HomeMy WebLinkAbout1984-184
2,117-4/860
5/2/84
j.
RESOLUTION NO. 84-l84
RESOLUTION OF THE MAYOR AND COMMON COUNCIL
OF THE CITY OF SAN BERNARDINO, CALIFORNIA
APPROVING AND AUTHORIZING THE EXECUTION OF A
CERTAIN LEASE AGREEMENT AND A REIMBURSEMENT
AGREEMENT AND APPROVING A CERTAIN ASSIGNMENT
AND TRUST AGREEMENT AS TO FORM IN CONNECTION
WITH THE SOUTH VALLE PUBLIC IMPROVEMENTS
PROJECT
WHEREAS, the Mayor and Common Council (the "Council") of the City
of San Bernardino, California (the "City"), has heretofore adopted its Resolution
No. 84-46 on February 6, 1984, and designated a redevelopment survey area for the
proposed South Valle Redevelopment Project; and
WHEREAS, the Redevelopment Agency of the City of San Bernardino
(the "Agency"), has Initiated certain actions in connection with the preparations
necessary for the adoption of the proposed Redevelopment Plan for the South Valle
Redevelopment Project (the "Redevelopment Plan"); and
WHEREAS, the City and the Agency deem It desirable to proceed to
undertake certain actions prior to the anticipated adoption of the Redevelopment ""-
Plan In order to expedite the redevelopment of the proposed redevelopment project
area and to take advantage of the currently favorable economic conditions which
make the redevelopment of said proposed redevelopment project area more
feasible and affect in a positive manner the ability of the Agency to obtain lower
construction costs and financing costs for certain pUblic improvements; and
WHEREAS, the City deems it to be desirable to lease to the Agency
certain real property (the "Site") for the purposes and upon such terms as more
fully described In that certain lease agreement entitled "Lease Agreement City of
San Bernardino (South Valle Public Improvements Project)", dated as of May 1,
1984 (the "Lease Agreement", attached hereto as Exhibit "A" and Incorporated
herein by this reference; and \
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WHEREAS, the Agency deems It desirable to provide certain
reimbursements to the City pursuant to the proposed Reimbursement Agreement
attached hereto as Exhibit "8" and Incorporated herein by this reference which
.hall be payable from the tax Increment revenues to be available to the Agency If
8!ld when the Redevelopment Plan shall have been adopted by the Council; and
WHEREAS, in accordance with the Lease Agreement, the Agency shan
construct certain public Improvements upon the Site, as more fully described In
said Lease Agreement, and the Agency shall lease said completed public Improve-
ments which shall constitute the Facilities to the City upon the terms which are
more fully described in said Lease Agreement; and
WHEREAS, pursuant to the draft of the proposed Assignment and Trust
Agreement attached hereto as Exhibit "C" and Incorporated herein by reference,
the City and the Agency desire to authorize the sale of participation Interests In
the Lease Agreement by the Trustee designated In the Assignment and Trust
Agreement; and
WHEREAS, the entering Into of the Lease Agreement by the City and
the execution and delivery thereof Is authorized or permitted by the City Charter,
the Community Redevelopment Law, and the laws and Constitution of the State of
California.
NOW, THEREFORE, THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO DO HEREBY FIND, RESOLVE, DETERMINE AND
ORDER AS FOLLOWS:
Section 1. The Council hereby approves the Lease Agreement by and
between the City and the Agency substantially In the form as attached hereto as .
Exhibit "A" and substantially upon the terms and conditions as set forth therein. '
The Mayor and the City Clerk are hereby authorized and directed to execute the
Lease Agreement which shall be dated as of May 1, 1984, and the seal of the City
shall be affixed thereto.
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.
Section 2. The Council hereby approves the Reimbursement Agreement
by and between the City and the Agency substantially In the form as attached
hereto as Exhibit "8" and substantially upon the terms and conditions as set forth
therein. The Mayor and the City Clerk are hereby authorized and directed to
Qecute the Reimbursement Agreement which shall be dated as of May 1, 1984, and
the seal of the City shall be afCIxed thereto.
Section 3. The Council hereby approves the form of the Assignment
and Trust Agreement by and among the City, the Agency and the Trustee
designated therein substantially in the form as attached hereto as Exhibit "C" and
substantially upon the terms and conditions as set forth therein. The Mayor and
City Clerk are hereby authorized and directed to execute the Assignment and Trust
Agreement with such changes, additions or deletions as may be recommended by
bond counsel for the Intended financing transaction as contemplated therein and
approved by the Mayor, and the execution thereof by the Mayor and City Clerk
shall be deemed to be conclusive as to the approval thereof by and on behalf of the
"
City. Said Agreement shall be dated as of June 1, 1984, and the seal of the City
shall be afCIxed thereto.
I HEREBY CERTIFY that the foregoing resolution was duly adopted by
the Mayor and Common Council of the City of San Bernardino at 111
adiourned reqular meeting thereof, held on the l4th day of
May , 1984, by the following vote, to wit:
AYES:
Council Members castaneda, Reilly, Hernandez,
Marks, Quiel, Frazier, Strickler
NAYS: None
ABSENT: None
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City Clerk .
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The
May
foregoing resolution
,1984.
Approved as to form:
^JdIt'" ~~
(Yff' City Attorney
. "
Is hereby approved this ad day of
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2,117-3/860
5/07/84
RECORDING REQUESTED BY )
AlfD WIUUI RECORDBD RETUllN TO: )
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LA W OFFICES OF
TIMOTHY J. SABO
Suite 100
5855 Topanga Canyon Boulevard
Woodland Hills, California 91367
(Space above for recorder's use only)
LBASB AGRBBMBRT
CITY OP SAN BERNARDINO
(South Valle Public Improvements Project)
THIS LEASE AGREEMENT dated as of May 1, 1984, by and between the
Redevelopment Agency of the City of San Bernardino, a public body, corporate and
politic (the "Agency") and the City of San Bernardino, California, a municipal
corporation, organized and existing under and by virtue of the laws of the State of
California (the "Clty").
WIT N E SSE T H:
That for and in consideration of the mutual promises and agreements
herein contained, the parties hereto agree as follows:
Section 1. Definitions. Unless the context otherwise requires, the
terms defined in this Section 1 shall, for all purposes of this Lease, have the
meanings herein specified.
"Additional Rental" means that rental due for the Project as defined in
Section 6(b) of this Lease.
"Assignment and Trust Agreement" means that certain Assignment and
Trust Agreement dated as of June I, 1984, by and among the Agency, the City and
Security Pacific National Bank (the "Trustee") pertaining to the assignment of the
Agency's rights pursuant to this Lease Agreement to the Trustee on behalf of the
holders of the Certificates of Participation and the form of and manner of payment
with respect to the Certificates of Participation.
"Base Rental" means the total rental due for the Project when
completed, but does not include Additional Rental.
"Certificates of Participation" mean those certain Certificates of
Participation evidencing a proportionate ownership Interest in the Lease Agree-
ment as authorized pursuant to the Trust Agreement.
"Construction Contract" means the construction 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 of which is or wID be on file in the office of the City Clerk of the City and
the Secretary of the Agency and which is Incorporated herein by reference.
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"Facilities" means all public street Improvements and drainage
facilities together with structures, improvements and all facilities and improve-
ments related thereto or provided therefor, together with all facilities appurtenant
thereto or provided therefor as more particularly Identified In the Construction
Contract.
"Fiscal Year" means the fiscal year as established from time to time by
the City, being on the date of the Assignment and Trust Agreement the period
from July I to and including the following June 30.
"Project" means the Site and Facilities thereon. Said Project Is
sometimes referred to as "Leased Premises".
"Reimbursement Agreement" means that certain agreement entered
into by and between the Agency and the City dated as of May 1, 1984, pursuant to
which the Agency has obligated itself to make certain payments of tax increment
revenues to the City as reimbursement for Base Rental payments hereunder.
"Site" means that certain real property located in the City of San
Bernardino, County of San Bernardino, State of California, consisting of real
property on which the Facilities described herein are to be located, and more
particularly described in Exhibit "A" attached hereto and incorporated herein by
reference.
"Term" means the term of this Lease as provided in Section 3 hereof.
"Treasurer" means the Treasurer of the Agency.
"Trustee" means the trustee appointed under and defined by the
Assignment and Trust Agreement and any successor appointed as therein provided.
Section 2. Site Lease. For and in consideration of the sum of one
dollar ($1.00), all of which rental shall be payable In full within ten (10) days of the
issuance of the Certificates of Participation, the City hereby leases the Site to the
Agency, and the Agency hereby leases the Site from the City for a term
commencing on June 1, 1984 (the "Site Lease"). The term of the Site Lease shall
end on (I) June 1, 1987, or (jj) one (1) day after the payment or the provision for the
payment of the Certificates of Participation or other Indebtedness of the Agency
incurred to acquire the Site and construct the Facilities and to discharge the
Assignment and Trust Agreement by Its terms, whether earlier or later than (I), but
in no event later than June 1, 1987.
The Site Lease may be amended by the approval and execution of a
subsequent site lease in a manner and for the purposes similar with respect to the
approval and execution of subsequent project leases as provided In Section 5
hereof.
Section 3. Purpose of Site Lease. The Agency shall use the Site solely
for the purpose of constructing the Facilities thereon and leasing the Site and the
Facilities to the City pursuant to the Project Lease set forth In Section 4 hereof;
provided, however, that in the event of default by the City under the Project
Lease, the Agency may exercise the remedies provided in Section 21 hereof.
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Section 4. !!:!!ject Lease. The Agency hereby leases the Project to
the City and the City hereby leases the Project from the Agency, subject to the
terms and conditions hereof (the "Project Lease").
Section 5. Term; Transfer of Title. The term of this Project Lease
shall commence on June 1, 1984, provided all of the Facilities are substantially
completed and written notice thereof has been served on the City, or on any later
date of such substantial completion, including, without limitation, any extension of
the completion date as may be provided under any Construction Contract.
Although this contemplates all the Facilities being substantially completed and the
City taking possession of them on the same date, It shall not preclude the City and
the Agency from agreeing that the City may take possession of all or part of the
parts thereof being substantially completed, and, in such case, the term of this
Lease shall commence upon such occupancy.
This Project Lease shall terminate on June 1, 1987, or such earlier date
when the Certificates of Participation have been retired or provision for payment
has been provided for pursuant thereto, and, at such time, any surplus funds
remaining in the hands of the Trustee shall be paid to the Agency and the City pro
rata In relation to the amount of Base Rental paid by the City hereunder and the
amount of the tax increment revenues paid by the Agency to the City under the
Reimbursement Agreement as of the date of the retirement of the outstanding
Certificates of Participation.
It Is hereby expressly acknowledged and agreed by and between the
Agency and the City that the City shall lease the Facilities pursuant to this Project
Lease for a period of three (3) years through and including June 1, 1987, for the
Base Rental payments In an amount equal to that as shall be set forth on
Exhibit "8" together with Additional Rental payments as provided In Section 6(b)
hereof. The Agency shall utilize its best efforts to issue tax allocation bonds,
notes or other forms of indebtedness payable in whole or in part from the tax
increment revenues of the proposed South Valle Redevelopment Project, if and
when the same may have been duly approved by the Agency and the City, for the
purpose of providing funds for the exercise by the City of the purchase option as
provided In Section 27 hereof and to thus refund, redeem prior to maturity or
otherwise pay the Outstanding principal amount of the Certificates on or before
the maturity date thereof. In the event the Agency has not, on or before June 1,
1987, either refunded the outstanding Certificates of Participation or otherwise
provided for the payment of all principal thereof to become due and payable on or
before the maturity date of the Certificates of Participation, the Agency and the
City hereby agree to utilize best faith efforts to negotiate and execute a
subsequent lease agreement including therein a subsequent project lease upon such
terms and conditions, including payment of rental amounts, that would permit the
Agency to Issue Its refunding certificates of participation or other refunding
obligations to thereby provide for the payment of the then outstanding principal
amount of the Certificates of Participation.
Upon the City paying all Base Rental payments as required by this
Agreement or exercising its option to purchase the Project as described In
Section 27 of this Lease and the retirement of the Certificates of Participation and
the expiration or termination of the term hereof, title to the Facilities and any
improvements thereon or additions thereto shall be transferred directly to the City
in accordance with the provisions of the Assignment and Trust Agreement.
Section 6. Rental. The City shall pay the Base Rental and the
Additional Rental to the Trustee as assignee of the Agency in the amounts, at the
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times and In the manner set forth herein, said amounts eonstituting In the
aggregate the total of the annual rentals payable under this Lease as follows:
(a) Base RentaL For the period commencing on (1) June 1, 19l!!a..or
(2) the date on which the City takes possession of all of the Facillties,- whichever
(1) or (2) occurs later, the City agrees to pay to the Trustee for the account of the
holders of the Certificates of Participation rent for each Fiscal Year on
November 1 of each Fiscal Year durirur the term hereof consisting o,,"lnterest at
the times and in the amounts specilr'ed in Exhibit "B" attached 'tiereto and
incorporated herein, and rent shall cease when the Certificates of Participation
have been retired or provision for payment has been made. Said Exhibit 08" shall
be completed at sueh time as the Certificates of Participation shall be sold at
public sale and the Interest rate per annum payable thereon shall have been
determined after such public sale.
(b) Additional RentaL In addition to and after the commencment of
the Base Rental hereinabove set forth, the City shall pay to the Trustee for the
account of the Agency an amount or amounts (hereinafter called "Additional
Rental") equivalent to the sum of the following:
(j) 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 and City's interest therein or upon the
Agency's and City's operation thereof or the Agency's and City's rental
income derived therefrom.
(ji) All expenses (not otherwise paid or provided for out of the
proceeds of the sale of the Certificates of Participation of the Agency)
incidental to the execution and delivery of the Certificates of Participation
and all administrative costs of the Agency, Including without limiting the
generality of the foregoing, all reasonable and necessary salaries, wages,
expenses, eompensation and indemnification of the Trustee as provided in and
in furtherance of Its duties under the Assignment and Trust Agreement, fees
and charges of auditors, accountants, architects, attorneys and engineers and
all other necessary administrative eharges of the Agency or eharges required
to be paid by It in order to comply with the terms of the Certificates of
Participation or of the Assignment and Trust Agreement and to defend the
Agency and its members and any other redevelopment related eosts direC!tly
or indirectly attributable to the Project which the City may loan or advance
to the Agency including site preparation costs, certain redevelopment
planning and implementation costs and other public improvement costs which
payor provide for the payment thereof.
(Iii) 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.
The Additional Rental payable hereunder shall be paid by the City
within ten (10) 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
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balance due under the Assignment and Trust Agreement. 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. 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, construction and financing of the Facilities,
the uses and purposes which will be served by the Facilities and the benefits
therefrom which will accrue to the parties to the Agreement 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 (Base Rental and Additional
Rental) due hereunder In each Fiscal Year commencill2 In the 1986-87 Fiscal Year
in its budget for such Fiscal Year or pursuant to separate resolution and further
shall make the necessary appropriations for all such rental payments. The City
shall furnish to the Agency and to the Trustee under the Assignment and Trust
Agreement copies of the budget or such
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other evidence of the City taking formal action with respect to the appropriation
of money to pay Base Rental and Additional Rental hereunder at least fifteen (IS)
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 Trustee in Los
Angeles, California, or at such other place or places as may be set forth in the
Assignment and Trust Agreement. Any Base Rental payment, or portion thereof,
which is not paid when due shall remain due and payable until received by the
Trustee. Each Base Rental payment 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 with respect to the Certificates of Participation 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
the Agency and the City hereunder, the 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 determination that the 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.
(0 Credit on Base Rental. There shall be credited against Base
Rental any amount required to be so credited under the Assignment and Trust
Agreement.
(g) Advance Rental. In addition to the payment of Base Rental and
Additional Rental, the City shall pay advance rental for the use and occupancy of
the Facilities in an amount equal to the interest payable on the Certificates of
Participation for the period from the date of the delivery of the Certificates of
Participation to and including June 1, 1986. Such advance rental shall be paid in
whole or in part from the proceeds of the sale of the Certificates of Participation.
Section 7. Construction of Project. The Agency or Its agent shall
diligently proceed to construct, or cause to be constructed, the Facilities on the
Site in the manner required by the Construction Contract. The Agency shall
appoint a construction agent with respect to the construction of the Project and is
hereby authorized to award and execute the Construction Contract, submit
requisitions for payment from the Construction Fund created and established in the
Assignment and Trust Agreement, apply for any and all governmental permits and
take all actions required under the California Environmental Quality Act of 1970
and take any and all other actions reasonable and necessary in connection with the
construction of the Facilities. The Construction Contract shall be awarded to a
contractor or contractors licensed under the laws of the State of California and
such Construction Contract shall be awarded after competitive bidding following
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the pracedures required by the applicable laws of the State of California relating
to the awarding of contracts of a similar nature by the Agency and in accordance
with the standard bid and contract award procedures of the City. For the purpose
of paying the cost of construction of the Facilities on the Site and all costs and
expenses Incidental thereto, Including, but not limited to, architectural fees for
design of the Facilities, the Agency shall authorize the sale, execution and delivery
of the Certificates of Participation pursuant to the Assignment and Trust Agree-
ment.
Such construction shall be substantially completed within three (3)
years of the date of complete execution hereof; provided, however, that such
completion date shall be extended for such further period If the Agency and the
City, or any contractor or contractors, are delayed by: (1) acts or omissions of the
City or the Agency or of any employee or agent of the City or the Agency,
including changes ordered in the work, or (2) litigation brought against the City or
the. Agency which enjoins the construction, or (3) any act of God which the City or
the Agency could not reasonably have foreseen and provided for, or (4) any strikes,
boycotts, or like obstructive actions by employee or labor organizations which are
beyond the control of the City or the Agency and which the City or the Agency
cannot overcome with reasonable effort and could not reasonably have foreseen
and provided for, or (5) any war or declaration of a state of national emergency, or
(6) the imposition by government action or authority of restrictions upon the
procurement of labor or materials necessary for the completion of the Facilities.
All work, construction and materials shall be in accordance with the
Construction Contract; provided, however, that subsequent to the delivery of the
Certificates of Participation, neither party hereto may make changes, additions,
deletions or modifications in the plans and specifications which result in an
increase In the cost of constructing the Facilities without the prior approval of the
other party; provided, however, that unless sufficient additional funds are provided
therefor (j) the cost of the Project shall not exceed that which Is established at the
time when the Certificates of Participation are delivered, and (Ii) the cost of
change orders shall not exceed the reserve therefor established at such time.
Neither party shall take action which extends the period of construction beyond the
period for which the Agency has funded interest on the Certificates of Participa-
tion unless sufficient additional funds are provided therefor by the party requesting
such extension. Any moneys remaining In the Construction Fund to be established
under the Assignment and Trust Agreement after the construction and completion
of the Facilities shall be applied by the Agency as provided in the Assignment and
Trust Agreement.
Section 8. Maintenance and Operation. The City shall, at Its own
expense, maintain or cause to be maintained the Leased Premises and all
improvements thereon in good order, condition and repair. 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 expenses 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.
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Section 9. 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 Improvements on the Leased Premises shall
remain In the City.
Section 10. Insurance. The City shall maintain or cause to be
maintained such policies of insurance as the City customarily maintains with
regard to other public Improvements which are similar In nature to the Project
Including public liability Insurance against claims for bodily injury or death, or
damage to property occurring upon, in or about the Project, and such other
insurance as may be agreed upon from time-to-time by the City and the Agency.
All insurance herein provided for shall be affected under policies issued
by insurers of recognized responsibility, licensed or admitted to do business in the
State of California. All policies or certificates shall name the City, the Agency
and the Trustee as named insureds.
All policies or certificates issued by the respective insurers for
insurance shall provide that such policies or certificates shall not be cancelled or
materially changed without at least thirty (30) days' prior written notice to the
Trustee, and shall carry loss payable endorsements In favor of the Trustee where
applicable. Certified copies of such policies (or other evidence of coverage
satisfactory to the Trustee) shall be deposited with the Trustee by the Agency,
together with appropriate evidence of payment of the premiums therefor; and, at
least ten (10) days prior to the expiration dates of expiring policies or certificates,
certified copies of renewal or new policies or certificates (or other evidence of
coverage satisfactory to the Trustee) shall be deposited with the Trustee.
All premiums and charges due and payable for all of the aforesaid
insurance, which are not paid as a part of the Construction Contract or from the
proceeds of the sale of the Certificates of Participation, shall be paid by the City
as Additional Rental hereunder. Any such premium for a period partly within such
period shall be prorated.
The Agency shall cause the City to carry such other insurance as is
required by the Assignment and Trust Agreement.
Notwithstanding the generality of the foregoing, the City shall not be
required to maintain or cause to be maintained more insurance than Is specifically
referred to above or any insurance unless the same is insurance which is available
from reputable insurers on the open mar~~t. The phrase "insurance :which Is
available from reputable insurers on the open market" means standard policies of
insurance with standard deductibles offered by reputable insurers In a competitive
market.
In the event the City fails to maintain the insurance required to be
maintained hereunder, the Agency shall have the right to procure and maintain
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such insurance and charge the City for the cost thereof as Additional Rental under
Section 6(b) of this Lease.
Section 11. DamlUte by Fire, Earthquake. 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 responsibility of the Agency to provide such right at all
times.
In the event of destruction or damage to the Leased Premises by fire or
earthquake or other casualty or events so that they become wholly or partly
unusable, the 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 destruction or damage in excess
of the amount expended for such repairing or rebuilding, shall be paid to the
Trustee, or
(2) Declare this Lease to the 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 Certificates of
Participation; provided, however, that if the Agency shall have sufficient funds
from the proceeds of insurance or otherwise for the necessary repairing or
rebuilding, the Agency shall not proceed under this option without the City's
consent.
During such time as the Leased Premises are unusable, rent shall cease.
No further rental payments shall accrue until such Leased Premises are again
available for lease in a suitable condition and 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
the 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
usuable by the City.
Section 12. Assi~nment, Sublease and Certificates of Participation.
Neither this Lease nor any mterest 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 the 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, transferring or subletting which
may be made. The City shall have the righl"'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 any other obligations contained herein. In no event shall the
City sublease or permit the use of all or any part of the Leased Premises so as to
cause the interest component of Base Rental payments to be subject to federal or
California personal income tax.
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The Agency shall have the right to assign its Interest In this Lease to
the Trustee on behalf of the holders of the Certificates of Participation pursuant
to the Trust Agreement. The parties hereto agree to execute any and 'all
documents necessary and proper in connection therewith. Any items required or
permitted to be done by the Agency may, Is so provided under the Assignment and
Trust Agreement, be performed by the Trustee thereunder.
Section 13. 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 the principal of, and interest on, the
outstanding Certificates of Participation will be reduced in any applicable year by
the application of the award in eminent domain to the call for redemption of
outstanding Certificates of Participation.
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 Trustee
for the direct benefit of the holders of the Certificates of Participation and shall
be used by the Trustee (together with any other money which shall be or may be
made available for such purpose) to call a principal amount of Certificates of
Participation in each of the remaining maturities so that, as nearly as possible in
the discretion of the Trustee, equal annual payments of principal and interest on
the outstanding Certificates of Participation remaining will be maintained after
said call.
In the event the amount so paid to the Trustee shall be more than
sufficient to retire the Certificates of Participation then outstanding any such
excess shall be paid by the Trustee to the Agency and the City pro rata in relation
to the total amount of Base Rental paid by the City hereunder and the total
amount of tax increment paid by the Agency under the Reimbursement Agreement
as of the date of the retirement of the outstanding Certificates of Participation.
Section 14. Right of Entry. The Agency and Its designated representa-
tives 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 connected with the Agency's rights or obligations under this Lease, or (Iii)
for all other lawful purposes.
Section 15. Liens. Except for payments made or required to be made
under the Assignment and Trust Agreement, the City shall payor 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, the City's and/or Agency's Interest therein, and shall cause each such
-9-
lien to be fully discharged and released; provided, however, that If the City and/or
the 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 16. 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 17. Quiet Enjoyment. The parties hereto mutually covenant
and agree that the City, by keeping and performing the convenants and agreements
herein contained, shall at all times during the term, peaceably and quietly, have,
hold and enjoy the Leased Premises.
Section 18. Law Governi~. This Lease is made in the State of
California under the Constitution and ws of such State and is to be so construed.
Section 19. Notices. All notices, statements, demands, requests,
consents, approvals, authorizations, offers, agreements, appointments or designa-
tions 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
registered mail, return receipt requested, postage prepaid and addressed as follows:
City: City Clerk,
City of San Bernardino
300 North "D" Street
San Bernardino, Caifornia 92418
Agency: Secretary of the Redevelopment
Agency of the City of San Bernardino
300 North "D" Street
San Bernardino, Caifornia 92418
Section 20. 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 21. Default by the City. If (a) the City shall fail to pay any
rental payable hereunder within fifteen (l~l days from the date such rental is
payable, or (b) the City shall fall to keep any such other terms, covenants or
conditions contained herein for a period of twenty-five (25) days after written
notice thereof from the Agency to the City, or (c) the City shall abandon or vacate
the Leased Premises, or (d) the City's interest In this Lease or any part thereof
shall be assigned or transferred without the written consent of the Agency, either
voluntarily or by operation of law, or (e) the City shall file any petition or institute
any proceedings wherein or. whereby the City asks or seeks or prays to be
-10 -
adjudicated a bankrupt, or to be discharged from any or all of its debts or
obligations, or offers to the City's creditors to effect a composition or extension of
time to pay the City's debts, or asks, seeks or prays for a reorganization or to
effect a plan of reorganization, or for a readjustment of the 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 the
City, then and In any of such events the City shall be deemed to be In default
hereunder.
In accordance with Civil Code Section 1951.4, notwithstanding the
breach, If any, by the City of any terms, covenants or conditions hereof and
notwithstanding any abandonment by the City of the Leased Premises, the Project
Lease shall continue in full force and effect for such period of time as the Agency
does not terminate the right of the City to possession of the Leased Premises, and
the Agency may at any time enforce any or aU rights granted to the Agency
hereunder, Including the right to recover the full amounts of the Base Rental and
the Additional Rental with respect to the Leased Premises as the same becomes
due and payable hereunder.
If the City should, after notice of such default, fail to remedy any
default with all reasonable dispatch within thirty (30) days of the date of such
event of default, then the Agency shall have the right, at its option, without any
further demand or notice (j) to terminate this Lease and to re-enter the Leased
Premises and eject all parties in possession thereof therefrom, using all necessary
force so to do, and sell the Facilities subject to the Site Lease or (ij) to re-enter
the Leased Premises and eject therefrom, using all necessary force so to do, and,
without terminating this Lease, re-Iet the Leased Premises, or any part thereof, as
the agent and for the account of the City upon such terms and conditions as the
Agency may deem advisable, in which event the rents received on such re-Ietting
shall be applied first to the expenses of re-Ietting and collection, including
necessary 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 the Agency hereunder, and if a
sufficient sum shall not be thus realized to pay such sums and other charges, the
City shall pay the Agency annually any cumulative net deficiency existing on the
date when Base Rental and/or Additional Rental are due hereunder. The foregoing
remedies of the Agency are in addition to and not exclusive of any other remedy of
the Agency. Any such re-entry shall be allowed by the City without hindrance and
the Agency shall not be liable in damages for any such re-entry or be guilty of
trespass. The Agency shall not exercise Its remedies hereunder so as to cause the
interest component of Base Rental payments to be subject to federal or California
personal income taxes.
Section 22. Net-Net-Net Lease. This Lease shall be deemed and
construed to be a "net-net-net lease" in-that 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~ffs whatsoever related to the operation,
maintenance and repair of the Project.
Section 23. Execution. This Lease may be simultaneously executed in
any number of counterparts, ,each of which when so executed shall be deemed to be
-11-
an original, but all together shall constitute but one and the same Lease, and It is
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 24. Validity. If anyone 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 jurisdiction, 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 be a court of competent
jurisdiction void, voidable or unenforceable 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.
If the Treasurer of the Agency is substituted for the Trustee pursuant
to the Assignment and Trust Agreement, all references herein to Trustee shall be
deemed to mean the Treasurer as the case may be.
Section 25. 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 they affect Its meaning, construction or
effect.
Section 26. Non-discrimination. The City covenants by and for itself,
its administrators and 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 premises herein leased nor shall the lessee
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 premises here!~)eased.
Section 27. Option to Purchase. The City shall have the option to
purchase the Project prior to June 1,1987, but only if it is not in default hereunder
with respect to the Project and only in the manner provided in this Section. The
City may exercise Its option to purchase the Project on any prepayment date by
paying the prepayment price applicable to the Project as shown in Exhibit "C"
attached hereto and incorpor.ated herein, together with the interest component of
.
-12 -
the Base Rental payment required to be paid on such prepayment date. Such
prepayment price shall be deposited by the Trustee In the Certificate Fund to be
applied to the redemption of Certificates of Participation pursuant to Section 3.12
of the Assignment and Trust Agreement. The City shall give the Trustee notice of
its Intention to exercise Its option not less than sixty (60) days in advance of the
date of exercise, and shall deposit the prepayment price, together with the interest
component of the Base Rental payment required to be paid on such prepayment
date. If the City exercises Its option to purchase the Project pursuant to this
Section on any prepayment date, (1) the City shall not be required to pay the
principal component of the Base Rental payment required to paid on such
prepayment date, and (2) any amount then on hand In the Construction Fund, the
Reserve Fund or the Certificate Fund established pursuant to Article VI of the
Assignment and Trust Agreement, shall be applied towards the payment of the
applicable prepayment price by the City. Upon exercise of its option by the City
and the redemption of the Certificates of Participation, all right, title and interest
of the Agency in and to the Project shall be transferred to the City.
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.
(SEAL)
ATTEST:
REDEVELOPMENT AGENCY
CITY OF SAN BERNARDI
Secretary
CITY OF SAN BERNARDIN
By:
(SEAL)
ATTEST:
By:
_.....:_--
City Clerk
-13 -
STATE OF CALIFORNIA )
) SSe
COUNTY OF SAN BERNARDINO)
On this day of , before me, a Notary
Public, State of California, duly commissioned and sworn, personally appeared
and , known
to me to be the Chairman and Secretary, respectively, of the Redevelopment
Agency of the City of San Bernardino, a public corporation, that executed the
within instrument on behalf of said public corporation therein named, and
acknowledged to me that such public corporation executed the within Instrument
pursuant to a resolution of the Members of said public corporation.
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal on the day and year In this certificate first above written.
Notary Public
State of California
(SEAL)
STATE OF CALIFORNIA )
) ss.
COUNTY OF SAN BERNARDINO)
day of , before me, a Notary Public, State of
commissioned and sworn, personally appeared
and . known
to me to be the Mayor and City Clerk, respectively, of the City of San Bernardino,
California, a municipal corporation, that executed the within instrument on behalf
of said municipal corporation therein named, and acknowledged to me that such
public corporation executed the within instrument pursuant to a resolution of its
city couneil.
On this
California, duly
IN WITNESS WHEREOF, I have hereunto subscribed my name and
affixed my official seal on the day and year In this eertificate first above written.
, .
Notary Public
State of California
(SEAL)
-14-
EXHIBIT "A"
LEGAL DESCRIPTION OF LEASED PREMISES
-15 -
Accumulation Date
for Year Ending
EXHIBIT "8"
BA~E RENTAL PAYMENTS
Principal or
Sinking Fund
Components
/
'\
_111 _
Interest
Component
Total
Payments
EXHmIT "C"
CITY OF SAN BERNARDINO
OPTION TO PURCHASE - PREP A YMENT SCHEDULE
.
--~
"
-1'1-
'I: "
( . I
.- .
2,117-1/860
6/11/84
REIMBURSEMENT AGREEMENT
CITY OF SAN BERNARDINO
(South Valle Public Improvements Project)
This Reimbursement Agreement is entered into this 1st day of May,
1984, by and between the Redevelopment Agency of the City of San Bernardino
(the "Agencyn), a redevelopment agency, being a public body, corporate and politic,
duly organized and existing under the laws of the State of California, and the City
of San Bernardino, California (the "City"), a municipal corporation, duly organized
and existing under the City Charter and the Constitution and laws of the State of
California.
RECITALS
A. The Agency is a redevelopment agency duly created, established
and authorized to transact business and exercise its powers, all under and pursuant
to the California Community Redevelopment Law (Part 1 of Division 24 of the
Health and Safety Code of the State of California).
B. A proposed Redevelopment Plan for the redevelopment project
area to be known and designated as the "South Valle Redevelopment Project" (the
"Project Area") shall be considered for adoption and approval by the City and may
be hereafter adopted and approved, and all requirements of law and conditions
precedent to the adoption and approval of said Redevelopment Plan shall be
hereafter complied with. The City has, pursuant to Resolution No. 84-46, adopted
and approved on February 6, 1984, designated a survey area for that territory
proposed to be included within the Project Area. In accordance with and to
implement said proposed Redevelopment Plan and for purposes of implementing
redevelopment activities of the Agency within a survey area, the Agency entered
into that certain Lease Agreement with the City dated of even date herewith (the
"Lease Agreement") pursuant to which the City has agreed to pay certain Base
Rental payments and Additional Rental payments to the Agency for certain public
street improvements and drainage facilities to be constructed in the Project Area
(the "Improvements"). In order to finance the construction of the Improvements,
the Agency intends to authorize the sale and delivery of certificates of participa-
tion evidencing proportionate ownership interests In the right to receive Base
Rental payments and Additional Rental payments from the City under the Lease
Agreement (the "Certificates of Participation").
C. The .(t.gency and the Mayor and Common Council of the City each
have determined by resolution pursuant to Section 33445 of the Health and Safety
Code that the construction of the Improvements shall be of benefit to the proposed
Project Area and the same are for purposes of redevelopment and shall be located
within a survey area, the implementation of which is permitted under the
circumstances as herein recited. The Agency has filed a validation action pursuant
to Civil Code Section 860, et !!!!I., as Case No. 222224, on March 24, 1984, for the
purpose of determining the legal authority and validity of the Agency to reimburse
the City or otherwise construct or cause to be constructed the Improvements with
-1-
,
funds generally avaUable to the Agency or with tax increment revenues of .the
Agency generally or with tax increment revenues to .be received from the ProJ~ct
Area if the same shall be finally approved by the CIty. The Agency and the CIty
have found and determined that there are no other reasonable means of financing
the construction of the Improvements.
D. The City intends to make annual Base Rental payments and
Additional Rental payments to the Agency pursuant to the Lease Agreement for
the use of the Improvements in sufficient amounts to pay the amounts due annually
to the holders of the Certificates of Participation. In consideration for the City
entering into the Lease Agreement and making such Base Rental payments and
Additional Rental payments, the Agency by this Agreement desires to reimburse
the City for all or a portion of the City's Base Rental payments and Additional
Rental payments under the Lease Agreement in any fiscal year determined in the
discretion of the City Administrator (the "Reimbursement Amount"). It is
contemplated that such reimbursement will be made from any lawfully avaUable
funds of the Agency (excluding Base Rental payments and Additional Rental
payments by the City), including, without limitation, tax increment revenues
allocated and. paid to the Agency with respect to the Project Area or other
redevelopment project areas (the "Revenues").
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions set forth herein, the parties hereto agree to as follows:
Section 1. Reimbursement AJP"eement. The Agency hereby agrees to
pay the Reimbursement Amount to the CIty semi-annually from the Revenues. If
and to the extent that the Revenues avaUable to the Agency in any fiscal year are
insufficient to pay the Reimbursement Amount or any portion thereof, the unpaid
Reimbursement Amount or portion thereof shall be added to the Reimbursement
Amount due and payable to. the City for any subsequent fiscal year during the term
of the Lease Agreement. The Agency's obligation to reimburse the City as set
forth in this Section shall constitute an "indebtedness" of the Agency within the
meaning of Health and Safety Code Section 33675.
Section 2. Priority of Indebtedness. The indebtedness of the Agency
to the City created by this Agreement shall be a first and prior pledge of the tax
increment revenues and a lien thereon to the City, except as to amounts, if any, as
may hereafter be required to be paid to any affected taxing agency pursuant to an
agreement duly authorized and approved in accordance with Health and Safety
Code Section 33401 and approved by both the Agency and the City. Prior to the
issuance any tax allocation bonds of the Agency, the Agency and the City may
amend this Agreement to provide that the pledge hereunder may be released or this
Agreement shall be made subordinate to the rights of the holders of any such tax
allocation bonds to receive the tax increment revenues attributable to the Project
Area. Any such amendment must be duly approved and executed by the Agency
and the City. The tax increment revenues pledged hereunder shall be limited to
that which may be attributable to the proposed Redevelopment Plan for the
Project Area.
-2 -
..
IN WITNESS WHEREOF, the Agency and the City have executed this
Agreement as of the date first set forth herein above.
(SEAL)
ATTEST AS TO FACSIMILE:
By: .d/~~
Ity C erk
APPROVED AS TO FORM:
(SEAL)
ATTEST AS TO FACSIMILE:
~~~
Secretary
APPROVED AS TO FORM:
t:oJt Agency Cou~el
CITY OF SAN BERNARDINO, CALIFORNIA
~~
By: .r (/J ~
Mayor
-3-
2,117-1/850 cy - /J'V
5/7 /84 (
REIMBURSEMENT AGREEMENT
CITY OF SAN BERNARDINO
(South Valle Public Improvements Project)
This Reimbursement Agreement is entered into this 1st day of May,
1984, by and between the Redevelopment Agency of the City of San Bernardino
(the "Agency"), a redevelopment agency, being a public body, corporate and politic,
duly organized and existing under the laws of the State of California, and the City
of San Bernardino, California (the "City"), a municipal corporation, duly organized
and existing under the City Charter and the Constitution and laws of the State of
California.
RECITALS
A. The Agency is a redevelopment agency duly created, established
and authorized to transact business and exercise its powers, all under and pursuant
to the California Community Redevelopment Law (Part 1 of Division 24 of the
Health and Safety Code of the State of California).
B. A proposed Redevelopment Plan for the redevelopment project
area to be known and designated as the "South Valle Redevelopment Project" (the
"Project Area") shall be considered for adoption and approval by the City and may
be hereafter adopted and approved, and all requirements of law and conditions
precedent to the adoption and approval of said Redevelopment Plan shall be
hereafter complied with. The City has, pursuant to Resolution No. 84-46, adopted .
and approved on February 6, 1984, designated a survey area for that territory
proposed to be included within the Project Area. In accordance with and to
implement said proposed Redevelopment Plan and for purposes of implementing
redevelopment activities of the Agency within a survey area, the Agency entered
into that certain Lease Agreement with the City dated of even date herewith (the
"Lease Agreement") pursuant to which the City has agreed to pay certain Base
Rental payments and Additional Rental payments to the Agency for certain public
street improvements and drainage facilities to be constructed in the Project Area
(the "Improvements"). In order to finance the construction of the Improvements,
the Agency intends to authorize the sale and delivery of certificates of participa-
tion evidencing proportionate ownership interests in the right to receive Base
Rental payments and Additional Rental payments from the City under the Lease
Agreement (the "Certificates of Participation").
C. The Agency and the Mayor and Common Council of the City each
have determined by resolution pursuant to Section 33445 of the Health and Safety
Code that the construction of the Improvements shall be of benefit to the proposed
Project Area and the same are for purposes of redevelopment and shall be located
within a survey area, the implementation of which is permitted under the
circumstances as herein recited. The Agency has filed a validation action pursuant
to Civil Code Section 860, et seg., as Case No. 222224, on March 24, 1984, for the
purpose of determining the legal authority and validity of the Agency to reimburse
the City or otherwise construct or cause to be constructed the Improvements with
-1-
,
funds generally available to the Agency or with tax increment revenues of the
Agency generally or with tax increment revenues to be received from the Project
Area if the same shall be finally approved by the City. The Agency and the City
have found and determined that there are no other reasonable means of financing
the construction of the Improvements.
D. The City intends to make annual Base Rental payments and
- Additional Rental payments to the Agency pursuant to the Lease Agreement for
the use of the Improvements in sufficient amounts to pay the amounts due annually
to the holders of the Certificates of Participation. in consideration for the City
entering into the Lease Agreement and making such Base Rental payments and
Additional Rental payments, the Agency by this Agreement desires to reimburse
the City for all or a portion of the City's Base Rental payments and Additional
Rental payments under the Lease Agreement in any fiscal year determined in the
discretion of the City Administrator (the "Reimbursement Amount"). It is
contemplated that such reimbursement will be made from any lawfully available
funds of the Agency (excluding Base Rental payments and Additional Rental
payments by the City), including, without limitation, tax increment revenues
allocated and paid to the Agency with respect to the Project Area or other
redevelopment project areas (the "Revenues").
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions set forth herein, the parties hereto agree to as follows:
Section 1. Reimbursement Agreement. The Agency hereby agrees to
pay the Reimbursement Amount to the City semi-annually from the Revenues. If
and to the extent that the Revenues available to the Agency in any fiscal year are
insufficient to pay the Reimbursement Amount or any portion thereof, the unpaid
Reimbursement Amount or portion thereof shall be added to the Reimbursement
Amount due and payable to the City for any subsequent fiscal year during the term
of the Lease Agreement. The Agency's obligation to reimburse the City as set
forth in this Section shall constitute an "indebtedness" of the Agency within the
meaning of Health and Safety Code Section 33675.
Section 2. Priority of indebtedness. The indebtedness of the Agency
to the City created by this Agreement shall be a first and prior pledge of the tax
increment revenues and a lien thereon to the City, except as to amounts, if any, as
may hereafter be required to be paid to any affected taxing agency pursuant to an
agreement duly authorized and approved in accordance with Health and Safety
Code Section 33401 and approved by both the Agency and the City. Prior to the
issuance any tax allocation bonds of the Agency, the Agency and the City may
amend this Agreement to provide that the pledge hereunder may be released or this
Agreement shall be made subordinate to the rights of the holders of any such tax
allocation bonds to receive the tax increment revenues attributable to the Project
Area. Any such amendment must be duly approved and executed by the Agency
and the City. The tax increment revenues pledged hereunder shall be limited to
that which may be attributable to the proposed Redevelopment Plan for the
Project Area.
-2-
IN WITNESS WHEREOF, the Agency and the City have executed this
Agreement as of the date first set forth herein above.
(SEAL)
CITY OF SAN BERNARDINO
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
~~!~
REDEVELOPMENT AGENCY
CITY OF SAN BERNARDIN
(SEAL)
ATTEST:
Secretary
APPROVED AS TO FORM:
~!.~
-3-
iY-/(jY
2,117-5(a)/860
5/07/84
RECORDING REQOJllSllill BY )
AIm WHO RECORDED RBTlJIlN TO: )
)
)
)
)
)
)
)
)
LAW OFFICES OF
TIMOTHY J. SABO
Suite 100
5~55 Topanga Canyon Boulevard
Woodland Hills, California 91367
(Space above for recorder's use only)
ASSIGNMEMT AIm TROST AGREEMENT
crry OF SAN BERNARDINO, CALIFORNIA
(South Valle Public Improvements Proj~
Dated as of June 1, 1984
by and among
NATIONAL BANK,
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO
and the
CITY OF SAN BERNARDINO, CALIFORNIA
-
1,010-13/860
5/11/84
ASSIGNMENT AND TRUST AGREEMENT
CITY OF SAN BERNARDINO
(South Valle Public Improvements Project)
THIS ASSIGNMENT AND TRUST AGREEMENT (the "Agreement"),
made and entered into as of this 1st day of June, 1984, by and between
NATIONAL BANK, a corporation duly organized, existing
and authorized to accept and execute trusts of the nature herein set forth, under
and by virtue of the laws of the State of California (the "Trustee"), the
REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body,
corporate and politic, duly organized and existing under the laws of the State of
California (the "Agency"), and the CITY OF SAN BERNARDINO, CALIFORNIA, a
municipal corporation duly organized and existing under the City Charter and the
Constitution and laws of said State (the "City").
WIT N E SSE T H:
WHEREAS, the City and the Agency have entered into a Site Lease
dated as of the date hereof (the "Site Lease"), as contained within the Lease
Agreement hereinafter referred to, whereby the Agency has agreed to lease the
Site from the City for the purpose of acquiring, constructing and installing on the
Site certain street improvements, drainage facilities and related and appurtenant
facilities and property (the "Project"); and the Agency and the City have entered
into a Lease Agreement dated as of the date hereof (the "Lease Agreement"), a
duplicate original of which has been furnished to each of the parties, whereby the
Agency has agreed to lease the Project and the Site to the City, and the City has
agreed to lease the Project and the Site from the Agency, in the manner and on the
terms set forth in the Lease Agreement; and
WHEREAS, under the Lease Agreement, the City is obligated to make
Base Rental payments to the Agency for the use and occupancy of the Project and
the Site, and the Agency desires to assign the right to receive said payments to the
Trustee pursuant to this Assignment and Trust Agreement (the "Trust Agreement");
and
WHEREAS, for the purpose of obtaining the moneys required to be
deposited by it with the Trustee for the financing of the Project and in
consideration of the Agency's assignment of the Base Rental payments under the
Lease Agreement and the execution of this Trust Agreement, the Trustee has
agreed to execute and deliver Certificates of Participation (the "Certificates"),
each evidencing a proportionate interest in the right to receive Base Rental
payments, to provide the moneys required herein to be deposited by the Agency.
NOW, THEREFORE, in consideration of the premises and tile mutual
covenants contained herein, the parties hereto hereby agree as follows:
-1-
,
,
ARTICLE I
APPOINTMENT OF TRUSTEE; DEFINITIONS; ASSIGNMENT
Section 1.01. Appointment of Trustee. The Agency and the City
hereby appoint and employ the Trustee, upon direction of the City; to receive,
-Jlold, invest and disburse the moneys to be paid to it pursuant to the Lease
Agreement for credit to the various funds established by this Trust Agreement; to
execute and deliver Certificates representing a proportionate share of the Base
Rental payment; and to apply and disburse the Base Rental payments received from
the City to the Owners of Certificates; and to perform certain other functions; all
as hereinafter provided. By executing and deliverying this Trust Agreement, the
Trustee accepts the duties and obligations of the Trustee provided herein, but only
upon the terms and conditions herein set forth.
Section 1.02. Definitions. Unless the context otherwise requires,
the terms defined in Article I of the Lease Agreement and capitalized herein shall,
for all purposes of this Trust Agreement, have the meanings therein specified. in
addition, the terms defined in this Section 1.02 shall have the meanings herein
specified for all purposes of this Trust Agreement unless the context clearly
otherwise requires.
(a) Certificate of Completion. The term "Certificate of Completion"
means a certificate of the project architect designated by the City and the Agency
that the Project has been completed substantially in conformity with the plans and
specifications therefor.
(b) City Representative and Agency Representative. The terms "City
Representative" and "Agency Representative" mean the City Administrator or
Assistant City Administrator and the Executive Director or Deputy Executive
Director of the Agency, respectively, or such other person authorized by the Mayor
and Common Council of the City or the members of the Agency, as the case may
be, to act on behalf of the City or the Agency, respectively, under or with respect
to this Agreement or other agreements related thereto.
(c) Maximum Base Rental Payment. The term "Maximum Base
Rental Payment" means the largest annual Base Rental payment required pursuant
to the Lease Agreement.
(d) Net Proceeds. The term "Net Proceeds" means any insurance
proceeds or condemnation award, paid with respect to the Project, remaining after
payment therefrom of all expenses incurred in collection thereof.
(e) Project Costs. The term "Project Costs" means any costs and
expenses incurred in connection with the construction and installation of the
,project and the sale, execution and delivery of the Certificates.
(f) Outstanding. The term "Outstanding" means, when used as of any
particular time with respect to Certificates, all Certificates theretofore executed
and delivered by the Trustee under this Agreement except:
.
(1) Certificates theretofore cancelled by the Trustee or
surrendered to the Trustee for cancellation;
(2) Certificates for the payment or redemption of which funds
or eligible securities in the necessary amount shall have theretofore been
deposited with the Trustee (whether upon or prior to the_ maturity or
redemption date of such Certificates), provided that, if such Certificates are
to be redeemed prior to maturity, notice of such redemption shall have been
given as provided in Section 3.14 or provision satisfactory to the Trustee shall
have been made for the giving of such notice; and
(3) Certificates in lieu of or in exchange for which other
Certificates shall have been executed and delivered by the Trustee pursuant
to Section 3.09.
(g) Reserve Requirement. The term "Reserve Requirement" means
an amount equal to the Maximum Base Rental Payments scheduled to be paid by
the City under the Lease Agreement.
(h) Unpaid Principal Balance. The term "Unpaid Principal Balance"
means the unpaid aggregate principal amount of all Base Rental payments.
Section 1.03. Rules of Construction. Words of the masculine
gender shall be deemed and construed to include correlative words of the feminine
and neuter genders. Unless the context otherwise indicates, words importing the
singular number shall include the plural number and vice versa, and words
importing persons shall include corporations and associations, including public
bodies, as well as natural persons.
The terms "hereby", "hereof", "hereto", "herein", "hereunder" and any
similar terms, as used in this Trust Agreement, refer to this Trust Agreement.
Section 1.04. Exhibits. The following Exhibits are attached to, and
by this reference made a part of this Trust Agreement:
Exhibit A: Payment request form pertaining to payment of Project
Costs, pursuant to a construction contract or purchase order.
Exhibit B: Payment request form pertaining to payment of Project
Costs, other than those pursuant to a construction contract or purchase order.
Exhibit C: Form of registered Certificates.
Exhibit D: Legal Descriptioll:..
_ Section 1.05. Authorization. Each of the parties hereb-y represents
and warrants that it has full legal authority and is duly empowered to enter into
this Agreement, and has taken all actions necessary to authorize the execution of
this Agreement by the officers and persons signing it. -
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Section 1.06. Assignment. The Agency for good and valuable
consideration, does hereby sell, assign and transfer to the Trustee, for the benefit
of the Owners of the Certificates executed and delivered under this Trust
Agreement, its rights to receive Base Rental payments from the City under the
Lease Agreement, the right to exercise such rights and remedies as are conferred
on the Agency by the Lease Agreement as may be necessary to enforce payment of
such Base Rental payments when due or otherwise protect its interesfs in the event
- -~of a default by the City, and all rights and remedies of the Agency as Lessee under
-the Site Lease and as beneficiary of all security granted to the Agency under the
Lease Agreement. The Base Rental payments shall be applied, and the rights so
assigned shall be exercised, by the Trustee as provided in this Trust Agreement. It
is the intention of the parties hereto that the assignment of the rights and interests
as set forth herein shall constitute a lien upon the Project to be constructed upon
the real property described in Exhibit "D" attached hereto and incorporated herein
by reference.
Section 1.07. Acceptance. The Trustee hereby accepts such assign-
ment for the purpose of securing such payments and rights to the Owners of the
Certificates delivered pursuant to this Trust Agreement and subject to the
provisions of this Trust Agreement.
Section 1.08. Conditions. This assignment shall impose no duties
upon the Trustee beyond those expressly provided in the other provisions of this
Trust Agreement.
ARTICLE n
CONSTRUCITON FUND
Section 2.01. Construction Fund. The Trustee shall establish a
special fund designated as the "Construction Fund" (the "Construction Fund"); shall
keep such fund separate and apart from all other funds and moneys held by it; and
shall administer such fund as provided in this Article and Article VIII hereof, and
other applicable provisions of the Project Agreement and of the Lease Agreement.
Section 2.02. Purpose. Moneys in the Construction Fund shall be
expended, as hereinafter provided, for Project Costs.
Section 2.03. Deposit of Funds; Payment of Project Costs. There
shall be credited to the Construction Fund pursuant to Section 3.07(3) hereof, the
proceeds of sale of the Certificates as well as any other funds from time to time
deposited with the Trustee for such purpose. The Trustee shall pay from the
Construction Fund the Project Costs, as hereinafter provided, upon receipt of the
following items with respect thereto:
_ (a) in the case of payment of any Project Cost pursuant to a
construction contract or purchase order, (1) a duly executed corporate surety bond
guaranteeing payment of costs and other charges, which bond shall meet the
requirements of California Civil Code Section 3247, and a single Bond shall be
sufficient for all payments, (2) a payment request form, in substantially the form
attached hereto as Exhibit "A", duly executed by a City Representative, with a
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,
,
true copy of the Contractor's statement attached, (3) where applicable, a duplicate
original of any change order approved by the Agency and the City increasing
Project Costs in an amount in excess of the original purchase order or contract
price; and (4) bills of sale for any component of the Project for which.. blllof sale
may be delivered; and
(b) in the case of payment of any Project Cost other than one
,pursuant to a construction contract or purchase order, a payment request form, in
~!lubstantially the form attached hereto as Exhibit "B", duly executed by a City
Representative.
The total amount of the Project Costs to be paid pursuant to
subsections (a) and (b) of this Section 2.03 shall not exceed the amount remaining in
the Construction Fund after payment of the full costs of construction and any
other incidental costs incurred; it being understood by all parties that should the
Project Costs payable pursuant to subsections (a) and (b) of this Section 2.03
exceed the balance available in the Construction Fund, such excess costs shall be
. paid by the City. Project Costs constituting construction costs will be paid
directly to the obligees.
Section 2.04. Transfers Upon Completion. Upon payment of the
Project Costs and the filing with the Trustee of the Certificate of Completion, the
Trustee shall transfer all remaining funds in the Construction Fund for deposit as
follows: (1) to the Reserve Fund such amount of the moneys as is necessary to
bring the balance on hand in the Reserve Fund to the Reserve Requirement; and (2)
the balance to the Certificate Fund to be applied against the principal portion of
the Base Rental payments specified in Section 6(a) of the Lease Agreement next
required to be paid by the City, in the manner provided in Section 4.04.
ARTICLE III
THE CERTIFICATES OF PARTICIPATION
Section 3.01. Authorization. The Trustee is hereby authorized and
directed upon written request from the Agency to execute and deliver to the
original purchaser of the Certificates, Certificates in an aggregate principal
amount of $2,740,000. The Certificates shall be designated the "Certificates of
Participation 1984 (South Valle Public Improvements Project)".
Section 3.02. Date. Certificates delivered prior to December 1,
1984, shall be dated as of June 1, 1984; Certificates delivered on or after
December 1, 1984, shall be dated by the Trustee as of the preceding interest
payment date, unless such date of delivery shall be an interest payment date, in
which case they shall be dated as of the date of delivery.
Section 3.03. Maturity; interest Rate. The Certificates shall
..mature on June 1, 1987 and in the principal amount of $2,740,000 arad shall bear
interest at the rate of percent (_'16) per annum from the -date thereof
being June 1, 1984.
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Section 3.04. Certificates; interest. The Certificates shall be fully
registered Certificates in the denomination of $5,000 or any integral multiple
thereof, except that no fully registered Certificate may have more than one
maturity date. Fully registered Certificates shall be numbered from R-l upwards
in consecutive numerical order.
interest with respect to the Certificates shall be - payable on
.;,December 1, 1984, and thereafter semiannually on June 1 and December 1 of each
-,ear to and including the date of maturity or redemption, whichever is earlier. The
total interest paid on each such date shall equal the interest component of each
Base Rental payment coming due during the six-month period preceding each
interest payment date.
interest with respect to any Certificate shall be payable from the
interest payment date next preceding the date of registration of transfer thereof,
unless such date is an interest payment date, in which event interest with respect
thereto shall be payable from such date of registration of transfer or unless such
date is prior to the first interest payment date, in which event interest with
respect thereto shall be payable from June 1, 1984; provided, however, that if at
the time of registration of transfer of any Certificate interest with respect thereto
is in default, interest with respect thereto shall be payable from the interest
payment date to which interest has previously been paid or made available for
payment. Payment of interest with respect to any Certificate shall be made to the
person appearing on the registration books of the Trustee as the Owner thereof,
such interest to be paid by check or draft mailed to such Owner at his address as it
appears on such registration books or at such other address as he may have filed
with the Trustee for that purpose.
Section 3.05. Form. The Certificates and the corresponding assign-
ment shall be substantially in the form set forth in Exhibit "C" attached hereto and
by this reference incorporated herein.
Section 3.06.' Execution. The Certificates shall be executed by and
in the name of the Trustee by the manual signature of an authorized officer of the
Trustee.
Section 3.07. Application of Proceeds of Sale of Certificates. Upon
the receipt of payment for the Certificates when the same shall have been sold to
the original purchaser thereof, the proceeds thereof shall be paid by the Agency to
the Trustee and deposited as follows:
(1) The Trustee shall deposit in the Certificate Fund an amount equal
to $ , which amount shall be used to pay the interest on the Certificates
for the period from June 1, 1984, to and including June I, 1986.
(2) The Trustee shall deposit in the Reserve Fund an amount equal to
..the Reserve Requirement.
(3) The Trustee shall deposit in the Construction Fund the remainder
of said proceeds. -
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Section 3.08.
Transfer and Exchange of Certificates.
(a) Transfer of Certificates. The registration of any Certificate
may, in accordance with its terms, be transferred upon the books required to be
kept pursuant to the provisions of Section 3.17 by the person in whose name it is
registered, in person or by his duly authorized attorney, upon surr~nder of such
. Certificate for cancellation, endorsed or accompanied by delivery of a written
"instrument of transfer in a form approved by the Trustee, duly executed by the
registered Owner or his duly authorized attorney.
Whenever any Certificate or Certificates shall be surrendered for
transfer, the Trustee shall execute and deliver a new Certificate or Certificates.
No registration of transfer of Certificates shall be required to be made
during the fifteen (15) days next preceding each interest payment date.
The Trustee shall deem and treat the person in whose name any
Outstanding Certificate shall be registered upon the Certificate Register as the
absolute owner of such Certificate, whether such Certificate shall be overdue or
not, for the purpose of receiving payment of, or on account of, the principal and
interest payments with respect to such Certificate for all other purposes, and in
such payments so made to any such registered owner or upon his order shall be
valid and effectual to satisfy and discharge the liability upon such Certificate to
the extent of the sum or sums so paid, and neither the City nor the Trustee shall be
affected by any notice to the contrary. The Trustee may charge a sum not
exceeding five dollars ($5.00) for each new Certificate issued upon any exchange
(except in the case of the first exchange of any Certificate in the form in which it
is originally delivered) and the Trustee may require the payment by the Certificate
Owner requesting such exchange of any tax or other governmental charge required
to be paid with respect to such exchange. The City agrees to indemnify and save
the Trustee harmless from and against any and all loss, cost, charge, expense,
judgment or liability incurred by it, acting in good faith and without gross
negligence hereunder, in so treating such registered owner.
(b) Exchange of Certificates. Certificates may be exchanged for a
like aggregate principal amount of Certificates of other authorized denominations
of the same maturity. The Trustee may charge a sum not exceeding five dollars
($5.00) for each new Certificate issued upon any exchange (except in the case of
the first exchange of any Certificate in the form in which it is originally delivered)
and the Trustee may require the payment by the Certificate Owner requesting such
exchange of any tax or other governmental charge required to be paid with respect
to such exchange.
Section 3.09. Certificates Mutilated, Lost, Destroyed or Stolen. If
any Certificate shall become mutilated,~he Trustee, at the expense of the Owner
.J>f said Certificate, may execute and deliver a new Certificate of like tenor,
maturity and number in exchange and substitution for the Certificate So mutilated,
but only upon surrender to the Trustee of the Certificate so mutilated. Every
mutilated Certificate so surrendered to the Trustee shall be canceInld by it and
either delivered to the City upon its order or destroyed. If any Certificate .shall be
lost, destroyed or stolen, evidence of such loss, destruction or theft may be
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submitted to the Trustee, and, if such evidence is satisfactory to the Trustee and,
if an indemnity satisfactory to the Trustee shall be given, the Trustee, at the
expense of the Certificate Owner, shall execute and deliver a new Certificate of
like tenor and maturity and numbered as the Trustee shall determine in lieu of and
in substitution for the Certificate so lost, destroyed or stolen. The Trustee may
require payment of an appropriate fee for each new Certificate delivered under
this Section 3.09 and of the expenses which may be incurred by the Trustee in
~ carrying out the duties under this Section 3.09. Any Certificate issued under the
-provisions of this Section 3.09 in lieu of any Certificate alleged to be lost,
destroyed or stolen shall be equally and proportionately entitled to the benefits of
this Agreement with all other Certificates secured by this Agreement. The
Trustee shall not be required to treat both the original Certificate and any
duplicate Certificate as being outstanding for the purpose of determining the
principal amount of Certificates which may be executed and delivered hereunder or
for the purpose of determining any percentage of Certificates outstanding here-
under, but both the original and duplicate Certificate shan be treated as one and
the same. Notwithstanding any other provision of this Section 3.09, in lieu of
delivering B new Certificate which has been mutilated, lost, destroyed or stolen,
and which has matured, or is about to mature, the Trustee may make payment with
respect to such Certificate.
Section 3.10. Paying Agent; Payment. The Trustee at its corporate
agency office in Los Angeles, California, is hereby appointed as paying agent for
the Certificates. The principal, redemption price and interest with respect to the
Certificates shall be payable in lawful money of the United States of America.
Section 3.11. Execution of Documents and Proof of Ownership. Any
request, direction, consent, revocation of consent, or other instrument in writing
required or permitted by this Agreement to be signed or executed by Certificate
Owners may be in any number of concurrent instruments or similar tenor, and may
be signed or executed by such Owners in person or by their attorneys or agents
appointed by an instrument in writing for that purpose, or by any bank, trust
company or other depository for such Certificates. Proof of the execution of any
such instrument, or of any instrument appointing any such attorney or agent, and of
the holding and ownership of Certificates shall be sufficient for any purpose of this
Agreement (except as otherwise herein provided), if made in the following manner:
(a) The fact and date of the execution by any Owner or his attorney
or agent of any such instrument and of any instrument appointing any such attorney
or agent, may be proved by a certificate, which need not be acknowledged or
verified, of an officer of any bank or trust company located within the United
States of America, or of any notary pUblic, or other officer authorized to take
aCknowledge-ments of deeds to be recorded in such jurisdictions, that the persons
signing such instruments acknowledged before him the execution thereof. Where
any such instrument is executed by an ~fficer of a corporation or association or a
member of a partnership on behalf of such corporation, association or partnership,
~such certificate shall also constitute sufficient proof of his authority. ~
(b) The fact of the holding of Certificates by any Owner and the
amount, the maturity and the numbers of such Certificate and the date of his
holding the same may be proved by a certificate executed by an officer of any
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bank, or trust company, if such certificate shall be deemed by the Trustee to be
satisfactory, showing that at the date therein mentioned such person had on deposit
with or exhibited to such bank, or trust company, the Certificates described in such
certificate. The Trustee may conclusively assume tht such ownership continues
until written notice of the contrary is served upon the Trustee.
Nothing contained in this Article m shall be construed as limiting the
Tr.!llltee to such proof, it being intended that the Trustee may accept any other
evidence of the matters herein stated which the Trustee may deem sufficient. Any
request or consent of the Owner of any Certificate shall bind every future Owner
of the same Certificate in respect of anything done or suffered to be done by the
Trustee in pursuance of such request or consent.
Section 3.12.
Redemption.
(a) The Certificates shall not be subject to redemption prior to their
stated maturity except as set forth in paragraph (b) and (c) hereof.
(b) The Certificates maturing on June 1, 1987 are subject to optional
redemption prior to maturity on or after June 1, 1985, at the option of the City or
its assignee, as a whole on any interest payment date, from amounts deposited with
the Trustee by the City in furtherance of the exercise of the option of the City to
purchase the Project in accordance with Section rLpf the Lease Agreement, or as
a whole or in part (but not in a total redemption amount of less than $50,000), on
any interest payment date, from any available source of funds therefor (if less than
all of the outstanding Certificates are called for redemption, such Certificates to
be so redeemed shall be selected by the Trustee by lot), at the following prices
expressed as percentages of the principal amount to be received plus accrued
interest to the redemption date:
Redemption Dates
June 1, 1985 and December 1, 1985
Redemption Prices
100i%
(c) The Certificates are subject to mandatory redemption prior to
maturity on any date, at par plus accrued interest, if any, to the date of
redemption without premium, (j) from the Net Proceeds deposited by the Trustee in
the Certificate Fund, pursuant to Sections 6.02 and 7.01 hereof, or (ii) in the event
of termination of the Lease Agreement pursuant to Section 21 thereof and the
deposit by the Agency or the Trustee of the proceeds of the sale of the Project in
the Certificate Fund.
Section 3.13. Selection of Certificates for Redem tion. Whenever
provision is made in this Agreement or the redemption 0 Certificates and less
than all outstanding Certificates are to be -redeemed, Certificates not previously
called for redemption shall be selected for redemption by the Trustee by lot. The
Twstee shall prompUy notify the City and the Agency in writing of the
Certificates so selected for redemption. -
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Redemption by lot shall be in such manner as the Trustee shall
determine; provided, however, that the portion of any Certificate to be redeemed
shall be in the principal amount of $5,000 or any multiple thereof, and that in
selecting and portions of Certificates for redemption, the Trustee shall treat each
such Certificate as representing that number of Certificates which is. obtained by
dividing the principal amount of such Certificate by $5,000.
~ Section 3.14. Notice of Redemption. When redemption -is authorized
'9r required pursuant to Section 3.12 hereof, the Trustee shall give notice, at the
expense of the City, of the redemption of the Certificates. Such notice shall
specify: (a) that the Certificates or a designated portion thereof are to be
redeemed, (b) the date of redemption, (c) the place or places where the redemption
will be made, and (d) the redemption price determined in accordance with
Section 3.12. Such notice shall further state that on the specified date there shall
become due and payable upon each Certificate, the principal and premium, if any,
together with interest accrued to said date, and that from and after such date
interest with respect thereto shall cease to accrue and be payable.
Notice of such redemption shall be given, after the moneys therefore
have been deposited in the Certificate Fund, by mail to the respective registered
Owners of the Certificates designated for redemption at their addresses appearing
on the Certificate registration books, at least twenty-five (25) days but not more
than sixty (60) days prior to the redemption date, which notice shall, in addition to
setting forth the above information, set forth, in the case of each Certificate
called only in part, the portion of the principal thereof which is to be redeemed;
provided that no defect in any notice so mailed shall affect the sufficiency of the
proceedings for the redemption of such Certificates.
Section 3.15. Partial Redemption of Registered Certificate. Upon
surrender of any Certificate redeemed in part only, the Tl>ustee shall execute and
deliver to the registered Owner thereof, at the expense of the Agency a new
Certificate or Certificates of authorized denominations equal in aggregate
principal amount to the unredeemed portion of the Certificate surrendered and of
the same interest rate and the same maturity. Such partial redemption shall be
valid upon payment of the amount thereby required to be paid to such registered
Owner, and the City, the Agency and the Trustee shall be released and discharged
from all liability to the extent of such payment.
Section 3.16. Effect of Notice of Redemption. Notice having been
given as aforesaid, and the moneys for the redemption (including the interest to the
applicable date of redemption), having been set aside in the Certificate Fund, the
Certificates shall become due and payable on said date of redemption, and, upon
presentation and surrender thereof at the office or offices specified in said notice,
said Certificate shall be paid at the unpaid principal amount with respect thereto,
plus interest accrued and unpaid to saigpate of redemption.
If, on said date of redemption, moneys for the redemption of all the
Certificates to be redeemed, together with interest to said date or- redemption,
shall be held by the Trustee so as to be available therefore on such date of
redemption, and, if notice of redemption thereof shall have been given as
aforesaid, then, from and after said date of redemption, interest with respect to
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the Certificates shall cease to accrue and become payable. All moneys held by or
on behalf of the Trustee for the redemption of Certificates shall be held in trust
for the account of the Owners of the Certificates so to be r:edeemed.
All Certificates paid at maturity or redeemed prior to maturity
pursuant to the provisions of this Article shall be cancelled upon surrender thereof
and delivered to or upon the order of the Agency.
-_ Section 3.17. Certificate Register. The Trustee will keep or cause
to be kept, at its corporate agency office in Los Angeles, California, sufficient
books for the registration and transfer of the Certificates which shall at all times
be open to inspection by the City and the Agency; and, upon presentation for such
purpose, the Trustee shall, under such reasonable regulations as it may prescribe,
register or transfer or cause to be registered or transferred, on said books,
Certificates as hereinbefore provided.
ARTICLE IV
CERTIFICATE FUND
Section 4.01. Establishment of Certificate Fund. The Trustee shall
establish a special trust fund designated as the "Certificate Fund"; shall keep such
Fund separate and apart from all other funds and moneys held by it; and shall
administer such Fund as provided in this Article and Article VIII hereof.
Section 4.02. Deposits. Except as provided in Section 5.05, there
shall be deposited in the Certificate Fund all Base Rental payments received by the
Trustee from the City, any moneys received by the Trustee pursuant to
Sections 6(b), 6(g), or 27 of the Lease Agreement, and any moneys required to be
deposited therein pursuant to Articles I, II, V, VI or VIl hereof.
Section 4.03. Application of Moneys. The moneys contained in the
Certificate Fund shall be applied by the Trustee for the benefit of the Owners of
the Certificates. The Trustee shall promptly withdraw, on or prior to December 1,
1984, and on or prior to each June 1 and December 1 thereafter funds on deposit in
the Certificate Fund, in an amount equal to the amounts of interest and principal,
if any, due and payable to the Owners of the Certificates, and shall cause the same
to be applied to the payment of interest and principal, if any, due and payable to
the Owners of the Certificates, in accordance with the provisions of Article III of
this Agreement.
Section 4.04. Base Rental Payments by the City; Reimbursement of
Amounts in the Certificate Fund. The City shall be required to provide the Trustee
only moneys required to meet each Base Rental payment, taking into account those
amounts contained in the Certificate _ fund, which shall be applied as a credit
towards the Base Rental payment then-llue; and the Trustee shall, on each April 1
..commencing April 1, 1986, give the City notice of the amount of .moneys then
available in the Certificate Fund. -
Section 4.05. Application in Event of Deficiency. If on any June 1
or December 1 on or after December 1, 1984, the amount of Base Rental payments
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then due and unpaid exceeds the amount on hand in the Certificate Fund, including
amounts transferred pursuant to Sections 5.04, 5.05 and 7.01 and Article VI, the
Trustee shall apply the moneys on hand in the Certificate Fund first to the
payment of interest past due with respect to all Certificates, pro rata if necessary,
and second to the payment of that portion of the principal with respect to each
Certificate which is then past due, pro rata if necessary.
_ Section 4.06. Excess Prior to Construction Completion. Prior to
-receipt of the Certificate of Completion, the Trustee shall, not less than monthly,
transfer any moneys on hand in the Certificate Fund in excess of amounts required
to pay the principal and interest due with respect to the Certificates on or prior to
June 1,1986, to the Construction Fund.
Section 4.07. Surplus. Any surplus remaining in the Certificate
Fund, after payment of all Certificates, including accrued interest (if any) and
payment of any applicable fees to the Trustee, or provision for such payment
having been made to the satisfaction of the Trustee, shall then be remitted to the
City and the Agency in the proportion established by the Lease Agreement by and
between the City and the Agency.
ARTICLE V
RESERVE FUND
Section 5.01. Establishment of Reserve Fund. The Trustee shall
establish a special trust fund designated as the "City of San Bernardino, South Valle
Public Improvements Project Reserve Fund"; shall keep such Fund separate and
apart from all other funds and moneys held by it; and shall administer such Fund as
provided in this Article and Article VllI hereof.
Section 5.02. Deposit. There shall be deposited in the Reserve Fund
from the moneys paid to the Trustee pursuant to Section 3.07, an amount equal to
the Reserve Requirement. Such moneys shall be held in trust as a reserve for the
payment when due of all the Base Rental payments to be paid pursuant to the
Lease Agreement, and shall be used and applied only as hereinafter provided.
Section 5.03. Transfers to Construction Fund Before Completion.
Prior to receipt of the Certificate of Completion, the Trustee shall, not less than
monthly, transfer any moneys on hand in the Reserve Fund in excess of the Reserve
Requirement to the Construction Fund.
Section 5.04. Transfers to Certificate Fund After Completion. The
Trustee shall, on or prior to each June 1 and December 1 following receipt of the
Certificate of Completion, transfer any moneys on hand in the Reserve Fund in
excess of the Reserve Requirement to tin! Certificate Fund.
Section 5.05. Application in Event of Deficiency in- Certificate
Fund. If on any June 1 or December 1 the moneys on hand in the Certificate Fund,
after the transfer of any amounts pursuant to Article VI and Sections-i.04 and 7.01,
are not equal to the amount of the Base Rental payments then required to be on
hand therein for the purpose of paying the Certificates as provided in Article Ul,
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the Trustee shall then use the moneys on hand in the Reserve Fund to make such
payments on behalf of the City by transferring the amount necessary for this
purpose to the Certificate Fund. Upon receipt of any delinquent Base Rental
payment with respect to which moneys have been advanced from the Reserve Fund,
such Base Rental payment shall be deposited in the Reserve Fund to the extent of
such advance.
. Section 5.06. Transfer To Make All Base Rental Payments. If the
_ moneys on hand in the Reserve Fund and the Certificate Fund are equal to or
greater than all Base Rental payments due during the entire remainder of the term
of the Lease Agreement, the Trustee shall transfer all amounts then on hand in the
Reserve Fund to the Certificate Fund to be applied to the payment of such Base
Rental payments as such Base Rental payments are due.
Section 5.07. Transfer in Event of Project Sale. In the event of
termination of the Lease Agreement pursuant to Section 21 of said Lease Agree-
ment, the subsequent sale by the Trustee of the Project, and the deposit of the
proceeds therefrom by the Trustee into the Certificate Fund, the Trustee shall
transfer all amounts then on hand in the Reserve Fund to the Certificate Fund, to
be applied to the payment of Base Rental payments past due and coming due on
behalf of the City and to the redemption of the Certificates pursuant to
Section 3.12 of this Agreement.
ARTICLE VI
INSURANCE
Section 6.01. Maintenance of Insurance. The City shall maintain or
cause to be maintained, at all times while any of the Certificates are outstanding,
insurance policies in the amounts, form and the coverage required pursuant to
Section 10 of the Lease Agreement. .
Section 6.02. Deposit of Net Proceeds of insurance in Construction
Fund and Application Thereof. Any Net Proceeds of any such insurance against
accident to or destruction of any structure or improvement constituting any part of
the Project collected by the City in the event of any such accident or destruction
shall be deposited with the Trustee in the Construction Fund and shall be applied
and disbursed by the Trustee as follows:
(a) If the City Representative shall file a certificate with the Trustee
stating that such proceeds are to be utilized for the repair, reconstruction or
replacement of a damaged or destroyed portion of the Project, then the Agency
shall cause such portion of the Project to be repaired, reconstructed or replaced to
at least the same good order, repair and condition as it was in prior to the damage
or destruction, insofar as the same m~'y be accomplished by the use of said Net
Proceeds. The Trustee shall permit withdrawals of said Net Proceeds from time to
---time upon receiving a certificate of the City Representative, stating that the City
has expended moneys or incurred liabilities in an amount equal to the amount
therein requested to be paid over to it for the purpose of such repau.:. reconstruc-
tion or replacement and specifying the items for which such moneys were
.
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expended, or such liabilities wre incurred, in such reasonable detail as the Trustee
may in its discretion require.
(b) If the City Representative shall file a certificate with the Trustee
stating that such proceeds are to be applied to the payment or prepayment of Base
Rental payments and to be utilized for the redemption of Certificates, then the
Trustee shall transfer such proceeds to the Certificate Fund to be :applied to the
redemption of Certificates in the manner provided in Section 3.12.
Section 6.03. Title insurance. The City will also provide, as a part
of the Project, upon the delivery of the Certificates, a policy of title insurance
insuring that fee title to the Site is vested in the City and insuring the City's
leasehold interest in the Project pursuant to the Lease Agreement, subject only to
such matters of record which will not interfere with the construction of the
Facilities. Such policy shall be in form satisfactory to the Trustee and in the
amount of not less than two million seven hundred forty thousand dollars
($2,740,000).
All Net Proceeds received under said policy shall be deposited with the
Trustee in the Construction Fund and shall be applied and disbursed by the Trustee
as follows:
(a) If the Trustee determines that such title defect has not materially
affected the operation of the Project or the ability of the City to meet any of its
obligations under the Lease Agreement, the Trustee shall transfer such proceeds to
the Certificate Fund to be credited towards the Base Rental payments not required
to be paid by the City. ..
(b) If all or any portion of the Project shall have been affected by
such title defect, and if the Trustee determines that such title defect has
materially affected the operation of the Project or the ability of the City to meet
any of its obligations under the Lease Agreement, the Trustee shall transfer such
pr~ceeds to the Certificate Fund to be applied to the payment or prepayment of
Base Rental payments and the redemption of Certificates in the manner provided
in Section 3.12, or to be applied to the acquisition of real property so as to cure
such title defect.
(c) After the entire amount of principal and interest with respect to
the Certificates has been paid in full and after the payment of any amounts owing
to the Trustee pursuant to Section 9.01 hereof, the Trustee shall pay the remainder
of such proceeds to the City.
ARTICLE VD
EMINE~.T DOMAIN
Section 7.01. Deposit of Net Proceeds in Construction Fund. If all
or any part of the Project or the Site shall be taken by eminent domain proceedings
(or sold to a government threatening to exercise the power of eminent domain) the
Net Proceeds therefrom shaD be deposited with the Trustee in the-Construction
Fund and Shall be applied and disbursed by the Trustee as follows:
.
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(a) (1) If the City determines. that such eminent domain
proceedings have not materially affected the operation of the Project or the ability
of the City to meet any of its obligations under the Lease Agreement or hereunder
and has disclaimed any award in condemnation or in compensation for the
acquisition, then no Net Proceeds shall be transmitted to the Trustee.
(2) If the City has not disclaimed and the Trustee determines
'that such eminent domain proceedings have not materially affected the operation
"Of the Project or the ability of the City to meet any of its obligations under the
Lease Agreement or hereunder, and if the Trustee determines that such proceeds
are not needed for repair or improvement of the Project, the Trustee shall transfer
such proceeds to the Certificate Fund to be credited towards the Base Rental
payments next required to be paid by the City.
(3) If such eminent domain proceedings have not materially
affected the operation of the Project or the ability of the City to meet any of its
obligations under the Lease Agreement or hereunder, and if the Trustee determines
that such proceeds are needed for repair or improvement of the Project, the
Trustee shall pay to the City, or upon its order, from said proceeds such amounts as
the City may expend for such repair or improvement, upon the filing with the
Trustee the. requisitions of the City Representative pertaining to disbursement,
together with such certificates of architects or engineers and other documents as
the Trustee may at its discretion request as support for or evidence of payments to
be made from such disbursements.
(4) in making any such determination (including the determina-
tion mentioned in the following subsection (b)), the Trustee may obtain, but shall
not be required to obtain, at the expense of the City, the report of an independent
engineer or other independent professional consultant. Any such determination by
the Trustee shall be final.
(b) If less than all of the Project and the Site shall have been taken in
such eminent domain proceedings, and if the Trustee determines that such eminent
domain proceedings have materially affected the operation of the Project or the
ability of the City to meet any of its obligations under the Lease Agreement, the
Trustee shall transfer such proceeds to the Certificate Fund to be applied to the
payment or prepayment of Base Rental payments and the redemption of
Certificates in the manner provided in Section 3.12.
(c) (1) If all of the Project and the Site shall have been taken in
such eminent domain proceedings and if such proceeds, together with any other
moneys then available to the Trustee for the purpose, are sufficient to provide for
the payment of the entire amount of Base Rental payments then due or to become
due, the Trustee shall transfer such proceeds to the Certificate Fund to be applied
to the payment of such Base Rental payments and the redemp-tion of Certificates
in the manner provided in Section 3.12.
(2) If all of the Project and the Site shall have been taken in
such eminent domain proceedings and if such proceeds, together with any other
moneys then available to the Trustee for the purpose, are insufficient to provide
moneys for the purposes specified in paragraph (1) of this subsection (c), the
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Trustee shall deposit such proceeds in the Certificate Fund to be applied to the
payment of Base Rental payments.
(d) After all of the Certificates have been retired and the entire
amount of principal and interest with respect to the Certificates have- been paid in
full and after the payment of any amounts owing to the Trustee pursuant to
Section 9.01 hereof, the Trustee shall pay the remainder of such Net Proceeds to
the City and the Agency according to the proportions established- in the Lease
..Agreement.
ARTICLE VIIl
MONEYS IN FUNDS; INVESTMENT
Section 8.01. Held in Trust. The moneys and investments held by
the Trustee under this Agreement are irrevocably held in trust for the benefit of
the Owners of the Certificates (except that the Construction Fund is held in trust
for the benefit of the City and the Agency), and for the purposes herein specified,
and such moneys, and any income or interest earned thereon, shall be expended
only as provided in this Agreement, and shall not be subject to levy or attachment
or lien by or for the benefit of any creditor of either the Agency or the City or any
Owner of Certificates, or any of them.
Section 8.02. investments Authorized. Moneys held by the Trustee
hereunder shall be invested by the Trustee in Qualified Investments as defined in
Section 8.03 hereof, and the City has the option of directing the investment of said
moneys. Such investments shall be registered in the name of the Trustee, as
Trustee, and held by the Trustee. The Trustee may purchase or sell to itself or any
affiliate, as principal or agent, investments authorized by this Section. Such
investments and reinvestments shall be made giving full consideration to the time
at which funds are required to be available and to the highest yield which the
Trustee deems practicable giving due regard to the safety of such funds and the
date upon which such funds will be required for the uses and purposes thereof as
required by this Agreement. The Trustee may act as agent in the making or
disposing of any investment.
Section 8.03. Qualified investments. "Qualified investments" shall
mean: (j) direct general obligations of the United States of America; (ij)
obligations guaranteed by the United States; (iii) general obligations of the
agencies and instrumentalities of the United States; (Iv) certificates of deposit,
time deposits or demand deposits with any bank or savings institution qualified as a
depository of public funds in the State of California, including the Trustee or any
affiliate thereof, provided that such certificates of deposit, time deposits or
demand deposits, if not insured by the Federal Deposit insurance Corporation or
the Federal Savings and Loan insurance Corporation, are fully secured by
obligations described in Clauses (I), (Ii) o~(iii).
Section 8.04. Report. The Trustee shall furnish to the~ity, no less
than quarterly, a report of all investments made by the Trustee. The Trustee shall
not be responsible or liable for any loss suffered in connection with BAY investment
of funds made by it in accordance with this Section.
~
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Section 8.05. Allocation of Earnings. Any income, profit or loss on
such investments shall be deposited in or charged to the respective funds from
which such investments were made, and any interest on any deposit of funds shall
be deposited in the fund from which such deposit was made, exc~pt that (as
provided in Sections 5.03 and 5.04), any such interest, income or profit from the
deposits or investments of the Reserve Fund or the Certificate Fund prior to the
receipt by the Trustee of the Certificate of Completion shall be deposited by the
.Trustee in the Construction Fund and any such interest, income or profit from the
~eserve Fund shall thereafter on or prior to June 1 and December 1 of each year
be deposited in the Certificate Fund.
Section 8.06. Valuation and Disposition of investments. For the
purpose of determining the amount in any fund, all Qualified investments credited
to such fund shall be valued at cost (exclusive of accrued interest after the first
interest payments following purchase). The Trustee may sell at the best price
obtainable, or present for redemption, any Qualified investment so purchased by
the Trustee whenever its shall be necessary in order to provide moneys to meet any
required payment, transfer, withdrawal or disbursement from the fund to which
such Qualified investment is credited, and the Trustee shall not be liable or
responsible for any loss resulting from such investment.
Section 8.07. Deposit and investment of Moneys in Funds. All
moneys held by the Trustee in any of the funds established pursuant to this
Agreement shall be deposited in demand or time deposits (which may be
represented by time certificates of deposit) in any bank or trust company
authorized to accept deposits of public funds (including the banking department of
the Trustee), and, as to the extent required by law; shall be secured at all times by
obligations which are eligible by law to secure deposits of public moneys, except
such moneys which are at the time invested as herein provided. Such obligations
shall be deposited with such bank or banks as may be selected by the Trustee, and
held by or for the account of the Trustee as security for such deposits.
The Trustee may enter into agreements with Itself or others that
provide for the repurchase of investments authorized under this Article VIII at
times which coincide with the times at which moneys are required to be expended.
The investments that are the subject of such agreements shall be held as trust
funds by the Trustee or by a Federal Reserve Bank and shall be deemed at all times
to be part of the fund or account from which moneys were used to purchase
Qualified investments. Such agreements shall contain provisions which permit the
Trustee to sell such investments if the investments do not mature on dates which
coincide with the dates upon which the Trustee is required to use or apply moneys
invested pursuant to such agreements. in such event, the Trustee shall sell such
investments at the best price obtainable whenever it shall be necessary.
~
AR1'lPLE IX
THE TRUS'tEE
Section 9.01. Compensation of the Trustee. The City shall from
time-to-time, on demand, pay to the Trustee reasonable compensation for its
services and shall reimburse the Trustee for all its advances and expenditures,
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including, but not limited to, advances to and fees and expenses of independent
appraisers, accountants, consultants, counsel, agents and attorneys-at-law or other
experts employed by it in the exercise and performance of its powers and duties
hereunder. Such compensation and reimbursement shall be paid by .the City and
amounts owing therefore shall constitute a first and prior lien on m-oneys in the
Certificate Fund.
Section 9.02. Removal of Trustee. The City and the Agency may be
ioitself, or the holders of a majority in aggregate principal amount of all Certificates
i>utstanding may by written request, at any time and for any reason remove the
Trustee and any successor thereto, and shall thereupon appoint a successor or
successors thereto, but any such successor shall be a bank or trust company doing
business and having an office in Los Angeles, California, having a combined capital
(eXClusive of borrowed capital) and surplus of at least Ten Million Dollars
($10,000,000), and subject to supervision or examination by federal or state
authority. If such bank or trust publishes a report of condition at least annually,
pursuant to law or to the requirements of any supervising or examining authority
above referred to, then for the purposes of this Section the combined capital and
surplus of such bank or trust company shall be deemed to be its combined capital
and surplus set forth in its most recent report of condition so published.
Section 9.03. Resignation of Trustee. The Trustee or any successor
may at any time resign by giving mailed written notice to the City and to the
Owners of the Certificate of its intention to resign and of the proposed date of
resignation, which shall be a date not less than sixty (60) days after the mailing of
such notice, unless an earlier resignation date and the appointment of a successor
Trustee shall have been or are approved by the Owners of a majority in aggregate
dollar amount of the Certificates then Outstanding.
Upon receiving such notice of resignation, the City shall promptly
appoint a successor Trustee by an instrument in writing; provided, however, that in
the event the City fails to appoint a successor Trustee within thirty (30) days
following receipt of such written notice of resignation, the Agency may appoint a
successor Trustee, and in the event that the Agency fails to appoint a successor
Trustee within thirty (30) days following the expiration of such initial thirty (30)
day period, the resigning Trustee may petition the appropriate court having
jurisdiction to appoint a successor Trustee. Any resignation of removal of the
Trustee shall become effective upon acceptance of appointment by the successor
Trustee.
Section 9.04. Appointment of Agent. The Trustee may appoint an
agent to exercise any of the powers, rights or remedies granted to the Trustee
under this Agreement, and to hold title to property or to take any other action
which may be desirable or necessary.
Section 9.05. Merger or Consolidation. Any company into which the
Trustee may be merged or converted or with which it may be consolidated or any
'Company resulting from any merger, conversion or consolidation to which it shall
be a party or any company to which the Trustee may sell or transfer all or
substantially all of its corporate trust business, provided that such company shall
be eligible under Section 9.02, shall be the successor to the Trustee without the
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execution of filing of any paper or further act, anything herein to the contrary
notwithstanding.
Section 9.06. Protection and Ri hts of the Trustee. The -Trustee
shall be protected and shall ncur no liab lity n actIng or proceeding in good faith
upon any resolution, notice, telegram, request, consent, waiver, certificates,
statement, affidavit, voucher, bond, requisition or other paper or document which
it sJiall in good faith believe to be genuine and to have been passed or signed by the
proper board of person or to have been prepared and furnished pursuant to any of
the provisions of this Agreement, and the Trustee shall be under no duty to make
any investigation or inquiry as to any statements contained or matters referred to
in any such instrument, but may accept and rely upon the same as conclusive
evidence of the truth and accuracy of such statements. The Trustee shall not be
bound to recognize any person as an Owner of any Certificate or to take any action
at his request unless such Certificate shall be deposited with the Trustee or
satisfactory evidence of the ownership of such Certificate shall be furnished to the
Trustee. The Trustee may consult with counsel, who may be counsel to the Agency
or the City, with regard to legal questions and the opinion of such counsel shall be
full and complete authorization and protection in respect of any action taken or
suffered by it hereunder in good faith in accordance therewith.
The Trustee shall not be liable for any error in judgment made in good
faith by a responsible officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts.
The Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the
Holders of not less than a majority in aggregate principal amount of the
Certificates at the time outstanding relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Agreement.
Whenever in the administration of its duties under this Agreement, the
Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) shall be deemed to be
conclusively proved and established by the certificate of the City Representative
or the Agency Representative and such certificate shall be full warranty to the
Trustee for any action taken or suffered under the provisions of this Agreement
upon the faith thereof, but in this discretion the Trustee may, in lieu thereof,
accept other evidence of such matter or may require such additional evidence as it
may deem reasonable.
The Trustee may become the Owner of the Certificates with the same
rights it would have if it were not the TrliS~ee; may acquire and dispose of other
bon9s or evidence of indebtedness of the City and enforce its rights as Owner
thereof to the same extent as if it were not Trustee hereunder; and may"act as a
depositary for and permit any of its officers or directors to act as a member of, or
in any other capacity with respect to, any committee formed to protect the rights
of Owners of Certificates, whether or not such committee shall represent the
Owners of the majority in principal amount of the Certificates then outstanding.
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The recitals, statements and representations by the City and the
Agency contained in this Agreement or in the Certificates shall be taken and
construed as made by and on the p~t of the City and the Agency, as the case may
be, and not by the Trustee, and the Trustee does not assume, and shall not have,
any responsibility or obligation for the correctness of any thereof.
The Trustee may execute any of the trusts or powers hereof and
perb>rm the duties required of it hereunder by or through attorneys, agents, or
receivers, and shall be entitled to advice of counsel concerning all matters of trust
and its duty hereunder, and the Trustee shall not be answerable for the default or
misconduct of any such attorney, agent, or receiver selected by it with reasonable
care. The Trustee shall not be answerable for the exercise of any discretion or
power under this Agreement or for anything whatever in connection with the funds
and accounts established hereunder, except only for its own willful misconduct or
gross negligence.
ARTICLE X
TRANSFER OF TITLE TO THE CITY
Section 10.01. Transfer of Title. Upon (a) payment by the City of all
Base Rental payments during the term of the Lease Agreement, or (b) the exercise
by the City of its option to purchase the Project by depositing the applicable
Prepayment Price and other amounts with the Trustee in accordance with Section
27 of the Lease Agreement, or (c) the redemption of the pertificates pursuant to '
Section 3.12(c)(j) hereof, all right, title and interest of the Agency and the Trustee
in and to the Project shall be conveyed to and vested in the City without the
necessity of any other instrument or document of conveyence, and the City shall be
deemed to have received transfer and conveyance of title in and to the Project
from the Agency and the Trustee.
Section 10.02. Discharge of Lien; Further Assurances. Notwithstand-
ing Section 10.01, upon the transfer to the City of title in and to the Project
pursuant to Section 10.01 hereof, the Trustee and the Agency shall execute and
deliver a grant or quitclaim deed to the City, and shall execute and deliver any and
all such further instruments and assurances as may be reasonably necessary or
proper to consummate such transfer and such discharge.
..
ARTICLE XI
MEETINGS OF CERTIFICATE OWNERS
Section 11.01. Certificate Holders' Meeting. If the Trustee shall
desire to obtain the consent of the Certificate Holders in any proposed action, it
shall duly adopt a resolution calling a meeting of the Certificate Hold~s for the
purpose of considering the action, the consent ot which is desired.
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Section 11.02. Notice of Meeting. Notice specifying the purpose,
place, date and hour of such meeting shall be mailed, postage prepaid, not less than
sixty (60) days and not more than ninety (90) days prior to the date fixed for the
meeting, to the respective registered Owners of the Certificates at their a-ddresses
appearing on the Certificate registry books in the hands of the Trustee. Such
notice shall set forth the nature of the proposed action, consent to which is desired
of the Certificates. Th place, date and hour of holding such meeting and the date
or dBtes of publishing and mailing such notice shall be determined by the Trustee in
its discretion.
The actual receipt by any Certificate Holder of notice of any such
meeting shall not be a condition precedent to the holding of such meeting, and
failure to receive such notice shall not affect the validity of the proceedings
thereat. A certificate by the Trustee approved by resolution of the Trustee, that
the meeting has been called and that notice thereof has been given as herein
provided shall be conclusive as against all parties and it shall not be open to any
Certificate Holder to show that he failed to receive actual notice of such meeting.
Section 11.03. Voting Qualifications. The Trustee shall prepare and
deliver to the chairman of the meeting a list of the names and addresses of the
registered owners of Certificates, with a statement of the maturities and serial
numbers of the Certificates held or deposited by each of such Certificate Holders,
and no Certificate Holders shall be entitled to vote at such meeting unless their
names appear upon such list or unless they shall present their Certificates at the
meeting or a certificate of deposit thereof, satisfactory to the Trustee, executed
by a bank, trust company or other depositary. No -Certificate Holder shall be
permitted to vote with respect to a larger aggregate principal amount of
Certificates than is set against their names on such list, unless they shall produce
the Certificates upon which they desire to vote, or a certificate of deposit thereof
as above provided.
Section 11.04. Certificates Owned by Trustee, Agency or City. The
Trustee covenants that it will present at the meeting a certificate, signed and
verified by one member thereof and by the Treasurer, stating the maturities and
serial numbers of all Certificates owned by, or held for account of, the Trustee,
the Agency or the City directly or indirectly. No person shall be permitted at the
meeting to vote any Certificate which it shall be established at or prior to the
meeting is owned by the Trustee, the Agency or the City, directly or indirectly,
and no such Certificate shall be counted in determining whether a quorum is
present at the meeting.
Section 11.05. Quorum and Procedure. A representative of at least
sixty percent (6096) in aggregate principal amount of the Certificates then
Outstanding (exclusive of Certificates owned by the Trustee, the Agency or the
City, if any) shall be necessary to constitute a quorum at any meeting of
Certificate Holders, but less than a quorum may adjourn the meeting from time to
time; and the meeting may be held as so adjourned without further notice, whether
such adjournment shall have been had by a quorum or by less than a quorum. The
Trustee shall, by an instrument in writing, appoint a temporary chairman of the
meeting, and the meeting shall be organized by the election of a permanent
chairman and secretary. At any meeting each Certificate Holder shall be entitled
..
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to one vote for every $5,000 principal amount of Certificates with respect to which
he shall be entitled to vote as aforesaid, and such note may be given in person or by
proxy duly appointed by an instrument in writing presented at the meeting. The
Trustee may attend any meeting of the Certificate Holders, but shall- not be
required to do so.
Section 11.06. Vote Required. At such meeting held as aforesaid
there shall be submitted for the consideration and action of the Certificate Holders
a statement of the proposed action, consent to which is desired, and if such action
shall be consented to and approved by Certificate Holders holding at least sixty
percent (60%) in aggregate amount of the Certificates then Outstanding (exclusive
of Certificates owned by the Trustee, the Agency or the City) the chairman and
secretary of the meeting shall so certify in writing to the Trustee, and such
certificate shall constitute complete evidence of consent of Certificate Holders
under the provisions of this Agreement. A certificate signed and verified by the
chairman and the secretary of any such meeting shall be conclusive evidence and
the only competent evidence of matters stated in such certificate relating to
proceedings taken at such meeting.
ARTICLE XU
ASSIGNMENT; AMENDMENTS
. Section 12.01. Assignment. Except as provided in Articles I, IX, -X
and xm, the rights and duties of each of the parties under this Agreement shall not
be assignable to any person or entity without the written consent of all of the other
parties; provided that under any circumstances the consent of the Owners shall not
be required.
Section 12.02. Amendments. This Trust Agreement may be amended
in writing by agreement among all of the parties hereto, but no such amendment
shall become effective as to the Owners of Certificates then Outstanding unless
and until approved by the Owners of a majority in aggregate principal amount of
Certificates Outstanding; provided that no such amendment shall impair the right
of any Owner to receive his proportionate share of any Base Rental payment in
accordance with his Certificate of Participation. Notwithstanding the foregoing,
this Trust Agreement and the rights and obligations provided thereby may also be
modified or amended at any time without the consent of any Owners of the
Certificates, but only (1) for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained in this Trust
Agreement, or (2) in regard to questions arising under this Trust Agreement which
the City may deem necessary or desirable and not inconsistent with this Trust
Agreement and which shall not adversely affect the interests of the Owners of the
Certificates; provided that the Agency, the City and the Trustee may rely in
entering into any such amendment hereof upon the opinion of bond counsel whose
opinion is acceptable by underwriters in the marketing of tax-exempt obligations of
political subdivisions stating that the requirements of this sentence shall h8ve been
met with respect to such amendment.
.
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ARTICLE xm
COVENANTS; NOTICES
Section 13.01. City to Perform Lease Agreement. The City
covenants and agrees with the Owners of the Certificates to perform all obliga-
tions and duties imposed on it under the Lease Agreement, and to enforce such
Lease Agreement against the Agency in accordance with its terms.
Section 13.02. City Budgets. The City agrees to furnish to the
Trustee a copy of its final budget as provided in Section 6(d) of the Lease
Agreement.
Section 13.03. Agency to Perform Lease Agreement. Agency
covenants and agrees with the Owners of the Certificates to perform all obliga-
tions and duties imposed on It under the Lease Agreement, and pledges all of its
rights under the Lease Agreement to the Trustee for the benefit of the Owners of
the Certificates, subject to the rights of the City therein as provided in this
Agreement and the Lease Agreement.
Section 13.04. Notice in Event of Late Lease Payments. If the
Trustee does not receive any Base Rental payment on the Payment Date on which
it is due in accordance with the Lease Agreement, the Trustee shall, after fourteen
(14) business days following such delinquencwive telephonic and written notice of
such fact to the City and the Agency.
Section 13.05. Notice in Event of Default. In the event the City is in
default under Section 21 of the Lease Agreement, the Trustee shall give notice of
such default to the Owners of Certificates. Such notice shall specify that the City
is in default under Section 21 of the Lease Agreement, together with a brief
description of such default. The Trustee in its discretion may withhold notice if it
deems it in the best interests of the Certificate Owners.
The notice provided for in this Section shall be given, within fourteen
(14) days of such occurrence of default, by mail, postage prepaid, to the registered
Owners of the Certificates at their addresses appearing in the Certificate registry
books as maintained by the Trustee.
Section 13.06. Refunding Obligations. As further provided in
Sections 2 and 5 of the Lease Agreement and as hereinafter qualified, the Agency
hereby covenants to the Owners of the Certificates to issue or to provide for the
issuance of refunding certificates of participation or other refunding obligations on
or prior to the maturity date of the Certificates, being June 1, 1987, to provide for
the payment in full of the Outstanding principal amount of the Certificates on or
before said date. The Agency and the City further covenant to negotiate and
execute such subsequent site lease and subsequent project lease as furtherilrovided
in the Lease Agreement, and to negotiate and execute a subsequent assignment and
trust agreement to thus provide for the refunding, redemption prior to IIUIturity or
payment on or before the maturity of the Outstanding principal amount of the
Certificates. The Agency and the City agree to initiate and undertake such
- 23-
- "
procedures as set forth above if, and only if, in the event the Agency has not, after
exercising best faith efforts, been able to issue its tax allocation bonds, notes or
other forms of indebtedness payable from the tax increment revenues of the
Project Area, regardless of whether the Agency is 80 unable to issue such tax
alloaction bonds due to failure by the City and the Agency to finally approve and to
create the proposed Project Area or otherwise, for the purpose of permitting the
City to exercise the purchase option as provided in Section 27 of the Lease
Allreement and to thus permit the Agency to refund, call for redemption or
otherwise pay the Certificates on or before the maturity date thereof.
Section 13.1l1. Further Assurances. The Agency and the City will
make, execute and deliver any and all such further resolutions, instruments and
assurances as may be reasonable, necessary or proper to carry out the intention or
to facilitate the performance of this Agreement, and for the better assuring and
confirming unto the Owners of the Certificates the rights and benefits provided
herein.
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ARTICLE XIV
EVENT OF DEF A UL T
Section 14.01. Events of Default Defined. The following shall be
"events of default" under this Agreement and the terms "events of default" and
"defllult" shall mean, whenever they are used in this Agreement, anyone or more
of ttre following events:
(a) Any event of default under the Lease Agreement, as defined in
Section 21 thereof.
(b) Failure by the City to observe and perform any covenant,
condition or agreement on its part to be observed or performed under this
Agreement, other than as such failure may constitute an event of default under
clause (a) of this Section, for a period of thirty (30) days after written notice
specifying such failure and requesting that it be remedied has been given to the
defaulting party by any other party hereto or the Owners of not less than five
percent (5%) in aggregate principal amount of Certificates then Outstanding;
provided, however, if the failure stated in the notice cannot be corrected within
the applicable period, such other parties and Owners will not unreasonably withhold
their consent to an extension of such time if corrective action is instituted by the
defaulting party within the applicable period and diligently pursued until the
default is corrected.
Section 14.02. Remedies on Default. Pursuant to this Agreement,
the Agency has assigned all of its rights and interests under Section 21 of the Lease
Agreement to the Trustee. Upon the occurrence and continuance of any event of
default specified in Sections 21(a) and 21(c) of the Lease Agreement, the Trustee
shall proceed, or upon the occurrence and continuance of any other event of
default hereunder or under Sections 21(b), (d), (c) and (f) of the Lease Agreement,
the Trustee may proceed and upon written request of the Owners of not less than a
majority in aggregate principal amount of Certificates then Outstanding shall
proceed, to exercise the remedies set forth in Section 21 of the Lease Agreement.
Section 14.03. No Remedy Exclusive. No remedy herein conferred
upon or reserved to the Trustee is intended to be exclusive and every such remedy
shall be cumulative and shall be in addition to every other remedy given under this
Agreement to the Trustee, and given under the Lease Agreement to the Agency
and assigned under this Agreement to the Trustee, or now or hereafter existing at
law or in equity. No delay or omission to exercise any right or power accruing upon
any default shall be construed to be a waiver thereof, but any such right and power
may be exercised from time'to time and as often as may be deemed expedient. In
order to entitle 'the Trustee to exercise any remedy reserved to it, it shall not be
ne~ssary to give any notice other than such notice as may be required in this
Article or by law.
Section 14.04. No Additional Waiver Implied by One Waiver. In the
event any provision contained in this Agreement should be breached by a party and
-24 -
thereafter waived by another party, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other breach hereunder.
Section 14.05. Application of Proceeds in Event of Default. All
payments received by the Trustee with respect to the sale or lease of the Project
upon the occurrence of an event of default, and all damages or other payments
received by the Trustee from the enforcement of any rights and powel'S of the
Tr~ee under this Article, shall be deposited by the Trustee in the Certificate
Fund. promptly upon the receipt thereof and applied to the payment of the
obligations of the City under the Lease Agreement or under this Trust Agreement.
Section 14.06. Collection of Base Rental Payments. The Trustee
shall take any appropriate action to collect any Base Rental payment not paid when
due upon written request and authorization by the Owners of a majority in
aggregate principal amount of the Certificates then Outstanding and unpaid, and
upon being satisfactorily indemnified against any expense and liability with respect
thereto and receiving payment for its fees and expenses.
Section 14.07. Action By Owners. In the event the Trustee fails to
take any action to eliminate an occurrence of default under Section 21 of the
Lease Agreement, the Owners of a majority in aggregate principal amount of
Certificates then Outstanding may institute any suit, action, mandamus, or other
proceeding in equity or at law for the protection or enforcement of any right under
the Lease Agreement or this Agreement, but only if such Certificate Owners have
first made written request of the Trustee after the right to exercise such powers of
right of action shall have occurred, and shall hav.e afforded the Trustee a
reasonable opportunity either to proceed to exercise the powers granted therein or
granted under the law or to institute such action, suit or proceeding in its name and
unless also, the Trustee shall have been offered reasonable security and indemnity
against the costs, expenses and liabilities to be incurred therein or thereby, and the
Trustee shall have refused or neglected to comply with such request within a
reasonable time.
ARTICLE XV
LIMITATION OF LIABILITY
Section 15.01. Limited Liability of City. Except for the payment of
Base Rental payments when due in accordance with the Lease Agreement and the
performance of the other covenants and agreements of the City contained in said
Lease Agreement and this Agreement, the City shall have no obligation or liability
to any of the other parties or to the Owners of the Certificates with respect to this
Agreement or the terms, execution, deliveryor transfer of the Certificates, or the
distribution of Base Rental payments to the Owners by the Trustee.
Section 15.02. No Liability of Agency or City for Trustee
Performance. Neither the City nor the Agency shall have any obligation or
liability to any of the other parties or to the Owners of the Certificates with
.
- 25-
respect to the performance by the Trustee of any duty imposed upon it under this
Agreement.
Section 15.03. No Liability of Agency or Trustee for Lease Payments
by City. Except as provided herein, neither the Agency nor the Trustee shall have
any obligation or liability to the Owners of the Certificates with respect to the
payment of the Base Rental payments by the City, when due, or with respect to the
perfOrmance by the City of any other covenant made by it in the Lease Agreement.
Section 15.04. Limited Liability of Trustee. The Trustee shall have
no obligation or respQnsibility for providing information to the Owners concerning
the investment character of the Certificates, for the sufficiency or collection of
any Base Rental payments or other moneys required to be paid to it under the
Lease Agreement, or for the actions or representations of any other party to this
Agreement. The Trustee shall have no obligation or liability to any of the other
parties or the Owners of the Certificates with respect to this Agreement or the
failure or refusal of any other party to perform any covenant or agreement made
by any of them under this Agreement or the Lease Agreement, but shall be
responsible solely for the performance of the duties expressly imposed upon it
hereunder. The recitals of facts, covenants and agreements contained herein and
in the Certificates shall be taken as statements, covenants and agreements of the
City or the Agency (as the case may be), and the Trustee assumes no responsibility
for the correctness of the same, or makes any representations as to the validity or
sufficiency of this Agreement, the Lease Agreement or of the Certificates, or shall
incur any responsibility in respect thereof, other than in connection with the duties
or obligations herein assigned to or imposed upon it. The Trustee shall not be liable
in connection with the performance of its duties hereunder, except for its own
negligence or willful default.
Section 15.05. Indemnification. The Agency and the City hereby
indemnify and agree to save the Trustee harmless from and against all claims, suits
and actions brought against it, or to which it is made a party, and from all losses
and damages suffered by it as a result thereof, where and to the extent such claim,
suit or action arises out of the actions of any other party to this Agreement
including but not limited to the ownership, operation or use of the Project by the
City. Such indemnification shall not extend to claims, suits and actions brought
against the Trustee for failure to perfotm :and carry out the duties specifically
imposed upon and to be performed by It pursuant to this Agreement. In the event
the Agency or the City is required to indemnify the Trustee as herein provided, the
Agency or the City shall be subrogated to the rights of the Trustee to recover such
losses or damages from any other person or entity.
Section 15.05. Limitation of Rights to Parties and Certificate
Owners. Nothing in this Agreement or in the Certificates or coupons expressed or
implied is intended or shall be construed to-give any person other than the City, the
AgEIDcy, the Trustee and the Owners of the Certificates, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any covenant,
condition or provision hereof; and all such covenants, conditions and provisions are
and shall be for the sole and exclusive benefit of the City, the Agency, the Trustee
and said Owners.
~
-26 -
ARTICLE XVI
MISCELLANEOUS
Section 16.01. Defeasance. If all Outstanding Certificates shall be
pai~ and discharged in anyone or more of the following ways - -
(1) by well and truly paying or causing to be paid the principal of and
interest with respect to all Certificates Outstanding, as and when the same become
due and payable;
(2) by depositing with the Trustee, in trust, at or before maturity,
money which, together with the amounts then on deposit in the Certificate Fund
and the Reserve Fund, is fully sufficient to pay all Certificates Outstanding,
including all principal and interest; or
(3) by depositing with the Trustee, in trust, Qualified Investments in
such amount as the Trustee shall determine will, together with the interest to
accrue thereon and moneys then on deposit in the Certificate Fund and the Reserve
Fund together with the interest to accrue thereon, be fully sufficient to pay and
discharge all Certificates (Including all principal and interest) at or before their
respective maturity dates -
notwithstanding that any Certificates shall not have been surrendered for payment,
all obligations of the Agency, the Trustee and the City under this Agreement with
respect to all Outstanding Certificates shall cease and terminate, except only the
obligation of the Trustee to payor cause to be paid to the Owners of the
Certificates not so surrendered and paid all sums due thereon and the obligation of
the Trustee to transfer title to City as provided in Article X, and the obligation of
the City to pay the Trustee the amounts owing to the Trustee under Section 9.01
hereof.
Any funds held by the Trustee, at the time of one of the events
described above in subsection (1), (2) or (3), which are not required for the payment
to be made to Owners, or for payments to be made to the Trustee by the City, shall
be paid over to the City.
Section 16.02. Records. Prior to the full payment of the principal
and interest due with respect to the Certificates, the Trustee shall maintain
complete and accurate records of all moneys received and disbursed under this
Agreement, which shall be available for inspection by the City, the Agency and any
Owner, or the agent of any of them, at any time during regular business hours.
Section 16.03. Notices. All written notices to be given under this
Agr~ement shall be given by mail to the party entitled thereto at its address set
forth below, or at such address as the party may provide to the other 'party in
writing from time to time. Any such notice shall be deemed to have been received
forty-eight (48) hours after deposit in the United States mail in certified form,
with postage fully prepaid:
.
- 27-
If to the Agency:
City Clerk,
City of San Bernardino
300 North "D" Street
San Bernardino, Caifornia 92418
Secretary of the Redevelopment
Agency of the City of San Bernardino
300 North "D" Street
San Bernardino, Caifornia 92418
If to the City:
Section 16.04. Governing Law. This Agreement shall be construed
and governed in accordance with the laws of the State of California.
Section 16.05. Partial Invalidity. Any provision of this Agreement
found to be prohibited by law shall be ineffective only to the extent of such
prohibition, and shall not invalidate the remainder of this Agreement.
Section 16.06. Binding Effect; Successors. This Agreement shall be
binding upon and inure to the benefit of the parties and their respective sucessors
and assigns. Whenever in this Agreement any party hereto is named or referred to,
such reference shall be deemed to include the successors or assigns thereof, and all
covenants and agreements contained in this Agreement by or on behalf of any party
hereto shall bind and inure to the benefit of the successors and assigns thereof
whether so expressed or not.
Section 16.07. Execution in Counterparts. This Agreement may be
executed in several counterparts, each of which shall be an original and all of
which shall constitute but one and the same agreement.
Section 16.08. Destruction of Cancelled Certificates. Whenever in
ths Agreement provision is made for the surrender to or cancellation by the
Trustee and the delivery to the Agency of any Certificates, the Trustee may, upon
the request of the Agency Representative, in lieu of such cancellation and delivery,
destroy such Certificates and deliver a certificate of such destruction to the
Agency.
Section 16.09. Headings. The headings or titles of the several
Articles and Sections hereof, and any table of contents appended to copies hereof,
shall be solely for convenience of reference and shall not affect the meaning,
construction or effect of this Agreement. All references herein to "Articles",
"Section", and other subdivisions are to the corresponding Articles, Sections or
subdivisions of this Agreement.
r
-28 -
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date and year first above written.
NATIONAL BANK,
as Trustee
By:
Vice President
By:
Assistant Trust Officer
(SEAL)
(SEAL)
ATTEST:
REDEVELOPMENT AGENC
CITY OF SAN BERN AR
Secretary
- 29-
(SEAL)
ATTEST:
City Clerk
..
CITY OF SAN BERNARDINO,
CALIFORNIA
-30 -
EXHIBIT A
PAYMENT REQUEST FORM
PERTAINING TO PAYMENT OF PROJECT COSTS
PURSUANT TO CONSTRUCTION CONTRACT OR PURCHASE ORDER
The Trustee is hereby requested to pay from the Construction Fund
established by the Trust Agreement dated as of June 1, 1984, by and among the
Trustee, the City and the Agency, to the person or corporation designated below as
payee, the sum set forth below such designation, in payment of the Project Costs
described below. The amount shown below is due and payable under a purchase
order or construction contract with respect to the item of Project Cost described
below which purchase order or construction contract is on file in the office of the
City and has not formed the basis of any prior request for payment.
Payee:
Amount:
Description of Item of Project Cost:
Dated:
,
19 .
I hereby certify that I am an authorized City Representative as defined
in the Lease Agreement dated as of May 1, 1984, by and between the Agency and
the City.
City of San Bernardino, California
Title:
(Attach duplicate original of Payee's statement)
-31-
EXHIBIT B
PAYMENT REQUEST FORM
PERTAINING TO PAYMENT OF PROJECT COSTS OTHER THAN-
THOSE PURSUANT TO CONSTRUCTION CONTRACT PURCHASE ORDER
-, The Trustee is hereby requested to pay from the Construction Fund
established by the Trust Agreement dated as of June 1, 1984, by and among the
Trustee, the City and the Agency, to the person or corporation designated below as
payee, the sum set forth below such designation, in payment of the Project Costs
described below. The amount shown below is due and payable and constitutes a
Project Cost as defined in the Lease Agreement dated May 1, 1984, by and between
the City and the Agency and has not formed the basis of any prior request for
payment.
Payee:
Amount:
Description of Item or Project Cost:
Dated:
,
19 .
I hereby certify that I am an authorized City Representative as defined
in the Lease Agreement.
City of San Bernardino, California
Title:
(Attach duplicate original of Payee's statement)
-32 -
EXHfflIT C
(Form of Fully Registered Certificate of Participation)
1984 CERTIPlCATE OF PARTICIPATION
(SOUTH VALLE PUBLIC IMPROVEMENTS PROJECT)
Evidencing a Proportionate Interest of the Holder
Hereof in Base Rental Payments to be Made by the
crry OF SAN BERNARDINO, CALIFORNIA
As the Rental for Certain Property Pursuant
to a Lease Agreement with the
Redevelopment Agency of the City of San Bernadino
$
No. R-
THl8 18 TO CERTIFY THAT or registered
assigns, as the registered owner of this Certificate of Participation (the
"Certificate") is the owner of an undivided percentage interest in the right to
receive certain Base Rental Payments under and defined in that certain Lease
Agreement (the "Lease Agreement") dated as of May 1, 1984, by and between the
Redevelopment Agency of the City of San Bernardino, a public body, corporate and
politic (the "Agency"), and the City of San Bernardino, California, a municipal
corporation organized and existing under and by virtue of the Constitution and laws
of the State of California (the "City").
The registered owner of this Certificate is entitled to receive, subject
to the terms of the Lease Agreement, on 1" the sum
designated as principal coming due on said date, and to receive on December 1,
1984, and semiannually thereafter on June 1 and December 1 of each year until
payment in full of said portion of principal, the registered owner's proportionate
share of the Base Rental Payments designated as interest coming due on each of
said dates; provided that interest with respect hereto shall be payable from the
interest payment date next preceding the date of registration of this Certificate
(unless this Certificate is registered on an interest payment date, in which event
interest shall be payable from such date of registration, or unless this Certificate
is registered prior to December 1, 1984, in-which event interest shall be payable
from June 1, 1984). Said proportionate share of the portion of the Base Rental
Payments designated as interest is the result of the multiplication of the llforesaid
portion of the Base Rental Payments designated as principal by the rate of
percent (_'AS) per annum. Said amounts are payable in lawful-money of
the United States of America at the principal corporate agency office of
National Bank, as Trustee (the "Trustee"), in Los Angeles,
California.
-33 -
. "
The City is authorized to enter into the Lease Agreement pursuant to
the laws of the State of California. The City has entered into the Lease
Agreement for the purpose of leasing from the Agency certain public street
improvements, drainage facUlties and related and appurtenant facilities and
property (the "Project"). The Agency has assigned its right to receive Base Rental
Payments to the Trustee pursuant to the Assignment and Trust Agreeme!lt by and
am~ng the City, the Agency and the Trustee (the "Trust Agreement").
This Certificate has been executed and delivered by the Trustee
pursuant to the terms of the Trust Agreement. Reference is hereby made to the
Lease Agreement and the Trust Agreement (copies of which are on file at said
office of the Trustee) for a description of the terms on which the Certificates are
delivered, and the rights thereunder of the registered owners or the Certificates
and the rights, duties and immunities of the Trustee and the rights and obligations
of the City under the Lease Agreement, to all of the provisions of which Lease
Agreement and Trust Agreement the registered owner of this Certificate, by
acceptance hereof, assents and agrees.
The City is required under the Lease Agreement to pay Base Rental
Payments to the Trustee from any source of legally available funds and has
covenanted in the Lease Agreement to make the necessary annual appropriations
for such purpose.
The obligation of the City to pay Base Rental Payments does not
constitute an obligation of the City for which the City is obligated to levy or
pledge any form of taxation or for which the City has levied or pledged any form of
taxation. The obligation of the City to pay Base Rental Payments does not
constitute an indebtedness of the City, the State of California, or any of its
political subdivisions within the meaning of any constitutional or statutory debt
limitation or restriction.
To the extent and in the manner permitted by the terms of the Trust
Agreement, the provisions of the Trust Agreement may be amended by the parties
thereto with the written consent of the holders of a majority in aggregate principal
amount of the Certificates then Outstanding, and may be amended without such
consent under certain circumstances but in no event such that the interests of the
Holders of the Certificates are adversely affected, provided that no such
amendment shall impair the right of any holder to receive in any case such holder's
proportionate share of any Base Rental Payment in accordance with such Holder's
Certificate.
This Certificate is transferable by the registered owner hereof, in
person or by his attorney duly authorized in writing, at said office of the Trustee,
but only in the manner, subject to the limit8~ions and upon payment of the charges
provided in the Trust Agreement and upon surrender and cancellation of this
Certificate. Upon such transfer a new fully registered Certificate of a~thorized
denomination or denominations, for the same aggregate principal amount will be
issued to the transferree in exchange herefor.
The City, the Agency and the Trustee may treat the registered owner
hereof as the absolute owner hereof for all purposes, whether or not this
.
-34-
. "
Certificate shall be overdue, and the City, the Agency and the Trustee shall not be
affected by any notice to the contrary.
The Certificates are deliverable as fully registered CertificateS" without
coupons in the denomination of $5,000 and any authorized intergral multiple
thereof. Subject to the limitations and conditions and upon payment of the
charges, if any, as provided in the Trust Agreement, fully registered Certificates
miy be exchanged for a like aggregate principal amount of Certificates of other
authorized denominations of the same maturity.
The Certificates maturing on June 1, 1987, are subject to optional
redemption prior to maturity on or after June 1, 1985, at the option of the City or
its assignee, as a whole on any interest payment date, from amounts deposited with
the Trustee by the City in furtherance of the exercise of the option of the City to
purchase the Project in accordance with Section 25 of the Lease Agreement, or as
a whole or in part (but not in a total redemption amount of less than $50,000), on
any interest payment date, from any available source of funds therefor (if less than
all of the outstanding Certificates are called for redemption, such Certificates to
be so redeemed shall be selected by the Trustee by lot), at the following prices
expressed as percentages of the principal amount to be redeemed plus accrued
interest to the redemption date:
Redemption Dates
June 1, 1985 and December 1, 1985
Redemption Prices
.101i%
The Certificates are subject to mandatory redemption prior to maturity
on any date, at par plus accrued interest, if any, to the date of redemption without
premium, (j) from the Net Proceeds deposited by the Trustee in the Certificate
Fund, pursuant to Sections 6.02 and 7.01 of the Trust Agreement, or (ii) in the
event of termination of the Lease Agreement pursuant to Section 21 thereof and
the deposit by the Agency or the Trustee of the proceeds of the sale of the Project
in the Certificate Fund.
This Certificate shall not be entitled to any benefit under the Trust
Agreement or become valid for any purpose until the certificate of authentication
and registration hereon endorsed shall have been signed by the Trustee.
- 35-
.
. II ..
IT 18 HEREBY CERTIFIED, RECITED AND DECLARED that all things,
conditions and acts required by the Constitution and the statutes of the State of
California and the Trust Agreement to exist, to have happened and to have been
performed precedent to and in the execution and the delivery of this Certificate,
do exist, have happened and have been performed in due time, form and manner, as
required by law.
WITNESS WHEREOF, this Certificate has been executed and
National Bank, as Trustee, acting pursuant to the Trust
IN
deiivered by
Agreement.
DATE OF REGISTRATION:
National Bank,
as Trustee
By
Authorized Officer
- 36-
.
~ 1\ ,.
(Form of Assignment to Appear on Fully Registered Certificates)
For value received the undersigned do(es) hereby sell, asSign and
transfer unto the within-mentioned
Registered Certificate and hereby irrevocably constitute(s) and l!ppoint(s)
_ attorney, to
tra~fer the same on the books of the Trustee with full power of substitution in the
premises.
Dated:
,
.
The signature(s) on this Certificate
must correspond with the name(s) as
written on the face of the within
Registered Certificate in every
particular, without alteration or
enlargement or any change whatsoever.
'.
.
-37 -
'" " .
.. (, .
STATE OF CALIFORNIA
COUNTY OF
)
) ss
)
On this day of , 1984, before me, !- Notary
Public in and for the State of California, personally appeared
~ and ,~rsooally
kn6wn to me or proved to me on the basis of satisfactory evidence to be a vice
president and assistant trust officer, respectively, of National
Bank, the Trustee that executed the within instrument and acknowledged to me
that such Trustee executed the within instrument pursuant to its by-laws or a
resolution of its board of directors.
WITNESS my hand and official seal.
(SEAL)
COUNTY OF
)
)ss
)
STATE OF CALIFORNIA
On this day of , 1984, before me, a Notary
Public in and for the State of California, personally appeared
and , personally
known to me or proved to me on the basis of satisfactory evidence to be the
Chairman and Secretary, respectively, of the Redevelopment Agency of the City of
San Bernardino, that executed the within instrument and acknowledged to me that
the Agency authorized the execution of the within instrument pursuant to a
resolution of the Agency.
WITNESS my hand and official seal.
(SEAL)
-38 -
. (. .
It' (, ...
STATE OF CALIFORNIA
COUNTY OF
)
)as
)
On this day of , 1984, before me, a Notary
Public in and for the State of California, personally appeared
" and , personally
known to me or proved to me on the basis of satisfactory evidence to be the Mayor
and City Clerk, respectively, of the City of San Bernardino, California, that
executed the within instrument and acknowledged to me that the City authorized
the execution of the within instrument pursuant to a resolution of its City CounciL
WITNESS my hand and official seal.
(SEAL)
.:
-39 -
, 'I-If- V
, -
. . .
2,117-14/860
6/11/84
TRUSTEE AGREEMENT
THl8 AGREEMENT, made and entered into as of the 14th day of June,
1984, by and between the Redevelopment Agency of the City of San Bernardino
(hereinafter called the "Agency") and The Bank of California, National Association
(hereinafter called the "Bank"):
WITNESSETH:
WHEREAS, the Agency intends to issue Two Million Seven Hundred
Forty Thousand Dollars ($2,740,000) principal amount of its Certificates of
Participation, 1984 (South Valle Public Improvements Proejct) (the "Certificates of
Participation"); and
WHEREAS, the Bank, upon request of the Agency, is willing to act as
Trustee and as Paying Agent for said Certificates of Participation at the Bank's
offices located in the City of San Francisco, California; and
WHEREAS, it is mutually desirable that an Agreement be entered into
between the parties to provide for such trustee and Paying Agent services.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants herein contained, agree as follows:
Section 1. The Bank shall perform such duties as are imposed on it as
Trustee pursuant to the Trust Agreement by and among the City, the Agency and
the Trustee dated as of June 1, 1984 (the "Trust Agreement").
Section 2. The Bank shall cause the principal of the Certificates of
Participation to be paid in accordance 'with ~he terms thereof upon presentation of
the same for payment or for collection upon maturity to the Bank. The Bank shall
cause the interest on the Certificates of Participation to be paid by check or draft
mailed to the registered owner as his or her name appears in the register to be
maintained by the Bank. The Agency shall cause to be made available to the Bank
all funds necessary in order to so honor said Certificates of Participation and the
interest payments thereon, provided that this paragraph shall not in any instance
-1-
"-.
(1) require the Agency to make available funds other than from the payments to be
made by the City pursuant to the Lease Agreement and as provided in the Trust
Agreement or (2) require payment or disbursement of any funds in excess of the
amount then on deposit for payment of said Certificates of Participation and the
interest thereon.
Section 3. Subject to the provisions of Section 2 hereof, the Agency
will cause to be deposited, at least five (5) days prior to the next installment date
of said interest payments and/or maturing Certificates of Participation, with the
Corporate Trust Department of the Bank, funds for payment of said installment of
interest payments and/or maturing Certificates of Participation. Said funds are to
be deposited to an account designated as the "Certificate Fund". The funds so
deposited shall be held by the Bank in its Corporate Trust Department and applied
to the payment of interest payments and/or maturing Certificates of Participation
and for such other purposes as are set forth in the Trust Agreement. From said
funds the Bank agrees to pay the interest payments and/or maturing Certificates of
Participation presented to it for payment (except that interest on the Certificates
of Participation is payable by check or draft mailed to the registered owner as his
or her name appears on the register maintained by the Bank), and to cancel them
when paid.
Section 4. The Bank shall render to the Agency monthly statements
showing amounts deposited, paid or disbursed, and annually shall deliver all
cancelled Certificates of Participation to the Agency or destroy them and furnish a
destruction certificate as directed by the Agency.
Section 5. The Agency shall pay to the Bank, on a semiannual basis, the
fees set forth in Exhibit "A" attached hereto, plus all incidental expenses for which
reimbursement is claimed pursuant to Section 6 hereof. The schedule of fees
attached hereto as Exhibit "A" is subjec! to renegotiation should conditions
warrant, and charges for services not specifically set forth in Exhibit "A" shall be
established by mutual written agreement of the parties.
Section 6. In addition to the fees provided in Section 5, the Agency
shall reimburse the Bank for the cost of reasonable out-of-pocket expenses
incurred in the performance of its duties hereunder, including, but not limited to,
-2-
services of counsel, stationery, postage, insurance, registration fees and telephone
tolls.
Section 7. At least ten (10) days prior to the first payment or
disbursement of principal or interest on the Certificates of Participation under the
provisions of this Agreement, the Agency shall furnish the Bank with three (3)
specimen Certificates of Participation.
Section 8. The terms and conditions of this Agreement are intended for
the mutual benefit of the Agency and the Bank exclusively, and are not intended to
give any third party any rights or claims, contractual or otherwise, hereunder.
Section 9. The Agency agrees that the Bank shall not be required to
honor any request made by anyone other than the Agency itself to stop payment on
any lost, destroyed, mutilated, or stolen Certificates of Participation, or to pay
any such Certificates of Participation or interest thereon upon which there may be
an adverse claimant. The Agency will in such instances give the Bank written
instructions as to the disposition of such adverse claim as the circumstances may
warrant, and hereby agrees to hold the Bank harmless from any and all claims
whenever the Bank acts in accordance with such instructions.
IN WITNESS WHEREOF the parties hereto have caused these presents
to be duly executed as of the day and year first above written.
(SEAL)
REDEVELOPMENT AGENCY OF
THE CITY OF SAN BERNARDINO
~'''-.-N''~ ~_
By: ;;?' ~
~,C~~
Secretary
THE BANK OF CALIFORNIA,
National Association
BY:~_
Title: --,-;:;""~ O.Q~i t.ll...r
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THE BANK OF CALIFORNIA
SYBIL M. HARRLVOTON
VICE PRESIDENT .. MANAOER
CORPO:RA.TE TRUST DEPABTNEN'T
May 25, 1984
Ms. Robin M. Brown
Miller.& Schroeder Municipals. Inc.
P.O. Box 946
Solana Beach, California 92075
Subject: $2.740.000 Redevelopment Agency of the
City of San Bernardino, California
Certificates of Participation
Dear Ms. Brown:
The Bank of California is pleased to submit the enclosed proposal to act
as Trustee, Authenticating Agent and Paying Agent for the above mentioned
subject.
Would you please sign and return a copy of the fee schedule and retain a
copy for your files. Please call me if you have any questions or would
like more information.
~Sin~ce.~e~lY' ~../ .
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Sybil M. Harrington
SMH:gp
Enclosures.
EXHiBIT "A"
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THE BANK OF CAUFORNIA
2,740,000 REDEVELOPMENT AGENCY OF THE
CITY OF SAN BERNARDINO, CALIFORNIA
CERTIFICATES OF PARTICIPATION
FEES FOR SERVICES AS TRUSTEE & AUTHENTICATING AGENT & PAYING AGENT
INITIAL FEE, for administrative and legal review of documentation.
$4,500.00
ANNUAL ADMINISTRATIVE FEE
$3,500.00
OPERATIONAL CHARGES, billable semi-annually
For registration and authentication of each piece,
in San Francisco or New york................................. $1.65
For maintenance of accounts, each registered holder............... $3.75
(Account maintenance is based on the number of
accounts over one hundred (100) at the beginning of
the year plus new accounts opened and maintained.)
Includes registered interest issuance, preparation of tax
returns, reconcilement of paid checks, issuance of
replacement checks and tracing of uncashed checks,
listings, reports and labels.
Replacement of certificates (lost, stolen or
destroyed) each.............................................. $10.00
SPECIAL PROCESSING
For redemption at maturity, each transaction...................... $ 6.00
For partial redemptions, each transaction (minimum $1,500.00)..... $ 6.00
Destruction of cancelled pieces,-sorted and listed
by Trustee, per thousand..................................... $ 35.00
'.
CITY OF SAN BERNAROINO, CALIFORNIA
FEES
PAGE 2.
ADOITIONAL COMPENSATION AND CHARGES
The Agent shall be entitled to reasonable adjustments in compensation
from time to time. It shall also be entitled to reimbursement of out-of-
pocket expenses, disbursements and advances incurred or made pursuant to
performing its duties under the various documents of this financing (including
the reasonable compensation and expenses and disbursements of its in-house or
outside counsel and of all persons not regularly in its employ), except any
such expenses, disbursement or advance as may arise from its gross negligence
of bad faith.
ACKNOWLEDGED & ACCEPTED
~~4_~~:c1
CITY OF SAN BERNARDINO, CALIFORNIA
DATE:
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