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HomeMy WebLinkAbout01727 - PSPFC PUBLIC FACILITIES CORP SEWER PLANT LOT 19 20 SEC 19 ` Ld Us CCJ s � i. Recording Requested rCity of PS Public Facil Corp. pv �� �r Nv � When Recorded Mail Tc Amended & Restated Lease to i� X0L5 m c o o City of P.S. re Sewer Plant Exp ina 3 City of Palm Springs RESTATED AGR #1727 j a.. 4! - v w 3200 Tahquitz-McCallu Res 14937, 2-14-84 w < n� it Palm Springs, Cali£or U, 0 x , )- - m LL Attention: City Clerk ) Above For Recorder' s Use Only This document recorded for the benefit of the City of Palm Springs and the recording is fee exempt under § 6103 of the Government Code. AMENDED AND RESTATED LEASE AGREEMENT THIS AMENDED AND RESTATED LEASE AGREEMENT dated as of February 15, 1984 by and between the CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION, a non-profit public benefit Q` corporation, duly organized and existing under and by virtue of the laws of the State of California (herein called the "Corporation" ) and the CITY OF PALM SPRINGS, a municipal corporation organized and existing under and by virtue of the laws of the State of California (herein called the "City" ) . W I T N E S S E T H: WHEREAS, the City and Corporation have previously entered iiB into a Lease and Sublease dated as of September 1, 1981, F; 11 � recorded on September 17, 1981 as Instrument No. 1-5081, a ; ? Official Records in the Office of the County Recorder of " Riverside County (the "1981 Lease" ) ; and WHEREAS, the Corporation has issued its 1981 Leasehold Revenue Bonds, in the principal amount of $18, 000, 000 (the "Bonds" ) for the purpose of financing the construction of the Facilities, the Bonds are secure by an Indenture of Mortgage and Deed of Trust between the Corporation and the Trustee dated as of September 1, 1981 qnd recorded on September 17, 1961, as Instrument No. 175062, Official Records in the Office of the County Recorder of Riverside County (the "Indenture" ) ; and WHEREAS, the Corporation and City have determined that it would be in the best interests of the Corporation, City and citizens of the community to refund the Bonds through the sale and delivery of certificates of participation evidencing a 1 proportionate interest in the Base Rental Payments to be made pursuant to this Amended and Restated Lease Agreement; NOW, THEREFORE, for and in consideration of the mutual promises and agreements herein contained, the parties hereto agree as follows: QG SECTION 1 : Definitions . Unless the context otherwise requires, the terms defined in this Section 1 shall, for all purposes of this Amended and Restated Lease Agreement, have the meanings herein specified. Additional Rental "Additional Rental" means that rental due for the Project as defined in Section 8(b) of this Amended Lease Agreement. Agreement "Agreement" means this Amended and Restated Lease Agreement. Base Rental "Base Rental" means the total rental due for the Project, but does not include Additional Rental . Certificates "Certificates" means the certificates of participation evidencing a proportionate interest of the owner thereof in the Base Rental Payments to be made pursuant to Section 8(a) of this Agreement. Construction Contract "Construction Contract" means the construction contract or contracts providing for the construction of the Facilities, including, without limitation, the plans and specifications, any addenda thereto, and other construction documents, copies of which are or will be on file in the office of the Secretary of the Corporation and the City Clerk of the City. Facilities The term "Facilities" shall mean the facilities constructed on the Property necessary to upgrade the capacity of the City' s Wastewater Treatment Plant (the "Plant" ) located on the Property to 6 . 56 mgd and to and to expand the Plant to a capacity of 10. 9 mgd, as more fully described in the 1981 Lease and the Indenture. 02-08-84 6996P/2168/04 -2- a Fiscal Year "Fiscal Year" means the fiscal year as established from time to time by the City, being on the date of the Trust Agreement the period from July 1 to and including the following June 30. r'i 00 Trust Agreement 0) G') "Trust Agreement" means the Assignment and Trust Agreement, dated as of February 15, 1984, by and among the City, the Corporation and First Interstate Bank of California, as trustee, as originally executed or as it may from time to time ! be supplemented or amended by any supplemental indenture entered into pursuant to the provisions thereof. Lease "Lease" means this entire Lease Agreement. Project "Project" means the Property and the Facilities constructed thereon. Property "Property" means that certain real property located in the City of Palm Springs, County of Riverside, State of California, together with certain easements and rights of way, consisting of parcels on which the Facilities are located, and more particularly described in Exhibit "A" attached hereto and incorporated herein by reference. Treasurer "Treasurer" means the Treasurer of the Corporation. Trustee "Trustee" means the trustee appointed under and defined by the Trust Agreement and any successor appointed as therein provided. SECTION 2 : The 1981 Lease is amended and completely restated' in this Amended and Restated Lease Agreement. SECTION 3 : Property Lease. For and in consideration of the sum of $1 .00 being the fair advance rental value of the Property leased hereunder, receipt of which is hereby acknowledged, City hereby leases an 02-08-84 6996P/2168/04 -3- undivided 4. 34/10. 9ths interest in Parcel A of the Property and all of Parcels B, C, D, E and F of the Property to the Corporation for a term commencing on September 17, 1981 (herein sometimes referred to as the "Property Lease" ) . Unless such term is extended as hereinafter provided, the term of the Property Lease shall end on the earlier of (i ) July 1, 2010 or rxj (ii ) one (1 ) day after the payment or provision for the payment It of the Certificates. I£ on June 30, 2010, the Certificates or Cn any certificates, bonds, notes or other obligations of the Corporation incurred to pay the advance rent on the Property and to finance and construct the Facilities shall not be fully paid and retired or provision for such payment has not been made so that any and all security instruments filed with City have been discharged, or if the rent payable under the Project Lease shall have been abated at any time and for any reason, then the term" of this Property Lease shall be extended until one ( 1 ) day after the Certificates or any certificates, bonds, notes or other obligations of the Corporation incurred to pay advance rent on the Property and to finance and construct the Facilities shall be fully paid and retired or provision for such payment has been made, except that the term of this Property Lease shall in no event be extended beyond July 1, 2015 . SECTION 4: Purpose of Property Lease. The Corporation shall use the Property solely for the purpose of constructing the Facilities thereon and leasing the Property and the Facilities to the City pursuant to the Project Lease set forth in Section 6 hereof; provided that in the event of default by the City under the Project Lease, the Corporation may exercise the remedies provided in Section 22 . SECTION 5 : Owner in Fee. The City covenants that it is the owner in fee of the Property. SECTION 6: Project Lease. The Corporation hereby leases the Project to the City and the City hereby leases the Project from the Corporation, subject to the terms and conditions hereof (the "Project Lease" ) . SECTION 7 : Term of Project Lease The Facilities are completed and the term of the Project Lease shall commence on March 1, 1984. This Project Lease shall end on (i ) June 30, 2009, or (ii ) such earlier or later time when the Certificates have been 02-08-84 6996P/2168/04 -4- retired or provision for payment has been provided for pursuant thereto, and, at such time, any surplus funds remaining in the hands of the Trustee shall be paid to the City. Upon the City paying all Base Rental payments as required by this Project Lease or exercising its option to purchase the Facilities as described in Section 27 of this Project Lease and the retirement of the Certificates of Participation and the expiration or termination of the term hereof, title to the Facilities and any improvements thereon or additions thereto shall be transferred directly to the City in accordance with the provisions of the Trust Agreement. SECTION 8: Rental . The City shall pay from any source of legally available funds the Base Rental and the Additional Rental to the Corporation in the amounts, at the times and in the manner set forth herein, said amounts constituting in the aggregate the total of the annual rentals payable under the Project Lease as follows: ( a) Base Rental . For the twelve month period commencing on March 1, 1984, the City agrees to pay to the Trustee for the account of the Corporation, in two install- ments, Base Rental, consisting of an interest component and principal component, in the schedule attached hereto as Exhibit B, and Base Rental shall cease when the Certificates have been paid or provision for payment has been made. Base Rental shall be due and payable on August 20 and February 20 of each year, commencing August 20, 1984. (b) Additional Rental . In addition to and after the commencement of the Base Rental hereinabove set forth, the City shall pay to the Trustee for the account of the Corporation an amount or amounts (hereinafter called "Additional Rental" ) equivalent to the sum of the following. ( i ) All taxes and assessments of any nature whatsoever, including, but not limited to, excise taxes, ad valorem taxes, ad valorem and specific lien special assessments and gross receipts taxes, if any, levied upon the Project or upon the Corporation' s interest therein or upon the Corporation' s operation thereof or the Corporation' s rental income derived therefrom. (ii ) All expenses (not otherwise paid or provided for out of the proceeds of the sale of Certificates) incidental to the sale and delivery of the Certificates and all administrative costs of the Corporation, including without 02-08-84 6996P/2168/04 -5- limiting the generality of the foregoing, salaries, wages, expenses, compensation and indemnification of the Trustee under the Trust Agreement, fees and charges of auditors, accountants, architects, attorneys and engineers, and all other necessary aq administrative charges of the Corporation or charges required to be paid by it in order to comply with the terms of the Certificates or of the Trust Agreement and to defend the Corporation and its members . ( iii ) Insurance premiums, if any, on all insurance required or permitted under the provisions of Section 12 hereof. (iv) All costs and expenses which the Corporation may incur in consequence of or because of any default by the City under the Project Lease, including reasonable attorneys' fees and costs of suit in equity or action at law to enforce the terms and conditions of the Project Lease. The Additional Rental payable hereunder shall be paid by the City within thirty-five (35 ) days after notice in writing from the Corporation to the City stating the amount of Additional Rental then due and payable and the purpose thereof. Nothing herein contained shall prevent the City from making from time to time contributions or advances to the Corporation for any purpose now or hereafter authorized by law. (c) Consideration. The payments of Advance Rent pursuant to Section 8(g) and Base Rental and Additional Rental hereunder for each year of the term of the Project Lease shall constitute the total rental for said year and shall be paid by the City for and in consideration of the right of use and occupancy, and the continued quiet use and enjoyment, of the Project for and during said year. The parties hereto have agreed and determined that such total rental represents the fair rental value of the Project. In making such determination, consideration has been given to the costs of acquisition, construction and financing of the Facilities, the uses and purposes which will be served by the Facilities and the benefits therefrom which will accrue to the parties to the Agreement and the general public by reason of the Facilities . (d) Budget. The City shall take such action as may be necessary to include and maintain all such total rental payments (Base Rental and Additional Rental) due under the Project Lease in each Fiscal Year in its budget for such Fiscal Year and further shall make the necessary appropriations for all such rental payments. The City shall furnish to the Corporation and to the Trustee under the Trust Agreement copies of the budget at least fifteen ( 15 ) days before final adoption 02-08-84 6996P/2168/04 -6- thereof. The covenants on the part of the City herein contained shall be deemed to be and shall be construed to be ministerial duties imposed by law and it shall be the ministerial duty of each and every public official of the City to take such action and do such things as are required by law in the performance of such official duty of such officials to enable the City to carry out and perform the covenants and agreements in the Project Lease agreed to be carried out and performed by the City. (e) Payment. Each annual Base Rental payment and each Additional Rental payment shall be paid in lawful money of the United States of America, by warrant or check drawn against funds of the City, at the office of the Trustee in Los Angeles, California, or at such other place or places as may be set forth in the Trust Agreement. Each annual Base Rental payment and each Additional Rental payment which is not paid when due shall bear interest at a rate which is the same as the average interest rate per annum which the Certificates bear from the date on which the Base Rental payment or Additional Rental payment, as the case may be, becomes due until the same is paid. Notwithstanding any dispute between the Corporation and the City hereunder, the City shall make all rental payments when due and shall not withhold any rental payments pending the final resolution of such dispute . In the event of a determination that the City was not liable for said rental payments or any portion thereof, said payments or excess of payments as the case may be shall be credited against subsequent rental payments due hereunder. (f) Credit on Base Rental . There shall be credited against Base Rental any amount required to be so credited under the Trust Agreement. ( g) Advance Rent; Reserve Deposit. The City shall deposit with Trustee concurrently with the delivery of the Certificates, as an advance of Base Rental, an amount equal to the reserve requirement established by the Trust Agreement. Such amount may be used and applied as provided in the Trust Agreement. SECTION 9 : Construction of the Facilities. The Corporation has completed construction of the Facilities . Any Cost of the Facilities, as defined in the Indenture, remaining outstanding shall be paid by the City from City funds presently available. Any moneys remaining in the Construction Fund, established pursuant in the Indenture, on the date the Certificates are issued shall be transferred to the Escrow Fund established pursuant to the Trust Agreement. 02-08-84 6996P/2168/04 -7- SECTION 10: Maintenance and Operation of Project. The City shall, at its own expense, maintain the Project and all improvements thereon in good order, condition and repair. The City shall provide or cause to be provided all security service, custodial service, janitor service, power, ED gas, telephone, light, heating and water, and all other public utility services. It is understood and agreed that in consideration of the payment by the City of the rental provided for in Section 8 hereof, the Corporation is only obligated to furnish the Project, and the Corporation shall have no obligation to incur any expense of any kind or character in connection with the management, operation or maintenance of the Project during the term of the Project Lease. The City shall keep the Project and any and all improvements thereto free and clear of all liens, charges and encumbrances. SECTION 11 : Additions and Improvements. The City shall have the right during the term of the Project Lease to make any additions or improvements to the Project, to attach fixtures, structures or signs, and to affix any personal property to the Facilities provided the use of the Project for the purposes contemplated in the Project Lease is not impaired and that such changes do not damage the Project or reduce the value of the Project to a value substantially less than that which existed prior to such changes. Title to all personal property placed in any of the improvements on the Property shall remain in the City, provided, however, that any modifications or improvements which constitute fixtures will automatically become subject to this Agreement, and the proceeds of any disposal of property pursuant to any such modifications or improvements shall be delivered to the Trustee for deposit into the Certificate Fund. Subject to the foregoing, the title to any personal property, improvements or fixtures placed on the Property by any sublessee or licensee of the City shall be controlled by the concession contracts entered into by the City. SECTION 12 : Insurance. The City shall secure or cause to be secured a policy or policies of insurance against loss or damage to the aboveground portion of the Facilities, resulting from fire, lightning, vandalism, malicious mischief and such perils ordinarily defined as "extended coverage" and such other perils as the Corporation and City may agree should be insured against on forms and in amounts satisfactory to each. Provided such insurance is available from reputable insurers, such insurance shall be maintained in an amount not less than the full insurable value of the aboveground portion of the Facilities or 02-08-84 6996P/2168/04 -8- the amount of the outstanding Certificates, whichever is greater. The term "full insurable value" as used in this Section shall mean the actual replacement cost "new" ( including p the cost of restoring the surface of grounds owned or leased by n the Corporation but excluding the cost of restoring trees, All plants and shrubs) less physical depreciation. Said "full insurable value shall be determined from time to time but not less frequently than once in every 36 months by an independent appraisal firm or by any other method of appraising or valuation mutual acceptable to the Corporation and City. The City shall also: ( a) Maintain or cause to be maintained, as to the aboveground portion of the Facilities, which are conveyed by the Project Lease, insurance: (i ) Against war risks, as and when such insurance is obtainable at a reasonable cost from reputable insurance companies or the United States of America or any agencv thereof, in an amount not less than 80% of the then full insurable value thereof; and ( ii ) Against loss or damage by explosion of pressure vessels and similar apparatus now or hereafter installed therein in amounts to be determined by the Corporation and satisfactory to City. (iii ) Against earthquake damage subject to deductible conditions not to exceed 10% of the "full insurable value. " (b) Maintain or cause to be maintained use and occupancy or business interruption or rental income insurance against the perils of fire, lightning, vandalism and malicious mischief and such other perils ordinarily defined as "extended coverage" in an amount equal to not less than twenty-four (24) months rental due from City under the Project Lease . (c ) Maintain or cause to be maintained public liability insurance against claims for bodily injury or death, or damage to property occurring upon, in or about the property covered by the Indenture, such insurance to afford protection to a limit of not less than $5, 000, 000 combined single limit bodily injury and property damage. (d) Subject to the City' s right to self-insure, maintain or cause to be maintained worker' s compensation insurance issued by a responsible carrier authorized under the laws of the State of California to insure employers against liability for compensation under the Worker' s Compensation Insurance and Safety Act now in force in California, or any act herafter enacted as an amendment or supplement thereto or in 02-08-84 6996P/2168/04 -9- lieu thereof, such worker' s compensation insurance to cover all persons employed in connection with the Facilities and to cover full liability for compensation under any such act aforesaid, based upon death or bodily injury claims made by, for or on GO behalf of any person incurring or suffering injury or death during or in connection with the Facilities or the business of the Corporation. All insurance herein provided for shall be effected under policies issued by insurers of recognized responsibility, licensed or permitted to do business in the State of California. All policies or certificates issued by the respective insurers for insurance shall provide that such policies or certificates shall not be cancelled or materially changed without at least 45 days ' prior written notice to the Trustee, and shall carry loss payable endorsements in favor of the Trustee where applicable. Certified copies of such policies (or other evidence of coverage satisfactory to the Trustee) shall be deposited with the Trustee by the Corporation, together with appropriate evidence of payment of the premiums therefor; and, at least 10 days prior to the expiration dates of expiring policies or certificates, certified copies of renewal or new policies or certificates (or other evidence of coverage satisfactory to the Trustee) shall be deposited with the Trustee. All proceeds of insurance with respect to loss or damage to property shall be paid to the Trustee (except that proceeds for any one loss not exceeding $5 , 000 need not be paid to the Trustee but may be paid to the City and applied by it to the repair, restoration or replacement of the property destroyed or damaged) . Upon payment thereof, to the Trustee, and upon the determination by the Corporation as provided in the Project Lease, the Trustee shall : ( 1) if all or part of the Facilities are to be repaired or rebuilt, deposit such proceeds in the Insurance and Condemnation Fund for application as provided in Section 4. 04 of the Trust Agreement or (2 ) if the Facilities are not be repaired or rebuilt, deposit the proceeds in the Certificate Fund for application as provided in Section 3 . 12 of the Trust Agreement. Any insurance required to be carried pursuant to this Section may be carried by City with the Corporation named as an additional insured and provision shall be made for the payment of any recovery to the Trustee named in the Trust Agreement. All premiums and charges for the aforesaid insurance shall be paid by City in accordance with the provisions of Section 8(b) , provided that City' s obligation in any Fiscal Year to 02-08-84 6996P/2168/04 -10- i • make such payment shall be limited to payment for insurance applicable to said Fiscal Year. SECTION 13 : Damage by Fire, Earthquake, Etc . CFJ x pa It is expressly understood and agreed that the rental TV hereunder shall become due only in consideration of the right to occupy and use the Facilities or part thereof, as the case may be; and, except as herein provided, it is the responsibility of the Corporation to provide such right at all times during the period for which the rental involved is paid. In the event of destruction or damage of the Facilities by fire or other casualty or event so that they become wholly or partly unusable, the Corporation, at its option, may do either of the following: ( 1) Rebuild and repair the Facilities so that they shall be restored to use, in which case this Lease shall remain in full force and effect; or (2 ) In the event the Facilities are wholly unusable declare this Lease terminated and use any money collected from insurance against the destruction of or damage to the Facilities to the extent necessary to retire any outstanding securities or any debts or liabilities which the Corporation may have; provided, however, that if the Facilities can be repaired or rebuilt within the period for which the Corporation has insurance against business (rent) interruption, and if the Corporation shall have sufficient funds from the proceeds of insurance or otherwise for the necessary repairing or rebuilding, the Corporation shall not proceed under this option without the City' s consent. During such time as the Project is unusable, rent shall cease. No further rental payments shall accrue until the Project is again ready for occupancy and rental payments already made, if any, shall be equitably abated and adjusted accordingly. In the event of partial damage to, or destruction of, the Project, so as to render a portion thereof unusable by the City, such rental payments ( including those already made, if any) shall during the period of the partial unusability of the Project be in an amount that represents the allocable share of the Base Rental attributable to Certificates not redeemed through the application of Net Proceeds but not more than the fair market rental value of the remainder of the Project usable by the City. SECTION 14: Assignment, Sublease, and Certificates. Neither the Property Lease nor the Project Lease nor any interest of either party herein shall, at any time after the 02-08-84 6996P/2168/04 -11- date hereof, without the prior written consent of the Trustee, be mortgaged, pledged, assigned or transferred by voluntary act or by operation of law, or otherwise, except as specifically provided herein. The parties hereto shall at all times remain liable for the performance of the covenants and conditions on GO their part to be performed, notwithstanding any assigning, cn lkt transferring or subletting which may be made. The City shall :9 have the right to sublease or permit the use of all or any part of the Project, but nothing herein contained shall be construed to relieve the City from any and all of the obligations contained herein nor shall any sub-lease or use of the Facili- ties be permitted which will affect the tax exempt status of the interest component of the Base Rental Payments. The Corporation shall have the right to re-let the Project in the event of any default by the City under the Project Lease as described in Section 22 hereof and to assign the Corporation' s rights in and to the Property Lease without the City' s prior consent; provided, however, that the Corporation shall not relet the premises or assign its interest in the Project Lease in a manner which will adversely affect the tax exempt status of the interest component of the Base Rental Payments. The Trustee is authorized to deliver Certificates under and pursuant to the Trust Agreement. Such Trust Agreement shall operate as an assignment of the Property Lease and the Property Lease to the Trustee for financing purposes . The City and the Corpora- tion may provide for the execution of any and all instruments necessary and proper in connection therewith. Whenever any consent or approval is required herein, the same shall not be unreasonably withheld. Any items herein required or permitted to be done by the Corporation, may, if so provided under the Trust Agreement, be performed by the Trustee thereunder. SECTION 15 : Eminent Domain. If the whole of the Project, or so much thereof as to render the remainder unusable for the purposes for which the same was constructed, shall be taken under the power of eminent domain, then the Property Lease and the Project Lease shall terminate as of the day possession shall be so taken. I£ less than the whole of the Project shall be taken under the power of eminent domain, and the remainder is usable for the Project purposes, then the Property Lease and the Project Lease shall continue in full force and effect and shall not be terminated by virtue of such taking ( and the parties waive the benefit of any law to the contrary) , in which event there shall be a partial abatement of the rent under the Property Lease and the Project Lease in an amount equivalent to the amount by which the annual payments of principal of, and interest on, the outstanding Certificates of the Corporation will be reduced in any applicable year by the application of the award in eminent domain to the call for redemption of Outstanding Certificates . 02-08-84 6996P/2168/04 -12- 0 r Any award made in eminent domain proceedings for the taking or damaging of the Project in whole or in part shall be paid to the Trustee for the direct benefit of the owners of the Certificates and shall be used by the Trustee (together with any other money which shall be or may be made available for such purpose) to call a principal amount of Certificates in each of the remaining maturities so that, as nearly as possible in the discretion of the Trustee, equal annual� q payments of M principal and interest on the Outstanding Certificates remaining will be maintained after said call . In the event the amount so paid to the Trustee shall be more than sufficient to retire the Certificates then Outstand- ing any such excess shall be paid by the Trustee to the City. SECTION 16: Right of Entry. The Corporation and its duly designated representatives shall have the right to enter upon the Project during reasonable business hours (and in emergencies at all times) : ( i ) to inspect the same, (ii ) for any purpose connected with the Corporation' s rights or obligations under the Project Lease, or ( iii ) for all other lawful purposes. SECTION 17 : Liens. Except for payments made or required to be made under the Trust Agreement, the City shall pay or cause to be paid, when due, all sums of money that may become due for, or purporting to be for, any labor, services, materials, supplies or equipment alleged to have been furnished or to be furnished to or for, in, upon or about the Project and which may be secured by any mechanics ' , materialman' s or other lien against the Project, and/or the Corporation' s interest therein, and shall cause each such lien to be fully discharged and released; provided, however, that if the City and/or the Corporation desires to contest any such lien, this may be done, and if such lien shall be reduced to final judgment and such judgment or such process as may be issued for the enforcement thereof, is not promptly stayed, or if so stayed and said stay thereafter expires, then, and in any such event, the City shall forthwith pay and discharge said judgment. SECTION 18: Taxes. The parties understand and agree that the Project constitutes public property free and exempt from all taxation; however, the Corporation agrees to take whatever steps may be necessary, upon written request by the City, to contest any proposed tax or assessment, or to take steps necessary to recover any tax or assessment paid. The City agrees to 02-08-84 6996P/2168/04 -13- reimburse the Corporation for any and all costs and expenses thus incurred by the Corporation. 00 90 SECTION 19 : Quiet Enjoyment. - da The parties hereto mutually covenant and agree that the City, by keeping and performing the covenants and agreements herein contained, shall at all times during the term, peaceably and quietly, have, hold and enjoy the Project. SECTION 20: Notices. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder by either party to the other shall be in writing and shall be sufficiently given and served upon the other party, if sent by United States registered mail, return receipt requested, postage prepaid and addressed as follows: City - City Clerk, City Hall, 3200 Tahquitz-McCallum Way, Palm Springs, California 92262 Corporation - Secretary of the Corporation, c/o City Clerk, City Hall, 3200 Tahquitz-McCallum Way, Palm Springs, California 92262 Copies of all notices shall be sent to the Trustee at such address as the Trustee shall from time to time designate. SECTION 21 : Waiver. The waiver by either party of any breach by the other party of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term, covenant or condition hereof. SECTION 22 : Default by City. If ( a) City shall fail to pay anv rental payable hereunder within five (5 ) days from the date such rental is payable, or (b) City shall fail to keep any other terms, covenants or conditions herein for a period of twenty-five (25 ) days after written notice thereof from the Corporation to City or (c) City shall abandon or vacate the premises, or (d) City' s interest in this Lease or any part thereof shall be assigned or transferred without the written consent of the Corporation, either voluntarily or by operation of law, then in any of such events, City shall be deemed to be in default hereunder. If City should, after notice, fail to remedy any default with all reasonable dispatch, not exceeding thirty (30) days, 02-08-84 6996P/2168/04 -14- then the Corporation shall have the right, at its option, without any further demand or notice (i ) to terminate the Project without terminating the Property Lease and to reenter the Facilities and eject all parties in possession therefrom, or (ii ) to reenter the Facilities and remove all parties 00 therefrom, and without terminating the Project relet the M Facilities, or any part thereof, as the agent and for the 'I' account of City, upon such terms and conditions as the M Corporation may deem advisable, in which event the rents received on such reletting shall be applied first to the expenses of reletting and collection, including necessary renovation and alteration of the Facilities, reasonable attorneys ' fees, and any real estate commissions actually paid, and thereafter toward payment of all sums due and if a sufficient sum shall not be thus realized to pay such sums and other charges, City shall pay the Corporation any deficiency. The foregoing remedies of the Corporation are in addition to and not exclusive of any other remedy of the Corporation, including but not limited to, the right to recover rent as it becomes due pursuant to Section 8 hereof, without terminating this Lease or City' s right to possession of the Facilities. Any such reentry shall be allowed by City without let or hindrance, and the Corporation shall not be liable in damages for any such reentry or be guilty of trespass . The Corporation and City consider the foregoing remedies to be essential to the validity of this Lease, and intend that by virtue of Section 1952 . 6 of the Civil Code the provisions of Sections 1951 to 1952 .2 , inclusive, of said code shall not be applicable to this Lease . SECTION 23 : Default by the Corporation. Except as otherwise provided herein, the Corporation shall not assign or transfer the performance of its duties and obligations hereunder without the consent of City. The Corporation may finance the construction of the Facilities by the sale and issuance of its leasehold mortgage bonds to the extent permitted by law. The Corporation may, without the consent of City, assign, transfer, mortgage, hypothecate or encumber the Corporation' s interest under this Lease (including purchasers or holders of notes, bonds or other obligations of the Corporation) on the security of the leasehold estate, and the Corporation may execute any and all instruments necessary therefor, including, without limitation, instruments providing for the paying of rent directly to a trustee for such lender or lenders. Any such lender or lenders may be granted the right, prior to termination of this Lease: 02-08-84 6996P/2168/04 -15- ( a) To do any act or thing required of the Corporation in order to prevent a forfeiture of the r-S Corporation' s rights hereunder, and all such acts or things Q0 so done shall be as effective to prevent a forfeiture of the Corporation' s rights hereunder as if done by the M Corporation. (b) To realize on the security of the leasehold estate and to acquire and succeed to the interest of the Corporation hereunder by foreclosure or by a deed or assignment in lieu of foreclosure, and thereafter at such lender' s option to convey or assign the interest in or title to said leashold estate to any other person subject to all the terms, conditions and covenants of this Lease . Two copies of all security instruments shall be filed with City promptly after their effective date thereof, and the Corporation shall give City prior written notice of any changes or amendments thereto . SECTION 24: Execution. The Lease may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all together shall constitute but one and the same Lease, and it is also understood and agreed that separate counterparts of this Lease may be separately executed by the Corporation and the City, all with the same full force and effect as though the same counterpart had been executed simultaneously by both the Corporation and the City. SECTION 25 : Validity. If any one or more of the terms, provisions, promises, covenants or conditions hereof shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by the final decision of a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions hereof shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. If for any reason this Lease shall be held by a court of competent jurisdiction void, voidable, or unenforceable by the Corporation or by the City, or if for any reason it is held by such a court that the covenants and conditions of the City or the Corporation hereunder, including the covenant to pay rents hereunder, is unenforceable for the full term hereunder, than and in such event for and in consideration of the right of the City to possess, occupy and use the Project and the right of the Corporation to occupy the Property, which rights in such 02-08-84 6996P/2168/04 -16- event are hereby granted, this Property Lease and Project Lease shall thereupon become, and shall be deemed to be, a lease from 4-q year to year under which the annual rentals herein specified z will be paid by the City and the Corporation, respectively. TV If the Treasurer of the Corporation are substituted for the M Trustee pursuant to the Trust Agreement, all references herein to Trustee shall be deemed to mean Treasurer. SECTION 26: Headings . Any headings preceding 'the texts of the several Sections hereof shall be solely for convenience of reference and shall not constitute a part hereof, nor shall they affect its meaning, construction or effect. SECTION 27 , Option to Purchase. The City shall have the option to purchase the Project beginning on March 1, 1994 or on any September 1 and March 1, thereafter ending on September 1, 2003, but only if it is not in default hereunder with respect to the Project Lease and only in the manner provided in this Section. The City may exercise its option to purchase the Project on any prepayment date by paying the prepayment price applicable to the Project as shown in Exhibit "C" attached hereto and incorporated herein, together with the interest component of the Base Rental Payment required to be paid on such prepayment date. Such prepayment price shall be deposited by the Trustee in the Certificate Fund to be applied to the redemption of Certificates of Participation pursuant to Section 3 . 12 of the Trust Agreement. The City shall give the Trustee notice of its intention to exercise its option not less than sixty (60) days in advance of the date of exercise, and shall deposit with the Trustee the prepayment price, together with the interest component of the Base Rental Payment required to be paid on such prepayment date. If the City exercises its option to purchase the Project pursuant to this Section on any prepayment date, ( 1) the City shall not be required to pay the principal component of the Base Rental Payment required to be paid on such prepayment date, and (2 ) any amount then on hand in the Construction Fund, the Reserve Fund or the Certificate Fund established pursuant to Article IV of the Trust Agreement shall be applied toward the payment of the applicable prepayment price by the City. Upon exercise of its option by the City and the redemption of the Certificate of Participation, all right, title and interest of the Corporation in and to the Project shall be transferred to the City. Nothing herein is intended to prevent the refunding of the City' s obligation under this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Lease Agreement to be executed and 02-08-84 6996P/2168/04 -17- attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed, all as of the day and year first above written. CITY OF PALM SPRINGS, IFORNIA QO q) By. G'P Ma or ATTEST: B -ty Clerk ( SEAL) CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION By: r Chal&man ATTEST: By - e _,vG.r� Secretary (SEAL) 02-08-84 6996P/2168/04 -18- STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDEGo I r" ) On this !j- 'L- day of 1984, before me, the undersigned, a Notary Public in and f, r said State, personally appeared CGS/.'Ed9G�U �F?� known to me to be the President and known to me to be the Secretary of CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION, the non-profit public benefit corporation that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of such corporation, and acknowledged to me that such corporation executed the within instrument pursuant to a resolution of its board of directors . WITNESS my hand and official seal . Ob':FTCT��I. SEAL i ¢,r 6`- .,. NorARv Pueuc - CAUFORNIA 't 'Notary Pu- i i�for the '\Ya?'° �yR Pi19HRSIDE COlJP1rY { b!; State of California ����;�_/ pqy corcim. erpires i�9AB i5v19II (SEAL) STATE OF CALIFORNIA ) ss. COUNTY OF RIVERSIDE ) On this day of 1984, before me, the undersigned, a Notary Public in and for said State, personally appeared �/t'RN/Y /?U known to me to be the Mayor and 3/2I)i rIy SUMIe# known to me to be the City Clerk of the CITY OF PALM SPRINGS, the municipal corporation that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of such corporation, and acknowledged to me that such corporation executed the within instrument pursuant to a resolution of its board of directors. WITNESS my hand and official seal . �- /� , 4 otary Public in and for the 01� VE SEAL State of California (SEAL) NorAV +- ., .. U«ORNIA - „y cmrm. expires JUN 19, 1986 02-08-84 6996P/2168/04 -19- r EXHIBIT A PROPERTY DESCRIPTION 00 TIV M The following described real property in the State of California, County of Riverside, City of Palm Springs. PARCEL A Lots 19 and 20 in Section 19, Township 4 South, Range 5 East. San Bernardino Base and Meridian, as shown on Map of Palm Valley Colony Lands, according to map thereof recorded in Book 14, Page 652 of Maps, records of San Diego County, California, being in the City of Palm Springs, County of Riverside, State of California. PARCEL B Lot 31, Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian of PALM VALLEY COLONY LANDS as shown by Map on file in Book 14, page 652 of Maps, Records of San Diego County. PARCEL C That portion of Lot 32 in Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian, as shown on Map of PALM VALLEY COLONY LANDS, according to map thereof recorded in Book 14, Page 652 of Maps, Records of San Diego County, California, Being in the City of Palm Springs, County of Riverside, State of California, described as follows : Beginning at the southwest corner of said Lot 32, being the southeast corner of said Section 19; thence north 890 56' 07" west, along the southerly line of said Lot 32 and the southerly line of Section 19, a distance of 675 . 60 feet to the southwest corner of said Lot 32 ; thence north 00 08 ' 10" west, along the westerly line of said Lot 32 , a distance of 926 . 12 feet; thence south 890 52 ' 17" east, a distance of 361 . 08 feet; thence north 330 14' 08" east, a distance of 193 . 90 feet to the beginning of a tangent curve concave northwesterly, having a radius of 950. 00 feet; thence northeasterly along the arc ofsaid curve, through a central angle of 150 09 ' 15" , a distance of 251 . 27 feet to the northerly line of said Lot 32; thence south 89' 51 ' 00" east, along the northerly line of said Lot 32, a distance of 97 . 83 feet to the northeast corner of said Lot 32; thence south 00 10' 45" east, along the easterly line of 02-08-84 6996P/2168/04 EXHIBIT A-1 said Lot 32, a distance of 21 . 95 feet to a point on the arc of a non-tangent curve concave northwesterly, having a radius of 1050. 00 feet, a radial line passing through said point bears south 720 25 ' 28" east; thence southwesterly r-{ along the arc of said curve, through a central angle of 150 39 ' 36" , a distance of 286. 98 feet; thence tangent to said curve south 33' 14' 08" west, a distance of 128. 77 feet; CID thence south 890 52 ' 17" east, a distance of 194.46 feet to a point of the easterly line of said Lot 32; thence south 00 10' 45" east, along said easterly line, a distance of 925 . 36 feet to the point of beginning. PARCEL D The South one half of the Southwest one fourth of the Southwest one fourth (S1/2SW1/4SW1/4) section 20, Township 4 South, Range 5 East, San Bernardino Base and Meridian, subject to all valid existing rights of way, containing 20 acres more or less. PARCEL E The South one half of the Southeast one fourth of the Southwest one fourth (S1/2SE1/4SW1/4) Section 20, Township 4 South, Range 5 East, San Bernardino Base and Meridian, subject to any valid existing Rights-of-Way, containing 20 acres more or less. PARCEL F That portion of Lots 29 and 30 in Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian, as shown on the map of Palm Valley Colony Lands, according to Map thereof Recorded in Book 14, Page 652 of Maps, Records of Riverside County, California, described as follows: Beginning at the Northeast corner of said Lot 30; thence South 00 05 ' 44" East, along the Easterly line of said Lot 30, a distance of 657 . 89 feet to the Southeast corner of the North half of said Lot 30; thence North 890 53 ' 34" West, along the Southerly line of said North half, a distance of 675 . 03 feet to the Southeast corner of said North half; thence South 00 02 ' 43" East, along the common line between said Lots 29 and 30, a distance of 49 . 02 feet to the Southerly line of that certain parcel of land shown and delineated as Parcel 6060-144 of Record of Survey Recorded in Book 57, Pages 3 through 16, inclusive, of Records of Survey on file in the Office of the Recorder of Riverside County, California; thence North 560 58' 44" West, along the Southerly line of said parcel, a distance 02-08-84 6996P/2168/04 EXHIBIT A-2 of 20 . 09 feet to a point therein; thence North 490 23 ' 02" West, a distance of 151 . 33 feet; thence North 55' 25 ' 51" 00 West, a distance of 659 . 70 feet to the Westerly line of m said Lot 29; thence North 00 00' 36" East, along said C� Westerly line a distance of 225 . 40 feet to the Northwest corner of said Lot 29; thence South 690 51 ' 00" East, along the Northerly line of said Lots 29 and 30, a distance of 1348. 80 feet to the Point of Beginning. 02-08-84 6996P/2168/04 EXHIBIT A-3 r 0 EXHIBIT B City of Palm Springs Public Facilities Corporation Refunding Certificates of Participation SCHEDULED BASE RENTAL PAYMENTS fi Semi-Annual tt+ Principal or Total Base Sinking Fund Semi-Annual Rental Date Payments* Interest Payments 087n784 $2T1,_561.60 $1,OT ,M778 ** $7,27T_,5DTb8 ** 02/20/85 232,500.00 907,797.50 1,140,297.50 08/20/85 240,000.00 894,428.75 1, 134,428.75 02/20/86 240,000.00 894,428.75 1,134,428.75 08/20/86 255,000.00 879,428.75 1,134,428.75 02/20/87 255,000.00 879,428.75 1,134,428.75 08/20/87 272,500.00 862,276.25 1, 134,716.25 02/20/88 272,500.00 862,216.25 1,134,776.25 08/20/88 292,500.00 842,460.00 1,134,960.00 02/20/89 292,500.00 842,460.00 1,134,960.00 08/20/89 375,000.00 820,522.50 7, 135,522.50 02/20/90 315,000.00 820,522.50 7,135,522.50 08/20/90 337,500.00 796,110.00 1,133,610.00 02/20/91 337,500.00 796,110.00 1,133,610.00 08/20/91 365,000.00 769,110.00 1,134,170.00 02/20/92 365,000.00 769,110.00 1,134,110.00 08/20/92 395,000.00 738,997.50 1,133,997.50 02/20/93 395,000.00 738,997.50 7,733,997.50 08/20/93 430,000.00 705,422.50 1,735,422.50 02/20/94 430,000.00 705,422.50 1,135,422.50 08/20/94 467,500.00 667,797.50 7, 135,297.50 02/20/95 467,500.00 667,797.50 1,135,297.50 08/20/95 507,500.00 625,722.50 1, 133,222.50 02/20/96 507,500.00 625,722.50 1,133,222.50 08/20/96 555,000.00 579,540.00 1,134,540.00 02/20/97 555,000.00 579,540.00 1,134,540.00 08/20/97 605,000.00 528,480.00 7, 133,480.00 02/20/98 605,000.00 528,480.00 7,733,480.00 08/20/98 662,500.00 472,820.00 1,135,320.00 02/20/99 662,500.00 472,820.00 1,135,320.00 08/20/99 725,000.00 470,545.00 1, 135,545.00 02/20/00 725,000.00 410,545.00 7,135,545.00 08/20/00 792,500.00 342,395.00 1,734,895.00 02/20/01 792,500.00 342,395.00 1,734,895.00 08/20/01 865,000.00 267,900.00 1,132,900.00 *Mandatory sinking fund payments. **Includes $705,909.71 (accrued interest from February 1, 1984 to February 22, 7984) deposited in the Certificate Fund at closing on February 22, 7984. EXHIBIT B-1 0 - . • Scheduled Base Rental Payments (Continued) x Semi-Annual 11, Principal or Total Base CV) Sinking Fund Semi-Annual Rental Date Payments* Interest Payments 02 20 02 $8 5�1 0 00.00 $ 27rTO-0.00 $1,1V2F0Y00 08/20/02 947,500.00 186,590.00 1,134,090.00 02/02/03 947,500.00 186,590.00 1, 134,090.00 08/20/03 1,037,500.00 97,525.00 1,135,025.00 02/20/04 1,037,500.00 97,525.00 1, 135,025.00 Totals $20,600,000.00 $24,942,917.08 $45,542,917.08 *Mandatory sinking fund payments. EXHIBIT B-2 EXHIBIT C OPTION TO PURCHASE--PREPAYMENT SCHEDULE G�9 Jh Prepayment Date Prepayment Price C"J March 1, 1994 and September 1, 1994 102 . 0% March 1, 1995 and September 1, 1995 101 . 5% March 1, 1996 and September 1, 1996 101 . 0% March 1, 1997 and September 1, 1997 100. 5% March 1, 1998 and thereafter 100. 0% 02-08-84 6996P/2168/04 EXHIBIT C • I 1 0 CERTIFICATE OF ACCEPTANCE This is to certify that the Amended and Restated Lease + ,1y f'J Agreement from the City of Palm Springs Public Facilities Corporation to the City of Palm Springs, a municipal corporation, hereby is accepted by the undersigned /'L� on behalf of the City Council of the City Palm Springs pursuant to authority conferred by Resolution No .MV7of such City Council adopted on the /.� day of /V/7// and the grantee consents to recordation thereof by its duly authorized City Manager. Dated: February , 1984 6� 02-08-84 6996P/2168/04 0 CITY COUNCIL RESOLUTION NO. 14937 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PALM SPRINGS, CALIFORNIA, CONSENTING TO THE PREPARATION, SALE AND DELIVERY OF $20, 600, 000 PRINCIPAL AMOUNT OF REFUNDING CERTIFICATES OF PARTICIPATION (WASTEWATER TREATMENT PLANT PROJECT) AND APPROVING CERTAIN DOCUMENTS AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the City of Palm Springs Public Facilities Corporation is a nonprofit public benefit corporation organized and existing under the laws of the State of California (the "Corporation" ) for the purpose of assisting in the financing of the Wastewater Treatment Plant Project on behalf of the City of City of Palm Springs (the'',"City" ) ; and WHEREAS, on September 1, 1981 , the Corporation issued, sold and thereafter delivered $18, 000, 000 principal amount of its 1981 Leasehold Mortgage Bonds (the "Bonds" ) , for the purpose of financing the construction of the Wastewater Treatment Plant Project; and WHEREAS, the City and the Corporation entered into that certain Lease and Sublease (the "Lease" ) pursuant to which the City agreed to lease the Wastewater Treatment Plant Project from the Corporation and to pay certain base rental and additional rental payments in connection therewith which have been pledged to the holders of the Bonds by the Corporation pursuant to an ;Indenture of Mortgage and Deed of Trust naming First Interstate Bank, of California as trustee (the "Trustee" ) ; and WHEREAS, the Corporation and City have determined that it would be in the best interests of the Corporation, City and citizens of the community to refund the Bonds through the preparation, sale and delivery of Certificates of Participation in an aggregate. amount' of $20 , 600, 000 (the "Certificates" ) , which Certificates evidence an allowable share in certain base rental payments to be made pursuant to an Amended and Restated Lease Agreement by and between the City and the Corporation, a form of which has been presented to this City Council at the meeting at which this Resolution was adopted (the "Amended Lease Agreement" ) ; and WHEREAS, the City Council desires to consent to the assignment of the Corporation ' s right to receive such base rentallpayments from the City to the Trustee pursuant to--that ResoluLiun 14931 Assignment and Trust Agreement by and among the City, the Corporation and the Trustee, the form of which has been presented to this City Council at the meeting at which this Resolution has been adopted (the "Assignment and Trust Agreement" ) ; and WHEREAS, the City Council desires to approve the form of a Purchase Agreement (the "Purchase Agreement" ) by and among the City, the Corporation, and First Interstate Bank of California (the "Purchaser" ) pursuant to which the Purchaser has agreed to buy the Certificates on the terms and conditions set forth therein ; and WHEREAS, there has been presented to this City Council at this meeting a Preliminary Official Statement relating to the Certificates dated February 1, 1984 (the "Preliminary Official Statement" ) ; RESOLVED, that: SECTION 1 : This City Council hereby consents to the preparation, sale and delivery of the Certificates in an aggregate principal amount of $20, 600, 000 in accordance with the terms and provisions of the Assignment and Trust Agreement . - The purposes for which the proceeds and the Certificates shall be expended are to pay the costs of the sale and delivery of the Certificates and to defease the Bonds . SECTION 2 : First Interstate Bank of California, Los Angeles, California, is hereby appointed as Trustee on behalf of the holders of the Certificates with the duties and powers of such trustee as set forth in the Assignment and Trust Agreement. SECTION 3 : The proposed form of the Amended Lease Agreement presented at this meeting is hereby approved. The Mayor and the City. Clerk are hereby authorized and directed for and in the name of the, City to execute said Amended Lease Agreement . The Mayor and City Clerk are hereby authorized and directed to execute, acknowledge and deliver any and all documents required to consummate the transactions contemplated by the Amended Lease ,Agreement. The Amended Lease Agreement shall be executed in substantially the form hereby approved, with such additions thereto and changes therein as are recommended or approved by Bond Counsel to the City and approved by such officers, such approval to be conclusively evidenced by the execution and delivery thereof-. SECTION 4: The proposed form of the Assignment and Trust Agreement relating to, the Certificates presented at this meeting is hereby approved. The Mayor and City Clerk of-the City are hereby authorized and directed for and on behalf of 7213P/2168/04 -2- Resolution 14937 the City to execute, acknowledge and deliver to the Trustee the Assignment and Trust Agreement in substantially the form approved hereby, with such changes thereto or changes therein as recommended or approved by Bond Counsel to the City and approved by such officers, such approval to be conclusively evidenced by the execution and delivery thereof. SECTION 5: The form of -the- Purchase Agreement presented at this meeting and the sale of the Certificates pursuant thereto are hereby approved and the Mayor and City Clerk of the City are hereby authorized and directed to evidence the City' s acceptance of the terms and provisions of the Purchase Agreement by executing and delivering the Purchase Agreement in the form presented to the City at this meeting, with such changes therein as are recommended or approved by Bond Counsel to the City and approved by such officers , such approval to be conclusively evidenced by the execution and delivery thereof. SECTION 6 : The form of the Certificates as set forth in the Assignment and Trust Agreement (the said Assignment and Trust Agreement may be modified pursuant to the preceding section hereof) is hereby approved. SECTION 7 : The form of the Preliminary Official Statement presented at this meeting and the distribution of said Preliminary Official Statement to prospective purchasers of the Certificates are hereby approved, and the Mayor of the City is hereby authorized and directed to execute and deliver the Preliminary Official Statement in accordance with the Purchase Agreement in substantially the form hereby approved, with such additions thereto and changes therein as are recommended or 'approved by Bond Counsel to the City and approved by such officer, such approval to be conclusively evidenced by the execution and delivery thereof. SECTION 8: The Mayor, the City Manager, the City Clerk, and the Finance Officer of' the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver , any and all documents which they may deem necessary and advisable in order to consummate the sale and delivery of, the Certificates and otherwise effectuate the purposes of this Resolution, and such actions previously taken by such officers are 'hereby ratified and confirmed. SECTION 9: This Resolution shall take effect from and after its date of adoption . 7213P/2168/04 -3- Resolution 14937 PASSED AND ADOPTED by the City Council of the City of Palm Springs at a regular meeting held on the 14th day of February 1984. AYES: Councilmembers Foster, Maryanov, Smith and Mayor Bogert NOES None ABSENT: None ATTEST: CITY CLERK CITY MANAGER 7213P/2168/04 -4- U co r To T� iT� c'F�0aL.n S RirJ�-s P.S. Public Facilities Corp `r AITtij : ,1 . C4.J< a "Public LeaseUack" re sewer 0 v e o plant expansion AGREEMENT #1727 (Orig 9-1-81) W d a w o ,t,i rlFLrn SP�rr��-S , �' A 92-)--63 Ord #1143, 8-5-81 U CITY OF PALM SPRINGS PUBLIC FACILITIES W Y CORPORATION LEASE AND SUBLEASE m THIS LEASE AND SUBLEASE, dated as of September 1, 1981, by and between the CITY OF PALM SPRINGS, a municipal corporation organized and existing under the laws of the State of California, (hereinafter referred to as "City"), and CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION, (hereinafter referred to as the "Corporation,"); WITNESSETH: WHEREAS, City is the owner of certain real property and easements situated in the County of Riverside more particularly described in Exhibit "A" attached hereto and made a part hereof (hereinafter referred to as the "Property"); and WHEREAS, City owns a wastewater treatment plant (hereinafter referred to as the "Plant") located on Parcel A of the Property, and WHEREAS, City, concurrently with the financing of the facilities for the expansion of the Plant, is upgrading the Plant to a capacity of 6.56 mgd, and WHEREAS, City desires to expand the Plant to a capacity of 10.9 mgd, and WHEREAS, the Corporation has been formed by a group of public spirited citizens for the purpose of constructing facilities necessary to expand the capacity of the Plant to 10.9 mgd, (hereinafter referred to as the "Facilities") and WHEREAS, the Facilities will be constructed on the Property to be leased from City, from the proceeds of leasehold mortgage bonds to be issued by the Corporation, and upon the completion thereof to sublease to City the Property and the Facilities constructed from said bond proceeds; Now, THEREFORE in consideration of the payment of rent and the performance of the mutual promises and agreements herein contained at the time and in the manner specified, the parties hereto agree as follows: Section 1. Property Lease. For and in consideration of the sum of S1.00 being the fair advance / rentnl „nh,P nF t6P pr,,. --, 1--ea u --• `r, receipt of which is hereby CI ded 4.34/10.9ths interest in C, D/aa6 E f the Property to ti ie date of recordation of this rf Riverside County, State of :r is earlier (herein sometimes O :5 C 90 V < o e q ;s such term is extended as T-1 � ease shall end on the earlier of r , O 0LL 0 .� N �u l� W O Z d Ld 9 N 1 j o. vp w Ld PURPOSE OF REFLECTING THE w Q a Co TENTLY OMITTED.. 1 0 a r�:vN _ z - L [ jN 0 1- PALIN 00 SFR�IJ�S r 4' 0�p� 11) 1 � ; 75� o o ➢a G Wa a w T-� m S Piz I", -S C A . `1 Lac,j > cn °= CITY OF PALM SPRINGS PUBLIC FACILITIES o CORPORATION LEASE AND SUBLEASE W v m THIS LEASE AND SUBLEASE, dated as of September 1, 1981, by and between the CITY OF PALM SPRINGS, a municipal corporation organized and existing under the laws of the State of California, (hereinafter referred to as "City"), and CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION, (hereinafter referred to as the "Corporation,"); WITNESSETH: WHEREAS, City is the owner of certain real property and easements situated in the County of Riverside more particularly described in Exhibit "A" attached hereto and made a part hereof (hereinafter referred to as the "Property"); and WHEREAS, City owns a wastewater treatment plant (hereinafter referred to as the "Plant") located on Parcel A of the Property, and WHEREAS, City, concurrently with the financing of the facilities for the expansion of the Plant, is upgrading the Plant to a capacity of 6.56 mgd, and WHEREAS, City desires to expand the Plant to a capacity of 10.9 mgd, and WHEREAS, the Corporation has been formed by a group of public spirited citizens for the purpose of constructing facilities necessary to expand the capacity of the Plant to 10.9 mgd, (hereinafter referred to as the "Facilities") and WHEREAS, the Facilities will be constructed on the Property to be leased from City, from the proceeds of leasehold mortgage bonds to be issued by the Corporation, and upon the completion thereof to sublease to City the Property and the Facilities constructed from said bond proceeds; Now, THEREFORE in consideration of the payment of rent and the performance of the mutual promises and agreements herein contained at the time and in the manner specified, the parties hereto agree as follows: Section 1. Property Lease. For and in consideration of the sum of $1.00 being the fair advance rental value of the Property leased hereunder, receipt of which is hereby acknowledged, City hereby leases an undivided 4.34/10.9ths interest in Parcel A of the Property and all of Parcels B, C, D/and E' f th�y to the Corporation for a term commencing on the date of recordation of this Lease in the office of the County Recorder of Riverside County, State of California, or on September 1, 1981, whichever is earlier (herein sometimes referred to as the "Property Lease"). Unless such term is extended as hereinafter provided the term of the Property Lease shall end on the earlier of 1 THIS IS BEING RE-RECORDED FOR THE SOLE PURPOSE OF REFLECTING THE "BASE RENT" ON PAGE 4 WHICH WAS INADVERTENTLY OMITTED. f' CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION LEASE AND SUBLEASE THIS LEASE AND SUBLEASE, dated as of September 1, 1981, by and between the CITY OF PALM SPRINGS, a municipal corporation organized and existing under the laws of the State of California, (hereinafter referred to as "City"), and CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION, (hereinafter referred to as the "Corporation"); WITNESSETH: WHEREAS, City is the owner of certain real property and easements situated in the County of Riverside more particularly described in Exhibit "A" attached hereto and made a part hereof (hereinafter referred to as the "Property"); and WHEREAS, City owns a wastewater treatment plant (hereinafter referred to as the "Plant") located on Parcel A of the Property, and WHEREAS, City, concurrently with the financing of the facilities for the expansion of the Plant, is upgrading the Plant to a capacity of 6.56 mgd, and WHEREAS, City desires to expand the Plant to a capacity of 10.9 mgd, and WHEREAS, the Corporation has been formed by a group of public spirited citizens for the purpose of constructing facilities necessary to expand the capacity of the Plant to 10.9 mgd, (hereinafter referred to as the "Facilities") and WHEREAS, the Facilities will be constructed on the Property to be leased from City, from the proceeds of leasehold mortgage bonds to be issued by the Corporation, and upon the completion thereof to sublease to City the Property and the Facilities constructed from said bond proceeds; Now, THEREFORE in consideration of the payment of rent and the performance of the mutual promises and agreements herein contained at the time and in the manner specified, the parties hereto agree as follows: Section 1. Property Lease. For and in consideration of the sum of $1.00 being the fair advance / rental value of the Property leased hereunder, receipt of which is hereby Q 0W :• acknowledged, City hereby leases an undivided 4.34/10.9ths interest in Parcel A of the Property and all of Parcels B, C, D,aad &of the Property to y the Corporation for a term commencing on the date of recordation of this L" Lease in the office of the County Recorder of Riverside County, State of California, or on September 1, 1981, whichever is earlier (herein sometimes referred to as the "Property Lease"). Unless such term is extended as hereinafter provided the term of the Property Lease shall end on the earlier of 1 ! 6 (i) July 1, 2010 or (ii) one (1) day after the payment or provision for the payment of all principal, interest and premiums, if any, ar other sums so that any and all security devices and instruments filed with City pursuant to Section 14 hereof have been discharged. If on June 30, 2010, any bonds, notes or other obligations of the Corporation incurred to pay the advance rent on the Property and to finance and construct the Facilities as provided in Section 14 hereof shall not be fully paid and retired or provision for such payment has not been made so that any and all security instruments filed with City as provided in Section 14 hereof have been discharged or if the rent payable under the Facilities Sublease shall have been abated at any time and for any reason, then the term of this Property Lease shall be extended until one (1) day after all bonds, notes or other obligations of the Corporation incurred to pay advance rent on the Property and to finance and construct the Facilities shall be fully paid and retired or provision for such payment has been made, except that the term of this Property Lease shall in no event be extended beyond July 1, 2015. Section 2. Plans and Specifications—Construction of Facilities. City has prepared plans and specifications for the construction of the Facilities to be constructed and leased hereunder. Said plans and specifica- tions consist of specifications entitled "Wastewater Treatment Plant Expan- sion, City Project No. 79-44 Volume 1 —Contract Documents and Specifica- tions 1981" and plans entitled "Wastewater Treatment ]Plant Expansion — City Project No. 79-44 Volume 2 — Drawings 1981" hereinafter collectively referred to as the "Plans and Specifications". The Facilities to be constructed and the Plans and Specifications completed on the date of this Property Lease are on file in the office of City. City shall forthwith upon the commencement of the term hereof deliver to the Corporation possession of the Property, except Corporation shall not have exclusive possession to Parcel A of the Property. City, as agent for the Corporation, shall proceed diligently to let a contract or contracts for the construction of the Facilities by a contractor or contractors licensed under the laws of the State of California. All work, construction and materials to be in accordance with said Plans and Specifications. City shall let such contract or contracts only by open competitive bidding and with the approval of the lowest responsible bidder or bidders by the Corporation. The Corporation hereby designates City as its agent for the administra- tion of any contract for the construction of the Facilities including, without limitation, the use of its administrative personnel, the use of engineers designated by City, the employment of inspectors and firms for the testing of materials required for said construction. Construction of the Facilities shall be completed on or before December 1, 1983, provided that such completion date shall be extended for such 2 further period or periods, that the Corporation (or any contractor or con- tractors employed by the City as agent for the Corporation) is delayed by: (1) acts or omissions of City or of anv employee or agent of City, including changes ordered in the work, or (2) any act of God which City or the Corporation could not reasonably have foreseen and provided for, or (3) any strikes, boycotts, or like obstructive actions by employee or labor organiza- tions which are beyond the control of City or the Corporation and which City or the Corporation cannot overcome with reasonable effort and could not reasonably have been foreseen and provided for, or (4) any war or declaration of state of national emergency, or (5) the imposition by government action or authority of restrictions upon the construction or the procurement of labor or materials necessary for completion. If there is any litigation pending relating to the validity of this Lease or the financing of the Facilities, or if any such litigation is commenced prior to the letting of a contract for the construction of the Facilities, City or the Corporation shall have no obligation to let such construction contract until such litigation is finally terminated favorably to the validity of this Lease or the proposed financing of the Facilities or both as the case may be. In the event that such litigation remains pending for more than twenty-four (24) months, Corporation or City may, if no bonds of the Corporation are out- standing, terminate this Lease by delivering written notice of such termina- tion to the other party and the Corporation shall surrender the Property to City. Thereafter both the Corporation and City shall be relieved of all obligations under this Lease. Section 3. Contributions to the Facilities and Reimbursement to City. City may, from time to time, and in its sole discretion, appropriate general City monies for the purpose of financing, acquiring and constructing the Facilities. The parties hereto agree that any funds so appropriated shall be paid to the Trustee under the Indenture hereinafter mentioned who shall then pay said funds to the persons to whom said funds are due, provided, however, that Trustee shall make no such payments or portions thereof until City and the Corporation shall have complied with the provisions of Section 503 of that certain document entitled "Indenture of Mortgage and Deed of Trust," dated as of September 1, 1981, executed by Corporation and recorded in the office of the County Recorder, Riverside County concurrently with this Lease (herein sometimes referred to as the "Indenture"). Any improvements or additions to the Facilities or portions thereof in whole or in part paid for by any City general funds shall be deemed to be part of the Facilities and shall be subject to the provisions of this Lease and to the aforesaid mortgage and deed of trust and all terms and conditions contained therein. The Corporation agrees to pay to City from, but only from, the proceeds of bonds issued pursuant to the above mentioned Indenture all costs and 3 expenses heretofore and hereafter incurred by City in connection with the financing, acquisition and construction of the Facilities including the acquisi- tion of materials, preliminary on site work, the preparation of the Plans and Specifications, legal, and other expenses relating to the financing, acquisition and construction of the Facilities. The payment for expenses incurred by City to the day of delivery of the Corporation's bonds issued to finance the construction of the Facilities as provided in Section 14 hereof shall be paid within thirty (30) days from said date. Section 4. Sublease to City—Maximum Term. The Corporation hereby subleases to City (herein sometimes referred to as the "Facilities Sublease"), and City hereby accepts and rents from the Corporation the Property as improved by the construction of the Facilities. The term of sublease shall commence: (1) when the Facilities are substantial- ly completed in accordance with the Plans and Specifications and written notice thereof has been served on City by the Corporation, or (2) when City takes possession of the Facilities, whichever occurs first, but in no event later than the time prescribed herein for completion plus any extension of comple- tion date provided under Section 2 hereof. Unless the term is extended as hereinafter provided, the term of the Facilities Sublease; shall end on the earlier of(i) June 30, 2010 or (ii) upon the payment or provision for payment of all principal, interest and premiums, if any, or other suns so that any and all security devices and instruments filed with City pursuant to Section 14 hereof have been discharged. If on June 29, 2010 the bonds, notes or other obligations of the Corporation incurred to construct the Facilities as provided in Section 14 hereof shall not be fully paid and retired, or provisions for such payment has not been made, and if the rental payable hereunder shall have been abated at any time and for any reason, then the term of the Facilities Sublease shall be extended until the date all bonds, notes or other obligations of the Corporation incurred to construct the Facilities shall be fully paid and retired, or provision for such payment has been made, except that the term of the Facilities Sublease shall in no event be extended beyond June 30, 2015. Section 5. Rental. For the period commencing on the date on which City shall be served with written notice that the Facilities have been substantially completed in accordance with the Plans and Specifications or commencing on January 1, 1984, whichever is later, City agrees to pay for the use of the Facilities during each fiscal year, except as herein provided for the first fiscal year, rent at the rate of �2, 4fpeS31F• er year ("base rent"). Except as herein provided for the first fiscal year of the commencement of the Facilities Sublease, liability for said rental shall commence on the first (1st) day of July, of each fiscal year and shall be paid in equal semi-annual installments on or before August 20 and February 20 in each fiscal year for the use of the premises during said 4 fiscal year. In the event that the liability of City for rent at said annual rate does not commence on the first (1st) day of July, the rent to be paid for the remaining portion of the rental payment period in which such liability commences shall be prorated and shall be paid on the next succeeding February 20th or August 20th. In the event this Facilities Sublease expires or is terminated, or in the event the Facilities become unusable, said rent shall be prorated and advance rent already paid, if any, shall be equitably adjusted and credited. In addition, and as part of the rent, during the term of the Facilities Sublease to City, City agrees to pay an amount, for the fiscal year of City to which the following items apply or relate, equivalent to the following ("additional rent"): (1) all taxes and assessments of any nature whatsoever, including, but not limited to, excise taxes, ad valorem taxes, ad valorem and specific lien special assessments and gross receipts taxes, if any, levied upon the Property or upon the Facilities or upon the Corporation's interest there- in, or upon the rental income derived therefrom, except State and Federal income taxes; (2) insurance premiums (as hereinafter provided); (3) all administrative costs of the Corporation, including, without limiting the generality of the foregoing, wage expenses, compensation and indemnification of the Trustee under the Indenture or under any security instrument referred to in Section 14 hereof, fees and charges of auditors, accountants, engineers and attorneys, and all other necessary administrative costs of the Corporation or charges required to be paid by the Corporation in order to comply with the terms of the bonds, notes or other obligations or the Indenture or any other security instrument referred to in Section 14 hereof, and to defend the Corporation and its members, directors, officers, consultants and employees in any matter relating to the acquisition, construction, financing or operation of the Facilities; and (4) all costs and expenses which the Corporation may incur in consequence of or because of any default by City under this Lease, including reasonable attorneys' fees and costs of suit or action at law to enforce the terms and conditions of this Lease, said payments to be made within thirty-five (35) days after City has been furnished statements of the amount due or receipted bills or cancelled checks showing payment by the Corporation. In the event the Facilities become unusable, such taxes and special assessments (except taxes and special assess- ments on land or on an interest in land) and insurance premiums shall be prorated as herein provided and any unused portions shall be refunded to City. Insurance premiums shall be prorated upon the basis of the period of time for which each such premium is paid. Taxes and ad valorem special 5 assessments shall be prorated upon the basis of the fiscal year for which they were levied. Specific lien assessments shall be prorated upon the basis of the period of time that bonds would run in the event the property were in private ownership and the assessments had not been paid in cash. There shall be credited against the base rent and additional rent due hereunder any amount of money available for such credit pursuant to the terms of any security instruments filed with City pursuant to Section 14 hereof. City hereby covenants to take such actions as may be necessary to include and maintain all rental payments due hereunder in each fiscal year in its budget for such fiscal year, and further covenants to make the necessary appropriations for all such rental payments. Such covenants shall be deemed and construed to impose ministerial duties by law and it shall be the duty of each and every public official of City to take such action and do such things as required by law in the performance of such duty to enable; City to carry out and perform said covenants. Any installment of rent accruing under this Section which shall not be paid when due shall bear interest at the rate of 10% per an num from the date when the same is due hereunder until the same shall be paid. Notwithstand- ing any dispute between the Corporation and City hereunder, City shall make all rental payments when due and shall not withhold any rental payments, pending the final resolution of such dispute. In the event of a determination that City was not liable for said rental payments thereof, said payments or excess of payments as the case may be shall be credited against subsequent rental payments due hereunder. The payments of base,rent and additional rent hereunder for each fiscal year of the term of this Lease shall constitute the total rent for said fiscal year and shall be paid by City for and in consideration of the right of use and occupancy, and the continued quiet use and enjoyment, of the Facilities for and during said fiscal year. The parties hereto have agreed and determined that such total rent represents the fair rental value of the Facilities leased hereunder. In making such determination, consideration has been given to the costs of acquisition and financing the construction of the Facilities and the uses and purposes which will be served by the Facilities. The Facilities Sublease provided for herein shall be deemed and con- strued to be a "net-net-net" sublease, and City agrees that the rents provided for herein shall be an absolute net return to the Corporation, free and clear of any expenses, charges or set-offs whatsoever. Section 6. Insurance. The Corporation and City shall, from the date of commencement of construction of the Facilities, secure a policy or policies of' insurance, if such 6 insurance is obtainable at reasonable cost from reputable insurance compa- nies, against loss or damage to the aboveground portion of the Facilities, resulting from fire, lightning, vandalism, malicious mischief, and such perils ordinarily defined as "extended coverage" and such other perils as the Corporation and City may agree should be insured against on forms and in amounts satisfactory to each. City shall be named as an additional insured under such policies of insurance. Nothing herein shall be construed to require the Corporation to carry insurance with respect to equipment not provided by the Corporation pursuant to said Plans and Specifications. During the term of the Facilities Sublease the Corporation shall provide and keep in force public liability and property damage policies protecting both the Corporation and City on forms and in amounts satisfactory to each. The Corporation and City shall be named as additional insureds on such policies of insurance as the contractor(s) may be required by Corporation and City to carry during the construction of the Facilities. The Corporation may also carry such other insurance as is required by the Indenture or other security instrument referred to in Section 14 hereof. Any insurance required to be carried pursuant to this Section may be carried by City with the Corporation named as an additional insured and provision shall be made for the payment of any recovery to the Trustee named in the Indenture or other security instrument referred to in Section 14 bereof. All premiums and charges for the aforesaid insurance shall be paid by City in accordance with the provisions of Section 5, provided that City's obligation in any fiscal year to make such payment shall be limited to payment for insurance applicable to said fiscal year. Section 7. Changes in Plans and Specifications. City may issue change orders altering the construction Plans and Specifi- cations during the course of construction, if such changes do not materially reduce or diminish the capacity, adaptability or usefulness of the Facilities, and the Corporation agrees to cooperate fully with City to cause such change orders to be implemented. Before the Corporation shall be bound by any such change orders which, together with all other change orders, will increase the aggregate cost of construction of the Facilities over the construction cost determined by the competitive bidding refered to in Section 2 hereof, City shall arrange with the Corporation to pay the increased cost resulting from such change orders, and, if required by the Corporation or by the terms of the Indenture, if any, shall deposit funds sufficient to pay such increased cost with the Trustee under the Indenture. Section 8. Changes After Completion. City shall have the right during the term of the Facilities Sublease to make alterations or improvements or attach fixtures, equipment or structures to the Facilities if said alterations, improvements, fixtures, equipment and structures are necessary or beneficial for the use of the Facilities by City. Upon termination of the Facilities Sublease, City may remove any future, equipment or structure added by City, but such removal shall be accomplished so as to leave the Facilities, except for ordinary wear and tear, in substantially the same condition as it was in before the future, equipment or structure was attached. Section 9. Title to Property—Right of City to Acquire Facilities. City shall retain its legal interest in the Property, subject to this Lease. Title to the Facilities, all structural additions thereto, and all fixtures, equip- ment and apparatus placed therein by the Corporation shall remain in the Corporation during the test of the Facilities Sublease and shall thereafter vest in City. Title to all fixtures and equipment placed in the Facilities by City shall remain in City. City has the right at any time during the term of this Lease to purchase the Facilities at a price to be agreed upon by City and Corporation; provided, however, said purchase price shall be sufficient for and shall be used to provide for the retirement of any bonds, notes or other obligations of Corporation then outstanding. Section 10. Utilities Management, Operation and Maintenance. City shall furnish, or cause to be furnished, to the extent permitted by law, in conjunction with its right hereunder to occupy and use the Facilities, the source of all power, gas, telephone and other utility services to the point of connection thereof as shown by said Plans and Specifications. As long as City is in possession of the Facilities it shall keep them free and clear of all liens, charges and encumbrances (except any arising through the Corporation) and shall maintain the same in good repair and working order and shall have the responsibility for all management, operation, mainte- nance and repair of the Facilities. City in its discretion may discharge such responsibility by: (1) using its own employees; or (2) contracting for services; or (3) subleasing all or part of the Facilities; or (4) any combination of said methods. No such contract or sublease shall place a greater burden on the Corporation than provided herein, nor infringe rights granted to or retained by the Corporation hereunder, nor violate or in any way impair the Corpora- tion's obligations under the Indenture or other instrument, if any, securing or declaring the terms of any debt or borrowings by the Corporation, all or substantially all of the proceeds of which are to be used to finance the 8 0 Facilities. The Corporation does not agree to provide anything more than the Facilities as herein defined. Section 11. Interruption in Use Due to Fire, Earthquake, etc. It is expressly understood and agreed that the rental hereunder shall become due only in consideration of the right to occupy and use the Facilities or part thereof, as the case may be; and, except as herein provided, it is the responsibility of the Corporation to provide such right at all times during the period for which the rental involved is paid. In the event of destruction or damage of the Facilities by fire or other casualty or event so that they become wholly or partly unusable the Corpora- tion at its option may do either of the following: (1) Rebuild and repair the Facilities so that they shall be restored to use, in which case this Lease shall remain in full force and effect; or (2) In the event the Facilities are wholly unusable declare this Lease terminated and use the money collected from insurance against destruction of or damage to the Facilities to the extent necessary to retire any outstanding securities or any debts or liabilities which the Corpora- tion may have;provided, however, that if the Facilities can be repaired or rebuilt within the period for which the Corporation has insurance against business (rent) interruption, and if the Corporation shall have sufficient funds from the proceeds of insurance or otherwise for the necessary repairing or rebuilding, the Corporation shall not proceed under this option without City's consent. During such time as the Facilities are unusable, rent shall cease and no further.rental payments shall accrue until the Facilities are again ready for occupancy and rental payments already made, if any, shall be equitably adjusted. In the event of partial damage or destruction to the Facilities so as to render a portion thereof unusable by City, rental payments shall be partially abated or adjusted downward so that the rent payable for the period of partial unusability shall not be reduced before debt service on any security instru- ment referred to in Section 14 hereof or shall not exceed the fair market rental value, determined as of the date hereof by an appraiser acceptable to both City and Corporation, of the unusable portion of the Facilities, which- ever is less. Section 12. Eminent Domain. (a) If the whole of the Property and the Facilities shall be taken permanently under the power of eminent domain, the term of this Lease shall cease as of the day possession shall be so taken. If less than the whole of the Property and the Facilities shall be taken permanently, or if the whole of the 9 • 9 Property and the Facilities shall be taken temporarily, under the power of eminent domain, (1) this Lease shall continue in full force and effect and shall not be terminated by virtue of such taking and the parties waive the benefit of any law to the contrary, and (2) there shall be a, partial abatement of rent to be agreed upon by City and the Corporation, but in no event shall the rental be less than the amount required for the retirement of the Bonds and the payment of the interest thereon as such Bonds and interest become due. (b) So long as any of the Bonds shall be outstanding, any award made in eminent domain proceedings for taking or damaging the: Property and the Facilities in whole or in part shall be paid to the Trustee and applied as provided in the Indenture. Any such award made after all of the Bonds have been fully paid and retired shall be paid to the Corporation and City as their respective interests may appear. Section 13. Default by City. If (a) City shall fail to pay any rental payable hereunder within fifteen (15) days from the date such rental is payable, or (b) City shall fail to keep any other terms, covenants or conditions herein for a period of twenty-five (25) days after written notice thereof from the Corporation to City or (c) City shall abandon or vacate the premises, or (d) City's interest in this Lease or any part thereof shall be assigned or transferred without the written consent of the Corporation, either voluntarily or by operation of law, then in any of such events City shall be deemed to be in default hereunder. If City should, after notice, fail to remedy any default with all reason- able dispatch, not exceeding thirty (30) days, then the Corporation shall have the right at its option, without any further demand or notice (i) to terminate the Facilities Sublease without terminating the Property Lease and to reenter the Facilities and eject all parties in possession therefrom, or (ii) to reenter the Facilities and remove all parties therefrom, and without terminating the Facilities Sublease relet the Facilities, or any part thereof, as the agent and for the account of City, upon such terms and conditions as the Corporation may deem advisable, in which event the rents received on such reletting shall be applied first to the expenses of reletting and collection, :including necessary renovation and alteration of the Facilities, reasonable attorneys' fees, and any real estate commissions actually paid, and thereafter toward payment of all sums due and if a sufficient sum shall not be thus realized to pay such sums and other charges, City shall pay the Corporation any deficiency. The forego- ing remedies of the Corporation are in addition to and not exclusive of any other remedy of the Corporation, including but not limited to, the right to recover rent as it becomes due pursuant to Section 5 hereof, without terminating this Lease or City's right to possession of the Facilities. Any such 10 reentry shall be allowed by City without let or hindrance, and the Corpora- tion shall not be liable in damages for any such reentry or be guilty of trespass. ` The Corporation and City consider the foregoing remedies to be essential to the validity of this Lease, and intend that by virtue of Section 1952.6 of the Civil Code the provisions of Sections 1951 to 1952.2, inclusive, of said code shall not be applicable to this Lease. Section 14. Mortgage of Leasehold. Except as otherwise provided herein, the Corporation shall not assign or transfer the performance of its duties and obligations hereunder without the consent of City. The Corporation may finance the construction of the Facilities by the sale and issuance of its leasehold mortgage bonds to the extent permitted by law. The Corporation may, without the consent of City, assign, transfer, mortgage, hypothecate or encumber the Corporation's interest under this Lease (including the right to receive rental payments) to any bona fide lender or lenders (including purchasers or holders of notes, bonds or other obliga- tions of the Corporation) on the security of the leasehold estate, and the Corporation may execute any and all instruments necessary therefor, includ- ing, without limitation, instruments providing for the paying of rent directly to a trustee for such lender or lenders. Any such lender or lenders may be granted the right, prior to termination of this Lease: (a) To do any act or thing required of the Corporation in order to prevent a forfeiture of the Corporation's rights hereunder, and all such acts or things so done shall be as effective to prevent a forfeiture of the Corporation's rights hereunder as if done by the Corporation; (b) To realize on the security of the leasehold estate and to acquire and succeed to the interest of the Corporation hereunder by foreclosure or by a deed or assignment in lieu of foreclosure, and thereafter at such lender's option to convey or assign the interest in or title to said leasehold estate to any other person subject to all the terms, conditions and covenants of this Lease. Two copies of all security instruments shall be filed with City promptly after their effective date thereof, and the Corporation shall give City prior written notice of any changes or amendments thereto. Section 15. Default by the Corporation. A. If (a) the Corporation shall fail to construct the Facilities in ac- cordance with the provisions of this Lease, or (b) the Corporation shall fail to keep any other terms, covenants or conditions herein for a period of twenty- 11 five (25) days after written notice hereof from City to the Corporation, or (c) the Corporation's interest in this Lease or any part thereof shall be assigned or transferred without the written consent of City, except as permitted under Section 14 hereof either voluntarily or by operation of law, then in any of such events the Corporation shall be deemed to be in deirault hereunder. If the Corporation should, after notice, fail to remedy any default with all reasonable dispatch, not exceeding thirty (30) days, then City shall have the right, at its option, to terminate this Lease by delivering written notice of such termination to the Corporation, and thereafter City shall be relieved of all obligations hereunder. Section 16. Access to Premises. The Corporation and its designees shall have the right to enter on the Property during reasonable hours (and in emergencies at all times) (i) to inspect the same and (ii) for purposes connected with the Corporation's rights or obligations hereunder. Section 17. Notices. Any notices or filings required to be given or made under this Lease shall be served or made in the following manner: upon City by serving the Secretary personally or by registered mail addressed to the; City Clerk of the City at 3200 Tahquitz — McCallum Way, Palm Springs, California, 92262 or such other place as City may hereafter be designated in writing and upon the Corporation by registered mail addressed to the Corporation at the aforementioned address or at such other place as the Corporation may hereafter designate in writing. Section 18. Section Headings, Severability. The paragraph headings contained herein are for convenience and refer- ence and are not intended to define or limit the scope of any provision of this Lease. If any section, subsection,sentence, clause or phrase of this Lease, or the application thereof to either party or any other person or circumstance, is for any reason held invalid, it shall be deemed severable and the validity of the remainder of the Lease or the application of such provisions to the other party or to any person or circumstance shall not be affected thereby. Section 19. Attorney's Fees. Should either party hereto commence an action to enforce the provisions of this Lease, then such party that prevails in that action shall be entitled to reasonable attorney's fees, costs, expert witness fees, consulting fees and testing fees. 12 • IN WITNESS WHEREOF, the Corporation has caused this Lease to be executed by its duly authorized officers and City has caused this Lease to be executed by the Mayor of the City and attested by the City Clerk thereof, as of the day and year first above written. CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION By President By Secretary (SEAL) CITY OF PALM SPRINGS By Mayor ' ATTEST: / BYl ( � Crty Clerk (SEAL) 13 STATE OF CALIFORNIA COUNTY OF RIVERSIDE j On this 't. day 1981, before me, the undersigned, a Notary Public in and for said State, personally appeared Alfred F. Albert, known to me to be the President, and Ruth Licata, known to me to be the Secretary, of CITY OF PALM SPRINGS PUBLIC FACILITIES CORPORATION, one of the corpor- ations that executed the within instrument, known to me to be the persons who executed the within instrument on behalf of such corporation, and acknowledged to me that such corporation executed the within instrument pursuant to a resolution of its board of directors. WITNESS my hand and official seal. J T-+�CIV3:3]I�OC,G'JGJ'H]{P1C:JC3©LJ f�C � f nT� c,_;.;c�.SEAL SEAL / I tary Public iri an /for the BEffZdViCE R. KE ql State of California j; I:.� NOTARY PUBLic,CALIFORNIA (SEAL 'e� � ,GIs,. MINCLAL CfFRSE IN L `,. A':=' RIVERSIDE COUNTY = snf_,W Wr COMMiS3100 EXP.A pr. 9, 1985 UQ T„�JC';SueWGJtddE9G'WQO6845J1yCD®it1C360.d4a'1(N4'3�1i G3C( STATE OF CALIFORNIA ) SS. COUNTY OF RIVERSIDE ) On this 1`.J:day of 1981, before me, the undersigned, a Notary Public in and for said State, ppersonally appeared known to me to be the Mayor, known to me to be the City Clerk, of CITY OF PALM SPRINGS, one of the corporations that executed the within instrument, known to me to be the persons who executed the within instru- ment on behalf of such corporation, and acknowledged to me that such corporation executed the within instrument pursuant to ;a resolution of its board of directors. WiTNEss my hand and o t ial seal. OFFICIAL SEAL / ''�• BELLE A LIT LETON �`�;s^ NOTAkY PUBLIC - CALIFOR NIA i' �+ RIVERSIDE CCIINTY } Notary PubliB in and for the `_" P✓ly comm. expires MAR 15, 1\ 9 State of California 14 EXHIBIT "A" LEGAL DESCRIPTION: The following described real property in the State of California, County of Riverside, City of Palm Springs. PARCEL A Lots 19 and 20 in Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian, as shown on Map of Palm Valley Colony Lands, according to map thereof recorded in Book 14, Page 652 of Maps, records of San Diego County, California, being in the City of Palm Springs, County of Riverside, State of California. PARCEL B Lot 31, Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian of PALM VALLEY COLONY LANDS as shown by Map on file in Book 14, page 652 of Maps, Records of San Diego County. PARCEL C That Portion of Lot 32 in Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian, as shown on Map of PALM VALLEY COLONY LANDS, according to map thereof recorded in Book 14, Page 652 of Maps, Records of San Diego County, California, Being in the City of Palm Springs, County of Riverside, State of California, described as follows: Beginning at the southeast corner of said Lot 32, being the southeast corner of said Section 19;thence north 89' 56' 07' west, along the southerly line of said Lot 32 and the southerly line of Section 19, a distance of 675.60 feet to the southwest corner of said Lot 32; thence north 01 08' 10' west, along the westerly line of said Lot 32, a distance of 926.12 feet; thence south 891 52' 17' east, a distance of 361.08 feet; thence north 33' 14' 08' east, a distance of 193.90 feet to the beginning of a tangent curve concave northwesterly, having a radius of 950.00 feet; thence northeasterly along the arc of said curve, through a central angle of 15' 09' 15', a distance of 251.27 feet to the northerly line of said Lot 32; thence south 89' 51' 00' east, along the northerly line of said Lot 32, a distance of 97.83 feet to the northeast corner of said Lot 32; thence south 0' 10' 45' east, along the easterly line of said Lot 32, a distance of 21.95 feet to a point on the arc of a non-tangent curve concave north- westerly, having a radius of 1050.00 feet, a radial line passing through said point bears south 720 25' 28' east; thence southwesterly along the arc of said curve, through a central angle of 15' 39' 36', a distance of 15 286.98 feet; thence tangent to said curve south 330 14' 08' west, a distance of 128.77 feet; thence south 890 52' 17' east., a distance of 194.46 feet to a point of the easterly line of said Lot 32; thence south 00 10' 45' east, along said easterly line, a distance of 925.36 feet to the point of beginning. PARCEL D The South one half of the Southwest one fourth of the Southwest one fourth (S'hSWY.SW'/4) section 20, Township 4 South, Range 5 East, San Bernardino Base and Meridian, subject to all valid existing rights of way, containing 20 acres more or less. PARCEL E The South one half of the Southeast one fourth of the Southwest one fourth (S'hSE'/4SW'/4) Section 20, Township 4 South, Range 5 East, San Bernardino Base and Meridian, subject to any valid existing Rights-of-way, containing 20 acres more or less. PARCEL F That portion of Lots 29 and 30 in Section 19, Township 4 South, Range 5 East, San Bernardino Base and Meridian, as shown on the map of Palm Valley Colony Lands, according to Map thereof Recorded in Book 14, Page 652 of Maps, Records of Riverside County, California, described as follows: Beginning at the Northeast corner of said Lot 30; thence South 00 05' 44' East, along the Easterly line of said Lot 30, a distance of 657.89 feet to the Southeast corner of the North half of said Lot 30; thence North 89' 53' 34' West, along the Southerly line of said North half, a distance of 675.03 feet to the Southeast corner of said North half, thence South 01 02' 43' East, along the common line between said Lots 29 and 30, a distance of 49.02 feet to the Southerly line of that certain parcel of land shown and delineated as Parcel 6060-144 of Record of Survey Recorded in Book 57, Pages 3 through 16, inclusive, of Records of Survev on file in the Office of the Recorder of Riverside County, California; thence North 56' 58' 44' West, along the Southerly line of said parcel, a distance of 20.09 feet to a point therein; thence North 490 23' 02' West, a distance of 151.33 feet; thence North 55° 25' 51' West, a distance of 659.70 feet to the Westerly line of said Lot 29; thence North 0' 00' 36' East, along said Westerly line a distance of 225.40 feet to the Northwest corner of said Lot 29; thence South 89' 51' 00' East, along the Northerly line of said Lots 29 and 30, a distance of 1348.80 feet to the Point of Beginning. 16