and any real estate commissions
actually paid, and thereafter toward payment of all sums due
or to become due to Agency hereunder, and if a sufficient
sum shall not be thus realized to pay such sums and other
charges, City shall pay Agency annually any cumulative net
deficiency existing on the date when Base Rental is due
hereunder. The foregoing remedies of Agency are in addition
to and not exclusive of any other remedy of Agency. Any
such re-entry shall be allowed by City without let or hin-
drance and Agency shall not be liable in damages for any
such re-entry or be guilty of trespass.
Section 20. Option to the City.
In consideration of the mutual covenants and
promises contained herein, and other good and valuable
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consideration, from the City to the Agency, receipt of which
is hereby acknowledged, the Agency hereby grants to the City
the sole and exclusive option to purchase all right, title
and interest of the Agency in the Project, all in accordance
with the terms and conditions hereinafter set forth. The
purchase price shall be the aggregate of the following sums,
payable in cash to the Fiscal Agent:
A. A sum sufficient to pay and discharge
the entire indebtedness represented by any then out-
standing Bonds and Additional Bonds issued pursuant to
the Resolution to finance the Project, including prin-
cipal, premium, if any, and interest to the stated
maturity or earliest redemption date, as the case may
be, on such Bonds and Additional Bonds, as well as
Fiscal Agent's and Paying Agent's fees and expenses
payable under the Resolution to the stated maturity or
the earliest redemption date, as the case may be, such
funds to be held in trust.
B. Such sums as may be required to pay any
obligations incurred by the Agency in connection with
the sale of the Project to the City.
The term of this option shall commence as of the
date hereof and shall continue in force and effect for the
term of this Lease and for thirty (30) days thereafter.
This option is specifically subordinate to the lien and
security interest held by the Fiscal Agent under the Reso-
lution.
The option may be exercised by the City at any
time prior to the expiration of the term as set forth above
by the City's delivering to the Agency, and the Fiscal Agent
if said option is exercised during the term of the Lease,
written notice referring to this option and reciting that
the City is electing to exercise the option, and within
ten (10) days after delivery of said notice the City shall
open an escrow with a title insurance company mutually
acceptable to the City and the Agency which escrow shall
provide for a closing not sooner than six (6) months, nor
later than twelve (12) months, after the date of the City's
delivery to the Agency of its written notice of exercise of
option. If for any reason said escrow established above
does not close, the option contained herein shall survive
and may be re -exercised at any time thereafter prior to the
expiration of the term of the option as set forth above.
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Escrow instructions shall provide for: (i) ALTA
standard title insurance coverage in an amount equal to
current fair market value, as determined by the City, such
title to be subject only to standard printed exceptions in
said form of policy, the lien of property taxes and assess-
ments not yet payable, and such other exceptions as shall
have been approved in writing by the City; (ii) all escrow
fees and customary charges for document drafting, recording
and real estate transfer tax to be borne by the City; and,
if applicable, (iii) cash deposits to be made with the
Fiscal Agent to pay or redeem principal and interest on any
Bonds and Additional Bonds and to pay all other obligations
under the Resolution.
In the event that the option contained herein is
exercised, the Agency agrees to execute any and all documents
and to perform any and all acts, all at the expense of the
City, necessary in order to permit the escrow contemplated
hereby to close in accordance with the terms and conditions
specified herein, including the delivery of any instrument
held by the Fiscal Agent pursuant to the Resolution.
Section 21.
Net -Net -Net Lease.
This Lease shall be deemed and construed to be a
"Net -Net -Net lease" and the City hereby agrees that the
rentals provided for herein shall be an absolute net return
to the Agency, free and clear of any expenses, charges or
set -offs whatsoever.
Section 22. Execution.
This Lease may be simultaneously executed in any
number of counterparts, each of which when so executed shall
be deemed to be an original, but all together shall constitute
but one and the same Lease, and it also understood and
agreed that separate counterparts of this Lease may be
separately executed by the Agency and the City, all with the
same full force and effect as though the same counterpart
had been executed simultaneously by both the Agency and the
City.
Section 23. Further Assurances.
The City shall make, execute and deliver any and
all such further resolutions, instruments and assurances as
may be reasonably necessary or proper to carry out the
intention or to facilitate the performance of this Lease,
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and for the better assuring and confirming unto the Agency
and Holders of the Bonds under the Resolution of the rights
and benefits provided in this Lease.
Section 24. No Discrimination.
The City, as lessee hereunder, herein covenants by
and for itself, its assigns, and all persons claiming under
or through it, and this lease is made and accepted upon and
subject to the following conditions:
That there shall be no discrimination against or
segregation of any person or group of persons, on
account of race, color, creed, religion, sex, marital
status, national origin, or ancestry, in the leasing,
subleasing, transferring, use, occupancy, tenure, or
enjoyment of the Leased Premises, nor shall the City
itself, or any person claiming under or through it,
establish or permit 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.
Section 25. Validity.
If any one or more of the terms, provisions,
promises, covenants or conditions of this Lease shall to any
extent be adjudged invalid, unenforceable, void or voidable
for any reason whatsoever by a court of competent juris-
diction, each and all of the remaining terms, provisions,
promises, covenants and conditions of this Lease shall not
be affected thereby and shall be valid and enforceable to
the fullest extent permitted by law.
If for any reason this Lease shall be held by a
court of competent jurisdiction void, voidable, or unenforce-
able by the Agency or by the City, or if for any reason it
is held by such a court that the covenants and conditions of
the City hereunder, including the covenant to pay rents
hereunder, is unenforceable for the full term hereunder,
then and in such event for and in consideration of the right
of the City to possess, occupy and use the Leased Premises,
which right in such event is hereby granted, this Lease
shall thereupon become, and shall be deemed to be, a lease
from year to year under which the annual rentals herein
specified will be paid by the City.
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If the Treasurer of the Agency is substituted for
the Fiscal Agent pursuant to the Resolution, all references
herein to Fiscal Agent shall be deemed to mean Treasurer.
Section 26. Headings.
Any headings preceding the texts of the several
Sections hereof shall be solely for convenience of reference
and shall not constitute a part of this Lease, nor shall
thev affect its meaning, construction or effect.
IN WITNESS WHEREOF, the parties hereto have caused
this Lease to be executed and attested by their proper
officers thereunto duly authorized, and their official seals
to be hereto affixed, all as of the day and year first above
written.
Attest:
By
City Clerk
(SEAL)
CITY OF SAN BERENARDINO
CALIFORNIA i
19
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San Bernardino
60,005-57-4
I hereby approve the formrarid legality of the
foregoing Lease this ZA day of 1982.
_r
City Attorney
THE REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDI ,
CALIFORNIA
Attest:
By
ecretary
(SEAL)
I hereby approve the form and legality of the
foregoing Lease this ice/ day of � , 1982.
#215(tp)
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20
San Bernardino
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STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERARNDINO )
On this/ day of JCliVikAAwl , in the year,
198LL, before me, lar r a S) • Lowdpr- , a notary public in and
for the State of California, duly commissioned and sworn,
personally appeared Co. e, Holcomb known to me to
be the Mayor, and S ern CQOA known to me to be
the City Clerk, respectively, of the City of San Bernardino,
that executed the within instrument, and known to me to be
the persons who executed the within instrument on behalf of
said City therein named, and acknowledged to me that such
City executed the within instrument pursuant to a resolution
of the Mayor and Common Council of the City of San Bernardino.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of San
Bernardino on the day and year in this certificate first
above written.
(Notarial Seal)
'
(OFFICIAL SEAL)
SAN1111A A. LO'NXR
NblFRY FubLiC - CALIFORNIA
kx
My Commission
SAN UERNARDINO COUNTY
Expires Dec. 7, 1985
-AU-�J G-
Notary Public in and for the
State of California
My Commission expires:
21
#215(tp)
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San Bernardino
60,005-57-4
STATE OF CALIFORNIA )
ss.
COUNTY OF SAN BERNARDINO )
On this IL/ day ofAn ar g , in the year,
1982-, before me, ic• r..J r a 0 Loom cxl r , a notary
public in and for the State of California, duly commissioned
and sworn, personally appeared Lu 2 N�Iccr,Ah known
to me to be the Chairman, and Flo r rl Sc•., 0
known to me to be the Secretary, respectively, of the
Redevelopment Agency of the City of San Bernardino, that
executed the within instrument, and known to me to be the
persons who executed the within instrument on behalf of said
Agency therein named, and acknowledged to me that such
Agency executed the within instrument pursuant to a resolution
of the Redevelopment Agency of the City of San Bernardino.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of San
Bernardino on the day and year in this certificate first
above written.
(Notarial Seal)
'
or FICIAL SEAL)
SANDRA A. LOWDER
moi: it rUbLIC CALIFORNIA
SAN BERNARDINO COUNTY
My Commission
Expires Dec. 7, 1985
N ary Public in and for the
State of California
My commission expires:
22
#215(tp)
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