CONTRACT 3505 Leasing Agreement3505 • , .
FACILITY LEASE
This FACILITY LEASE (the "Facility Lease ") is executed and entered into as of
the Effective Date, by and between the CALIFORNIA INFRASTRUCTURE AND ECONOMIC
DEVELOPMENT BANK (the "Lessor "), duly organized and existing pursuant to the Bergeson -
Peace Infrastructure and Economic Development Bank Act, constituting Division 1 of Title 6.7
of the California Government Code (commencing at section 63000 thereof) as now in effect and
as it may from time to time hereafter be amended (the "Act ") and the CITY OF EL SEGUNDO, a
general law city and municipal corporation duly organized and existing under the laws of the State
of California (the "Lessee ").
WITNESSETH:
WHEREAS, the Lessee and the Lessor desire to finance the construction,
acquisition and installation of the Douglas Street Gap Closure Project, as described in Exhibit A
attached hereto (the "Project ");
WHEREAS, the Lessee owns the real property situated at 350 Main Street, El
Segundo on which property is located the City Hall (the "Facility ") and described in Exhibit B
attached thereto;
WHEREAS, the Lessee has leased the Facility to the Lessor pursuant to the Site
Lease, dated as of the Effective Date, between the Lessee, as lessor and the Lessor, as lessee;
WHEREAS, the Lessee has determined that it is in the public interest,
convenience and welfare and for the common benefit of the inhabitants of the Lessee that the
Lessee finance the Project through the delivery of this Facility Lease (as defined in section 1.01);
WHEREAS, the Lessee is authorized by law to lease the Facility and the Facility
is necessary and proper for public purposes;
WHEREAS, the Lessor has issued tax- exempt bonds ( "Proceeds Bonds" as
defined in Section 1.01), the proceeds of which will be used to fund the Project;
WHEREAS, the Lessor may pledge its rights under this Facility Lease to secure
bonds ( "Secured Bonds" as defined in Section 1.01);
WHEREAS, Lessee acknowledges that the issuance of both the Secured Bonds
and Proceeds Bonds impacts its rights and obligations as described herein, and Lessee hereby
agrees to adhere to the requirements contained in this Facility Lease necessary in order to
maintain the tax - exempt status of the Proceeds Bonds; and
WHEREAS, all acts, conditions and things required by law to exist, to have
happened and to have been performed precedent to and in connection with the execution and
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entering into of this Facility Lease to exist, have happened and have been performed in a regular
and due time, form and manner as required by law, the parties hereto are now duly authorized to
execute and enter into this Facility Lease;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF
THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR
OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE
AS FOLLOWS:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. Unless the context otherwise requires, the terms
defined in this Section shall for all purposes hereof and of any amendment hereof have the
meanings defined herein, the following definitions to be equally applicable to both the singular
and plural forms of any of the terms defined herein.
Act
"Act" means the Bergeson -Peace Infrastructure and Economic Development Bank
Act, constituting Division 1 of Title 6.7 of the California Government Code (commencing at
section 63000 thereof) as now in effect and as it may from time to time hereafter be amended.
Additional Rental Payments
"Additional Rental Payments" means all amounts payable by the Lessee pursuant
to Section 5.01(b) hereof
Base Rental Pa r� cents
"Base Rental Payments" means all amounts payable by the Lessee as Base Rental
pursuant to Section 5.01(a) hereof.
Business Day
"Business Day" means any day, Monday through Friday, which is not a legal
holiday of the State or the Trustee.
Certificate of the Lessee
"Certificate of the Lessee" means a request or certificate, in writing, signed by a
duly authorized representative of the Lessee.
W:
"Code" means the Internal Revenue Code of 1986, as amended, and the
regulations of the United States Department of the Treasury issued thereunder, and in this regard
reference to any particular section of the Code shall include reference to all successors to such
section of the Code.
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Effective Date
"Effective Date" means September 1, 2005, the date on which this Facility Lease
becomes effective and binding upon the Lessee and the Lessor.
Event of Default
"Event of Default" means any of the events described in Section 10.01.
Expiry Date
"Expiry Date" means August 31, 2035, except as extended or sooner terminated
pursuant to Section 3.01 hereof.
Facilit
"Facility" means the Site and any and all improvements thereon, as described in
Exhibit B hereto (as the same may be changed from time to time by Removal or Substitution as
provided in Section 2.06).
Facility Lease
"Facility Lease" means this facility lease, dated as of the Effective Date, by and
between the Lessor and the Lessee, as originally executed and as it may from time to time be
amended or supplemented in accordance with the terms hereof.
Fiscal Year
"Fiscal Year" means any twelve month period extending from October 1 in one
calendar year to September 30 of the succeeding calendar year, both dates inclusive, or any other
twelve month period selected and designated by the Lessee as its official fiscal year period.
Independent Accountant
"Independent Accountant" means any certified public accountant or firm of
certified public accountants duly licensed or registered or entitled to practice and practicing as
such under the laws of the State, appointed by the Lessee who, or each of whom:
(1) is in fact independent and not under the control of the Lessee or the Lessor;
(2) does not have any substantial interest, direct or indirect, in the Lessee or the
Lessor; and
(3) is not connected with the Lessee or the Lessor as an officer or employee of the
Lessee or the Lessor, but who may be regularly retained to make reports to the Lessee or the
Lessor.
Insurance Consultant
"Insurance Consultant" means an individual or firm either retained by the Lessee
as an independent insurance consultant or an employee of the Lessee, experienced in the field of
risk management.
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Lease Year
"Lease Year" means the period from each July 1 to and including the following
June 30, during the term hereof, except that the initial Lease Year means the period from the
Effective Date to and including June 30, 2006 and the last Lease Year shall be that period from
July 1 to and including the day that this Facility Lease expires or is earlier terminated as provided
herein.
Lessee
"Lessee" means the City of El Segundo, a general law city and municipal
corporation duly organized and existing under the laws of the State.
Lessor
"Lessor" means the California Infrastructure and Economic Development Bank,
and its successors and assignees.
Net Proceeds
"Net Proceeds" means, collectively, the net proceeds of any insurance or
condemnation award resulting from any damage or destruction of any portion of the Facility
payable in accordance with Section 7.01.
Operating Budget
"Operating Budget" means the annual approved budget of the Lessee which
includes Base Rental Payments and Additional Rental Payments due during the year.
OQpinion of Counsel
"Opinion of Counsel" means a written opinion of counsel of recognized national
standing in the field of law relating to municipal bonds, appointed by the Lessee or the Lessor
and in all cases paid for by the Lessee and acceptable to the Lessor.
Owner
"Owner" means the registered owner of any outstanding Proceeds Bond.
Permitted Encumbrances
"Permitted Encumbrances" means, as of any particular time:
(1) liens for general ad valorem taxes and assessments, if any, not then delinquent,
or which the Lessee may, pursuant to Section 6.02, permit to remain unpaid;
(2) this Facility Lease, as it may be amended from time to time;
(3) any right or claim of any mechanic, laborer, materialman, supplier or vendor
that has not been filed or perfected in the manner prescribed by law;
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(4) easements, rights of way, mineral rights, drilling rights and other rights,
reservations, covenants, conditions or restrictions, all of a non - monetary nature, which exist of
record as of the Effective Date and are acceptable to the Lessor; and
(5) easements, rights of way, mineral rights, drilling rights and other rights,
reservations, covenants, conditions or restrictions, all of a non - monetary nature, established
following the date of recordation of this Facility Lease and to which the Lessor and the Lessee
consent in writing.
Proceeds Bonds
"Proceeds Bonds" means bonds issued by the Lessor the proceeds of which will
be used, in whole or part, to fund the Project.
Prod ect
"Project" means the public development facility to be constructed by the Lessor
for the Lessee pursuant to this Facility Lease, authorized by Government Code section 63010(q)
and the Act and more particularly described in Exhibit A.
Project Account
"Project Account" means the account or subaccount by that name established by
the Lessor pursuant to Section 2.08.
Project Amount
"Project Amount" means ten million dollars ($10,000,000).
Proiect Costs
"Project Costs" means the costs of construction, acquisition and installation of the
Project, as approved by the Lessor and set forth in Exhibit D.
Removal
"Removal" means the release of all or a portion of the Facility from the leasehold
hereof as provided in Section 2.06.
ReRort
"Report" means a document in writing signed by an Independent Consultant or an
Independent Accountant, and including:
(1) a statement that the person or firm making or giving such Report has read the
pertinent provisions of this Facility Lease to which such Report relates;
(2) a brief statement as to the nature and scope of the examination or investigation
upon which the Report is based; and
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(3) a statement that, in the opinion of such person or firm, sufficient examination
or investigation was made as is necessary to enable said consultant to express an informed
opinion with respect to the subject matter referred to in the Report.
Secured Bonds
"Secured Bonds" means bonds of one or more series issued by the Lessor to
which certain rights of the Lessor under this Facility Lease may be from time to time pledged
directly or indirectly.
Site
"Site" means the real property described in Exhibit B attached hereto except that the Site
does not include that portion of the street address, assessor's parcel number or legal description
consisting of that property included in the Lease Agreement between the City of El Segundo and
AB Cellular LA, LLC., a Delaware limited liability company d/b /a/ AT &T WIRELESS dated as
of November 27, 2001 and recorded on December 11, 2001 at the Los Angeles County
Recorder's Office at 01- 2368562.
Site Lease
"Site Lease" means the site lease, dated as of the Effective Date, by and between
the Lessee, as lessor and the Lessor, as lessee, of the Site as originally executed and as it may
from time to time be amended or supplemented.
State
"State" means the State of California.
Substitution
"Substitution" means the removal, and the lease of substituted real property and
improvements hereunder as provided in Section 2.06.
Tax Certificate
"Tax Certificate" means the tax certificate as set forth in Exhibit H executed and
delivered by the Lessee as of the Effective Date setting forth certain conditions, covenants,
expectations and elections of the Lessee with respect to the Facility Lease in accordance with the
Code.
Trustee
"Trustee" means the trustee acting in its capacity as such in connection with the
Proceeds Bonds and Secured Bonds, or any successor or assignee as therein provided, including
the Lessor.
SECTION 1.02 Rules of Construction. The singular form of any word used herein,
including the terms defined in this Section 1.01, shall include the plural, and vice versa, unless
the context otherwise requires. The use herein of a pronoun of any gender shall include
correlative words of the other genders. All references herein to "Sections" and other
subdivisions hereof are to the corresponding Sections or subdivisions of this Facility Lease as
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3505 . ,
originally executed; and the words "herein," "hereof," "hereunder" and other words of similar
import refer to this Facility Lease as a whole and not to any particular Section or subdivision
hereof.
ARTICLE II
THE FACILITY
SECTION 2.01. Lease of the Facility. The Lessor hereby leases to the Lessee, and
the Lessee hereby rents and hires from the Lessor, the Facility on the conditions and terms
hereinafter set forth. The Lessee hereby agrees and covenants that during the term hereof, except
as hereinafter provided, it will use the Facility for public purposes so as to afford the public the
benefits contemplated hereby and so as to permit the Lessor to carry out its agreements and
covenants contained herein, and the Lessee hereby further agrees and covenants that during the
term hereof that it will not abandon or vacate the Facility.
SECTION 2.02. Quiet EnioMent. The parties hereto mutually covenant that the
Lessee, so long as it observes and performs the agreements, conditions, covenants and terms
required to be observed or performed by it contained herein and is not in default hereunder, shall
at all times during the term hereof peaceably and quietly have, hold and enjoy the Facility
without suit, trouble or hindrance from the Lessor.
SECTION 2.03. Right of Entry and Inspection. The Lessor shall have the right to
enter the Facility and the Project and inspect the Facility and the Project during reasonable
business hours (and in emergencies at all times) for any purpose connected with the Lessor's
rights or obligations hereunder and for all other lawful purposes.
SECTION 2.04. Prohibition Against Encumbrance or Sale. The Lessee and the
Lessor will not create or suffer to be created any mortgage, pledge, lien, charge or encumbrance
upon the Facility except Permitted Encumbrances. The Lessee and the Lessor will not sell or
otherwise dispose of the Facility or any property essential to the proper operation of the Facility
except as otherwise provided herein. Notwithstanding anything to the contrary herein contained,
the Lessee may assign, transfer or sublease any and all of the Facility or its other rights
hereunder, provided that (a) the rights of any assignee, transferee or sublessee shall be
subordinate to all rights of the Lessor hereunder, (b) no such assignment, transfer or sublease
shall relieve the Lessee of any of its obligations hereunder, (c) the assignment, transfer or
sublease shall not result in a breach of any covenant of the Lessee contained in any other Section
hereof, or in the Tax Certificate, (d) any such assignment, transfer or sublease shall by its terms
expressly provide that the fair rental value of the Facility for all purposes shall be first allocated
to this Facility Lease, as the same may be amended from time to time before or after any such
assignment, transfer or sublease and (e) no such assignment, transfer or sublease shall confer
upon the parties thereto any remedy which allows reentry upon the Facility unless concurrently
with granting such remedy the same shall be also granted hereunder by an amendment to this
Facility Lease which shall in all instances be prior to and superior to any such assignment,
transfer or sublease.
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SECTION 2.05 Liens. In the event the Lessee shall at any time during the term
hereof cause any improvements to the Facility to be constructed or materials to be supplied in or
upon or attached to the Facility, the Lessee shall pay or cause to be paid when due all sums of
money that may become due or purporting to be due for any labor, services, materials, supplies or
equipment furnished or alleged to have been furnished to or for the Lessee in, upon, about or
relating to the Facility and shall keep the Facility free of any and all liens against the Facility or
the Lessor's interest therein. In the event any such lien attaches to or is filed against the Facility
or the Lessor's interest therein, and the enforcement thereof is not stayed or if so stayed such stay
thereafter expires, the Lessee shall cause each such lien to be fully discharged and released at the
time the performance of any obligation secured by any such lien matures or becomes due. If any
such lien shall be reduced to final judgment and such judgment or any process as may be issued
for the enforcement thereof is not promptly stayed, or if so stayed and such stay thereafter
expires, the Lessee shall forthwith pay and discharge or cause to be paid and discharged such
judgment.
SECTION 2.06 Substitution or Removal of Facility.
(a) The Lessee and the Lessor may amend this Facility Lease to either
substitute alternative real property and /or improvements (the "Substituted Property ") for the
property comprising the Facility and/or to remove real property (including undivided interests
therein) or improvements from the definition of Facility ( "Removal "), in each case upon
compliance with all of the conditions set forth in subsection (b). After a Substitution or
Removal, the part of the Facility for which the Substitution or Removal has been effected shall
be released from the leasehold hereunder.
(b) No Substitution or Removal shall take place hereunder until the Lessee
delivers to the Lessor the following:
(1) A Certificate of the Lessee containing a description of all or part of
the Facility to be released and, in the event of a Substitution, a description of the Substituted
Property constituting the Substitution;
(2) A Certificate of the Lessee stating that the annual fair rental value
of the Facility after a Substitution or Removal, in each year during the remaining term of this
Facility Lease, is at least equal to the maximum annual Base Rental Payments and Additional
Rental Payments attributable to the Facility during the remaining term of this Facility Lease.
Annual fair rental value shall be determined by the Lessee on the basis of an appraisal of the
Facility after said Substitution or Removal conducted by a member of the American Institute of
Real Estate Appraisers or the American Society of Appraisers designated by the Lessee (or on
such other basis and with such other evidence of annual fair rental value as may be approved by
the Lessor in its discretion);
(3) An opinion of legal counsel to the effect that the Facility Lease and
Site Lease amendment containing the Substitution or Removal have been duly authorized,
executed and delivered by the Lessee and constitute the valid and binding obligations of the
Lessee enforceable in accordance with their terms;
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(4) In the event of a Substitution, a policy of title insurance covering
the Substituted Property in an amount at least equal to the proportionate share of the Base Rental
Payments and Additional Rental Payments represented by the Substitution, insuring the Lessor's
interest in the Substituted Property (except any portion thereof which is not real property) subject
to Permitted Encumbrances;
(5) In the event of a Substitution, an opinion of the attorney of the
Lessee or endorsement by a title company acceptable to the Lessor to the effect that the
exceptions, if any, contained in the title insurance policy referred to in (4) above do not interfere
with the beneficial use and occupancy of the Substituted Property described in such policy by the
Lessee for the purposes of leasing or using the Substituted Property;
(6) An Opinion of Counsel nationally recognized as having expertise
in the exemption of interest from gross income under the Code that the Substitution or Removal
does not cause the interest with respect to the Proceeds Bonds to be includable in gross income
of the Owners thereof for federal income tax purposes;
(7) A Certificate of the Lessee stating that the Lessee has complied
with the covenants contained in subsections (1) and (2) of Section 6.03(a) hereof with respect to
the Substituted Property; and
(8) Evidence that the Lessee has delivered to the Lessor copies of the
certificates and appraisal described in subsections (1) and (2) above.
(9) Lessor has not received notice from any of the rating agencies then
rating the Secured Bonds that such Substitution or Removal will result in a downgrade of the
rating on the Secured Bonds.
SECTION 2.07 Construction Acquisition and Installation of the Project;
Construction Contracts.
(a) The Lessee hereby agrees to cause the Project to be constructed, acquired
and installed as agent of the Lessor. The Lessee shall enter into contracts and provide for, as
agent of the Lessor, the complete construction, acquisition and installation of the Project. The
Lessee hereby agrees that it will cause the construction, acquisition and installation of the Project
to be diligently performed in accordance with the terms and conditions of this Facility Lease.
(b) All construction contracts shall be let to the lowest responsible bidder at a
fixed price subject to increase only for allowable extra work, change orders approved by Lessee,
and damages or delays authorized by the laws of the State. Lessee shall not approve any change
orders resulting in an increase in Project Costs without having funds committed for the increased
Project Costs.
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SECTION 2.08 Project Account.
(a) The Lessor hereby agrees to establish a Project Account for the benefit of
the Lessee, and the Lessee, pursuant to resolution previously adopted in form substantially
similar to Exhibit C, hereby agrees to utilize the Project Account, as the agent of the Lessor, to
construct, acquire and install the Project, subject to the covenants, agreements, provisions and
conditions herein.
(b) (1) Moneys in the Project Account shall be disbursed solely upon
receipt by the CIEDB of invoices documenting, to the satisfaction of the CIEDB, that the Lessee
has incurred costs that constitute both reasonable and necessary components of the Project and
which are consistent with the cost categories, amounts and requirements described in Exhibit D
hereto; provided, however, that no disbursements shall be approved until and unless the Lessee
has complied with the conditions precedent to disbursement set forth in Exhibit E hereto.
(2) Except for preliminary expenditures, no expenditure shall be
reimbursed if paid prior to April 22, 2005. "Preliminary expenditures," as used in this section,
means architectural, engineering, surveying, soil and environmental testing and reports, studies
(including environmental impact, rate and feasibility studies), CEQA reports, permits and similar
costs incident to commencement of construction of the Project which are paid prior to April 22,
2005. Reimbursement of preliminary expenditures is limited to twenty percent (20 %) of the
Project Amount. Preliminary expenditures do not include such costs which are paid after April
22, 2005; such costs paid after April 22, 2005 are not subject to a twenty percent (20 %)
limitation of the Project Amount.
(3) Preliminary expenditures do not include land acquisition, site
preparation or similar costs incident to the commencement of construction; such costs may be
reimbursed only if paid on or after April 22, 2005 and are not subject to a limitation.
(c) The Lessor shall encumber an amount equal to the Project Amount in the
Project Account and make such amounts available to the Lessee as provided herein. Funds in the
Project Account paid to Lessee ( "Disbursed Funds ") plus funds not yet paid to Lessee
( "Undisbursed Funds ") shall together equal the Project Amount.
(d) Lessee must both: (1) begin Project construction no later than twelve
months after June 21, 2005, and (ii) submit invoices to the Lessor for the entire Project Amount
no later than February 17, 2007. If the Lessee fails to meet either of these conditions, the Lessor
may withhold any and all undisbursed funds in the Project Account pursuant to Section 2.10
herein.
(e) Notwithstanding any contrary provisions of this Facility Lease or any other
documents, under no circumstances will the Lessor be obligated to make disbursements in excess
of the lesser of (i) the actual Project Costs incurred in connection with the completion of the
Project or (ii) ten million dollars ($10,000,000).
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(f) The Lessee agrees to pay any and all costs connected with the Project,
including, without limitation, any and all Project Costs as defined in the Act exceeding the
Project Amount, and the Lessee shall not be relieved of its obligation even if the Lessor reduces
the Project Amount pursuant to any provision hereunder.
SECTION 2.09 Disbursement of Project Amount. Upon receipt of a written
request for disbursement, the Lessor will disburse moneys in the Project Account to the Lessee
no more than once a month, in amounts of at least five thousand dollars ($5,000) and only after
specific compliance with all Exhibit E conditions precedent and only after the Lessee presents
evidence that a Project Cost has been incurred. All requests for payment shall be accompanied
by information and documentation as may be reasonably required by the Lessor to determine the
amount of Project funds to be disbursed. In addition, all requests for payment shall be
accompanied by a certification by the Lessee that the Project funds so requested are for eligible
Project Costs as defined in the Act and this Facility Lease; are incurred in the amounts and for
the purposes represented; and that the work or materials for which payment has been requested
are satisfactory. The Lessor will provide the Lessee with a description of the documentation
required for payment. Further, not more than ninety percent (90 %) of each invoice payable from
the Project Account designated for construction shall be disbursed until the Lessor receives a
recorded notice of completion for the Project or other evidence satisfactory to the Lessor; and the
Lessee has met all conditions precedent to final disbursement set out in Exhibit E; provided that
if the Lessee demonstrates to the satisfaction of the Lessor that the Lessee is obliged by law to
make payments to certain construction contractors of one hundred percent (100 %) of invoiced
amounts or to establish a retention fund for final payment to certain contractors, the Lessor shall
disburse Project funds in the amount required by law. Each disbursement request shall specify
one or more of the following for costs included in the disbursement request:
(1) Lessee previously paid the costs and is requesting reimbursement;
(2) Lessee will pay the costs directly upon receipt of funds from the
Lessor; or
(3) Lessor is requested to pay the disbursement directly to the party
owed the funds instead of Lessee.
SECTION 2.10 Withholding of Project Amount
(a) The Lessor may withhold all or any portion of the Project Amount in the
event that:
(1) The Lessee has substantially violated any of the terms, provisions,
conditions or commitments of this Facility Lease, or if an Event of Default has occurred; or
(2) The Lessee is unable to demonstrate, to the satisfaction of the Lessor
the ability to complete the Project or to maintain adequate and timely progress toward completion
thereof.
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(b) In the event that any portion of the Project Amount is withheld from the
Lessee, the Lessor shall notify the Lessee of the reasons and advise the Lessee that the Lessee has
thirty (30) days in which to remedy the failure or violation.
(c) If any portion of the Project Amount is withheld pursuant to this section,
the Lessee remains obligated to repay the entire Project Amount but to the extent applicable, the
Lessee may request that the withheld amount be applied as a prepayment pursuant to Section
5.05.
ARTICLE III
TERM OF THE FACILITY LEASE
SECTION 3.01. Commencement and Termination of the Facility Lease; Vesting of
Title.
(a) The term of this Facility Lease shall commence on the Effective Date, and
shall end on the Expiry Date, unless the Expiry Date is extended or is sooner terminated as
hereinafter provided. If on the Expiry Date the rental payable hereunder shall not be fully paid,
or if the rental payable hereunder shall have been abated at any time and for any reason, then the
term of this Facility Lease shall be extended until ten days after the rental payable hereunder shall
be fully paid, except that the term of this Facility Lease shall in no event be extended beyond
August 31, 2040, the maximum expiry date. If prior to the Expiry Date, the rental payable
hereunder shall be fully paid in accordance with the terms of the Facility Lease, the term of this
Facility Lease shall end ten days thereafter or ten days after written notice by the Lessor to the
Lessee to the effect that the rental payable hereunder has been fully paid, whichever is earlier,
and this Facility Lease shall thereupon terminate.
(b) Upon the termination or expiration of this Facility Lease (other than as
provided in Article X), full and complete title to the Facility shall vest in the Lessee, free of any
leasehold or other encumbrance established hereunder. Upon such termination or expiration, the
Lessor shall execute such conveyances, deeds and other documents as may be necessary or
appropriate to evidence such vesting of record.
ARTICLE IV
USE OF PROCEEDS; TAX COVENANTS; CONTINUING DISCLOSURE
SECTION 4.01. Use of Project Amount. The parties hereto agree that the Lessor
shall apply funds from the Project Amount to the Project Account in the amount of ten million
dollars ($10,000,000).
SECTION 4.02 Tax Covenant. The Lessee recognizes that the Project Amount
consists of proceeds of a tax - exempt financing program. In order to maintain the tax - exempt
status of the financing, the Lessee will not take any action, or fail to take any action, if such
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action or failure to take such action would adversely affect the exclusion from gross income of
the interest on the Proceeds Bonds, and the Lessee specifically agrees to comply with all terms
and conditions contained in the Tax Certificate. The Lessee shall provide annual certification of
its compliance with the Tax Certificate.
The provisions of this Section 4.02 shall survive the discharge of the Lessor's obligations
hereunder and shall apply to any trustee or other successor or assignee described in Section 9.01.
SECTION 4.03 Continuing Disclosure. Upon the request of the Lessor, the Lessee
covenants to furnish certain financial and operating data pertaining to the Lessee that may be
required to either: (i) enable the Lessor to issue any Secured Bonds; or (ii) enable any
underwriter of any Secured Bonds to comply with Rule 15c2- 12(b)(5) of the Securities and
Exchange Commission.
ARTICLE V
RENTAL PAYMENTS
SECTION 5.01. Rental Payments. The Lessee agrees to pay to the Lessor, its
successors or assignees, without deduction or offset of any kind, as rental for the use and
occupancy of the Facility, the following amounts at the following times:
(a) Base Rental. The Lessee shall pay to the Lessor rental hereunder as Base
Rental Payments with respect to the Facility at the times and in the amounts set forth in the Base
Rental Payment schedule attached hereto as Exhibit F and made a part hereof.
(1) The Lessee shall deposit with the Lessor not later than each
February 1 and August 1, commencing February 1, 2006, the Base Rental Payments due in the
then current fiscal year (as set forth in Exhibit F) and the same shall be held by the Lessor as
security for the Base Rental Payments due on such dates.
(2) Base Rental Payments shall consist of both an interest component
and a principal component based upon the Project Amount, but Lessee shall receive a credit
against any Base Rental Payment due and payable hereunder for the actual interest earned by the
Lessor on the undisbursed funds in the Project Amount up to the rate of two and eighty -seven
hundredths percent (2.87 %). The Lessee may choose to prepay the Base Rental Payments
pursuant to Section 5.05.
(b) Additional Rental Payments. The Lessee shall pay as Additional Rental
Payments as rental hereunder in addition to the Base Rental Payments, to the Lessor as
hereinafter provided:
(1) a payment of an annual fee due with the principal payment each year
during the term of this Facility Lease in an amount equal to three - tenths of one percent (.3 %) of the
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outstanding principal component of the remaining Base Rental Payments as of the first day of the
month prior to the month in which the principal payment is due as set forth in Exhibit F; and
(2) amounts in each year as shall be required by the Lessor for the
payment of extraordinary expenses of the Lessor in connection with an Event of Default, the
enforcement of this Facility Lease or any amendments thereto requested by the Lessee, including all
expenses, fees of accountants, trustees, attorneys, litigation costs, insurance premiums, taxes,
assessments (if any), and all other extraordinary costs of the Lessor. Extraordinary expenses and
extraordinary costs are those expenses and costs related to this Facility Lease in excess of ordinary
and customary expenses incurred as part of the annual fee pursuant to Section 5.01(b)(1). Such
additional payments shall be billed by the Lessor from time to time, together with a statement
certifying that the amount so billed has been paid by, or will be paid by, the Lessor for one or more
of the items above described, or that such amount is then payable by the Lessor for such items.
(3) Lessee shall deposit the amount required pursuant to (1) above with
the Lessor not later than August 1 of each year; if billed pursuant to (2) above, Lessee shall deposit
the amount billed within thirty (30) days after receipt of the bill by the Lessee. Any amount billed
and not deposited within thirty (30) days of billing or due date shall accrue interest at the lesser of
twelve percent (12 %) per annum or the maximum rate permitted by law.
(4) The Lessor may issue bonds and may enter into leases to finance
facilities other than the Project. Any taxes levied against the Lessor with respect to real property
other than the Facility, or the fees of any trustee or paying agent under any resolution securing
bonds of the Lessor and any other expenses directly attributable to any facilities other than the
Facility shall not be included in the administrative costs of the Facility and shall not be paid from
the Additional Rental Payments payable hereunder. The Trustee may conclusively rely upon a
written certificate of the Lessor in making any determination that costs are payable as Additional
Rental Payments hereunder, and shall not be required to make any investigation as to whether or
not the items so requested to be paid are expenses of operation of the Facility.
(c) Consideration. Such payments of Base Rental Payments and Additional
Rental Payments for each Lease Year or portion thereof during the term of this Facility Lease shall
constitute the total rental for such Lease Year or portion thereof and shall be paid or payable by the
Lessee for and in consideration for the right of the use and possession of, and the continued quiet
use and enjoyment of, the Facility. Upon execution of this Facility Lease, the Lessee shall deliver
to the Lessor a Certificate of the Lessee, in substantially the form set forth as Exhibit J hereto,
which shall set forth the annual fair rental value of the Facility. The parties hereto have agreed and
determined that the annual fair rental value of the Facility is not less than the maximum Base Rental
Payments and Additional Rental Payments payable hereunder in any year.
(d) Payment; Credit. Each installment of Base Rental Payments and
Additional Rental Payment payable hereunder shall be paid in lawful money of the United States
of America to or upon the order of the Lessor at such place as the Lessor shall designate. Any
such installment of rental accruing hereunder which shall not be paid when due shall remain due
and payable until received by the Lessor, except as provided in Section 5.04 hereof, and to the
14
3505
extent permitted by law shall bear simple interest at the rate of the lesser of (i) twelve percent
(12 %) per annum or (ii) the maximum rate authorized by law from the date when the same is due
hereunder until the same shall be paid. Notwithstanding any dispute between the Lessee and the
Lessor, the Lessee shall make all rental payments when due, without deduction or offset of any
kind, and shall not withhold any rental payments pending the final resolution of any such dispute.
In the event of a determination that the Lessee was not liable for said rental payments or any
portion thereof, said payments or excess of payments, as the case may be, shall, at the option of
the Lessee, be credited against subsequent rental payments due hereunder or be refunded at the
time of such determination.
(e) A one -time Facility Lease origination fee in the amount of eighty -five
thousand dollars ($85,000) shall be due and payable by the Lessee on or before the first
disbursement and shall be payable from, the Project Account.
(f) All payments hereunder shall be payable by the Lessee in immediately
available funds which constitute lawful money of the United States of America. Such payments
shall be unsecured, and amounts for the payment thereof shall be paid to, or upon the order of,
the Lessor as set forth in this Article.
SECTION 5.02. Annual Budgets. The Lessee covenants to take such action as may
be necessary to include all Base Rental Payments and Additional Rental Payments due under this
Facility Lease in its Operating Budget for each fiscal year commencing after the Effective Date
and to make all necessary appropriations for such Base Rental Payments and Additional Rental
Payments. In addition, to the extent permitted by law, the Lessee covenants to take such action
as may be necessary to amend or supplement the budget appropriations for payments under this
Facility Lease at any time and from time to time during any Fiscal Year in the event that the
actual Base Rental Payments and Additional Rental Payments to be paid in any fiscal year exceed
the appropriations then contained in the Lessee's Operating Budget.
SECTION 5.03. Application of Rental Payments. All Base Rental Payments
received shall be applied first to the interest component of Base Rental Payments, then to the
principal component of Base Rental Payments due hereunder (including any prepayment
premium components) and thereafter to all Additional Rental Payments due hereunder, but no
such application of any payments which are less than the total rental due and owing shall be
deemed a waiver of any default hereunder.
SECTION 5.04. Rental Abatement. Except to the extent of, (i) amounts received in
respect of use and occupancy insurance, and (ii) amounts, if any, otherwise legally available to
the Lessee for payments due hereunder during any period in which, by reason of material
damage, destruction, title defect or condemnation there is substantial interference with the use
and possession by the Lessee of any portion of the Facility, rental payments due hereunder with
respect to the Facility shall be abated to the extent that the annual fair rental value of the portion
of the Facility in respect of which there is no substantial interference is less than the annual Base
Rental Payments and Additional Rental Payments, in which case rental payments shall be abated
only by an amount equal to the difference. In the event the Lessee shall assign, transfer or
15
sublease any or all of the Facility or other rights hereunder, as permitted by Section 2.04 hereof,
for purposes of determining the annual fair rental value available to pay Base Rental Payments
and Additional Rental Payments, annual fair rental value of the Facility shall first be allocated to
this Facility Lease as provided in subsection (d) of Section 2.04. Any abatement of rental
payments pursuant to this Section shall not be considered an Event of Default. The Lessee
waives the benefits of Civil Code sections 1932(2) and 1933(4) and any and all other rights to
terminate this Facility Lease by virtue of any such interference and this Facility Lease shall
continue in full force and effect. Such abatement shall continue for the period commencing with
the date of such damage, destruction, title defect or condemnation and ending with the substantial
completion of the work of repair or replacement of the portions of the Facility so damaged,
destroyed, defective or condemned.
In the event that rental is abated, in whole or in part, pursuant to this Section
5.04 due to damage, destruction, title defect or condemnation of any part of the Facility and the
Lessee is unable to repair, replace or rebuild the Facility from the Net Proceeds, if any, the
Lessee agrees to promptly apply for and to use its best efforts to obtain any appropriate State
and/or federal disaster relief in order to obtain funds to repair, replace or rebuild the Facility.
SECTION 5.05. Prepa�ent of Base Rental Payments.
(a) Lessee may at any time request Lessor's approval for Lessee to prepay all
or a portion of the principal component of Base Rental Payments. A request for reduction in the
Project Amount is a request for a prepayment. The Lessor shall promptly respond to any such
request, and shall make every effort to accommodate the request, subject to the prepayment
restrictions of the Secured Bonds.
(b) Notwithstanding subsection (a), Lessee shall be authorized to prepay all or
a portion of the principal amount of Base Rental Payments, as follows: (i) If the prepayment date
is on or after ten years after the Effective Date but prior to eleven years after the Effective Date,
the prepayment amount shall be one hundred two percent (102 %) of the outstanding principal
amount; (ii) if the prepayment date is on or after eleven years after the Effective Date, but prior to
twelve years after the Effective Date, the prepayment amount shall be one hundred one percent
(101 %) of the outstanding principal amount; and (iii) if the prepayment date is on or after twelve
years after the Effective Date, the prepayment amount shall be one hundred percent (100 %) of
the outstanding principal amount, without premium. Lessee shall notify the Lessor at least sixty
(60) days prior the date fixed for any prepayment made pursuant to this subsection (b).
(c) Notwithstanding the prepayment provisions of this section, the Lessee
may, on any date, provide for the legal defeasance of the amount outstanding hereunder by
providing amounts sufficient to pay, in full, Base Rental Payments and Additional Payments
when due, until the dates set forth in subsection (b).
(d) The Lessee hereby covenants to notify the Lessor at least forty -five (45)
days before making any repayment or prepayment of this Facility Lease from the proceeds of any
tax - exempt debt incurred by the Lessee that is otherwise permitted by Section 5.05 herein.
16
(e) Extraordinary PrgpnMent. Subject to the provisions of Section 7.01, the
Lessee may prepay, from Net Proceeds, all or any portion of the components of Base Rental
Payments relating to any portion of the Facility then unpaid on any date, in whole or in part, so
that the aggregate annual amounts of principal components of Base Rental Payments which shall
be payable after such prepayment date shall each be as nearly proportional as practicable to the
aggregate annual amounts of principal components of Base Rental Payments with respect to the
portion of the Facility so prepaid.
SECTION 5.06. Oblation to Make Rental Payments. The agreements and
covenants on the part of the Lessee contained herein shall be deemed to be and shall be construed
to be duties imposed by law and it shall be the duty of each and every public official of the
Lessee to take such action and do such things as are required by law in the performance of the
official duty of such officials to enable the Lessee to carry out and perform the agreements and
covenants contained herein agreed to be carried out and performed by the Lessee.
THE OBLIGATION OF THE LESSEE TO MAKE BASE RENTAL PAYMENTS AND
ADDITIONAL RENTAL PAYMENTS DOES NOT CONSTITUTE AN OBLIGATION OF
THE LESSEE FOR WHICH THE LESSEE IS OBLIGATED TO LEVY OR PLEDGE ANY
FORM OF TAXATION OR FOR WHICH THE LESSEE HAS LEVIED OR PLEDGED ANY
FORM OF TAXATION. NEITHER THE BONDS NOR THE OBLIGATION TO MAKE BASE
RENTAL PAYMENTS AND ADDITIONAL RENTAL PAYMENTS CONSTITUTES AN
INDEBTEDNESS OF THE LESSEE, THE COUNTY OF LOS ANGELES, THE STATE OF
CALIFORNIA OR ANY POLITICAL SUBDIVISION THEREOF WITHIN THE MEANING
OF ANY CONSTITUTIONAL OR STATUTORY DEBT LIMITATION OR RESTRICTION.
ARTICLE VI
MAINTENANCE; TAXES;
INSURANCE AND OTHER CHARGES
SECTION 6.01. Maintenance of the Facility by the Lessee. The Lessee agrees that,
at all times during the term hereof, it will, at its own cost and expense, maintain, preserve and
keep the Facility and every portion thereof in good repair, working order and condition and that it
will from time to time make or cause to be made all necessary and proper repairs, replacements
and renewals. The Lessor shall have no responsibility in any of these matters or for the making
of additions or improvements to the Facility.
SECTION 6.02. Taxes Other Governmental Charges and Utility Charges. The
parties hereto contemplate that the Facility will be used for public purposes by the Lessee and,
therefore, that the Facility will be exempt from all taxes presently assessed and levied with
respect to real and personal property, respectively. In the event that the use, possession or
acquisition by the Lessee or the Lessor of the Facility is found to be subject to taxation in any
form, the Lessee will pay during the term hereof, as the same respectively become due, all taxes
and governmental charges of any kind whatsoever that may at any time be lawfully assessed or
17
levied against or with respect to the Facility and any other property acquired by the Lessee in
substitution for, as a renewal or replacement of, or a modification, improvement or addition to,
the Facility, as well as all gas, water, steam, electricity, heat, power, air conditioning, telephone,
utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of
the Facility; provided, that with respect to any governmental charges or taxes that may lawfully
be paid in installments over a period of years, the Lessee shall be obligated to pay only such
installments as are accrued during such time as this Facility Lease is in effect.
SECTION 6.03. Insurance.
(a) The Lessee shall procure or cause to be procured and maintain or cause to
be maintained throughout the term hereof insurance against the following risks in the following
respective amounts:
(1) Insurance against loss or damage to the Facility caused by fire,
lightning or earthquake, with an extended coverage endorsement covering the risk of vandalism and
malicious mischief, sprinkler system leakage and boiler loss; provided that earthquake coverage
shall be required only if: (i) available from reputable insurers at commercially reasonable rates; and
(ii) the Facility cannot satisfy any earthquake standards which may be imposed by any rating agency
then rating the Secured Bonds. In the event the Lessee is unable to obtain earthquake coverage on
the Facility which it previously has maintained, it will promptly so notify the Lessor. The insurance
described in this paragraph (1) shall be in an amount equal to the lesser of (i) replacement cost
(without deduction for depreciation) of improvements located or to be located on the Facility or
(ii) the remaining unpaid principal amount owed under this Facility Lease outstanding plus the
amount of use and occupancy coverage described in paragraph (2) below, except that such
insurance may be subject to deductible clauses of not to exceed the first one hundred thousand
dollars ($100,000) subject to Lessor's approval of the amount of any one loss (or ten percent (10 %)
of the amount insured, in the case of earthquake). Insurance described in this paragraph (1) and in
paragraph (2) below may be in the form of a policy which covers the Facility and one or more
additional parcels of real property insured by the Lessee; provided that the amount of coverage
available thereunder shall be at least equal to the cumulative replacement values of the Facility and
any other such property which is the subject of a lease, installment purchase or other financing
arrangement ( "Financed Property") for which bonds, certificates of participation or other
obligations shall have been issued ( "Obligations ") plus the amount of use and occupancy coverage
required by paragraph (2) below; in the event the Lessee elects to obtain insurance for the Facility
and one or more additional parcels of real property and the amount of the insurance proceeds
available to pay all claims thereunder is not sufficient to cover the replacement values of all such
properties, then any such proceeds shall be used first to rebuild or repair the Facility and all
Financed Properties or to repay all Obligations and the Secured Bonds. The Lessor shall be named
as loss payee.
(2) Use and occupancy insurance against loss, total or partial, of the use
and occupancy of the Facility as a result of any of the hazards covered by the insurance required by
paragraph (l) hereof, in an amount sufficient to pay the Basc Rental Payments attributable to the
Facility for a twenty -four (24) month period; provided, that the amount of such insurance need not
is
350 5
exceed the total remaining Base Rental Payments attributable to the Facility; rop vided further, that
such insurance may be part of a policy permitted under paragraph (1) above, which policy may
provide that insurance proceeds paid for coverages contemplated by paragraph (1) above may
reduce amounts payable under coverage required by this paragraph (2), and vice - versa; the Lessee
may obtain use and occupancy insurance covering the Facility as well as other parcels of property
owned by the Lessee, provided that the cumulative amount thereof is at least equal to the
cumulative amount of use and occupancy insurance required by this paragraph (2) and any
agreements relating to Financed Property in respect of which Obligations are outstanding. The
Lessor shall be named as an additional insured.
(3) Workers' compensation insurance covering all employees working
in or on the Facility and the Project, in the same amount and type as other workers' compensation
insurance maintained by the Lessee for similar employees doing similar work; and the Lessee shall
also require any other person or entity working in or on the Facility and the Project to carry the
foregoing amount of workers' compensation insurance; any such policy maintained by the Lessee
may provide for a deductible so long as the deductible is covered by a self - insurance or self - funding
method or plan permitted by this Section.
(4) A standard, commercial general liability insurance policy or policies
in protection of the Lessor, the Lessee and their directors, officers and employees and the Trustee,
indemnifying and defending such parties against direct or contingent loss or liability for damages
for personal injury, death or property damage related to the possession, operation or use of the
Facility and the Project, with a minimum combined single limit of one million dollars ($1,000,000)
for personal injury or death of one or more persons, and for property damage, in each accident or
event (subject to a deductible clause of not to exceed one hundred thousand dollars ($100,000) or
such greater amount as may be covered by any self - insurance or self - funding method or plan
permitted by this Section). The Lessor shall be named as an additional insured.
The Lessee shall collect, adjust and receive all moneys which may become due
and payable under any policies contemplated by paragraphs (1) and (2) above, may compromise
any and all claims thereunder and, subject to the provisions of Section 7.01 hereof, shall transfer
such Net Proceeds to the Lessor for application as provided herein. Neither the Lessor nor the
Trustee shall be responsible for the sufficiency of any insurance herein required. The Lessor and
the Trustee shall be fully protected in accepting payment on account of such insurance or any
adjustment, compromise or settlement of any loss agreed to by the Lessee.
(b) Notwithstanding the provisions of Section 6.03(a), as an alternative to
providing the insurance required by paragraphs (1), (3) and (4) of Section 6.03(a), the Lessee
may provide a self - insurance or self - funding method or plan of protection for any part or all of
the requirements for such insurance and, through such a plan or method, provide for deductible
or retention amounts greater than those contemplated by paragraphs (1), (3) or (4) of Section
6.03(a). Any such self - insurance or self - funding maintained by the Lessee pursuant to the
foregoing Sections shall comply with the following terms:
19
3'u5. ".
(1) The self - insurance or self - funding program shall be approved by an
Insurance Consultant;
(2) The self - insurance or self - funding program shall include a
reasonable claims reserve fund out of which each self - insured or self-funded claim and any
deductible amount authorized by paragraphs (1), (3) and (4) of Section 6.03(a) shall be paid; prior
to the end of the first Lease Year, the adequacy of each such fund shall be evaluated by an Insurance
Consultant who shall also evaluate the appropriateness of the reserving and funding methods and
practices employed in establishing and maintaining each such fund; any deficiencies in any claims
reserve fund shall be remedied in accordance with the recommendation of the Insurance Consultant
and any recommended changes in the reserving or funding methods or practices shall be adopted in
accordance with the recommendation of the Insurance Consultant; after the first Lease Year, at least
annually and not later than October 1 of each year that is a Lease Year, the Lessee shall provide to
the Lessor, a report by either the independent accountants which provide the audit report on the
Lessee's annual audited financial statements or by an Insurance Consultant, as selected by the
Lessee, as to the appropriateness of the reserving and funding methods and practices employed by
the Lessee in funding the claims funds, and any changes recommended by the report shall promptly
be implemented by the Lessee;
(3) The claims reserve fund shall be held in a separate fund by the
Lessee or by the self - insurance program; and
(4) In the event the self - insurance or self - funding program shall be
discontinued, the soundness of its claim and deductible or retention reserve fund, as determined by
the Insurance Consultant, shall be maintained.
(c) Any insurance policy issued pursuant to paragraph (1) of Section 6.03(a)
shall be so written or endorsed as to make losses, if any, payable to the Lessee and the Lessor as
their respective interests may appear and the Net Proceeds of the insurance required by that
paragraph shall be applied as provided in Section 7.01 hereof. The net proceeds, if any, of the
insurance policy described in that paragraph shall, to the extent that such proceeds are paid on
account of loss or damage to the Facility, be payable and applied as described in Section 7.01.
The net proceeds, if any, of the insurance policy described in paragraph (2) of Section 6.03(a)
shall, to the extent that such proceeds relate to the use and occupancy of the Facility, be payable
to the Lessor. Each insurance policy provided for in the Facility Lease shall contain a provision
to the effect that the insurance company shall not cancel the policy or modify it materially and
adversely to the interests of the Lessor without first giving written notice thereof to the Lessor at
least sixty (60) days in advance of such intended cancellation or modification.
(d) The Lessee shall provide copies of policy endorsement, or in the case of
self - insurance, provide the insurance report described in section 6.03 (b) (2) and file a Certificate
of the Lessee with the Lessor, not later than October 1 of each year commencing October 1,
2006, certifying that the insurance required by this Section is in full force and effect and that the
Lessor is named as loss payees and /or additional insured on each insurance policy which this
Facility Lease requires to be so endorsed.
20
SECTION 6.04. Advances. In the event the Lessee shall fail to maintain the full
insurance coverage required by Section 6.03 hereof or shall fail to keep the Facility in good
repair and operating condition, the Lessor may (but shall be under no obligation to) purchase the
required policies of insurance and pay the premiums on the same or may make such repairs or
replacements as are necessary and provide for payment thereof; and all amounts so advanced
therefor by the Lessor shall become Additional Rental Payments, which amounts the Lessee
agrees to pay within thirty (30) days of a written request therefor, together with interest thereon at
the lesser of (i) twelve percent (12 %) per annum; or (ii) the maximum rate allowed by law.
SECTION 6.05. Title Insurance. The Lessee covenants and agrees to deliver or
cause to be delivered to the Lessor upon recordation of this Facility Lease and the Site Lease, a
CLTA policy or policies with appropriate endorsements, including address endorsement, with
respect to the Facility with liability in the aggregate amount equal to the Project Amount. Such
policy or policies shall name the Lessor as the insured and shall insure the Lessor's interests in
the Facility subject only to such exceptions as do not materially affect the Lessee's right to the
use and occupancy of the Facility.
ARTICLE VII
DAMAGE, DESTRUCTION, TITLE DEFECT AND CONDEMNATION
SECTION 7.01. Damage Destruction Title Defect and Condemnation, Use of Net
Proceeds.
(a) If prior to the termination of the term hereof (i) the Facility or any other
improvements in or on the Facility are damaged (each of which is hereinafter called "Damaged
Improvements ") by a peril covered by a policy of insurance described in Section 6.03(a)(1)
hereof (an "Insured Peril "); or (ii) title to, or the temporary use of, the Facility or any portion
thereof or the estate of the Lessee or the Lessor in the Facility or any portion thereof is defective
or shall be taken under the exercise of the power of eminent domain by any governmental body
or by any person or firm or corporation acting under governmental authority, then the Lessee and
the Lessor will cause the Net Proceeds of any insurance claim (other than rental interruption
insurance pursuant to Section 6.03(a)(2) hereof which shall be directly transferred to the Lessor
for deposit pursuant to Section 6.03 hereof) or condemnation award to be transferred to the
Lessor and applied as follows:
(1) Net Proceeds Exceeding Costs. Within one hundred twenty (120)
days of the date of said Insured Peril, the Lessee shall obtain written estimate(s) of the (i) cost of the
repair, replacement and reconstruction of the Damaged Improvements (collectively referred to
herein as the "Reconstruction "), and (ii) Net Proceeds available to pay such costs. Copies of such
estimate(s) shall be provided to the Lessor. If the one hundred twenty (120) day period is
insufficient to obtain said estimates, the period may be reasonably extended by the Lessee upon the
approval of the Lessor. If the Net Proceeds (not including proceeds of any policy of title insurance
or condemnation award received by the Lessor in respect of the Facility) exceed the estimated costs
21
of Reconstruction, the Damaged Improvements shall be repaired, replaced and reconstructed to the
same or better quality as existed before the damage occurred. The Lessee shall commence and
manage the Reconstruction and shall complete the Reconstruction as soon as reasonably possible
after the occurrence of such damage. Any balance of Net Proceeds remaining after the
Reconstruction has been completed shall be transferred to the Lessor for the payment of unpaid
Base Rental Payments and Additional Rental Payments. Net Proceeds remaining after payment of
the amounts specified in the previous sentence shall be transferred to Lessee.
(2) Costs Exceeding Proceeds. If the estimated costs of Reconstruction
exceed the Net Proceeds (not including proceeds of any policy of title insurance or condemnation
award received by the Lessor in respect of the Facility), the Lessee, in its sole discretion, may elect
to budget and appropriate to the Reconstruction the amount of such excess, and to manage the
Reconstruction as set forth in Section 7.01(a)(5). The Lessee shall exercise this election by written
notice thereof delivered to Lessor within thirty (30) days after the Lessee obtains the written
estimate(s).
(3) Net Proceeds Sufficient to Prepay All Unpaid Base Rental Payments.
If the Lessee does not exercise the election to reconstruct pursuant to Section 7.01(a)(2) and Net
Proceeds are at least sufficient to prepay all unpaid Base Rental Payments, such Net Proceeds shall
be transferred to the Lessor to prepay such Base Rental Payments. If the Net Proceeds (not
including proceeds of any policy of title insurance or condemnation award received by the Lessor in
respect of the Facility) exceed the amount necessary to prepay the unpaid Base Rental Payments
and any due and owing Additional Rental Payments, the Lessee shall be entitled to the amount of
proceeds remaining after such prepayment.
(4) Net Proceeds Insufficient to Prgpay All Unpaid Base Rental
Payments. If the Lessee does not exercise the election to reconstruct pursuant to Section 7.01(a)(2)
and Net Proceeds are insufficient to prepay the unpaid Base Rental Payments hereunder, the Lessee,
in its sole discretion, may elect to budget and appropriate funds to cause the prepayment of the Base
Rental Payments and due and owing Additional Rental Payments and the Net Proceeds, together
with such funds, shall be transferred to the Lessor with directions to apply the proceeds to the
prepayment of the Base Rental Payments and due and owing Additional Rental Payments;
provided, that if the Lessee elects not to appropriate funds for such prepayment, the Lessee shall
apply Net Proceeds (not including proceeds of any policy of title insurance or condemnation award
received by the Lessor in respect of the Facility) to the Reconstruction. If the Lessee, in its sole
discretion, elects to budget or appropriate funds for the prepayment of the unpaid Base Rental
Payments and due and owing Additional Rental Payments, the Lessee shall transfer such funds to
the Lessor for the prepayment of Base Rental Payments and due and owing Additional Rental
Payments.
(5) Management of Reconstruction. If the Facility or any part thereof
becomes Damaged Improvements, the Lessee shall promptly cause, manage and supervise the
Reconstruction.
22
J • ,
,3 5 0 5 .
(b) The proceeds of any policy of title insurance or condemnation award
received by the Lessor in respect of the Facility shall be applied to prepay Base Rental Payments.
ARTICLE VIII
DISCLAIMER OF WARRANTIES;
VENDOR'S WARRANTIES; USE OF THE FACILITY
SECTION 8.01. Disclaimer of Warranties. THE LESSOR MAKES NO
AGREEMENT, WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED,
AS TO THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR
PARTICULAR PURPOSE OR FITNESS FOR USE OF THE FACILITY, OR WARRANTY
WITH RESPECT THERETO. THE LESSEE ACKNOWLEDGES THAT THE LESSOR IS
NOT A MANUFACTURER OF ANY PORTION OF THE FACILITY OR A DEALER
THEREIN, THAT THE LESSEE LEASES THE FACILITY AS -IS, IT BEING AGREED THAT
ALL OF THE AFOREMENTIONED RISKS ARE TO BE BORNE BY THE LESSEE. In no
event shall the Lessor or its assignees be liable for any incidental, indirect, special or
consequential damage in connection with or arising out of this Facility Lease or the existence,
furnishing, functioning or the Lessee's use of the Facility as provided hereby.
SECTION 8.02. Use of the Facility. The Lessee will not use, operate or maintain
the Facility improperly, carelessly, in violation of any applicable law or in a manner contrary to
that contemplated hereby. The Lessee shall provide all permits and licenses, if any, necessary for
the use of the Facility. In addition, the Lessee agrees to comply in all respects (including,
without limitation, with respect to the use, maintenance and operation of each portion of the
Facility) with all laws of the jurisdictions in which its operations involving any portion of the
Facility may extend and any legislative, executive, administrative or judicial body exercising any
power or jurisdiction over the Facility; provided, that the Lessee may contest in good faith the
validity or application of any such law or rule in any reasonable manner which does not, in the
opinion of the Lessee adversely affect the estate of the Lessor in and to the Facility or its interest
or rights hereunder.
ARTICLE IX
ASSIGNMENT AND INDEMNIFICATION
SECTION 9.01. Assignment by Lessor. The parties understand that certain of the
rights of the Lessor hereunder may, at the Lessor's discretion, be assigned to the Trustee.
Accordingly, the Lessee agrees to make all payments due hereunder to the Trustee when so
directed by the Lessor, notwithstanding any claim, defense, setoff or counterclaim whatsoever
(whether arising from a breach hereof or otherwise) that the Lessee may from time to time have
against the Lessor. The Lessee agrees to execute all documents, including notices of assignment
and chattel mortgages or financing statements, which may be reasonably requested by the Lessor
or the Trustee to protect their interests in the Facility during the term hereof.
23
3505.
SECTION 9.02. Assignment by Lessee. This Facility Lease and the interest of the
Lessee in the Facility may not be assigned or encumbered by the Lessee except as permitted by
Section 2.04 hereof.
SECTION 9.03. Indemnification. The Lessee shall, to the full extent permitted by
law, indemnify, protect, hold harmless, save and keep harmless the Lessor and its members,
directors, officers, employees and agents, and the Trustee and any underwriter for the Proceeds
Bonds and Secured Bonds and its respective directors, officers and employees from and against
any and all liability, obligations, losses, claims and damages whatsoever, regardless of the cause
thereof, and expenses in connection therewith, including, without limitation, counsel fees and
expenses as incurred, penalties and interest (collectively, a "Claim "), arising out of or as the
result of entering into the Facility Lease, and the acquisition, construction, operation, use,
condition, or possession of the Facility or the Project and any portion thereof, including:
(1) any accident in connection with the operation, use, condition or
possession of the Facility or the Project resulting in damage to property or injury to or death to any
person including, without limitation, any claim alleging latent and other defects, whether or not
discoverable by the Lessee or the Lessor;
(2) patent, trademark or copyright infringement as a consequence of the
operation of the Facility or the Project;
(3) strict liability in tort as a consequence of the operation of the Facility or
the Project;
(4) any claim based upon environmental law or regulation relating to the
Facility or the Project;
(5) any claim of any nature directly arising from or related to the Facility or
the Project, which claim is based upon the operation of the Facility or the Project from and after the
Effective Date;
(6) the existence, placement, delivery, storage or release of hazardous
materials on the Facility or the Project or contamination of property, arising therefrom; and
(7) the Trustee's acceptance or administration of the trusts in connection
with the Proceeds Bonds and Secured Bonds, including performance of the Trustee's duties, to the
extent provided herein and as assigned by the Lessor.
The indemnification arising under this Section 9.03 shall continue in full force
and effect notwithstanding the full payment of all obligations hereunder or the termination hereof
for any reason or the resignation or removal of the Trustee. Any party seeking indemnity
hereunder shall promptly give notice to the Lessee of any claim or liability hereby indemnified
against upon learning of any circumstances giving rise to any such claim or liability.
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ARTICLE X
DEFAULT
SECTION 10.01. Events of Default.
(a) Each of the following events shall constitute an Event of Default under
this Facility Lease and the terms Event of Default and "default" shall mean, whenever they are
used in this Facility Lease, any one or more of the following events:
(1) The Lessee shall fail to deposit with the Lessor or its assignee any Base
Rental Payment or Additional Rental Payment required to be so deposited by the close of business
on the day such deposit is required pursuant to Section 5.01(a) hereof, rop vided, that the failure to
deposit any Base Rental Payment abated pursuant to Section 5.04 hereof shall not constitute an
Event of Default; or
(2) The Lessee shall breach any other terms, covenants or conditions
contained herein, and shall fail to remedy any such breach with all reasonable dispatch within a
period of thirty (30) days after written notice thereof from the Lessor to the Lessee; provided,
however, that if the failure stated in the notice cannot be corrected within such period, then the
Lessor shall not unreasonably withhold its consent to an extension of such time if corrective action
is instituted by the Lessee within such period and is diligently pursued until the default is corrected.
Upon the happening of any of the events specified in subsection (a) or (c) of this
Section (in either case an "Event of Default "), it shall be lawful for the Lessor or its assignee,
subject to the terms of this Facility Lease, to exercise any and all remedies available or granted to
it pursuant to law or hereunder.
(b) The Lessor or its assignee, in addition to all other rights and remedies it
may have at law, shall have the option to do any of the following:
(1) To terminate this Facility Lease in the manner hereinafter provided on
account of default by the Lessee, notwithstanding any retaking of possession or re- letting of the
Facility as hereinafter provided for in subparagraph (2) hereof, and to retake possession of the
Facility. In the event of such termination, the Lessee agrees to surrender immediately possession of
the Facility, without let or hindrance, and to pay the Lessor or its assignee all damages recoverable
at law that the Lessor or its assignee may incur by reason of default by the Lessee, including,
without limitation, any costs, loss or damage whatsoever arising out of, in connection with, or
incident to any such retaking possession of the Facility. Neither notice to pay rent nor to deliver up
possession of the Facility given pursuant to law nor any proceeding in unlawful detainer, or
otherwise, brought by the Lessor or its assignee for the purpose of obtaining possession of the
Facility nor the appointment of a receiver upon initiative of the Lessor or its assignee to protect the
Lessor's or its assignee's interest under this Facility Lease shall of itself operate to terminate this
Facility Lease, and no termination of this Facility Lease on account of default by the Lessee shall be
25
350 5 • .
or become effective by operation of law or acts of the parties hereto, unless and until the Lessor or
its assignee shall have given written notice to the Lessee of the election on the part of the Lessor or
its assignee to terminate this Facility Lease.
(2) Without terminating this Facility Lease, (i) to collect each installment of
rent as it becomes due and enforce any other term or provision hereof to be kept or performed by
the Lessee and/or (ii) to exercise any and all rights to retake possession of the Facility. In the event
the Lessor or its assignee does not elect to terminate this Facility Lease in the manner provided for
in subparagraph (1) hereof, the Lessee shall remain liable and agrees to keep or perform all
covenants and conditions herein contained to be kept or performed by the Lessee and, to pay the
rent to the end of the term of this Facility Lease or, in the event that the Facility is re -let, to pay any
deficiency in rent that results therefrom; and further agrees to pay said rent and/or rent deficiency
punctually at the same time and in the same manner as hereinabove provided for the payment of
rent hereunder (without acceleration), notwithstanding the fact that the Lessor or its assignee may
have received in previous years or may receive thereafter in subsequent years rental in excess of the
rental herein specified and notwithstanding any retaking of possession of the Facility by the Lessor
or its assignee or suit in unlawful detainer, or otherwise, brought by the Lessor or its assignee for
the purpose of obtaining possession of the Facility. Should the Lessor or its assignee elect to retake
possession of the Facility as herein provided, the Lessee hereby irrevocably appoints the Lessor or
its assignee as the agent and attorney -in -fact of the Lessee to re -let the Facility, or any items thereof,
from time to time, either in the Lessor's or its assignee's name or otherwise, upon such terms and
conditions and for such use and period as the Lessor or its assignee may deem advisable and the
Lessee hereby indemnifies and agrees to hold harmless the Lessor or its assignee from any costs,
loss or damage whatsoever arising out of, in connection with, or incident to any retaking of
possession of and re- letting of the Facility by the Lessor or its assignee or its duly authorized agents
in accordance with the provisions herein contained. The Lessee agrees that the terms of this
Facility Lease constitute full and sufficient notice of the right of the Lessor or its assignee to re -let
the Facility in the event of such reentry without effecting a surrender of this Facility Lease, and
further agrees that no acts of the Lessor or its assignee in effecting such re- letting shall constitute a
surrender or termination of this Facility Lease irrespective of the use or the term for which such re-
letting is made or the terms and conditions of such re- letting, or otherwise, but that on the contrary,
in the event of such default by the Lessee the right to terminate this Facility Lease shall vest in the
Lessor or its assignee to be effected in the sole and exclusive manner provided for in
subparagraph (1) hereof. The Lessee further waives the right to rental obtained by the Lessor or its
assignee in excess of the rental herein specified and hereby conveys and releases such excess to the
Lessor or its assignee as compensation to the Lessor or its assignee for its services in re- letting the
Facility or any items thereof. The Lessee further agrees to pay the Lessor or its assignee the cost of
any alterations or repairs to the Facility or any items thereof necessary to place the Facility or any
items thereof in condition for re- letting immediately upon notice to the Lessee of the completion
and installation of such alterations or repairs.
The Lessee hereby waives any and all claims for damages caused or which may be
caused by the Lessor or its assignee in taking possession of the Facility as herein provided and all
claims for damages that may result from the destruction of or injury to the Facility and all claims
26
3 5 L 5
for damages to or loss of any property belonging to the Lessee, or any other person, that may be
on or about the Facility.
The Lessor expressly waives the right to receive any amount from the Lessee
pursuant to section 1951.2(a)(3) of the California Civil Code.
(c) In addition to any default resulting from breach by the Lessee of any
agreement, condition, covenant or term hereof, if (i) the Lessee's interest herein or any part
thereof be assigned, sublet or transferred without the written consent of the Lessor (except as
otherwise permitted by Section 2.04 hereof), either voluntarily or by operation of law; or (ii) the
Lessee or any assignee shall file any petition or institute any proceedings under any act or acts,
State or federal, dealing with or relating to the subject of bankruptcy or insolvency or under any
amendment of such act or acts, either as a bankrupt or as an insolvent or as a debtor or in any
similar capacity, wherein or whereby the Lessee asks or seeks or prays to be adjudicated a
bankrupt, or is to be discharged from any or all of its debts or obligations, or offers to its
creditors to effect a composition or extension of time to pay its debts, or asks, seeks or prays for a
reorganization or to effect a plan of reorganization or for a readjustment of its debts or for any
other similar relief, or if the Lessee shall make a general or any assignment for the benefit of its
creditors; or (iii) the Lessee shall abandon or vacate the Facility or any portion thereof (except as
permitted by Section 2.04 hereof); then in each and every such case the Lessee shall be deemed
to be in default hereunder.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES OF THE LESSEE
SECTION 11.01. organization; Authority, Application Correct. The Lessee is duly
organized and existing under the laws of the State and has all necessary power and authority to
enter into and perform its duties under this Facility Lease. The application for the financing,
including all attachments, amendments and clarifications submitted by the Lessee to the Lessor,
were accurate and correct at the time of submission and as of the Effective Date.
SECTION 11.02. Agreement Valid and Binding• Approval by Lessee. This Facility
Lease has been duly authorized, executed and delivered by the Lessee and constitutes the legal,
valid and binding obligation of the Lessee, enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws or equitable principles relating to or limiting creditors' rights generally. The legislative
body of the Lessee has authorized the Lessee to enter into this Facility Lease by duly adopting a
resolution in substantially the form attached hereto as Exhibit C.
SECTION 11.03. No Conflict in Execution of Facility Lease. The execution and
delivery by the Lessee of this Facility Lease and compliance with the provisions hereof will not
conflict with or constitute a breach of or default under any law, administrative regulation, court
decree, resolution, charter, by -la,,,,, or any agreement to which the Lessee is subject or by which it
is bound or by which its properties may be affected.
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3505•.
SECTION 11.04. No Litigation. There is no action, suit, proceeding or investigation
at law or in equity before or by any court or governmental agency or body pending or threatened
against the Lessee to restrain or enjoin the execution or delivery of this Facility Lease, or in any
way contesting or affecting the validity of this Facility Lease, or contesting the powers of the
Lessee to enter into or perform its obligations under this Facility Lease.
SECTION 11.05. No Breach or Default. The Lessee is not in breach of or in default
under any applicable law or administrative regulation of the State or the United States, the
Constitution of the State (including article XVI, section 18 thereof), any applicable judgment or
decree, any loan agreement, indenture, bond, note, resolution, agreement or other instrument to
which the Lessee is a party or is otherwise subject which would have a material adverse impact
on the Lessee's ability to perform its obligations under this Facility Lease and no event has
occurred and is continuing which, with the passage of time or the giving of notice, or both, would
constitute a default or an event of default under any such instrument.
SECTION 11.06. No Consent Approval or Permission Necessary. No consent or
approval of any trustee or holder of any indebtedness of the Lessee, and no consent, permission,
authorization, order or licenses of, or filing or registration with, any governmental authority is
necessary in connection with the execution and delivery of this Facility Lease or the
consummation of any transaction contemplated herein, except as have been obtained or made and
as are in full force and effect.
SECTION 11.07. Information Submitted to the Lessor. The information relating to
the Lessee, the Site, the Project and the Facility submitted by the Lessee to the Lessor, including,
but not limited to, all information in the application, was true at the time submitted to the Lessor
and as of the date of this Facility Lease, remains true and correct in all material respects, and
such information does not contain any untrue or misleading statement of a material fact or omit
to state any material fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made.
SECTION 11.08. Financial Statements of the Lessee. The Lessee's financial
statements furnished to the Lessor have been prepared in conformity with generally accepted
accounting principles and fairly present in all material respects the financial condition of the
Lessee as of the date thereof and the results of its operations for the period covered thereby.
There has been no material adverse change in the business, condition (financial or otherwise) or
operations of the Lessee since the date of such financial statements.
SECTION 11.09. Licenses Permits and Approvals for Operation of Facility and the
Project. The Lessee has obtained all licenses, permits and approvals from any governmental
agency or authority having jurisdiction over the Lessee required for the operation of the Facility
and will obtain all licenses, permits and approvals from any governmental agency or authority
having jurisdiction over the Lessee required for the operation of the Project.
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3505
SECTION 11.10. Project Completion.
(a) The Project is described in Exhibit A and the Lessee shall make no
changes thereto or to the operation thereof which would affect the qualification of the Project as
a "public development facility" within the meaning of the Act or the qualification of the Project
for tax exempt financing under the Code.
(b) The Lessee intends to utilize the Project or cause the Project to be utilized
as a "public development facility" within the meaning of the Act.
(c) The Project will be located wholly within the corporate limits of the
Lessee.
(d) To the best of the Lessee's knowledge, no officer or official of the Lessor
has any material interest whatsoever in the Project or in the transactions contemplated by this
Facility Lease.
(e) All applicable local governmental agency, State and federal government
certificates, approvals, permits and authorizations with respect to the construction of the Project
have been obtained or will be obtained as soon as practicable.
ARTICLE XII
AFFIRMATIVE COVENANTS OF THE LESSEE
SECTION 12.01. Punctual Payment. The Lessee will punctually pay, or cause to be
paid, all payments required hereunder in strict conformity with the terms of this Facility Lease,
and it will faithfully observe and perform all of the conditions, covenants and requirements of
this Facility Lease.
SECTION 12.02. Books and Accounts; Financial Statements.
(a) The Lessee will keep proper books of record and accounts in which
complete and correct entries shall be made of all transactions relating to the Facility and the
Project (which may be consolidated with other activities of the Lessee). Such books of record
and accounts shall at all times during business hours be subject to the inspection of the Lessor.
To the extent that any continuing disclosure reports required by Section 4.03 herein sets out the
information required by subsections (b) and (d) of this Section 12.02, the Lessee shall not be
obliged to provide separate statement setting forth the requested information.
(b) The Lessee will prepare and file with the Lessor annually as soon as
practicable, but in any event not later than two hundred ten (210) days after the close of each
Fiscal Year, so long as this Facility Lease has not been discharged by the Lessor, an audited
financial statement of the Lessee for the preceding Fiscal Year, prepared by an Independent
Accountant. The Lessee will furnish to the Lessor such reasonable number of copies of such
OR
3505
audited financial statements as may be required by the Lessor for distribution (at the expense of
the Lessee).
(c) Simultaneously with the delivery of the annual audited financial
statements, the Lessee will deliver to the Lessor a Certificate of the Lessee stating the following:
(1) Certification that no Event of Default has occurred and no event has
occurred which, with the passing of time would constitute an Event of Default;
(2) Notification of any other event or circumstance that would materially
affect completion of the Project and/or the payment of the Base Rental Payments;
(3) Certification that the Lessee is in compliance with the Tax Certificate, as
set forth in Exhibit H; and
(4) Such other information as may be reasonably required.
(d) The Lessee shall, upon request, furnish to the Lessor, in a format specified
by the Lessor, information concerning employment and other public benefits connected to the
Proj ect.
(e) Not later than sixty (60) days after the start of each Fiscal Year, the Lessee
will adopt and deliver to the Lessor, a budget approved by the governing board of the Lessee
setting forth the estimated revenues, expenses and debt service for the current Fiscal Year;
provided, that any such budget may be amended at any time during the Fiscal Year and such
amended budget shall be delivered to the Lessor or its designee.
SECTION 12.03. Notification to the Lessor. The Lessee agrees to notify the Lessor,
immediately, by telephone promptly confirmed in writing, if any representation made in this
Facility Lease or in the application for financing to the Lessor shall at any time so long as the
Facility Lease is outstanding prove untrue or incorrect in any manner. Further, the Lessee agrees
to notify the Lessor, immediately, by telephone promptly confirmed in writing, if there is a stop
notice, litigation or any other legal proceeding which may impact the completion of the Project.
SECTION 12.04. Protection of Security and Rights. The Lessee shall preserve and
protect the security of the Facility Lease and the rights of the Lessor. From and after the
Effective Date hereof, the Facility Lease shall be incontestable by the Lessee.
SECTION 12.05. Management of Properties. The Lessee shall manage and operate
the Facility and the Project in a sound and business -like manner and in conformity with all valid
requirements of any governmental authority.
SECTION 12.06. Reserved.
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350 5 . ,
SECTION 12.07. Further Assurances. The Lessee will adopt, make, execute and
deliver any and all such further resolutions, instruments and assurances as may be reasonably
required by the Lessor as necessary or proper to carry out the intention or to facilitate the
performance of this Facility Lease and for the better assuring and confirming unto the Lessor of
the rights and benefits provided in this Facility Lease.
SECTION 12.08. Project Documentation.
(a) The Lessee may supplement or amend the Project description with written
approval from the Lessor from time to time, provided that no such supplement or amendment
shall cause the Project or any portion thereof to fail to constitute a "public development facility"
within the meaning of the Act.
(b) At any time, upon request of the Lessor, the Lessee agrees to make
available to the Lessor for review and copying all then current plans and specifications for the
Project. The Lessee may identify any proprietary information in such plans and specifications
and, to the extent legally permissible, the Lessor agrees to keep such information confidential.
(c) As soon as the Project is completed, the Lessee shall evidence such
completion by providing a Certificate of the Lessee to the Lessor stating that (i) construction of
the Project has been completed substantially in accordance with the final plans and specifications
therefor and all labor, services, materials and supplies used in construction have been paid for,
and (ii) all other facilities necessary in connection with the Project have been constructed,
acquired and installed in accordance with the final plans and specifications therefor and all costs
and expenses incurred in connection therewith have been paid. Notwithstanding the foregoing,
such certificate may state that it is given without prejudice to any rights of the Lessee against
third parties for the payment of any amount not then due and payable which exist at the date of
such certificate or which may subsequently exist.
SECTION 12.09. Lessee's General Responsibility. The Lessee is solely responsible
for the design, construction, operation and maintenance of the Project. Any review or approval
of plans, specifications, bid documents or other construction documents by the Lessor is solely
for the purpose of proper administration of Project funds by the Lessor and shall not be deemed
to relieve or restrict the Lessee's responsibility or result in any duty, obligation or responsibility
on the part of the Lessor or the officers and agents thereof.
SECTION 12.10. Lessee's Assurances and Commitments.
(a) Compliance with Laws and Regulations. The Lessee shall at all times
comply and require its contractors and subcontractors to comply with all applicable federal and
State laws, rules and regulations, and all applicable local ordinances, specifically including, but
not limited to, prevailing wage, environmental, procurement and safety laws, rules, regulations,
and ordinances. Lessee agrees that its failure to act in accordance with the provisions of this
subsection (a) will not result in any duty, obligation or responsibility on the part of the Lessor or
31
the officers and agents thereof. The Lessee will comply with all laws of the State so as not to
adversely affect the payment of the Base Rental Payments and Additional Rental Payments.
(b) Archeological or Historical Resources. Should a potential archeological or
historical resource be discovered during construction, the Lessee agrees that all work in the area
of the find will cease until a qualified archeologist has evaluated the situation and the Lessee has
determined appropriate actions regarding preservation of the resource.
(c) Construction Activities. The Lessee shall assure that adequate supervision
and inspection of Project construction activities are maintained. The Lessor or the Lessor's
designee reserves the right to conduct an audit of Lessee's construction expenditures during
construction and up to three years following receipt by Lessor of notice of completion. The
Lessor, at its discretion, may require the Lessee to conduct an interim and/or a final audit at the
Lessee's expense, such audit to be conducted by and a report prepared by an Independent
Accountant.
SECTION 12.11. Facility and Project Access. The Lessee shall assure that the
Lessor or its designee will have suitable access to the Facility and the Project at all reasonable
times throughout the term of this Facility Lease and shall include provisions assuring such access
in all contracts and subcontracts relating to the Facility and the Project.
SECTION 12.12. Performance and Payment Bonds.
(a) The Lessee shall require its contractor to certify under penalty of perjury,
and provide the Lessee with a copy of such certification, which shall be available for the Lessor's
inspection, if requested, that it has obtained a bond or bonds by one or more authorized surety
companies satisfactory to the Lessee has been obtained; surety companies must be authorized to
do business in California and have an agent for service of process in California. The Lessee shall
require that the Lessee be named as loss payee and shall provide the Lessor with a copy of the
bonds to that effect.
(b) Said bond shall be in the amounts and for the following purposes: (i) an
amount not less than one hundred percent (100 %) of the total estimated cost of the Project
construction contract amount conditioned upon the faithful performance of the terms of the
construction agreement for the Project including the maintenance of the work for a period of one
year from the date of final acceptance of work or improvements by the Lessee against any
defective work or labor done, or defective materials furnished, and (ii) an additional amount not
less than one hundred percent (100 %) of the estimated cost of the Project securing payment to the
subcontractors and to persons renting equipment or furnishing labor or materials to them for the
Project.
SECTION 12.13. Notice of Event of Default. The Lessee covenants that it will
deliver to the Lessor, immediately after the Lessee shall have obtained knowledge of the
occurrence of an Event of Default or failure as described in Section 10.01(a)(2), a Certificate of
32
the Lessee setting forth the details of such Event of Default or failure and the action which the
Lessee proposes to take with respect thereto.
SECTION 12.14. Compliance with State Contract Requirements. The Lessee shall
comply with all provisions contained in Exhibit G throughout the term of this Facility Lease.
ARTICLE XIII
NEGATIVE COVENANTS OF THE LESSEE
SECTION 13.01. Nondiscrimination.
(a) During the performance of this Facility Lease, Lessee, any contractor and
its subcontractors shall not deny the contracts' benefits to any person on the basis of religion,
color, ethnic group identification, sex, age, physical or mental disability, nor shall they
discriminate unlawfully against any employee or applicant for employment because of race,
religion, color, national origin, ancestry, physical handicap, mental disability, medical condition,
marital status, age or sex. The Lessee, any contractor and its subcontractor shall insure that the
evaluation and treatment of employees and applicants for employment are free of such
discrimination.
(b) The Lessee, any contractor and its subcontractors shall comply with the
provisions of the Fair Employment and Housing Act (Government Code section 12900 et seq.),
the regulations promulgated thereunder (Title 2, California Code of Regulations, section 7285.0
et seq.) the provisions of Article 9.5, Chapter 1, Part 1, Division 3, Title 2 of the Government
Code (sections 11135 - 11139.5) and any regulations promulgated thereunder.
(c) The Lessee, any contractor and its subcontractors shall not knowingly give
preferential treatment of any kind whatsoever in connection with any business transaction related
to the construction or operation of the Project to any of its affiliates or to any business enterprise
in which Lessee has any financial interest, but in such business transactions shall deal at all times
with such affiliates and enterprises on the same basis as though Lessee were dealing with any
other parties.
(d) The Lessee, any contractor and its subcontractors shall, with respect to the
Project described herein, give written notice of their obligations under this section to labor
organizations representing employees of the Lessee and any contractor or subcontractor
performing work on the Project which have a collective bargaining or other contract with the
Lessee, such contractor or subcontractor.
(e) The Lessee, any contractor and its subcontractors shall include the
provisions of this section in all subcontracts to perform work with respect to the Facility and the
Project.
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ARTICLE XIV
MISCELLANEOUS
SECTION 14.01. Notices. All written notices to be given hereunder shall be given
by first class mail to the party entitled thereto at its address set forth below, or at such other
address as such party may provide to the other parties in writing from time to time, namely:
If to the Lessor:
California Infrastructure and Economic Development Bank
Attn: Credit Support Manager, CIEDB B04 -062
10011 Street, 19th floor
Sacramento, CA 95814
Or to such other address as may be designated in writing by the Lessor.
If to the Lessee:
City of City of El Segundo
Attn: City Manager
350 Main Street
El Segundo, CA 90245 -3813
Or to such other address as may be designated in writing by the Lessee.
SECTION 14.02 Contact Persons.
(a) The executive director of the Lessor or such other person as designated in
writing by the Lessor shall manage this Facility Lease for the Lessor and shall have authority to
make determinations and findings with respect to each controversy arising under or in connection
with the interpretation, performance, or payment for work performed under this Facility Lease.
(b) The Lessee Project manager shall be the City Manager or such other
person as may be designated in writing by the City Manager. The Lessee Project manager shall
be the Lessee's representative for the administration of this Facility Lease and shall have full
authority to act on behalf of the Lessee and may designate in writing another person or persons
authorized to request disbursement of Project Amounts. All communications given to the Lessee
Project manager shall be as binding as if given to the Lessee.
SECTION 14.03. Binding Effect. This Facility Lease shall inure to the benefit of and
shall be binding upon the Lessor and the Lessee and their respective successors and assignees.
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5 .
SECTION 14.04. Third Party Beneficiaries. The Trustee is hereby expressly
designated as a third party beneficiary hereunder for the purpose of enforcing any of the rights
hereunder assigned to the Trustee and for the purpose of the Trustee enforcing its own rights.
SECTION 14.05. Net Lease. It is the purpose and intent of the Lessor and the Lessee
that lease payments hereunder shall be absolutely net to the Lessor so that this Facility Lease
shall yield to the Lessor the lease payments, free of any charges, assessments or impositions of
any kind charged, assessed or imposed on or against the Facility, and without counterclaim,
deduction, defense, deferment or set -off by the Lessee except as herein specifically otherwise
provided. The Lessor shall not be expected or required to pay any such charge, assessment or
imposition, or be under any obligation or liability hereunder except as herein expressly set forth,
and all costs, expenses and obligations of any kind relating to the maintenance and operation of
the Facility which may arise or become due during the term of this Facility Lease shall be paid by
the Lessee.
SECTION 14.06. Amendments to Facility Lease. This Facility Lease may be
amended by the parties in writing.
SECTION 14.07. Reserved.
SECTION 14.08. Partial Invalidity. If any one or more of the agreements,
conditions, covenants or terms hereof shall to any extent be declared invalid, unenforceable, void
or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order
or decree of which becomes final, none of the remaining agreements, conditions, covenants or
terms hereof shall be affected thereby, and each provision of this Facility Lease shall be valid and
enforceable to the fullest extent permitted by law.
SECTION 14.09. California Law, Venue. This Facility Lease shall be governed by
and construed and interpreted in accordance with the laws of the State. Any proceeding
pertaining to this Facility Lease shall be filed in the Superior Court of Sacramento County, unless
otherwise expressly agreed to by the Lessor in its discretion.
SECTION 14.10. 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
hereof.
SECTION 14.11. No Merger. This Facility Lease shall not operate as a merger of the
Lessee's leasehold estate in the Facility pursuant to this Facility Lease and its fee estate in the
Site.
[The balance of this page is intentionally left blank.]
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350 5 .
IN WITNESS WHEREOF, the parties hereto have executed and entered into
this Facility Lease by their officers thereunto duly authorized as of the day and year first written
above.
CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK
Attest
op
By
Blake Fowler
Assistant Executive Director
Attest
By 044jaLOr i �tW
Cin Mortesen
City Clerk
36
By
S
L&el
tanton C. aze o
Executive Director
CITY OF EL SEGUNDO
(Jeff Stewart
City Manager
3505
EXHIBIT A
DESCRIPTION OF THE PROJECT
Project Title:
Douglas Street Gap Closure Project
Project Description:
The construction of 1,000 feet of new arterial roadway to connect two discontinuous
segments of Douglas Street north of Rosecrans Avenue via an underpass under existing
railroad and light rail facilities, and the construction of a park and ride lot and a
pedestrian bridge to facilitate access to the Metropolitan Transportation Agency's Green
Line.
A -1
3505
EXHIBIT B
DESCRIPTION OF THE SITE
Address of Facility: 350 Main Street, El Segundo, California
Lots 1 to 10 and lots 34 to 42 in Block 42, The El Segundo Tract, in the City of El Segundo,
County of Los Angeles, State of California, as per map recorded in Book 20 Page(s) 22 of Maps,
in the office of the County Recorder of said county, together with the alley adjoining Lots 1
through 10 on the East and Lots 34 through 42 on the West, as vacated by Resolution No 1062 of
the City Council of The City of El Segundo, California, a Certified Copy of which recorded
January 10, 1950 in Book 32215 Page 129 of Official Records.
Assessor's Parcel No: A portion of 4135- 003 -901
Note: in the event of any inconsistency between the address, APN and legal description, the legal
description shall prevail.
is
ti.
EXHIBIT C
RESOLUTION NO. 4426
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EL
SEGUNDO AUTHORIZING THE EXECUTION AND DELIVERY OF THE
FACILITY LEASE AND THE SITE LEASE BY AND BETWEEN THE CITY
OF EL SEGUNDO AND THE CALIFORNIA INFRASTRUCTURE AND
ECONOMIC DEVELOPMENT BANK AND APPROVING CERTAIN
OTHER MATTERS IN CONNECTION THEREWITH
WHEREAS, the City of El Segundo (the "City ") has accumulated approximately
$10 million to finance the Douglas Street Gap Closure Project (the "Project "); and
WHEREAS, the total projected cost of the Project is approximately $19.4 million;
and
WHEREAS, the City has applied for a Federal appropriation in the amount of $4
million to be used for the Project, in the event that the City does not obtain the
appropriation in full, the City has available and commits to funding an amount not to
exceed $5 million in addition to the amounts already committed to the Project by the
City in Resolution No. 4425 adopted on June 7, 2005; and
WHEREAS, at a previous meeting, the City Council of the City adopted its
Resolution authorizing the submission of an application to the California Infrastructure
and Economic Development Bank for financing the Project; and
WHEREAS, the City Council of the City has determined that in order to provide
the balance of the necessary funds to complete the Project the City is proposing to
enter into a Facility Lease, dated as of June 21, 2005, by and between the California
Infrastructure and Economic Development Bank, as lessor and the City, as lessee (the
"Facility Lease "); and
WHEREAS, the City is also proposing to enter into a Site Lease, dated as of
June 21, 2005, by and between the City, as Site Lessor and the California Infrastructure
and Economic Development Bank, as Site Lessee (the "Site Lease "); and
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF EL SEGUNDO AS FOLLOWS:
SECTION 1. Recitals. The City Council of the City finds and declares that the above
recitals are true and correct and incorporates them herein.
SECTION 2. Approval of Facility Lease. The City Council hereby approves the Facility
Lease in substantially the form thereof on file with the City Clerk together with any
additions thereto or changes therein deemed necessary or advisable by the City
3505- .
Manager, and execution of the Facility Lease shall be deemed conclusive evidence of
the City Manager's approval of such additions or changes. The City Manager and City
Clerk of the City or any Deputy City Clerk of the City are hereby authorized and directed
to execute, attest and affix the seal of the City to the Facility Lease for and in the name
and on behalf of the City. The City Council hereby authorizes the delivery and
performance of the Facility Lease.
SECTION 3. Approval of Site Lease. The City Council hereby approves the Site Lease
in substantially the form thereof on file with the City Clerk together with any additions
thereto or changes therein deemed necessary or advisable by the City Manager, and
execution of the Site Lease shall be deemed conclusive evidence of the City Manager's
approval of such additions or changes. The City Manager and City Clerk of the City or
any Deputy City Clerk of the City are hereby authorized and directed to execute, attest
and affix the seal of the City to the Site Lease for and in the name and on behalf of the
City. The City Council hereby authorizes the delivery and performance of the Site Lease.
SECTION 4. Funding Commitment. In the event the City does not obtain funding from
other sources, including any Federal appropriation, to fully pay the cost of the Project,
the City commits to funding an amount not to exceed $5 million in addition to the
amount already committed to the Project by the City in Resolution No. 4425 adopted on
June 7, 2005.
SECTION 5. Official Action. All actions heretofore taken by the officers and agents of
the City with respect to the Facility Lease, the Site Lease and the transactions
contemplated thereby are hereby approved, confirmed and ratified. The Mayor, the City
Manager, the Administrative Services Director, the City Attorney, the City Clerk and any
and all other officers of the City are hereby authorized and directed, for and in the name
and on behalf of the City, to do any and all things and take any and all actions, including
execution and delivery of any and all assignments, certificates, requisitions, agreements,
notices, consents, instruments of conveyance, warrants and other documents, which
they, or any of them, may deem necessary or advisable in order to consummate the
transactions contemplated under this Resolution.
SECTION 6. Countv General Plan Consistency. The City certifies that the Project is
consistent with the General Plan of the County of Los Angeles.
SECTION 7. Effective Date. This Resolution shall take effect from and after the date of
approval and adoption thereof.
SECTION 8. Certification. The Secretary of the Agency shall certify the adoption of this
Resolution.
PASSED, APPROVED, AND ADOPTED this 21St day of June, 2005.
ATTEST:
CINDY M TESEN, CITY AR K
..
pr'A
MARK D. HENS�,EY, CITY ATTORNEY
3b
STATE OF CALIFORNIA }
COUNTY OF LOS ANGELES } ss.
CITY OF EL SEGUNDO }
I, Cindy Mortesen, City Clerk of the City of El Segundo, do hereby certify
that the foregoing Resolution No. 4426 was adopted at a regular
meeting of the City Council of the City of El Segundo held on June 21 ,
2005, by the following vote:
AYES: COUNCILMEMBERS: McDowell, Gaines, Boulgarides, Busch, Jacobson
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
ABSTAIN: COUNCILMEMBERS: None
N
CITY CLERK
3505 • . .
CERTIFICATION OF RESOLUTION
The undersigned hereby states and certifies:
(1) I am the duly qualified and acting U. eir k of the CITY OF EL
SEGUNDO (the "Lessee "), and, as such, am familiar with the facts herein certified and am fully
authorized to certify the same.
(2) Attached hereto is a true, correct and complete copy of the resolution of the governing
body of the Lessee authorizing the execution and delivery of the Facility Lease by and between
the Lessee and the California Infrastructure and Economic Development Bank, and the Site
Lease, by and between the Lessee and the California Infrastructure and Economic Development
Bank, adopted at a meeting thereof duly held on the date set forth in such resolution, of which
meeting all of the members of said governing body had due notice and at which a quorum was
present and acting throughout.
(3) I further certify that I have carefully compared the attached copy of the resolution with the
original minutes of said meeting on file and of record in my office; that said copy is a true,
correct and complete copy of the original resolution duly adopted by said governing body at said
meeting and entered in said minutes; and that said resolution has not been amended, modified or
rescinded since its adoption and is in full force and effect as of the date hereof.
(4) I further certify that in accordance with Government Code section 54954.2, the
agenda of the meeting contained a brief description of the resolution to be considered at the
meeting, and a copy thereof was posted at least seventy -two (72) hours before the meeting
in a location freely accessible to members of the public.
Dated: S � cr t�ef 1 , A05
CITY OF EL SEGUNDO
By
Cindy Mo esen
City Clerk
C -5
EXHIBIT D
PROJECT COSTS
Project Costs:
:3505•„
"TCSP" means Transportation Community System Preservation (;rant.
"FTA" and "RIP" mean Federal Transit Administration and Regional Improvement Program, respectively.
"MTA" and "STIP" mean the Los Angeles County Metropolitan Transportation Authority and State Transportation Improvement
Program, respectively.
"Prop" means Proposition.
"STP -L" mean Surface Transportation Program - Local.
Modifications to any Project sources and uses line item financed by the CIEDB shall require the
written approval of the CIEDB. The CIEDB credit support unit manager shall provide a revised
Project sources and uses chart for approved cumulative modifications that are less than ten percent
(10 %) of the Project Amount. Approved cumulative modifications to the CIEDB Project budget
that are ten percent (10 %) or greater than ten percent (10 %) of the Project Amount shall require an
amendment to the Facility Lease.
The Lessor shall not be responsible for the payment of any cost overruns.
The Lessee shall submit invoices only for expenses incurred. Expenses contained in the invoices
shall be listed according to the categories contained in the above Project Costs. The Lessor shall
pay ninety percent (90 %) of all approved invoices for construction costs submitted to the Lessee
prior to compliance with the conditions precedent to final disbursement; provided, that if the
Lessee demonstrates to the satisfaction of the Lessor that the Lessee is obliged by law to make
payments to certain construction contractors for one hundred percent (100 %) of invoiced amounts
or to establish a retention fund for final payment to certain contractors, the Lessor shall disburse
Project funds in the amount required by law.
Lessee shall not approve any change orders resulting in an increase in Project Costs without having
funds committed for the increased Project Costs.
D -1
PROJECT
��B�1�G,�(JLi�CES
.
HUD
TCSP
Grant
FTA/
RIP
STP L
TOTAL
PROJECT USES
I -Bank
City
MTA/ MTA/
STIP Prop. C
Grant
Grant Grant
Land Acquisition/
$8,500
$2,063,530
$2,072,030
Title Fees
Engineering /Architectural/Design/
$2,275,135
$500,000
$500,000
$3,645,000
Environmental
Construction & Construction Contingency
$9,906,500
$4,723,033
75,678
$9,233,000
$26,587,029
Grant Administration & Reports
W$138,615
03,983
$153,983
I -Bank Origination Fee
$85,000
$85,000
$9,061,698
79,661
$9,233,0001$500,000
$500,000
$32,543,042
TOTAL
$10,000,000
"HI Jr)" means the U.S. Department of Housing and Urban Development
"TCSP" means Transportation Community System Preservation (;rant.
"FTA" and "RIP" mean Federal Transit Administration and Regional Improvement Program, respectively.
"MTA" and "STIP" mean the Los Angeles County Metropolitan Transportation Authority and State Transportation Improvement
Program, respectively.
"Prop" means Proposition.
"STP -L" mean Surface Transportation Program - Local.
Modifications to any Project sources and uses line item financed by the CIEDB shall require the
written approval of the CIEDB. The CIEDB credit support unit manager shall provide a revised
Project sources and uses chart for approved cumulative modifications that are less than ten percent
(10 %) of the Project Amount. Approved cumulative modifications to the CIEDB Project budget
that are ten percent (10 %) or greater than ten percent (10 %) of the Project Amount shall require an
amendment to the Facility Lease.
The Lessor shall not be responsible for the payment of any cost overruns.
The Lessee shall submit invoices only for expenses incurred. Expenses contained in the invoices
shall be listed according to the categories contained in the above Project Costs. The Lessor shall
pay ninety percent (90 %) of all approved invoices for construction costs submitted to the Lessee
prior to compliance with the conditions precedent to final disbursement; provided, that if the
Lessee demonstrates to the satisfaction of the Lessor that the Lessee is obliged by law to make
payments to certain construction contractors for one hundred percent (100 %) of invoiced amounts
or to establish a retention fund for final payment to certain contractors, the Lessor shall disburse
Project funds in the amount required by law.
Lessee shall not approve any change orders resulting in an increase in Project Costs without having
funds committed for the increased Project Costs.
D -1
3505`
SJ
Costs of the Project not covered by this Facility Lease will be paid by the Lessee.
No costs of the Project to be paid by the Lessor can be incurred prior to April 22, 2005.
D -2
3 5 0 E
EXHIBIT E
CONDITIONS PRECEDENT TO DISBURSEMENT
(a) Initial Disbursement. Disbursement for the Lessor origination fee shall be made upon the
initial disbursement. No other funds shall be disbursed pursuant to this Facility Lease until and
unless Lessee, in the good faith judgment of the Lessor, has submitted the following:
(1) Documents in a form substantially similar to Exhibit C, Exhibit C -1, Exhibit H,
Exhibit I, Exhibit J, and Exhibit L herein;
(2) Insurance certificates, as required by Section 6.03;
(3) CLTA title policy in an amount not less than the Project Amount meeting the
requirements of Section 6.05;
(4) Evidence that the Lessee has available and has committed a total of at least nine
million sixty -one thousand six hundred ninety -eight dollars ($9,061,698) for the Project and
found that the Project is consistent with the County of Los Angeles' General Plan; and
(5) Documentation acceptable to the I -Bank evidencing that funding extensions
and/or final agreements for the Federal Transit Administration /Regional Improvement Program,
Los Angeles County Metropolitan Transportation Authority /State Transportation Improvement
Program and Los Angeles County Metropolitan Transportation Authority Proposition C grants
have been obtained.
(b) Construction Costs. For those costs other than the origination fee, no funds shall be
disbursed pursuant to this Facility Lease until and unless Lessee has, in the good faith judgment
of the Lessor, provided Lessor with all the documents required in section (a) herein and the
following documents:
(1) Document in a form substantially similar to Exhibit K herein; and
(2) One copy of the executed construction contract(s), including any exhibits,
attachments or change orders, if and when applicable.
(c) Final disbursement: The final disbursement of Project funds shall not be made until and
unless Lessee, in the good faith judgment of the Lessor, has specifically complied with each and
every one of the following, and provided a copy of the specified document or certificate to the
Lessor:
(1) Recorded Project notice of completion or other evidence of completion
satisfactory to the Lessor;
E -1
ALO
(2) Lien waivers for the Project, or passage of the applicable statutory time periods
for filing mechanics and other similar liens;
(3) Certification by the Lessee that the Project has been completed according to its
approved final plans and specifications, that the completed Project is consistent with the
definition of Project in this Facility Lease and is acceptable to the Lessee and that the
requirements of Section 12.08(c) have been met;
(4) Certification of Recycled Content as set out in Section 6 of Exhibit G; and
(5) Certification that the Lessee has obtained all licenses and permits (including
operating permits), and approvals from any governmental agency or authority having jurisdiction
over the Lessee in connection with the Project, where applicable.
E -2
3505- .
EXHIBIT F
BASE RENTAL PAYMENTS
NOTE: The Base Rental Payments below shall conform to the following guidelines:
This schedule is based on a term of thirty (30) years from the Effective Date at an interest rate of two and eighty-seven
hundredths percent (2.87 %) per annum and indicates what the Base Rental Payments will be over the course of the
Facility Lease. Base Rental Payments shall have an interest only component through July 31, 2007.
The interest component of each Base Rental Payment shall be calculated on the basis of a 360 -day year of twelve 30 -day
months. Any installment of a principal component or an interest component of a Base Rental Payment that is not paid
when due shall continue to accrue interest at the lesser of twelve percent (12 %) per annum or the maximum rate
permitted by law from and including the Base Rental Payment date with respect to which such principal component or
interest component is payable to but not including the date of actual payment.
Base Rental Payment billing statements will be mailed to the Lessee reflecting the actual amount owed prior to each
Base Rental Payment due date. With the exception of the annual fee, any Additional Rental Payments will be billed
separately as the cost is incurred.
PaymentPrincipal�
l�iieret �
Base Rental
Add1 ii0
Rl
Total
Total Payrttent
FiscalYear
Date,
Componen �
Companent
Payment
Rayment' ��
Paymnt�
Ending 30 -Sept.
1- Feb -2006
$119,583.33
$143,500.00
$143,500.00
$119,583.33
$143,500.00
$143,500.00
$30,000.00
$119,583.33
$173,500.00
$143,500.00
$293,083.33
1- Aug -2006
1- Feb -2007
1- Aug -2007
$225,661.29
$143,500.00
$140,261.76
$369,161.29
$140,261.76
$30,000.00
$399,161.29
$140,261.76
$542,661.29
1- Feb -2008
1- Aug -2008
$232,137.77
$140,261.76
$136,930.58
$372,399.53
$136,930.58
$29,323.02
$401,722.55
$136,930.58
$541,984.31
1- Feb -2009
1- Aug -2009
$238,800.13
$136,930.58
$375,730.71
$28,626.60
$404,357.31
$541,287.90
1- Feb -2010
$133,503.80
$133,503.80
$133,503.80
1- Aug -2010
$245,653.69
$133,503.80
$129,978.67
$379,157.49
$129,978.67
$27,910.20
$407,067.69
$129,978.67
$540,571.50
1- Feb -2011
1- Aug -2011
$252,703.95
$129,978.67
$126,352.37
$382,682.62
$126,352.37
$27,173.24
$409,855.86
$126,352.37
$539,834.54
1- Feb -2012
1- Aug -2012
$259,956.56
$126,352.37
$386,308.92
$26,415.13
$412,724.05
$539,076.42
1- Feb -2013
$122,621.99
$122,621.99
$122,621.99
1- Aug -2013
$267,417.31
$122,621.99
$390,039.30
$25,635.26
$415,674.56
$538,296.55
1- Feb -2014
$118,784.55
$118,784.55
$118,784.55
1- Aug -2014
$275,092.19
$118,784.55
$393,876.74
$24,833.01
$418,709.75
$537,494.30
1- Feb -2015
$114,836.98
$114,836.98
$114,836.98
1- Aug -2015
$282,987.33
$114,836.98
$397,824.31
$24,007.73
$421,832.04
$536,669.03
1- Feb -2016
$110,776.11
$110,776.11
$110,776.11
1- Aug -2016
$291,109.07
$110,776.11
$401,885.18
$23,158.77
$425,043.95
$535,820.06
1- Feb -2017
$106,598.70
$106,598.70
$106,598.70
1- Aug -2017
$299,463.90
$106,598.70
$406,062.60
$22,285.44
$428,348.04
$534,946.74
1- Feb -2018
$102,301.39
$102,301.39
$102,301.39
1- Aug -2018
$308,058.51
$102,301.39
$410,359.90
$21,387.05
$431,746.95
$534,048.34
1- Feb -2019
$97,880.75
$97,880.75
$97,880.75
1- Aug -2019
$316,899.79
$97,880.75
$414,780.54
120,462.87
$435,243.42
$533,124.17
1- Feb -2020
1
$93,333.24
$93,333.24
$93,333.24
F -1
35o5 - . ,
P yr enfi�
"Date �
1- Aug -2020
1 -Feb 2021
1- Aug -2021
1- Feb -2022
1- Aug -2022
1- Feb -2023
Prin paF¢;
Cpt�tp�►?en�
$325,994.81
$335,350.87
$344,975.44
in er
� �omptinen ¢
$93,333.24
655.21
$88,655.21
$83,842.93
$83,842.93
$78,892.53
�aae enfal
� �� �Payirrent
$419,328.05
$88,655.21
$424,006.08
$83,842.93
$428,818.36
$78,892.53
Atlditic�l
Ren a!
PAY -��nt
$19,512.18
$18,534.19
$17,528.14
Tc�tai
Payment
$438,840.23
$88,655.21
$442,540.27
$83,842.93
$446,346.50
$78,892.53
F�sal Y ent
$ar
Ending 30 -Sept.
$532,173.47
$531,195.49
$530,189.43
1- Aug -2023
1- Feb -2024
$354,876.23
$78,892.53
$73,800.06
$433,768.76
$73,800.06
$16,493.21
$450,261.97
$73,800.06
$529,154.51
1- Aug -2024
$365,061.18
$73,800.06
$438,861.24
$15,428.58
$454,289.82
$528,089.88
1- Feb -2025
$68,561.43
$68,561.43
$68,561.43
1- Aug -2025
$375,538.43
$68,561.43
$444,099.86
$14,333.40
$458,433.26
$526,994.69
1- Feb -2026
$63,172.45
$63,172.45
$63,172.45
1- Aug -2026
$386,316.39
$63,172.45
$449,488.84
$13,206.78
$462,695.63
$525,868.08
1- Feb -2027
$57,628.81
$57,628.81
$57,628.81
1- Aug -2027
$397,403.67
$57,628.81
$455,032.48
$12,047.84
$467,080.32
$524,709.13
1- Feb -2028
$51,926.07
$51,926.07
$51,926.07
1- Aug -2028
$408,809.15
$51,926.07
$460,735.22
$10,855.62
$471,590.85
$523,516.92
1- Feb -2029
$46,059.66
$46,059.66
$46,059.66
1- Aug -2029
$420,541.98
$46,059.66
$466,601.63
$9,629.20
$476,230.83
$522,290.49
1- Feb -2030
$40,024.88
$40,024.88
$40,024.88
1- Aug -2030
$432,611.53
$40,024.88
$472,636.41
$8,367.57
$481,003.98
$521,028.87
1- Feb -2031
$33,816.91
$33,816.91
$33,816.91
1- Aug -2031
$445,027.48
$33,816.91
$478,844.39
$7,069.74
$485,914.12
$519,731.03
1- Feb -2032
$27,430.76
$27,430.76
$27,430.76
1- Aug -2032
$457,799.77
$27,430.76
$485,230.53
$5,734.65
$490,965.19
$518,395.95
1- Feb -2033
$20,861.34
$20,861.34
$20,861.34
1- Aug -2033
$470,938.62
$20,861.34
$491,799.96
$4,361.25
$496,161.21
$517,022.55
1- Feb -2034
$14,103.37
$14,103.37
$14,103.37
1- Aug -2034
$484,454.56
$14,103.37
$498,557.93
$2,948.44
$501,506.37
$515,609.73
1- Feb -2035
$7,151.44
$7,151.44
$7,151.44
1- Aug -2035
$498,358.41
$7,151.44
$505,509.85
$1,495.08
$507,004.93
$514,156.37
Total Payments:
$10,000,000.00
$5,130,260.86
$15,130,260.86
$538,764.20
$15,669,025.06
$15,669,025.06
F -2
3505.,
EXHIBIT G
STATE CONTRACT REQUIREMENTS
SECTION 1. Record Establishment Access and Retention.
(a) The Lessee agrees that the Lessor shall have the right to review, obtain,
and copy all records pertaining to performance of this Facility Lease. The Lessee agrees to
provide the Lessor with any relevant information requested and shall permit the access to its
premises, upon reasonable notice, during normal business hours for the purpose of interviewing
employees and inspecting and copying such books, records, accounts, and other material that may
be relevant to a matter under investigation for the purpose of determining compliance with
Government Code section 8546.7. The Lessee further agrees to maintain records concerning
costs paid with State funds for three years following the Lessor's receipt of a notice of
completion or payment of an invoice, whichever is later. In the event of a Facility Lease
performance or payment dispute, the three year minimum shall automatically be extended until
the dispute is resolved.
(b) Upon inspection, the Lessee shall promptly implement any corrective
measures recommended by the Lessor, its representatives, or the Bureau of State Audits ( "BSA ")
regarding the requirements of this section.
(c) The Lessee shall keep all books, records, accounts and documents
pertaining to this Facility Lease separate from other activities unrelated to this Facility Lease.
SECTION 2. Nondiscrimination Clause and Compliance Statement.
(a) By signing this Facility Lease, the Lessee and its contractors agree that
each shall not, during the performance of this Facility Lease, unlawfully discriminate, harass or
allow harassment, against any employee or applicant for employment because of sex, race, color,
ancestry, religious creed, national origin, disability (including HIV and AIDS), medical condition
(cancer), age, marital status, denial of family and medical care leave or denial of pregnancy
disability leave. The Lessee and its contractors shall ensure that the evaluation and treatment of
their employees and applicants for employment are free from such discrimination and
harassment. The Lessee and its contractors shall comply with the provisions of the Fair
Employment and Housing Act (Government Code section 12900 et seq.), and the applicable
regulations promulgated thereunder (Title 2, California Code of Regulations, section 7285.0 et
seq.). The applicable regulations of the Fair Employment and Housing Commission
implementing Government Code section 12990 (a) through (f), set forth in Chapter 5' of Division
4 of Title 2 of the California Code of Regulations are incorporated into this Facility Lease by
reference and made a part hereof as if set forth in full. The Lessee and its contractor shall give
written notice of their obligations under this clause to labor organizations with which they have a
collective bargaining or other Facility Lease.
G -1
3505 - . ,
(b) The Lessee shall include the nondiscrimination and compliance provisions
as detailed in clause (a) of this section, in all contracts to perform work under this Facility Lease.
SECTION 3. Americans with Disabilities Act Certification. By signing this Facility
Lease, the Lessee assures the Lessor that it complies with the Americans with Disabilities Act
( "ADA ") of 1990 (42 U.S.C. 12101 et seq.), which prohibits discrimination on the basis of
disability, as well as all applicable regulations and guidelines issued pursuant to the ADA.
SECTION 4. National Labor Relations Board Certification. By signing this Facility
Lease, the Lessee does swear under the penalty of perjury that no more than one final
unappealable finding of contempt of court by a federal court has been issued against the Lessee
within the immediately preceding two year period because of the Lessee's failure to comply with
an order of a federal court which orders the Lessee to comply with an order of the National Labor
Relations Board.
SECTION 5. Certification of Drug Free Workplace.
(a) By signing this Facility Lease, the Lessee hereby certifies under penalty of
perjury under the laws of the State of California that the Lessee shall comply with the
requirements of the Drug Free Workplace Act of 1990 (Government Code section 8350 et seq.)
and shall provide a drug free workplace by:
(1) publishing a statement notifying employees that unlawful
manufacture, distribution, dispensation, possession, or use of a controlled substance is prohibited
and specifying actions to be taken against employees for violations, as required by Government
Code section 8355(a).
(2) establishing a Drug Free Awareness Program as required by
Government Code section 8355(b), to inform employees about:
(A) the dangers of drug abuse in the workplace;
(B) the person's or organization's policy of maintaining a drug-
free workplace;
(C) any available counseling, rehabilitation and employee
assistance programs; and,
(D) penalties that may be imposed upon employees for drug
abuse violations; and,
(3) providing, as required by Government Code section 8355(c), that
every employee who performs work under this Lessee shall:
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(A) receive a copy of the Lessee's drug -free policy statement;
and,
(B) agree to abide by the terms of the Lessee's statement as a
condition of employment under this Facility Lease.
(b) In addition to any other consequences specified in this Facility Lease,
failure to comply with these requirements may result in the Lessee being ineligible for award of
any future State Contracts if the Lessor determines that the Lessee:
(1) has made a false certification; or,
(2) violates the certification by failing to carry out the requirements as
noted above.
SECTION 6. Certification of Recycled Content. The Lessee shall certify in writing,
under penalty of perjury, the minimum, if not exact, percentage of recycled content of both post -
consumer material and secondary material as defined in Public Contract Code sections 12161 and
12200, in materials, goods or supplies offered, or products used in the performance of this
Facility Lease, regardless of whether the product meets the required recycled product percentage
as defined in Public Contract Code sections 12161 and 12200. The Lessee may certify that the
product contains zero recycled content. The Recycle Certification shall be delivered to the
Lessor not more than thirty (30) calendar days following the date of the notice of completion.
SECTION 7. Child Support Compliance Act.
(a) The Lessee recognizes the importance of child and family support
obligations and shall fully comply with all applicable State and federal laws relating to child and
family support enforcement, including, but not limited to, disclosure of information and
compliance with earnings assignment orders, as provided in Chapter 8 (commencing with section
5200) of Part 5 of Division 9 of the Family Code; and
(b) The Lessee, to the best of its knowledge, is fully complying with the
earnings assignment orders of all employees and is providing the names of all new employees to
the New Hire Registry, maintained by the California Employment Development Department.
SECTION 8. Welfare Recipients.
(a) The Lessee shall give priority consideration in filling vacancies in
positions funded by the Lessee to qualified recipients of aid under Chapter 2 (commencing with
section 11200) of Part 3 of Division 9 of the Welfare and Institutions Code in accordance with
Article 3.9 (commencing with section 11349) of Chapter 2 of Part 3 of Division 9 of the Welfare
and Institutions Code.
(b) Nothing in this provision shall be construed to:
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(1) interfere with or create a violation of the terms of valid collective
bargaining agreements;
(2) require the Lessee to hire an unqualified recipient of aid;
(3) interfere with or create a violation of any federal affirmative action
obligation of the Lessee for hiring disabled veterans or veterans of the Vietnam era; or,
(4) interfere with or create a violation of the requirements of
Government Code section 12990.
SECTION 9. Prevailing Wages.
(a) By signing this Facility Lease, the Lessee agrees to comply with the
provisions of section 1720 et seq. of the California Labor Code in the award of public works
contracts and subcontracts involving the expenditure of funds provided in this Facility Lease, and
to insure that its contractor and subcontractors meet the requirements of those enactments.
(b) The Lessee shall comply with Labor Code provisions that include but are
not limited to the following requirements: The Lessee shall obtain, from the Director of the
Department of Industrial Relations, the general prevailing rate of per diem wages and the general
prevailing rate for holiday and overtime work in the locality in which the public work is to be
performed for each craft, classification, or type of worker needed to execute the Facility Lease.
The Lessee shall either specify the general prevailing rates in bid and contract documents or
include a statement in those documents that such information is available; take cognizance of any
violations of prevailing wage law and notify the Department of Industrial Relations of such
violations; require that the contractor and subcontractors keep adequate payroll and other records
and withhold funds pending investigation of violations.
(c) The Lessee shall require its contractor and subcontractors to adhere to
prevailing wage requirements, including but not limited to the following requirements: contracts
between the contractor and subcontractors must include provisions regarding prevailing wage;
the contractor shall monitor subcontractors' payment of prevailing wage by periodically
reviewing certified payroll records and diligently taking corrective action if the subcontractors
fail to pay prevailing wage; contractor and subcontractors shall maintain certified payroll records
and time records. The contractor to whom a contract is awarded, and any subcontractor under
him, shall not pay less than the specified prevailing wage; contractor and subcontractors are
subject to penalties for violations of prevailing wage provisions.
(d) The Lessee acknowledges that it has been informed by the Lessor that the
Lessor may contract with the Department of Industrial Relations to conduct random audits of
some contracts to assure compliance with prevailing wage requirements. The Lessee shall
require its contractor and subcontractors to cooperate in an audit if requested to do so by the
Lessor and shall inform its contractor and subcontractors that spot audits are planned.
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EXHIBIT H
TAX CERTIFICATE
This Tax Certificate is executed and delivered by the City of El Segundo (the
"Lessee ") in connection with the Facility Lease between the Lessee and the California
Infrastructure and Economic Development Bank (the "Lessor "), dated as of September 1, 2005
(the "Obligation ") in the amount of ten million dollars ($10,000,000). The Lessee certifies,
covenants, warrants and represents as follows:
ARTICLE I. IN GENERAL
1.1 The Lessee. The Lessee is a general law city and municipal corporation
duly organized and existing under the laws of the State of California.
1.2 Purpose of Tax Certificate. The Lessor has issued bonds (the "Bonds ")
that will be used to fund the Obligation. The Lessee is delivering this Tax Certificate to the
Lessor with the understanding that the Lessor will rely in part upon this Tax Certificate in
obtaining an opinion from bond counsel that interest on the Bonds is excluded from gross income
for federal income tax purposes under section 103 of the Code (as defined below).
1.3 Purpose of Financing. The Obligation is being issued to finance the
Douglas Street Gap Closure Project on the Lessee's property (the "Project "), as described in
more detail in the application of the Lessee to the Lessor, dated June 9, 2005, including
amendments thereto and in Exhibit D of the Obligation.
1.4 Definitions. Unless the context otherwise requires, the following
capitalized terms have the following meanings:
"Code" means the Internal Revenue Code of 1986 (including amendments
thereto).
"Current Revenues" has the meaning given thereto in Section 2.7 hereof.
"Governmental Unit" means any state, or political subdivision of a state, but
excludes the United States and its agencies or instrumentalities.
"Investment Property" means any security or obligation, any annuity contract, or
any other investment -type property, but does not include any Tax - Exempt Bond unless
such obligation is a "specified private activity bond" within the meaning of section
57(a)(5)(C) of the Code.
Unit.
"Nongovernmental Person" means any person or entity other than a Governmental
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3505,
"Payment Account" has the meaning given thereto in Section 2.7 hereof.
"Preliminary Expenditures" means architectural, engineering, surveying, soil
testing, and similar costs paid with respect to the Project in an aggregate amount not
exceeding twenty percent (20 %) of the Obligation. However, Preliminary Expenditures
do not include land acquisition, site preparation or similar costs incident to the
commencement of construction.
"Tax- Exempt Bond" means any obligation the interest on which is excluded from
gross income for federal income tax purposes pursuant to section 103 of the Code or
section 103 of the Internal Revenue Code of 1954, as amended, and Title XHI of the Tax
Reform Act of 1986, as amended, as well as stock in a regulated investment company to
the extent at least ninety -five percent (95 %) of income to the stockholder is treated as
interest that is excludable from gross income under section 103 of the Code.
ARTICLE II. TAX LIMITATIONS
2.1 Expenditure of Proceeds. Proceeds of the Obligation shall be used
exclusively for the following purposes: (i) architectural, engineering, surveying, soil testing, and
similar costs paid with respect to the Project paid prior to April 22, 2005 and in an aggregate
amount not exceeding twenty percent (20 %) of the Obligation; (ii) capital expenditures originally
paid by the Lessee on or after April 22, 2005; (iii) interest on the Obligation through the later of
three years after the date hereof or one year after the Project is placed in service, and (iv) initial
operating expenses directly associated with the Project (in aggregate amount not exceeding five
percent (5 %) of the amount of the Obligation).
2.2 Governmental Bond Status. The Lessee will not loan any of the
proceeds of the Obligation to one or more Nongovernmental Persons. The Lessee will not allow
more than five percent (5 %) of proceeds of the Obligation or more than five percent (5 %) of the
Project to be used directly or indirectly by any Nongovernmental Person, other than as a member
of the general public. In addition, a Nongovernmental Person will be treated as "using" proceeds
of the Obligation to the extent the Nonexempt Person:
(i) borrows proceeds of the Obligation, or
(ii) uses the Project (e.g., as owner, lessee, service provider, operator or
manager).
2.3 Change in Use. The Lessee reasonably expects to use all proceeds of the
Obligation and all of the Project as set forth in Section 2.1 for the entire stated term to maturity
of the Obligation. Absent written agreement by the Lessor, the Lessee in fact will use all
proceeds of the Obligation and all of the Project as set forth in Section 2.1.
2.4 Federal Guarantee. The Lessee will not directly or indirectly use or
permit the use of any proceeds of the Obligation or take or omit to take any action that would
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3505• . .
cause the Bonds to be obligations that are "federally guaranteed" within the meaning of section
149(b) of the Code. In furtherance of this covenant, the Lessee will not allow the payment of
principal or interest with respect to the Obligation to be guaranteed (directly or indirectly) in
whole or in part by the United States or any agency or instrumentality thereof. The Lessee will
not use five percent (5 %) or more of the proceeds of the Obligation to make or finance loans the
payment of principal or interest with respect to which is guaranteed in whole or in part by the
United States or any agency or instrumentality thereof.
2.5 No Refunding. Proceeds of the Obligation will not be used directly or
indirectly to make principal, interest or premium payments with respect to any tax - exempt
obligation.
2.6 No Hedge Bonds. The Lessee reasonably expects that more than eighty -
five percent (85 %) of proceeds of the Obligation will be expended for the purposes of the
Obligation within three years.
2.7 Rental Payments. "Payment Account" means the funds or accounts (or
any portions of any funds or accounts) that will hold monies that are expected by the Lessee to be
used to pay rental payments on the Obligation. , Current Revenues means revenues which are
both received by the Lessee and utilized for the payment of rental payments on the Obligation
within a six month period. All amounts used to fund the Payment Account will be deemed to
have been made from the Payment Account by using a last -in, first -out accounting method.
Lessee agrees that the amounts used to pay debt rental payments shall be both received by the
Lessee and utilized for the payment of rental payments on the Obligation within a thirty (30) day
period. The Payment Account will be used primarily to achieve a proper matching of revenues
and rental payments within each year; a matching of revenues means that revenue and rental
payments come in and go out at approximately the same level and the Payment Account is
cleared out to a very low balance at least one time during the year. Current Revenues in the
Payment Account shall be invested without regard to yield so long as Lessee complies with this
section.
2.8 No Other Replacement Proceeds. The Lessee will not use any proceeds
of the Obligation to replace funds of the Lessee which are or will be used to acquire Investment
Property reasonably expected to produce a yield that is materially higher than the yield on the
Obligation.
2.9 No Expected Sale. It is not expected that the Project or any part thereof
will be sold or otherwise disposed of so long as the Obligation is outstanding.
2.10 Tax Covenant. The Lessee will not take any action, or fail to take any
action, if such action or failure to take such action would adversely affect the exclusion from
gross income of the interest on the Bonds pursuant to section 103 of the Code and specifically
(i) the Lessee will not directly or indirectly use or make any use of the proceeds of the Bonds or
any other funds of the Lessee or take or omit to take any action that would cause the Bonds or to
be "arbitrage bonds" subject to federal income taxation by reason of section 148 of the Code or
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obligations subject to federal income taxation because they are "federally guaranteed" as
provided in section 149(b) of the Code, as applicable; and (ii) to that end the Lessee, with respect
to the proceeds of the Bonds will comply with all requirements of such sections of the Code to
the extent that such requirements are, at the time, applicable and in effect; provided, that if the
Lessee shall obtain an Opinion of Counsel nationally recognized in the area of the exemption of
interest from gross income under the Code to the effect that any action required under this
Section is no longer required, or to the effect that some further action is required, to maintain the
exclusion from gross income of the interest evidenced and represented by the Bonds pursuant to
section 103 of the Code, as applicable, the Lessee may rely conclusively on such opinion in
complying with the provisions hereof.
2.11 Private Use. No more than five percent (5 %) of the Project (determined
both on the basis of space and cost) shall be used for private use. Private use includes use in the
trade or business of any nongovernmental persons, but does not include the portion of the
proceeds properly allocable to facilities expected to be used by an organization described in
section 501(c)(3) of the Code in a manner that does not constitute an unrelated trade or business
of such organization, as defined in section 513(a) of the Code. For purposes of this section, the
federal government is considered a nongovernmental person.
(a) For purposes of this section, private use shall include any contract
for the management or operation of any portion of the Project unless each of the following
conditions is met: (i) the term of such contract (including renewal options) does not exceed five
years; (ii) the manager or operator under such contract is not compensated on the basis of a share of
net profits; (iii) the compensation of the manager or operator is reasonable; (iv) the Lessee must be
able to cancel such contract without penalty or cause at the end of the third year of the contract; and
(v) neither the Lessee nor the manager or operator may control more than twenty percent (20 %) of
the voting power of the other's governing board; and
(b) The service provider's compensation for management or operation
services rendered must be pursuant to one of the following four methods: (i) at least fifty percent
(50 %) of annual compensation is based on a periodic fixed fee; (ii) the compensation is based on a
capitation fee or a combination of a capitation fee and a periodic fixed fee; (iii) in the case of certain
contracts with a term not longer than three years, the compensation is based on a per -unit fee or a
combination of a per -unit fee and periodic fixed fee and the contract is cancelable after two years;
and (iv) in the case of certain contracts with a term not longer than two years, the compensation is
based on a percentage of fees charged and the contract is cancelable after one year.
(c) The term "renewal option" as used in this Section, means a provision
under which the service provider has a legally enforceable right to renew the contract. Thus, for
example, a provision under which a contract is automatically renewed for one year periods absent
cancellation by either party is not a renewal option (even if it is expected to be renewed).
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ARTICLE III. OTHER MATTERS
3.1 Expectations. The undersigned is an authorized representative of the
Lessee acting for and on behalf of the Lessee in executing this Tax Certificate. To the best of the
knowledge and belief of the undersigned, there are no other facts, estimates or circumstances that
would materially change the expectations as set forth herein, and said expectations are
reasonable.
3.2 Amendments. Notwithstanding any other provision of this Tax
Certificate, the Lessee may amend this Tax Certificate and thereby alter any actions allowed or
required by this Tax Certificate if such amendment is signed by an authorized officer and is
supported by formal written agreement by the Lessor.
3.3 Survival of Defeasance. Notwithstanding any provision in this Tax
Certificate to the contrary, the obligation to comply with all requirements contained in this Tax
Certificate shall survive defeasance or prepayment of the Obligation.
Dated:
CITY OF EL SEGUNDO
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Jeff Stewart
City Manager
3505.
EXHIBIT I
FORM OF CERTIFICATE OF
CHIEF FINANCIAL OFFICER OF THE CITY OF EL SEGUNDO (THE "LESSEE ")
The undersigned hereby states and certifies:
(1) I am the duly qualified and acting chief financial officer of the Lessee, and, as such, am
familiar with the facts herein certified and am fully authorized to certify the same.
(2) The financial data submitted to the California Infrastructure and Economic Development
Bank (the "Lessor ") by Lessee in the application for financing (including supplements thereto) in
connection with the Facility Lease by and between the Lessor and the Lessee (the "Facility
Lease ") was true at the time submitted to Lessor and as of the date of this certification, remains
true and correct in all material respects, and such information did not and does not contain any
untrue or misleading statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading in light of the circumstances under which they were
made.
(3) The Lessee is not in breach of or in default under any bond indenture, loan agreement,
note, lease or other instrument to which it is a party.
(4) The representations and warranties made in the Facility Lease are true and correct as if
made on the date of this certificate.
(5) All capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Facility Lease.
Dated:
CITY OF EL SEGUNDO
By /�? '" -
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EXHIBIT J
CERTIFICATE OF THE LESSEE REGARDING FAIR RENTAL VALUE
The undersigned hereby states and certifies as follows:
(1) I am the duly qualified and acting City Manager of the City of El Segundo, (the
"Lessee "), and, as such, am familiar with the facts herein certified and am fully authorized to
certify the same.
(2) All capitalized terms not otherwise defined herein shall have the meanings ascribed
thereto in the Facility Lease, dated as of September 1, 2005 between the Lessee and the
California Infrastructure and Economic Development Bank.
(3) I have reviewed various real estate appraisal material including comparable property
values and insurance replacement estimates in order to determine the annual fair rental value of
the Facility.
(4) In making such determination -of annual fair rental value, consideration has been given to
a variety of factors including the replacement costs of any existing improvements on the Facility,
other obligations of the parties under this Facility Lease, the uses and purposes which may be
served by the improvements on the Facility and the benefits therefrom which will accrue to the
Lessee and the general public.
(5) Based upon the foregoing, the annual fair rental value of the Facility is five hundred fifty -
one thousand eighty -nine dollars ($551,089).
(6) Such annual fair rental value is not less than the maximum Base Rental Payments and
Additional Rental Payments payable under the Facility Lease in any year.
Dated: 1 — (
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'J6ff Stewart
City Manager
3505..
EXHIBIT K
FORM OF CERTIFICATE OF
THE PUBLIC WORKS DIRECTOR of the CITY OF EL SEGUNDO (THE "LESSEE ")
The undersigned hereby states and certifies:
(1) I am the duly qualified and acting Public Works Director of the Lessee, and, as
such, am familiar with the facts herein certified and am fully authorized to certify the same.
(2) The Lessee has obtained any and all lands, rights -of -way, easements, lot line
adjustments, and orders of possession which are required for construction and operation of the
Proj ect;
(3) All required permits have been obtained for the construction of the Project;
(4) Performance and Payment Bonds complying with Section 12.12 have been
obtained.
(5) Regarding the construction contracts:
(A) All construction contracts and subcontracts necessary for Project
construction have been awarded, and were awarded pursuant to competitive
bidding and Lessee procedures normally required for similar construction
proj ects;
(B) Costs are consistent with the Exhibit D budget;
(C) All prime contracts require the contractor to maintain appropriate builder's
risk insurance and name Lessee as loss payee, require the contractor to maintain
liability insurance and name the Lessee as an additional insured, and include the
performance and payment bond provisions set forth in Section 12.12 of this
Facility Lease and name the Lessee as loss payee;
(D) All construction contracts are let to the lowest responsible bidder at a fixed
price subject to increase only for allowable extra work, change orders approved by
Lessee, and damages or delays authorized by the laws of the State. Lessee shall
not approve any change orders resulting in an increase in Project costs without
having funds committed for the increased Project costs;
(E) All construction contracts require payment of prevailing wage rates and
compliance with Chapter 1 (commencing with section 1720) of Part 7 of
Division 2 of the California Labor Code;
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(F) All construction contracts require payment of workers' compensation
insurance by contractors and subcontractors;
(G) All construction contracts include the nondiscrimination provisions set
forth in Section 13.01; and
(H) Lessee utilized contractor pre - qualification forms developed by the
Director of Industrial Relations as set forth in AB 574 (Chapter 972 of the Statutes
of 1999) codified in Public Contract Code section 20101 et seq.
(6) All capitalized terms not otherwise defined herein hall have the meanings
ascribed thereto in the Facility Lease.
Dated:
CITY OF EL SEGUNDO
°v-
,.,,e
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