Loading...
HomeMy WebLinkAboutR29 EDAECONOMIC DEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO SUBJECT: CALTRANS PARKING STRUCTURE FROM: Ronald E. Winkler LEASE Development Director DATE: October 5, 1998 ORIG INA L Synopsis of Previous Commission /Council/Committee Action(s): On September 28, 1998, the Redevelopment Committee recommended this item to the Community Development Commission for approval. Recommended Motion(s): (Community Development Commission) MOTION: That the Community Development Commission approve the Caltrans Parking Structure Lease and authorize its execution by the Executive Director. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - — - - - - - - - — --------------------------- Contact Person(s): Ronald E. Winkler/ Phone: 5081 Project Area(s) Central City (CC) Supporting Data Attached: FUNDING REQUIREMENT Ward(s): Two (2) ❑x Staff Report ❑ Resolution(s) ❑ Agreement(s) /Contract(s) ❑ Map(s) ❑ Letter/Memo To be S Amount: $ Determined Source: Cinema Common Area Changes Budget Authority 1 SIGNATURE: Gary V�sdel, Executive D' ctor Econ@6ic Development Age cy N/A Zonald E. er, Director Develop en Department - - -- - -- --------- - - - - -- - - -- ---- - - - - -- - - - - -- - _ - - -- Commission /Council Notes: -------------------------------- - - - - -- ------------------------------------------------------------------------------------------------------ REW:lag:10- 19- 0l.cdc COMMISSION MEETING AGENDA Meeting Date: 10/19/1998 Agenda Item Number: R0 z � ECONOMIC DEVELOPMENT AGENCY STAFF REPORT State Parkins Structure Lease Agency staff, in conjunction with Special Counsel, have been in negotiations with Caltrans representatives for a long -term lease allowing public use of the Caltrans Parking Structure during evening and weekends in support of downtown development. Negotiations have progressed to the point where a final lease document is ready for Community Development Commission approval. Attached is a copy of the proposed lease document as prepared by Special Counsel. Salient provisions of the lease include the following: 1. Parties to the lease: Redevelopment Agency and Caltrans 2. Operational Responsibility: Remains solely with Caltrans. In this regard, Caltrans shall be responsible for capital improvements, restoration, repair and replacement work. 3. Term of Lease: Initially for 25 years with options to extend in ten year increments to a maximum of 99 years. Commencement of the lease is subject to a commencement notice within 30 days of need by the Agency. 4. Termination: Either party may terminate upon 180 days written notice. Use of the Parking Structure: Agency shall have a right to a maximum of 625 parking spaces during "Agency Public Use Hours ". These hours are defined, as all hours not considered as Normal Business Hours (6:00 a.m. to 6:00 p.m. on weekdays other then state holidays). Further, Caltrans reserves the right to have a designated secured parking area for their exclusive use. The Agency would pay for structural modifications necessary to secure the area reserved by Caltrans. Said modifications are not expected to exceed $60,000. 6. Monthly Charge: The Agency shall pay to Caltrans a monthly charge for the use of parking spaces. This charge shall be the direct cost incurred for utilities, security services, lighting, cleaning and related services. This charge to the Agency shall be based upon actual costs incurred by Caltrans over a base established by current usage. The Agency shall have the right to review and audit such charges. It should be noted that under CinemaStar's lease arrangement they are obligated to pay an annual Common Area Maintenance (CAM) charge of $85,000 which can be used to off -set this cost. 7. The Agency shall provide comprehensive bodily injury and property damage liability - insurance in the amount of $10 million. ------------------------------------------------------------------------------------------------------------------------------------------ REW:lag:10- 19- 01.cdc COMMISSION MEETING AGENDA Meeting Date: 10/19/1998 Agenda Item Number: fi Economic Development Agency Staff Report State Parking Structure - Public Use September 28, 1998 Page Number -2- -------------------------------------------------------- The above items are not intended to be all- inclusive but simply to highlight major business points contained in the attached lease. Based upon the above, it is recommended that the Redevelopment Committee recommends the proposed Caltrans Parking Structure Lease be approved by the Community Development Commission and its execution be authorized by the Executive Director. CY12��a�- RONALD . WIN LER, Direc or Development Department ------------------------------------------------------------------------------------------------------------------------------------------- REWJag:10- 19- 01.cdc COMMISSION MEETING AGENDA Meeting Date: 10/19/1998 Agenda Item Number: . ORIGINAL PUBLIC PARKING STRUCTURE USE AGREEMENT (CALTRANS PARKING STRUCTURE) This Public Parking Structure Use Agreement (this "Agreement ") is entered into this — day of September, 1998, by and between the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic (the "Agency "), and the Department of Transportation ( "Caltrans "). WHEREAS, the Agency and Caltrans, together with the San Bernardino Joint Powers Financing Authority (the "JPA "), and the Department of General Services of the State of California (the "Department ") have previously entered into that certain agreement designated as the "Construction Project Management, Operating and Development Agreement (Caltrans Office Building and Parking Facility)" dated January 4, 1996 (the "Construction and Development Agreement ") for the development of two (2) parcels of real property legally described in Exhibits "A -1" and "A -2," respectively, as attached to the Construction and Development Agreement, situated in the City of San Bernardino, California (collectively referred to herein as the "Site "); and WHEREAS,, concurrent with the execution and delivery of the Construction and Development Agreement, the JPA, Caltrans and the Department entered into a Lease Purchase Agreement (the "Lease ") providing for the construction financing and permanent financing of an office building of approximately 336,000 gross square feet with an estimated 282,125 net square feet (the "Caltrans Building ") and a parking structure for approximately 925 vehicles (the "Parking Structure ") on that portion of the Site legally described in Exhibit "A -1" to the Construction and Development Agreement (referred to herein as the "Phase I Site "), which Parking Structure is under the management and control of Caltrans to provide parking for employees and guests of the various agencies and departments of the State which occupy the Caltrans Building and incidental and nonbusiness hour parking for the general public and otherwise at the request of the Agency; and WHEREAS, the JPA has entered into a Facility Lease with the Department, acting as the agent for Caltrans, wherein the JPA has caused to be built the Caltrans Office Building and the Parking Structure to the Department's specifications, and Caltrans assumed occupancy upon completion and has covenanted to pay rents which are SBEO/0119/4.16 10/12/98 1200 law 1 R 2-01 (c)( IQ 1% pledged for repayment of the bond financing as was previously issued by the JPA (the "Bonds "); and WHEREAS, the Agency has intended, as of and prior to the date of the Construction and Development Agreement, to provide for certain limited public use of the Parking Structure in furtherance of the redevelopment activities of the Agency within the downtown area of the City of San Bernardino; and WHEREAS, the Agency and Caltrans now desire to enter into this Agreement to implement certain provisions of the Construction and Development Agreement, and not to amend or modify nor to relieve Caltrans of any obligations pursuant thereto, and to provide for the Agency use of the Parking Structure in accordance with the terms and conditions set forth herein and in furtherance of the intent and purposes of the Construction and Development Agreement. NOW THEREFORE, THE AGENCY AND CALTRANS MUTUALLY AGREE AS FOLLOWS: 1. OPERATIONAL RESPONSIBILITY. As the exclusive operator of the Parking Structure, Caltrans shall implement such procedures and enter into contractual arrangements or assign Caltrans employees to assure that all normal and customary repair and maintenance of the Parking Structure is undertaken in a timely and professional manner. Caltrans shall be solely responsible for the payment of all utilities, salaries and other materials and supplies as may be necessary for Caltrans to contract to provide for the continued operation of the Parking Structure during the term of this Agreement. Caltrans, and not the Agency, shall be responsible for the costs of any additional capital improvements and for the restoration, repair and replacement work required to maintain the Parking Structure in a safe operating condition for Caltrans purposes„ 2. TERM. (a) The term of this Agreement as to the Agency use of the Parking Structure shall be for an initial period of time commencing as of the date of this Agreement and extending for twenty -five (25) years from and after the date hereof (the "Initial Term ") with successive ten (10) year renewal options (each such option period being referred to herein as a "Renewal Term ") as may be exercised by the Agency to extend the Initial Term and each Renewal Term hereof at the sole discretion of the Agency for a total term of this Agreement not to exceed ninety -nine (99) years SBEO /0119/4.16 10/12/98 1200 law 2 from the date of this Agreement (the "Final Term ") subject to the right of termination as provided in Section 3 hereof. (b) The commencement of the actual use of the Parking Structure by the Agency and the allocation of parking spaces and the payments to be made by the Agency pursuant to Section 6 hereof shall not occur until the Agency shall have delivered a Notice of Commencement to Caltrans in the manner required by Section 17 at least thirty (30) days prior to the effective date upon which the Agency intends to commence the actual use of the Parking Structure. The proposed date of the commencement of the actual use of the Parking structure and the precise number of spaces to be used by the Agency for the remainder of the then applicable fiscal year shall be set forth in the Notice of Commencement as delivered to Caltrans. Caltrans shall deliver to the Agency not later than ten (10) days prior to the date as set forth in the Notice of Commencement the Monthly Space Charge if the date of the commencement of the actual use by the Agency is later than June 30, 1999. Prior to the commencement of the actual use of the Parking Structure both Caltrans and the Agency shall have complied with the requirement pursuant to Section 6(i) for the undertaking of the capital improvements as required therein. (c) The Agency shall provide written notice to Caltrans not less than thirty (30) days and not more than one hundred eighty (18 0 ) days prior to the expiration of the Initial Term and each then existing Renewal Term of this Agreement stating the intent of the Agency to so extend the Initial Term or any then current Renewal Term of this Agreement. Such notice shall be sufficient for purposes of extending the Initial Term and each Renewal Term of this Agreement provided that the notice as so delivered by the Agency to Caltrans refers to this Agreement and the intent of the Agency to continue the public use of the Parking Structure and states that the Agency elects to extend the term of this Agreement for an additional Renewal Term not to exceed ten (10) years from the next anticipated date of termination, whether upon the expiration of the Initial Term or any then current Renewal Term as may be in effect at such time, but not to exceed the Final Term. 3. TERMINATION. Either party may at any time during the Initial Term and any Renewal Term terminate this Agreement, with or without cause, upon at least one hundred eighty (180) days' written notice being delivered by the terminating party to the other party in the manner required pursuant to Section 17 of Agreement. Any termination of this Agreement shall not affect any other rights and remedies available to the terminating party pursuant to the Construction and Development Agreement, the Lease SBEO/0119/4.16 10/12/98 1200 law 3 or any other agreement to which either or both the Agency or the JPA are parties thereto with Caltrans. 4. USE OF THE PARKING STRUCTURE. (a) Caltrans hereby agrees that the Agency shall have the initial right, pursuant to this Agreement, to use all or any lesser number of a maximum of six hundred twenty -five (625) parking spaces available to the Agency during the Agency Public Use Hours (as defined in Section 5 hereof) in the Parking Structure for the Initial Term and any Renewal Term of this Agreement. Caltrans reserves the right to reduce such number of spaces or any subsequently authorized number of spaces with respect to the Agency Public Use Hours, or to modify the duration or days that comprise the Agency Public Use Hours, upon not less than one hundred eighty (180) days' written notice to the Agency in the manner requi,�eu pursuant to Section 17 of this Agreement. Caltrans may establish and modify, subject to delivery of similar notice to the Agency as required above, parameters for the allocation and availability of parking within the Parking Structure during the Normal Business Hours for the general public, in addition to allocating the use thereof by visitors to the Caltrans Building. (b) The Parking Structure shall be used during the Normal Business Hours by employees and guests of the tenants that are then located in the Caltrans Building and by the general public as a public Parking Structure that shall be open and available to the members of the general public on such terms and conditions as are determined by Caltrans to be appropriate or authorized in accordance with this Section 4 and as further provided in Sections 5 and 6 hereof. 5. HOURS OF OPERATION. Caltrans intends that the Parking Structure shall be utilized by Caltrans for the permanent storage of Caltrans and other State owned vehicles assigned to that facility and in furtherance of the office use associated with the Office Building during the hours of 6:00 AM to 6:00 PM on weekdays, excepting therefrom all State holidays on which days the Office Building is not open for general business use by Caltrans employees and the employees of the other State agencies then occupying the Office Building (defined herein as the "Normal Business Hours ") in accordance with the following terms and conditions as further set forth in this Agreement. For purposes of this Agreement, the term "Agency Public Use Hours" shall mean all other days and hours of operation of the Parking Structure which are not considered as Normal Business Hours as defined above and as such hours and days of usage in excess of the Normal Business Hours are specifically SBEO/0119/4.16 10/12/98 1200 law 4 requested in writing by the Agency and as may be made available by Caltrans pursuant to this Agreement. 6. ALLOCATION OF PARKING SPACES FOR AGENCY AND CALTRANS USAGE; AGENCY MONTHLY COSTS. The hours and days of usage and the other terms and conditions with respect to the Parking Structure as shall be applicable between Caltrans and the Agency shall be as set forth below: (a) During both the Agency Public Use Hours and the Normal Business Hours of the Parking Structure, Caltrans shall have the exclusive right to park including, but not limited to, survey trucks, maintenance equipment and Caltrans -owned trucks and automobiles within. any area of the Parking Structure designated by Caltrans. Such area shall normally have access for vehicular ingress and egress by way of a separately designated entrance and exit which shall be maintained by Caltrans at its sole cost and expense (such area is herein referred to as the "Caltrans Exclusive Use Area "). In addition, Caltrans shall have the right to designate, from time -to -time in the Operating Guidelines as required pursuant to the Construction and Development Agreement, the necessary expansion of that exclusive parking area for the benefit of Caltrans. Caltrans may also designate a number of contiguous parking spaces within the remaining Parking Structure for Normal Business Hours and overnight automobile reserved parking on a twenty -four (24) hour per day basis and seven (7) days per week (such area is herein referred to as the "Caltrans Reserved Parking Area "). (b) During the Normal Business Hours of the Parking Structure, Caltrans shall have the right to utilize, at its sole election, an appropriate number of compact spaces and handicapped spaces as may be available to and designated by Caltrans, solely for the use of Caltrans employees and employees of the other tenants of the Office Building. (c) During the Normal Business Hours of the Parking Structure, Caltrans shall make available to both (i) the visitors and business guests of the Caltrans Office Building, and (ii) the members of the general public conducting business activities in the vicinity of the Parking Structure, any other available parking spaces, including in such number of parking spaces an appropriate number of compact spaces and handicapped spaces. (d) During the Agency Public Use Hours, Caltrans shall make available to the Agency all other available vacant parking spaces within the Parking Structure less the number of parking SBEO/0119/4.16 10/12/98 1200 law 5 spaces retained by Caltrans in both the Caltrans Exclusive Use Area and the Caltrans Reserved Parking Area. The Agency shall, on a July 1 to June 30 fiscal year basis, or until such time as further notice is delivered to Caltrans, designate the precise number of parking spaces required for use by the Agency during the Agency Public Use Hours for the ensuing fiscal year period or until further notice is delivered by the Agency to Caltrans; subject, however, to a reduction in the number of parking spaces as may be required by Caltrans to accommodate the needs of Caltrans and its tenants in the manner as required by this Agreement. The Agency shall be responsible for the payment of the monthly parking charge specified in (e) hereinbelow only for the precise number of parking spaces designated by the Agency in writing for the applicable fiscal year and which are actually provided by Caltrans to the Agency. Caltrans shall not be responsible for providing more parking spaces for any fiscal year during the Agency Public Use Hours than the number of parking spaces as may be so designated in writing by the Agency. In the event it is determined that the average monthly public use of the Parking Structure during any fiscal year exceeded the precise number of parking spaces designated by the Agency for such additional use within the applicable fiscal year, Caltrans shall be paid the proportionate additional compensation by the Agency upon the conclusion of tree applicable fiscal year. Caltrans may restrict the available public parking spaces to the precise number specified in writing by the Agency for the applicable fiscal year. The Agency may then seek to increase or may decrease the precise number of parking spaces for the next succeeding fiscal year period and thereby increase or decrease the total monthly public parking cost to the Agency. (e) The Agency and Caltrans agree that the initial monthly parking cost to be paid by the Agency for the entire number of parking spaces as may be made available by Caltrans to the Agency pursuant to Section 2(b) shall be determined by Caltrans and delivered to the Agency at least ten (10) calendar days prior to the effective date of the initial use and occupancy of the Parking Structure for Agency Public Use Hours. The "Monthly Space Charge" as determined by Caltrans for the initial period of time during all or any portion of the initial fiscal year, and for each fiscal year thereafter, shall include all additional incremental costs actually incurred by Caltrans for the operation and maintenance of the Parking Structure related to the Agency Public Use Hours. (f) The Monthly Space Charge shall be due and payable by the Agency to Caltrans in advance on the first business day of each calendar month during the term on this Agreement. Failure of the Agency to remit the required amount of the Monthly Space Charge on or before the tenth (10th) calendar day of the applicable month SBEO/0119/4.16 10/12/98 1200 law 6 shall then cause such delinquent after such tenth (10th) calendar provided in Section 10 hereof. amount to bear interest from and day until paid in the manner as (g) From and after the date of this Agreement, the Agency shall be entitled to receive not more than six hundred twenty -five (625) parking spaces during the Agency Public Use Hours commencing as of such date determined by the Agency and for such number of parking spaces as may be set forth in writing by the Agency and delivered to Caltrans in the manner required for notices pursuant to Section 17. The Agency may thereafter on a fiscal year basis determine the number of parking spaces required by the Agency for the applicable fiscal year. The Agency shall provide in writing to Caltrans the exact number of parking spaces in the Parking Structure that shall be required by the Agency, if any, during the Agency Public Use Hours for the applicable fiscal year. Such number of parking spaces as required by the Agency shall thereupon be made available by Caltrans for use by the Agency during the Agency Public Use Hours unless otherwise reduced by Caltrans due to the requirements of Caltrans for additional parking spaces. The Agency may request from time -to -time such number of additional parking spaces in excess of the six hundred fifty (650) number, or in excess of any other number of parking spaces which the Agency has previously requested, for use during the Agency Public Use Hours if Caltrans determines that such number of spaces are then available. All notices delivered by the Agency to Caltrans setting forth the exact number of parking spaces required by the Agency during the Agency Public Use Hours shall remain in full force and effect until further modified, rescinded or superseded by the Agency pursuant to a subsequent notice delivered to Caltrans. (h) In the event it is determined that Caltrans has overcharged the Agency during any fiscal year period based upon an audit or review off the Monthly Space Charge and the Operating Cost Items for the period being audited or reviewed, Caltrans shall refund to the Agency, within ten (10) calendar days of such determination, the difference between the aggregate amount of the Monthly Space Charge actually paid by the Agency minus the amount that the Agency should have paid based upon the actual Operating Cost Items. (i) The Agency agrees to reimburse Caltrans for the costs necessarily incurred and paid by Caltrans pursuant to competitive public bidding requirements for the installation and construction of such additional capital improvements to the Parking Structure and may be mutually agreed upon by and between the Agency and Caltrans in writing. Such additional capital improvements SBEO /0119/4.16 10/12/98 1200 law 7 shall be limited to such that allow for the public use of the Parking Structure and to provide secured parking for Caltrans purposes separate from the public use as contemplated by this Agreement. Prior to the undertaking of the competitive public bidding of the agreed upon capital improvements, the Agency shall review the proposed scope of the capital improvements and shall approve in writing such bid specifications prior to the publication of any notice of such competitive bidding. All such work and the acquisition of materials and supplies shall be undertaken pursuant to public works contracts executed by Caltrans with Caltrans being responsible for all on -site supervision and payment of all invoices to the general contractor, sub - contractors and suppliers of materials, as applicable. The Agency shall reimburse to Caltrans within thirty (30) days of receipt of the invoice after the completion of all construction activity for the actual construction work completed and materials installed to thus accommodate the Agency's public use of the Parking Structure. 7. [Reserved] 8. [Reserved] 9. INESURANCE. Prior to the date of the commencement of the initial use by the Agency of the Parking Structure during the Agency Public Use Hours, the Agency shall obtain and provide Caltrans with a policy of comprehensive bodily injury and property damage liability insurance whose provisions conform to this Section 9 and which is issued by an admitted insurer as defined in the California Insurance Code togther with a certificate of insuranc^_ from the insurer evidencing compliance with the following requirements: (a) Policy shall name as additional insured with the Agency, Caltrans and all officers, employees and servants of Caltrans; (b) Policy shall insure Caltrans and all officers, employees and servants while acing within the scope of their duties, against all claims, suits or other actions of any nature brought for or on account of any injury, damage or loss, including death arising out of or connected with the Agency Public Use Hours or other work under this Agreement; (c) Minimum limits of coverage of the policy shall be $10,000,000; (d) Under the terms of the policy: SBEO/0119/4.16 10/12/98 1200 law 8 (1) The insurer shall not cancel or qualify the policy without thirty (30) days' prior written notice to Caltrans; (2) Caltrans shall not be responsible for any premiums or assessments on the policy; (3) The Agency shall maintain such a policy in full force and effect at all times until the termination of this Agreement. In the event of the policy's cancellation or modification, the Agency shall provide a new certificate of insurance evidencing a new policy whose coverage begins prior to the expiration of the existing policy which certificate of insurance shall otherwise comply in all respects with the certificate required herein. Failure to continuously maintain insurance coverage as herein provided is a material breach of this Agreement for which, in addition to any other remedy provided by law, may be cause for termination of this Agreement by Caltrans. 10. INTEREST ON PAST DUE AMOUNTS. Any amount owed by either party to this Agreement to the other party that is not paid and received by the other party by the date payment was due pursuant to the terms of this Agreement, shall bear interest at the rate of interest per annum as then may be earned by the State Treasurer Pooled Money Investment Account. Interest shall accrue on any past due amounts from the date that payment was scheduled to be paid, otherwise required to have been made or from the specified date of interest accrual until payment has been actually received by the other party. Any claims or assertions of any rights or offsets or deductions or the withholding of payment for any alleged reason asserted by a party shall not relieve any party from the obligation of paying interest on payment amounts that are not paid when due. Upon a successful challenge by either party as evidenced by either party having obtained a final judicial determination that an amount was in fact not due and owing pursuant to this Agreement, the successful party shall be relieved from paying interest on that portion of the past due amount that was so determined to not in fact be due and owing. Any underpayment of amounts declared to be due and owing shall also bear interest until the full amount of the payment that should have been made has in fact been made and received by the other party. SBEO/0119/4.16 10/12/98 1200 law 9 11. MUTUAL INDEMNIFICATION. (a) Indemnification of Agency. Caltrans shall defend, indemnify and hold harmless the Agency, its officers and employees from and against any and all claims, demands, actions, liability, damages, costs and expenses, including legal costs and attorneys' fees for injury of any type, including without limitation, bodily injury, death or property damage arising from or related to any occurrence of Caltrans negligence in, upon or at the Parking Structure, except to the extent that the foregoing shall not apply to any willful or negligent misconduct on behalf of the Agency or any of its agents, representatives or employees or the general public utilizing the Parking Structure during Agency Public Use Hours. (b) Indemnification of Caltrans. The Agency shall defend, indemnify and hold harmless Caltrans, its officers, employees, agents, and representatives from and against any and all claims, demands, actions, liability, damages, costs and expenses, including legal costs and attorneys' fees for injury of any type, including without limitation, bodily injury, death or property damage arising from or related to any occurrence in, upon or at the Parking Structure or arising from the use by the general public of the Parking Structure, including the instance that the continued pubic use of the Parking Structure might adversely affect the tax exempt status of the Bonds issued by the JPA for the financing of the Parking Structure and from the Agency's failure to comply with any provision of this Agreement, or otherwise occasioned wholly or in part by any act or omission of the Agency, its agents, representatives, contractors, employees, servants, invitees or licensees, except to the extent that the foregoing shall not apply to any willful or negligent misconduct on behalf of Caltrans or any of its officers or employees. 12. INSURANCE. Caltrans shall maintain or cause to be maintained at the sole cost and expense of Caltrans, such insurance for physical loss of or damage to the Parking Structure as is required to be maintained by Caltrans pursuant to the applicable documents providing for the issuance of the Bonds or such other insurance, including self insurance, as Caltrans determines is appropriate. 13. DAMAGE OR DESTRUCTION. (a) In the event of destruction or damage to any or all of the Parking Structure by fire, earthquake, riot, storm, war, or by any other casualty loss beyond the control of either party SBEO/0119/4.16 10/12/98 1200 law 10 hereto which renders the Parking Structure wholly or partially unusable, Caltrans shall, at its discretion, use either insurance proceeds or such other funds of the State or Caltrans as may be required under the circumstances to rebuild, reconstruct and repair the Parking Structure to a substantially similar condition as existed prior to the occurrence of such casualty or take such other actions as Caltrans deems to be appropriate consistent with the JPA documents providing with the issuance of the Bonds. (b) In the event of any insured casualty loss, destruction or damage, the Parking Structure shall be rebuilt, reconstructed and repaired in accordance with prevailing codes and comparable construction qualities if that course of action is determined to be appropriate by Caltrans. Caltrans shall commence to rebuild, reconstruct and repair the Parking Structure as soon as practicable after receiving sufficient insurance proceeds or such other funds of the State or Caltrans and shall diligently pursue said repair, reconstruction and restoration to completion. In the event of any such destruction or damage, Caltrans shall attempt to secure the Parking Structure Site to prevent injury to persons and vandalism to the Parking Structure and vehicles parked therein to the extent vehicles may continue to be parked therein as a result of such destruction or damage. (c) The provisions set forth in (a) and (b) above shall be construed so as not to conflict with any similar provisions of either the Lease or any other documents executed by the parties and related to the issuance of the Bonds. 14. [Reserved] 15. LAW GOVERNING. This Agreement shall be governed by the laws of the State of California. 16. SUCCESSOR AND ASSIGNS. covenants and conditions contained herein inure to the benefit of the successors and Caltrans, and all references in this "Caltrans" shall be deemed to refer to successors and assigns of such party. 17. NOTICES. This Agreement and the shall be binding upon and and assigns of the Agency Agreement to "Agency" or and include all permitted (a) All notices shall be in writing and presented in person or by certified or registered United States mail, return receipt requested, postage prepaid, or by personal delivery, fax transmission that is telephonically verified or by overnight or SBEO/0119/4.16 10/12/98 1200 law I 1 special courier delivery made by a nationally recognized delivery service to the addresses set forth below. (b) Notice presented by United States mail shall be deemed effective the second (2nd) business day after deposit with the United States Postal Service. This Section shall not in any manner prevent giving notice by personal service or telephonically verified fax transmission both forms of notice of which shall be deemed effective upon actual receipt of such personal service or telephonic verification. Each party may change or modify their address for receipt of written notice by so notifying the other party in accordance with the notice provisions and in the manner provided by this Section. TO CALTRANS: Department of Transportation State of California Facilities Unit 464 W. 4th Street, 6th Floor San Bernardino, California 92401 -1600 Attention: Business Manager Phone: (909) 383 -4657 Fax: (909) 383 -6096 TO AGENCY: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, California 92401 -1507 Attention: Development Director Phone: (909) 384 -5081 Fax: (909) 384 -5135 18. WAIVER. Waiver by any party hereto of any breach by any other party of any agreement, covenant or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other agreements, covenant or condition hereof. Failure of any party hereto to enforce a provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement. 19. SECTION HEADINGS. All Section headings contained herein are for convenience of reference only and are not intended to define or limit the scope of any provision of this Agreement. 20. ASSIGNMENT. This Agreement may not be assigned in whole or in part without the prior written consent of the other parties hereto in their sole and absolute discretion. SBEO/0119/4.16 10/12/98 1200 law 12 21. AMENDMENT. This Agreement may only be amended by a written instrument duly authorized and executed by the Agency and Caltrans and approved in a manner required by applicable law. No amendment to this Agreement shall be binding upon the Agency unless such amendment shall have been presented to and approved by the governing body of the Agency at a duly called, noticed and held public meeting of the governing body of the Agency. 22. NONDISCRIMINATION. The Agency and Caltrans agree that there shall be no discrimination against any person or group of persons based on race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the performance of this Agreement. 23. SEVERABILITY. In the event that any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or illegal, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining phrases, sentences, clauses, paragraphs or sections contained herein. 24. CONSISTENCY WITH OTHER AGREEMENTS. (a) The parties recognize and agree that the intent of this Agreement is to provide for certain limited and permitted public use by the Agency of the Parking Structure during the Agency Public Use Hours in furtherance of redevelopment activities to be undertaken by the Agency within the Downtown Area of the City of San Bernardino. This Agreement is not intended to (i) amend, change or modify the Construction and Development Agreement in any manner, (ii) create any property right for the benefit of the Agency other than as specified therein, or (iii) to relieve Caltrans from any financial or performance obligation incurred by Caltrans pursuant to the Construction and Development Agreemert. It is the intent of the parties to negotiate in good faith such additional implementation agreements and provisions as may be necessary to fully comply with the terms and conditions of the Construction and Development Agreement, and until such time as the parties have approved and executed such required implementation agreements, this Agreement shall remain in full force and effect. (b) This Agreement shall not in any manner be interpreted to amend or modify any provision contained within the Lease and the other documents relative to the issuance and delivery of the Bonds. All other subjects, issues and matters of the negotiations between the parties and all verbal and written communications by and between the parties hereto with respect to SBEO/0119/4.16 10/12/98 1200 law 13 the negotiation and preparation of this Agreement shall not be deemed to be incorporated within the text of this Agreement unless expressly contained in any other document, instrument or writing and specifically referenced herein. 25. EVENTS OF DEFAULT. Each of the following shuli constitute an "event of default" hereunder: (a) A failure by the Agency or Caltrans to make, or cause to be made, any payment due and payable by a party to the other party on or before the date that any such payment or deposit is due; (b) Failure by the Agency or Caltrans to perform or observe any of their respective covenants or agreements contained in this Agreement and such failure shall continue for the period and after the delivery of notice specified in Section 26 hereof; (c) Failure by the Agency to use the Parking Structure in a manner required by the Lease and the Bond documents for preserving the continued tax - exempt status of the interest payable on the Bonds, and which unauthorized use by the Agency causes the interest payable on the Bonds, so long as such Bonds remain outstanding, to be included in the gross income of the holders of the Bonds for federal income tax purposes or to be subject to State personal income taxes pursuant to the documents providing for the issuance, sale and delivery of the Bonds; and (d) The occurrence and continuance of a default or event of default by Caltrans under the Construction and Development Agreement after the expiration of any applicable grace period set forth in the applicable document. 26. OPPORTUNITY TO CURE DEFAULT. Except as provided below, no event of default under Section 25 hereof shall constitute a "Default" hereunder until: (a) The nondefaulting party shall give notice to the defaulting party of such default specifying the particular facts and circumstances that cause an event of default to constitute such a Default; (b) The defaulting party shall have thirty (30) days after receipt of such notice presented in the manner specified in Section 17 hereof to correct the Default and shall not have corrected such Default or, if such Default cannot be corrected within thirty (30) days, shall have failed to initiate and SBEO /0119/4.16 10/12/98 1200 law 14 diligently pursue (in the reasonable judgment of the nondefaulting party) appropriate! corrective action; provided, however, that such Default must be remedied within one hundred eighty (180) days after the occurrence of the event of default that established such Default by the nondefaulting party; (c) If the defaulting party shall fail to institute an action necessary to cure any event of default described in Section 25(b) or (d) or, if such action is instituted, the defaulting party shall fail to diligently pursue such action, the nondefaulting party may, at its option, initiate such corrective action as it deems appropriate; and (d) If the Agency shall fail to cure an event of default described in Section 25(c), Caltrans may, at its option, initiate procedures to terminate this Agreement in the manner as provided in Section 3 for failure of the Agency to comply with said provisions relative to the Bonds and use of tax - exempt financed public facilities. (e) All notices of Default hereunder shall be provided by each party to the other party at the addresses set forth in Section 17 hereof. Failure to provide notice in the manner required hereunder shall not limit the rights of either party to subsequently provide notice in the required manner nor shall such failure be considered as a waiver of any rights of either party pursuant to this Agreement. 27. REMEDIES. Whenever any Default under Section 25 hereof shall have occurred and be continuing, any or all of the following remedial procedures shall be available to the nondefaulting party: (a) Caltrans may initiate procedures in the manner and in the time periods required hereunder to terminate this Agreement solely for failure of the Agency to comply with the provisions of this Agreement; (b) The nondefaulting party with respect to events of default occurring pursuant to Section 25(a),(b) and (d) may take whatever action at law or in equity may appear necessary or desirable to collect the payments required to be made by the defaulting party then due and thereafter to become due; and (c) The nondefaulting party with respect to all events of default occurring pursuant to Section 25 may take whatever action at law or in equity may appear necessary or desirable to SBEO/0119/4.16 10/12/98 1200 law 15 cause the defaulting party to take an action that is required to be taken pursuant to this Agreement or to refrain from taking an action that is precluded pursuant to this Agreement. 28. NO REMEDY EXCLUSIVE. No remedy herein conferred upon or reserved to either party is intended to be exclusive of any other available remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time -to -time and as often as may be deemed expedient. 29. ATTORNEY'S FEES AND EXPENSES. If a Default hereunder occurs and if either party should employ attorneys that are other than employees of such party or incur expenses for the enforcement of any obligation or agreement of the other party contained herein, the defaulting party shall pay on demand to the nondefaulting part=y the reasonable fees of such attorneys and the reasonable expenses so incurred, including the costs of any and all court actions and court appeals. 30. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any covenant or agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 31. PREPARATION OF THIS AGREEMENT. The parties hereto have been advised by their respective counsel and the parties have participated jointly in the preparation and review of this Agreement. In the event of any controversy between the parties in resolving any ambiguities or the interpretation of any provision of this Agreement, it is the intent of the parties that any ruling by a court of competent jurisdiction in the matter shall consider this Agreement as having been drafted jointly by the parties and shall not consider this Agreement to have been drafted solely by either party. In resolving ambiguities and clarifying interpreting provisions hereof, this Agreement shall not be construed adversely as to any particular party for having participated in the drafting hereof. 32. ENTIRE AGREEMENT. This Agreement contains the entire understanding and agreement of the parties and cannot be SBEO/0119/4.16 10/12/98 1200 law 16 amended without the written consent of all parties hereto in the manner as provided in Section 21 hereof. 33. EXECUTION. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all together shall constitute but one and the same Agreement. It is also agreed that separate counterparts of this Agreement may be separately executed by the Agency and Caltrans all with the same force and effect as though the same counterpart had been executed by the Agency and Caltrans. SBEO/0119/4.16 10/12/98 1200 law 17 IN WITNESS WHEREOF, the Agency and Caltrans have caused this Agreement to be executed as of the day and year first above written. Approved as to form and legal content: Agency Counsel REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: Its: By: Its: SBEO /0119/4.16 10/12/98 1200 law 18 DEPARTMENT OF TRANSPORTATION By: Its: Approved as to form and procedures Attorney Department of Transportation SBEO /0119/4.16 10/12/98 1200 law 19 EXHIBIT "A" DESCRIPTION OF CALTRANS EXCLUSIVE USE AREA [To Be Inserted] SBEO/0119/4.16 10/12/98 1200 law STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN BERNARDINO ) On before me, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that [s]he executed the same in his [her] authorized capacity, and that by his [her] signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Notary Public in and for said State [Seal] SBEO/0119/4.16 10/12/98 1200 law STATE OF CALIFORNIA ) SS. COUNTY OF SAN BERNARDINO ) On before me, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that [s]he executed the same in his [h(---z] authorized capacity, and that by his [her] signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. [Seal] SBEO/0119/4.16 10/12/98 1200 law WITNESS my hand and official seal. Notary Public in and for said State COPY PUBLIC PARKING STRUCTURE USE AGREEMENT (CALTRANS PARKING STRUCTURE) This Public Parking Structure Use Agreement (this "Agreement ") is entered into this _ day of September, 1998, by and between the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic (the "Agency "), and the Department of Transportation ( "Caltrans "). WHEREAS, the Agency and Caltrans, together with the San Bernardino Joint Powers Financing Authority (the "JPA "), and the Department of General Services of the State of California (the "Department ") have previously entered into that certain agreement designated as the "Construction Project Management, Operating and Development Agreement (Caltrans Office Building and Parking Facility)" dated January 4, 1996 (the "Construction and Development Agreement ") for the development of two (2) parcels of real property legally described in Exhibits "A -1" and "A -2," respectively, as attached to the Construction and Development Agreement, situated in the City of San Bernardino, California (collectively referred to herein as the "Site"); and WHEREAS, concurrent with the execution and delivery of the Construction and Development Agreement, the JPA, Caltrans and the Department entered into a Lease Purchase Agreement (the "Lease ") providing for the construction financing and permanent financing of an office building of approximately 336,000 gross square feet with an estimated 282,125 net square feet (the "Caltrans Building ") and a parking structure for approximately 925 vehicles (the "Parking Structure ") on that portion of the Site legally described in Exhibit "A -1" to the Construction and Development Agreement (referred to herein as the "Phase I Site "), which Parking Structure is under the management and control of Caltrans to provide parking for employees and guests of the various agencies and departments of the State which occupy the Caltrans Building and incidental and nonbusiness hour parking for the general public and otherwise at the request of the Agency; and WHEREAS, the JPA has entered into a Facility Lease with the Department, acting as the agent for Caltrans, wherein the JPA has caused to be built the Caltrans Office Building and the Parking Structure to the Department's specifications, and Caltrans assumed occupancy upon completion and has covenanted to pay rents which are SBEO /0119/4.16 10/12/98 1200 law 1 R 2-01 0 pledged for repayment of the bond financing as was previously issued by the JPA (the "Bonds "); and WHEREAS, the Agency has intended, as of and prior to the date of the Construction and Development Agreement, to provide for certain limited public use of the Parking Structure in furtherance of the redevelopment activities of the Agency within the downtown area of the City of San Bernardino; and WHEREAS, the Agency and Caltrans now desire to enter into this Agreement to implement certain provisions of the Construction and Development Agreement, and not to amend or modify nor to relieve Caltrans of any obligations pursuant thereto, and to provide for the Agency use of the Parking Structure in accordance with the terms and conditions set forth herein and in furtherance of the intent and purposes of the Construction and Development Agreement. NOW THEREFORE, THE AGENCY AND CALTRANS MUTUALLY AGREE AS FOLLOWS: 1. OPERATIONAL RESPONSIBILITY. As the exclusive operator of the Parking Structure, Caltrans shall implement such procedures and enter into contractual arrangements or assign Caltrans employees to assure that all normal and customary repair and maintenance of the Parking Structure is undertaken in a timely and professional manner. Caltrans shall be solely responsible for the payment of all utilities, salaries and other materials and supplies as may be necessary for Caltrans to contract to provide for the continued operation of the Parking Structure during the term of this Agreement. Caltrans, and not the Agency, shall be responsible for the costs of any additional capital improvements and for the restoration, repair and replacement work required to maintain the Parking Structure in a safe operating condition for Caltrans purposes. 2. TERM. (a) The term of this Agreement as to the Agency use of the Parking Structure shall be for an initial period of time commencing as of the date of this Agreement and extending for twenty -five (25) years from and after the date hereof (the "Initial Term ") with successive ten (10) year renewal options (each such option period being referred to herein as a "Renewal Term ") as may be exercised by the Agency to extend the Initial Term and each Renewal Term hereof at the sole discretion of the Agency for a total term of this Agreement not to exceed ninety -nine (99) years SBEO /0119/4.16 10/12/98 1200 law 2 from the date of this Agreement (the "Final Term ") subject to the right of termination as provided in Section 3 hereof. (b) The commencement of the actual use of the Parking Structure by the Agency and the allocation of parking spaces and the payments to be! made by the Agency pursuant to Section 6 hereof shall not occur until the Agency shall have delivered a Notice of Commencement to Caltrans in the manner required by Section 17 at least thirty (30) days prior to the effective date upon which the Agency intends to commence the actual use of the Parking Structure. The proposed date of the commencement of the actual use of the Parking structure and the precise number of spaces to be used by the Agency for the remainder of the then applicable fiscal year shall be set forth in the Notice of Commencement as delivered to Caltrans. Caltrans shall deliver to the Agency not later than ten (10) days prior to the date as set forth in the Notice of Commencement the Monthly Space Charge if the date of the commencement of the actual use by the Agency is later than June 30, 1999. Prior to the commencement of the actual use of the Parking Structure both Caltrans and the Agency shall have complied with the requirement pursuant to Section 6(i) for the undertaking of the capital improvements as required therein. (c) The Agency shall provide written notice to Caltrans not less than thirty (30) days and not more than one hundred eighty (18 0 ) days prior to the expiration of the Initial Term and each then existing Renewal Term of this Agreement stating the intent of the Agency to so extend the Initial Term or any then current Renewal Term of this Agreement. Such notice shall be sufficient for purposes of extending the Initial Term and each Renewal Term of this Agreement provided that the notice as so delivered by the Agency to Caltrans refers to this Agreement and the intent of the Agency to continue the public use of the Parking Structure and states that the Agency elects to extend the term of this Agreement for an additional Renewal Term not to exceed ten (10) years from the next anticipated date of termination, whether upon the expiration of the Initial Term or any then current Renewal Term as may be in effect at such time, but not to exceed the Final Term. 3. TERMINATION. Either party may at any time during the Initial Term and any Renewal Term terminate this Agreement, with or without cause, upon at least one hundred eighty (180) days' written notice being delivered by the terminating party to the other party in the manner required pursuant to Section 17 of thin Agreement. Any termination of this Agreement shall not affect any other rights and remedies available to the terminating party pursuant to the Construction and Development Agreement, the Lease r SBEO /0119/4.16 10/12/98 1200 law 3 or any other agreement to which either or both the Agency or the JPA are parties thereto with Caltrans. 4. USE OF THE PARKING STRUCTURE. (a) Caltrans hereby agrees that the Agency shall have the initial right, pursuant to this Agreement, to use all or any lesser number of a maximum of six hundred twenty -five (625) parking spaces available to the Agency during the Agency Public Use Hours (as defined in Section 5 hereof) in the Parking Structure for the Initial Term and any Renewal Term of this Agreement. Caltrans reserves the right to reduce such number of spaces or any subsequently authorized number of spaces with respect to the Agency Public Use Hours, or to modify the duration or days that comprise the Agency Public Use Hours, upon not less than one hundred eighty (180) days' written notice to the Agency in the manner requi,-eu pursuant to Section 17 of this Agreement. Caltrans may establish and modify, subject to delivery of similar notice to the Agency as required above, parameters for the allocation and availability of parking within the Parking Structure during the Normal Business Hours for the general public, in addition to allocating the use thereof by visitors to the Caltrans Building. (b) The Parking Structure shall be used during the Normal Business Hours by employees and guests of the tenants that are then located in the Caltrans Building and by the general public as a public Parking Structure that shall be open and available to the members of the general public on such terms and conditions as are determined by Caltrans to be appropriate or authorized in accordance with this Section 4 and as further provided in Sections 5 and 6 hereof. 5. HOURS OF OPERATION. Caltrans intends that the Parking Structure shall be utilized by Caltrans for the permanent storage of Caltrans and other State owned vehicles assigned to that facility and in furtherance of the office use associated with the Office Building during the hours of 6:00 AM to 6:00 PM on weekdays, excepting therefrom all State holidays on which days the Office Building is not open for general business use by Caltrans employees and the employees of the other State agencies then occupying the Office Building (defined herein as the "Normal Business Hours ") in accordance with the following terms and conditions as further set forth in this Agreement. For purposes of this Agreement, the term "Agency Public Use Hours" shall mean all other days and hours of operation of the Parking Structure which are not considered as Normal Business Hours as defined above and as such hours and days of usage in excess of the Normal Business Hours are specifically SBEO /0119/4.16 10/12/98 1200 law 4 y - requested in writing by the Agency and as may be made available by Caltrans pursuant to this Agreement. 6. ALLOCATION OF PARKING SPACES FOR AGENCY AND CALTRANS USAGE; AGENCY MONTHLY COSTS. The hours and days of usage and the other terms and conditions with respect to the Parking Structure as shall be applicable between Caltrans and the Agency shall be as set forth below: (a) During both the Agency Public Use Hours and the Normal Business Hours of the Parking Structure, Caltrans shall have the exclusive right to park including, but not limited to, survey trucks, maintenance equipment and Caltrans -owned trucks and automobiles within any area of the Parking Structure designated by Caltrans. Such area shall normally have access for vehicular ingress and egress by way of a separately designated entrance and exit which shall be maintained by Caltrans at its sole cost and expense (such area is herein referred to as the "Caltrans Exclusive Use Area "). In addition, Caltrans shall have the right to designate, from time -to -time in the Operating Guidelines as required pursuant to the Construction and Development Agreement, the necessary expansion of that exclusive parking area for the benefit of Caltrans. Caltrans may also designate a number of contiguous parking spaces within the remaining Parking Structure for Normal Business Hours and overnight automobile reserved parking on a twenty -four (24) hour per day basis and seven (7) days per week (such area is herein referred to as the "Caltrans Reserved Parking Area "). (b) During the Normal Business Hours of the Parking Structure, Caltrans shall have the right to utilize, at its sole election, an appropriate number of compact spaces and handicapped spaces as may be available to and designated by Caltrans, solely for the use of Caltrans employees and employees of the other tenants of the Office Building. (c) During the Normal Business Hours of the Parking Structure, Caltrans shall make available to both (i) the visitors and business guests of the Caltrans Office Building, and (ii) the members of the general public conducting business activities in the vicinity of the Parking Structure, any other available parking spaces, including in such number of parking spaces an appropriate number of compact spaces and handicapped spaces. (d) During the Agency Public Use Hours, Caltrans shall make available to the Agency all other available vacant parking spaces within the Parking Structure less the number of parking SBEO /0119/4.16 10/12/98 1200 law 5 spaces retained by Caltrans in both the Caltrans Exclusive Use Area and the Caltrans Reserved Parking Area. The Agency shall, on a July 1 to June 30 fiscal year basis, or until such time as further notice is delivered to Caltrans, designate the precise number of parking spaces required for use by the Agency during the Agency Public Use Hours for the ensuing fiscal year period or until further notice is delivered by the Agency to Caltrans; subject, however, to a reduction in the number of parking spaces as may be required by Caltrans to accommodate the needs of Caltrans and its tenants in the manner as required by this Agreement. The Agency shall be responsible for the payment of the monthly parking charge specified in (e) hereinbelow only for the precise number of parking spaces designated by the Agency in writing for the applicable fiscal year and which are actually provided by Caltrans to the Agency. Caltrans shall not be responsible for providing more parking spaces for any fiscal year during the Agency Public Use Hours than the number of parking spaces as may be so designated in writing by the Agency. In the event it is determined that the average monthly public use of the Parking Structure during any fiscal year exceeded the precise number of parking spaces designated by the Agency for such additional use within the applicable fiscal year, Caltrans shall be paid the proportionate additional compensation by the Agency upon the conclusion of the applicable fiscal year. Caltrans may restrict the available public parking spaces to the precise number specified in writing by the Agency for the applicable fiscal year. The Agency may then seek to increase or may decrease the precise number of parking spaces for the next succeeding fiscal year period and thereby increase or decrease the total monthly public parking cost to the Agency. (e) The Agency and Caltrans agree that the initial monthly parking cost to be paid by the Agency for the entire number of parking spaces as may be made available by Caltrans to the Agency pursuant to Section 2(b) shall be determined by Caltrans and delivered to the .Agency at least ten (10) calendar days prior to the effective date of the initial use and occupancy of the Parking Structure for Agency Public Use Hours. The "Monthly Space Charge" as determined by Caltrans for the initial period of time during all or any portion of the initial fiscal year, and for each fiscal year thereafter, shall include all additional incremental costs actually incurred by Caltrans for the operation and maintenance of the Parking Structure related to the Agency Public Use Hours. (f) The Monthly Space Charge shall be due and payable by the Agency to Caltrans in advance on the first business day of each calendar month during the term on this Agreement. Failure of the Agency to remit the required amount of the Monthly Space Charge on or before the tenth (10th) calendar day of the applicable month S13EO /0119/4.16 10/12/98 1200 law 6 shall then cause such delinquent after such tenth (10th) calendar provided in Section 10 hereof. amount to bear interest from and day until paid in the manner as (g) From and after the date of this Agreement, the Agency shall be entitled to receive not more than six hundred twenty -five (625) parking spaces during the Agency Public Use Hours commencing as of such date determined by the Agency and for such number of parking spaces as may be set forth in writing by the Agency and delivered to Caltrans in the manner required for notices pursuant to Section 17. The Agency may thereafter on a fiscal year basis determine the number of parking spaces required by the Agency for the applicable fiscal year. The Agency shall provide in writing to Caltra.ns the exact number of parking spaces in the Parking Structure that shall be required by the Agency, if any, during the Agency Public Use Hours for the applicable fiscal year. Such number of parking spaces as required by the Agency shall thereupon be made available by Caltrans for use by the Agency during the Agency Public Use Hours unless otherwise reduced by Caltrans due to the requirements of Caltrans for additional parking spaces. The Agency may request from time -to -time such number of additional parking spaces in excess of the six hundred fifty (650) number, or in excess of any other number of parking spaces which the Agency has previously requested, for use during the Agency Public Use Hours if Caltrans determines that such number of spaces are then available. All notices delivered by the Agency to Caltrans setting forth the exact number of parking spaces required by the Agency during the Agency Public Use Hours shall remain in full force and effect until further modified, rescinded or superseded by the Agency pursuant to a subsequent notice delivered to Caltrans. (h) In the event it is determined that Caltrans has overcharged the Agency during any fiscal year period based upon an audit or review of the Monthly Space Charge and the Operating Cost Items for the period being audited or reviewed, Caltrans shall refund to the Agency, within ten (10) calendar days of such determination, the difference between the aggregate amount of the Monthly Space Charge actually paid by the Agency minus the amount that the Agency should have paid based upon the actual Operating Cost Items. (i) The Agency agrees to reimburse Caltrans for the costs necessarily incurred and paid by Caltrans pursuant to competitive public bidding requirements for the installation and construction of such additional capital improvements to the Parking Structure and may be mutually agreed upon by and between the Agency and Caltrans in writing. Such additional capital improvements SBEO/0119/4.16 10/12/98 1200 law 7 shall be limited to such that allow for the public use of the Parking Structure and to provide secured parking for Caltrans purposes separate from the public use as contemplated by this Agreement. Prior to the undertaking of the competitive public bidding of the agreed upon capital improvements, the Agency shall review the proposed scope of the capital improvements and shall approve in writing such bid specifications prior to the publication of any notice of such competitive bidding. All such work and the acquisition of materials and supplies shall be undertaken pursuant to public works contracts executed by Caltrans with Caltrans being responsible for all on -site supervision and payment of all invoices to the general contractor, sub - contractors and suppliers of materials, as applicable. The Agency shall reimburse to Caltrans within thirty (30) days of receipt of the invoice after the completion of all construction activity for the actual construction work completed and materials installed to thus accommodate the Agency's public use of the Parking Structure. 7. [Reserved] 8. [Reserved] 9. INSURANCE. Prior to the date of the commencement of the initial use by the Agency of the Parking Structure during the Agency Public Use Hours, the Agency shall obtain and provide Caltrans with a policy of comprehensive bodily injury and property damage liability insurance whose provisions conform to this Section 9 and which is issued by an admitted insurer as defined in the California Insurance Code togther with a certificate of insurance from the insurer evidencing compliance with the following requirements: (a) Policy shall name as additional insured with the Agency, Caltrans and all officers, employees and servants of Caltrans; (b) Policy shall insure Caltrans and all officers, employees and servants while acing within the scope of their duties, against all claims, suits or other actions of any nature brought for or on account of any injury, damage or loss, including death arising out of or connected with the Agency Public Use Hours or other work under this Agreement; (c) Minimum limits of coverage of the policy shall be $10,000,000; (d) Under the terms of the policy: SBEO /0119/4.16 10/12/98 1200 law 8 (1) The insurer shall not cancel or qualify t;.e policy without thirty (30) days' prior written notice to Caltrans; (2) Caltrans shall not be responsible for any premiums or assessments on the policy; (3) The Agency shall maintain such a policy in full force and effect at all times until the termination of this Agreement. In the event of the policy's cancellation or modification, the Agency shall provide a new certificate of insurance evidencing a new policy whose coverage begins prior to the expiration of the existing policy which certificate of insurance shall otherwise comply in all respects with the certificate required herein. Failure to continuously maintain insurance coverage as herein provided is a material breach of this Agreement for which, in addition to any other remedy provided by law, may be cause for termination of this Agreement by Caltrans. 10. INTEREST ON PAST DUE AMOUNTS. Any amount owed by either party to this Agreement to the other party that is not paid and received by the other party by the date payment was due pursuant to the terms of this Agreement, shall bear interest at the rate of interest per annum as then may be earned by the State Treasurer Pooled Money Investment Account. Interest shall accrue on any past due amounts from the date that payment was scheduled to be paid, otherwise required to have been made or from the specified date of interest accrual until payment has been actually received by the other party. Any claims or assertions of any rights or offsets or deductions or the withholding of payment for any alleged reason asserted by a party shall not relieve any party from the obligation of paying interest on payment amounts that are not paid when due. Upon a successful challenge by either party as evidenced by either party having obtained a final judicial determination that an amount was in fact not due and owing pursuant to this Agreement, the successful party shall be relieved from paying interest on that portion of the past due amount that was so determined to not in fact be due and owing. Any underpayment of amounts declared to be due and owing shall also bear interest until the full amount of the payment that should have been made has in fact been made and received by the other party. SBEO /0119/4.16 10/12/98 1200 law 9 11. MUTUAL INDEMNIFICATION. (a) Indemnification of Agency. Caltrans shall defend, indemnify and hold harmless the Agency, its officers and employees from and against any and all claims, demands, actions, liability, damages, costs and expenses, including legal costs and attorneys' fees for injury of any type, including without limitation, bodily injury, death or property damage arising from or related to any occurrence of Caltrans negligence in, upon or at the Parking Structure, except to the extent that the foregoing shall not apply to any willful or negligent misconduct on behalf of the Agency or any of its agents, representatives or employees or the general public utilizing the Parking Structure during Agency Public Use Hours. (b) Indemnification of Caltrans. The Agency shall defend, indemnify and hold harmless Caltrans, its officers, employees, agents, and representatives from and against any and all claims, demands, actions, liability, damages, costs and expenses, including legal costs and attorneys' fees for injury of any type, including without limitation, bodily injury, death or property damage arising from or related to any occurrence in, upon or at the Parking Structure or arising from the use by the general public of the Parking Structure, including the instance that the continued pubic use of the Parking Structure might adversely affect the tax exempt status of the Bonds issued by the JPA for the financing of the Parking Structure and from the Agency's failure to comply with any provision of this Agreement, or otherwise occasioned wholly or in part by any act or omission of the Agency, its agents, representatives, contractors, employees, servants, invitees or licensees, except to the extent that the foregoing shall not apply to any willful or negligent misconduct on behalf of Caltrans or any of its officers or employees. 12. INSURANCE. Caltrans shall maintain or cause to be maintained at the sole cost and expense of Caltrans, such insurance for physical loss of or damage to the Parking Structure as is required to be maintained by Caltrans pursuant to the applicable documents providing for the issuance of the Bonds or such other insurance, including self insurance, as Caltrans determines is appropriate. 13. DAMAGE OR DESTRUCTION. (a) In the event of destruction or damage to any or all of the Parking Structure by fire, earthquake, riot, storm, war, or by any other casualty loss beyond the control of either party SBEO /0119/4.16 10/12/98 1200 law 10 hereto which renders the Parking Structure wholly or partially unusable, Caltrans shall, at its discretion, use either insurance proceeds or such other funds of the State or Caltrans as may be required under the circumstances to rebuild, reconstruct and repair the Parking Structure to a substantially similar condition as existed prior to the occurrence of such casualty or take such other actions as Caltrans deems to be appropriate consistent with the JPA documents providing with the issuance of the Bonds. (b) In the event of any insured casualty loss, destruction or damage, the Parking Structure shall be rebuilt, reconstructed and repaired in accordance with prevailing codes and comparable construction qualities if that course of action is determined to be appropriate by Caltrans. Caltrans shall commence to rebuild, reconstruct and repair the Parking Structure as soon as practicable after receiving sufficient insurance proceeds or such other funds of the State or Caltrans and shall diligently pursue said repair, reconstruction and restoration to completion. In the event of any such destruction or damage, Caltrans shall attempt to secure the Parking Structure Site to prevent injury to persons and vandalism to the Parking Structure and vehicles parked therein to the extent vehicles may continue to be parked therein as a result of such destruction or damage. (c) The provisions set forth in (a) and (b) above shall be construed so as not to conflict with any similar provisions of either the Lease or any other documents executed by the parties and related to the issuance of the Bonds. 14. [Reserved] 15. LAW GOVERNING. This Agreement shall be governed by the laws of the St=ate of California. 16. SUCCESSOR AND ASSIGNS. This Agreement and the covenants and conditions contained herein shall be binding upon and inure to the benefit of the successors and assigns of the Agency and Caltrans, and all references in this Agreement to "Agency" or "Caltrans" shall be deemed to refer to and include all permitted successors and assigns of such party. 17. NOTICES. (a) All notices shall be in writing and presented in person or by certified or registered United States mail, return receipt requested, postage prepaid, or by personal delivery, fax transmission that is telephonically verified or by overnight or SBEO /0119/4.16 10/12/98 1200 law 1 1 d z special courier delivery made by a nationally recognized delivery service to the addresses set forth below. (b) Notice presented by United States mail shall be deemed effective the second (2nd) business day after deposit with the United States Postal Service. This Section shall not in any manner prevent giving notice by personal service or telephonically verified fax transmission both forms of notice of which shall be deemed effective upon actual receipt of such personal service or telephonic verification. Each party may change or modify their address for receipt of written notice by so notifying the other party in accordance with the notice provisions and in the manner provided by this Section. TO CALTRANS: Department of Transportation State of California Facilities Unit 464 W. 4th Street, 6th Floor San Bernardino, California 92401 -1600 Attention: Business Manager Phone: (909) 383 -4657 Fax: (909) 383 -6096 TO AGENCY: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Third Floor San Bernardino, California 92401 -1507 Attention: Development Director Phone: (909) 384 -5081 Fax: (909) 384 -5135 18. WAIVER. Waiver by any party hereto of any breach by any other party of any agreement, covenant or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other agreements, covenant or condition hereof. Failure of any party hereto to enforce a provision of this Agreement shall not constitute a waiver of the right to compel enforcement of the remaining provisions of this Agreement. 19. SECTION HEADINGS. All Section headings contained herein are for convenience of reference only and are not intended to define or limit: the scope of any provision of this Agreement. 20. ASSIGNMENT. This Agreement may not be assigned in whole or in part without the prior written consent of the other parties hereto in their sole and absolute discretion. SBEO/0119/4.16 10/12/98 1200 law 12 21. AMENDMENT. This Agreement may only be amended by a written instrument: duly authorized and executed by the Agency and Caltrans and approved in a manner required by applicable law. No amendment to this Agreement shall be binding upon the Agency unless such amendment shall have been presented to and approved by the governing body of the Agency at a duly called, noticed and held public meeting of the governing body of the Agency. 22. NONDISCRIMINATION. The Agency and Caltrans agree that there shall be no discrimination against any person or group of persons based on race, color, creed, religion, sex, marital status, handicap, national origin or ancestry in the performance of this Agreement. 23. SEVERABILITY. In the event that any one or more of the sentences, clauses, paragraphs or sections contained herein is declared invalid, void or illegal, the same shall be deemed severable from the remainder of this Agreement and shall not affect, impair or invalidate any of the remaining phrases, sentences, clauses, paragraphs or sections contained herein. 24. CONSISTENCY WITH OTHER AGREEMENTS. (a) The parties recognize and agree that the intent of this Agreement is to provide for certain limited and permitted public use by the Agency of the Parking Structure during the Agency Public Use Hours in furtherance of redevelopment activities to be undertaken by the Agency within the Downtown Area of the City of San Bernardino. This Agreement is not intended to (i) amend, change or modify the Construction and Development Agreement in any manner, (ii) create any property right for the benefit of the Agency other than as specified therein, or (iii) to relieve Caltrans from any financial or performance obligation incurred by Caltrans pursuant to the Construction and Development Agreement. It is the intent of the parties to negotiate in good faith such additional implementation agreements and provisions as may be necessary to fully comply with the terms and conditions of the Construction and Development Agreement, and until such time as the parties have approved and executed such required implementation agreements, this Agreement shall remain in full force and effect. (b) This Agreement shall not in any manner be interpreted to amend or modify any provision contained within the Lease and the other documents relative to the issuance and delivery of the Bonds. Pill other subjects, issues and matters of the negotiations between the parties and all verbal and written communications by and between the parties hereto with respect to SBEO/0119/4.16 10/12/98 1200 law 13 the negotiation and preparation of this Agreement shall not be deemed to be incorporated within the text of this Agreement unless expressly contained in any other document, instrument or writing and specifically referenced herein. 25. EVENTS OF DEFAULT. Each of the following shin- constitute an "event of default" hereunder: (a) A :failure by the Agency or Caltrans to make, or cause to be made, any payment due and payable by a party to the other party on or before the date that any such payment or deposit is due; (b) Failure by the Agency or Caltrans to perform or observe any of their respective covenants or agreements contained in this Agreement and such failure shall continue for the period and after the delivery of notice specified in Section 26 hereof; (c) Failure by the Agency to use the Parking Structure in a manner required by the Lease and the Bond documents for preserving the continued tax - exempt status of the interest payable on the Bonds, and which unauthorized use by the Agency causes the interest payable on the Bonds, so long as such Bonds remain outstanding, to be included in the gross income of the holders of the Bonds for federal income tax purposes or to be subject to State personal income taxes pursuant to the documents providing for the issuance, sale and delivery of the Bonds; and (d) The occurrence and continuance of a default or event of default by Caltrans under the Construction and Development Agreement after the expiration of any applicable grace period set forth in the applicable document. 26. OPPORTUNITY TO CURE DEFAULT. Except as provided below, no event of default under Section 25 hereof shall constitute a "Default" hereunder until: (a) The nondefaulting party shall give notice to the defaulting party of such default specifying the particular facts and circumstances that cause an event of default to constitute such a Default; (b) The defaulting party shall have thirty (30) days after receipt of such notice presented in the manner specified in Section 17 hereof to correct the Default and shall not have corrected such Default or, if such Default cannot be corrected within thirty (30) days, shall have failed to initiate and SBEO /0119/4.16 10/12/98 1200 law 14 diligently pursue (in the reasonable judgment of the nondefaulting party) appropriate corrective action; provided, however, that such Default must be remedied within one hundred eighty (180) days after the occurrence of the event of default that established such Default by the nondefaulting party; (c) If the defaulting party shall fail to institute an action necessary to cure any event of default described in Section 25(b) or (d) or, if such action is instituted, the defaulting party shall fail to diligently pursue such action, the nondefaulting party may, at its option, initiate such corrective action as it deems appropriate; and (d) If the Agency shall fail to cure an event of default described in Section 25(c), Caltrans may, at its option, initiate procedures to terminate this Agreement in the manner as provided in Section 3 for failure of the Agency to comply with said provisions relative to the Bonds and use of tax - exempt financed public facilities. (e) All notices of Default hereunder shall be provided by each party to the other party at the addresses set forth in Section 17 hereof. Failure to provide notice in the manner required hereunder- shall not limit the rights of either party to subsequently provide notice in the required manner nor shall such failure be considered as a waiver of any rights of either party pursuant to this Agreement. 27. REMEDIES. Whenever any Default under Section 25 hereof shall have occurred and be continuing, any or all of the following remedial procedures shall be available to the nondefaulting party: (a) Cal-trans may initiate procedures in the manner and in the time periods required hereunder to terminate this Agreement solely for failure of the Agency to comply with the provisions of this Agreement; (b) The nondefaulting party with respect to events of default occurring pursuant to Section 25(a),(b) and (d) may take whatever action at law or in equity may appear necessary or desirable to collect the payments required to be made by the defaulting party then due and thereafter to become due; and (c) The nondefaulting party with respect to all events of default occurring pursuant to Section 25 may take whatever action at law or in equity may appear necessary or desirable to SBEO/0119/4.16 10/12/98 1200 law 15 F a - cause the defaulting party to take an action that is required to be taken pursuant to this Agreement or to refrain from taking an action that is precluded pursuant to this Agreement. 28. NO REMEDY EXCLUSIVE. No remedy herein conferred upon or reserved to either party is intended to be exclusive of any other available remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law or in equity. No delay or omission to exercise any right or power accruing upon any Default shall impair any such right or power or shall be construed to be a waiver thereof, but any such right or power may be exercised from time -to -time and as often as may be deemed expedient. 29. ATTORNEY'S FEES AND EXPENSES. If a Default hereunder occurs and if either party should employ attorneys that are other than employees of such party or incur expenses for the enforcement of any obligation or agreement of the other party contained herein, the defaulting party shall pay on demand to the nondefaulting party the reasonable fees of such attorneys and the reasonable expenses so incurred, including the costs of any and all court actions and court appeals. 30. NO ADDITIONAL WAIVER IMPLIED BY ONE WAIVER. In the event any covenant or agreement contained in this Agreement should be breached by either party and thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. 31. PREPARATION OF THIS AGREEMENT. The parties hereto have been advised by their respective counsel and the parties have participated jointly in the preparation and review of this Agreement. In the! event of any controversy between the parties in resolving any ambiguities or the interpretation of any provision of this Agreement, it. is the intent of the parties that any ruling by a court of competent jurisdiction in the matter shall consider this Agreement as having been drafted jointly by the parties and shall not consider this Agreement to have been drafted solely by either party. In resolving ambiguities and clarifying interpreting provisions hereof, this Agreement shall not be construed adversely as to any particular party for having participated in the drafting hereof. 32. ENTIRE AGREEMENT. This Agreement contains the entire understanding and agreement of the parties and cannot be SBEO /0119/4.16 10/12/98 1200 law 16 amended without the written consent of all parties hereto in the manner as provided in Section 21 hereof. 33. EXECUTION. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be a: original, but all together shall constitute but one and the same Agreement. It is also agreed that separate counterparts of this Agreement may be separately executed by the Agency and Caltrans all with the same force and effect as though the same counterpart had been executed by the Agency and Caltrans. SBEO /0119/4.16 10/12/98 1200 law 1% g d IN WITNESS WHEREOF, the Agency and Caltrans have caused this Agreement to be executed as of the day and year first above written. Approved as to form and legal content: k By: Agency Counsel REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO By: _ Its: By: _ Its: SBEO /0119/4.16 10/12/98 1200 law 18 A' DEPARTMENT OF TRANSPORTATION By: _ Its: Approved as to form and procedures Attorney Department of Transportation SBEO /0119/4.16 10/12/98 1200 law 19 EXHIBIT "A" DESCRIPTION OF CALTRANS EXCLUSIVE USE AREA [To Be Inserted] SBEO /0119/4.16 10/12/98 1200 law A STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN BERNARDINO ) On before me, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose name is subscribed to the within instrument and acknowledged to me that [s]he executed the same in his [her] authorized capacity, and that by his [her] signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. [Seal] SBEO/0119/4.16 10/12/98 1200 law WITNESS my hand and official seal. Notary Public in and for said State x k STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN BERNARDINO ) On before me, a Notary Public in and for said State, personally appeared , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person whose :name is subscribed to the within instrument and acknowledged to me that [s]he executed the same in his [herj authorized capacity, and that by his [her] signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. [Seal] SBEO /0119/4.16 10/12/98 1200 law WITNESS my hand and official seal. Notary Public in and for said State