HomeMy WebLinkAboutMINUTES - 02211984 - 1.39 CCd-22a
'3736s
RESOLUTION NO.
OF THE BOARD OF SUPERVISORS OF THE
COUNTY OF CONTRA COSTA
CALIFORNIA
RESOLUTION APPROVING FORMS OF AND AUTHORIZING EXECUTION OF AN
AGREEMENT AMENDING DEED OF GIFT (PROJECT PHASE I ) , AN AMENDED
AND RESTATED FACILITY LEASE (PROJECT PHASE I ) , AND A TRUST
AGREEMENT, APPROVING FORM OF AN ASSIGNMENT AGREEMENT AND
AUTHORIZING VALIDATION ACTION.
WHEREAS, Contra Costa County Public Facilities
Corporation, a California nonprofit public benefit
corporation (herein called the "Corporation" ) , has been
incorporated by a group of public. spirited citizens of the
County of Contra Costa (herein called the "County" ) for the
specific and primary purpose of providing financial
assistance to the County of Contra Costa by financing the
acquisition, construction, improvement and remodeling of
public buildings and facilities; and
WHEREAS, by its Articles of Incorporation and by
its Bylaws no part of the net earnings, funds or assets of
the Corporation shall inure to the benefit of any director
thereof or any other person, firm or corporation, except the
County;
WHEREAS, the Corporation has previously executed
and delivered to the County a deed, entitled "Deed of Gift
(Project Phase I ) " and dated as of May 1, 1982 (herein called
the "1982 Deed of Gift" ) , which was recorded in the office of
the County Recorder of the County on May 27, 1982 under
Recorder' s Serial No. 82-59390; and
WHEREAS, the Corporation and the County have
previously entered into a facility lease, entitled "Facility
Lease (Project Lease I ) " and dated as of May 1, 1982 (herein
called the "1982 Lease" ) , which was recorded in the office of
the County Recorder of the County on May 27, 1982 under
Recorder' s Serial Number 82-59391; and
WHEREAS, the Corporation has issued its Contra
Costa County Public Facilities Corporation Bonds (Project 1 ) ,
Series A in the principal amount of $4, 500, 000 (herein called
the "1982 Bonds" ) for the purpose of financing the
acquisition for the use of the County of two office buildings
located at 610 Court Street, Martinez, California, and at 30
Muir Road, Martinez, California ( said two office buildings
being herein called "Project Phase I" ) ; and
WHEREAS, this Board of Supervisors hereby
determines that it would be in the best interest of the
County and the residents of the County for the Corporation
and the County to enter into an agreement, entitled "Amended
2 13e
and Restated Facility Lease (Project Phase I ) " and
tentatively dated as of April 1, 1984 (herein called the
"Facility Lease" ) , which would amend the 1982 Lease and would
restate the 1982 Lease as amended; and
WHEREAS, under the Facility Lease, the County would
be obligated to make base rental payments to the Corporation
for the lease of Project Phase I ; and
WHEREAS, it is proposed that all rights to receive
such base rental payments (together with the additional
rental payments provided for in the Facility Lease) will be
assigned without recourse by the Corporation to a trustee
pursuant to an agreement, entitled "Assignment Agreement" and
tentatively dated as of April 1, 1984 (herein called the
"Assignment Agreement" ) ; and
WHEREAS, it is further proposed that the
Corporation, the County and Bank of America National Trust
and Savings Association, as trustee, enter into an agreement,
entitled "Trust Agreement" and tentatively dated as of
April 1, 1984 (herein called the "Trust Agreement" ) , pursuant
to which said trustee will execute and deliver certificates
of participation in an amount equal to the aggregate
principal components of such base rental payments, each
evidencing and representing a fractional undivided interest
in such base rental payments, and will use the proceeds,
together with other moneys available to the Corporation, to
defease the 1982 Bonds; and
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133
WHEREAS, the County has full legal right, power and
authority under the Constitution and the laws of the State of
California to enter into the transactions hereinafter
authorized;
NOW, THEREFORE, BE IT RESOLVED by the Board of
Supervisors of the County of Contra Costa, as follows:
Section 1 . All of the recitals herein contained
are true and correct and this Board of Supervisors so finds.
Section 2 . This Board of Supervisors hereby finds
and determines that it is in the public interest, convenience
and welfare and for the common benefit of the inhabitants of
the County that the County continue to lease Project Phase I
from the Corporation and that the Corporation defease the
1982 Bonds to reduce the rentals to be paid by the County for
Project Phase I , and the County Administrator is hereby
authorized to request the Corporation to take all necessary
action to accomplish the defeasance of the 1982 Bonds.
Section 3 . The form of agreement, tentatively
dated as of April 1, 1984 and entitled "Agreement Amending
Deed of Gift (Project Phase I ) , " between the Corporation and
the County, submitted to this Board of Supervisors, and the
terms and conditions thereof, are hereby approved. The Clerk
of the Board of Supervisors is directed to file a copy of
said form of agreement with the minutes of this meeting, and
the Chairman of the Board of Supervisors and the Clerk of the
4 434
Board of Supervisors are authorized and directed to execute
and deliver an agreement in substantially said form.
Section 4. The form of agreement, tentatively
dated as of April 1, 1984 and entitled "Amended and Restated
Facility Lease (Project Phase I ) " , between the Corporation
and the County, submitted to this Board of Supervisors, and
the terms and conditions thereof, are hereby approved. The
Clerk of the Board of Supervisors is directed to file a copy
of said form of agreement with the minutes of this meeting.
Upon determination of the schedule of base rentals to be paid
under section 3 (a) thereof by resolution of this Board of
Supervisors, the Chairman of the Board of Supervisors and the
Clerk of the Board of Supervisors are authorized and directed
to execute and deliver an agreement in substantially said
form, as completed to include such subsequently determined
base rental schedule.
Section 5. The form of agreement, tentatively
dated as of April 1, 1984 and entitled "Trust Agreement, "
between the Corporation, the County and Bank of America
National Trust and Savings Association, as Trustee, submitted
to this Board of Supervisors, and the terms and conditions
thereof, are hereby approved. The Clerk of the Board of
Supervisors is directed to file a copy of said form of
agreement with the minutes of this meeting, and the Chairman
of the Board of Supervisors and the Clerk of the Board of
5 �:.
Supervisors are authorized and directed to execute and
deliver an agreement in substantially said form.
Section 6. The form of Assignment Agreement
submitted to this Board of Supervisors is hereby approved.
Section 7 . The Chairman of the Board of
Supervisors and the Clerk of the Board of Supervisors are
authorized to make such changes to said Agreement Amending
Deed of Gift (Project Phase I ) , the Facility Lease and the
Trust Agreement prior to the execution thereof as may be
required in the interest of the County where such changes do
not materially increase the obligation of the County or where
such changes are first approved by resolution of this Board
of Supervisors.
Section 8. The County Counsel of the County and
the law firm of Orrick, Herrington & Sutcliffe, A
Professional Corporation, which firm is hereby designated as
special counsel to the County with respect to the
transactions hereby authorized, are hereby authorized to file
an action in the name and on behalf of the County, pursuant
to California Code of Civil Procedure Sections 860 and
following, to validate the transactions herein authorized,
said Agreement Amending Deed of Gift (Project Phase I ) , the
Facility Lease, the Trust Agreement and the proceedings
leading up to and including the adoption of this Resolution
and all matters related thereto.
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Section 9 . The officers of the County 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 or advisable in order to
consummate the transactions herein authorized and otherwise
to carry out, give effect to and comply with the terms and
intent of this Resolution.
Section 10. This resolution shall take effect from
and after its date of adoption.
PASSED AND ADOPTED this 21st day of February, 1984.
/a1S
Chairman of the Board of Supervisors
of the County of Contra Costa,
State of California
[ Seal ]
ATTEST: J. R. Olson,
County Clerk and ex-officio
Clerk of the Board of
Supervisors
By
Deputy Clerk of the Board of
Supervisors of the County of
Contra Costa, State of California
7 -��.A�37
CLERK' S CERTIFICATE
I , � Chief Deputy
Clerk of the Board of Supervisors of the County of Contra
Costa, hereby certify that the foregoing is a full, true and
correct copy of a resolution duly adopted at a regular
meeting of the Board of Supervisors of said County duly and
regularly held at the regular meeting place thereof on the
21st day of February, 1984, of which meeting all of the
members of said Board of Supervisors had due notice and at
which a majority thereof were present; and that at said
meeting said resolution was adopted by the following vote:
AYES: l� Patk,Toriakson
NOES:
ABSENT:
I further certify that I have carefully compared
the same with the original minutes of said meeting on file
and of record in my office; that the foregoing resolution is
a full, true and correct copy of the original resolution
adopted at said meeting and entered in said minutes; and that
said resolution has not been amended, modified or rescinded
138
since the date of its adoption, and the same is now in full
force and effect.
WITNESS my hand and the seal of the County of
Contra Costa this -Vla-l- day of 1984.
Chief Deputy Clerk
of the Board of Supervisors
of the County of Contra Costa,
State of California
[ Seal ]
2
139
s
CCd-9a
3703s
2-15-84 Draft (2nd Draft)
AGREEMENT AMENDING DEED OF GIFT (PROJECT PHASE I )
by and between
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION
and the
COUNTY OF CONTRA COSTA
Dated as of April 1, 1984
140
AGREEMENT AMENDING DEED OF GIFT
(PROJECT PHASE I )
This AGREEMENT AMENDING DEED OF GIFT (PROJECT
PHASE I ) , made and entered into as of April 1, 1984, by and
among CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION, a
nonprofit public benefit corporation duly organized and
existing under and by virtue of the laws of the State of
California (the "Corporation" ) , and the COUNTY OF CONTRA
COSTA, a political subdivision organized and existing under
and by virtue of the laws of the State of California (the
"County" ) ;
W I T N E S S E T H:
WHEREAS, the Corporation has previously executed
and delivered to the County a deed, entitled "Deed of Gift
(Project Phase I ) " and dated as of May 1, 1982 (the "1982
Deed of Gift" ) , which was recorded in the office of the
County Recorder of the County of Contra Costa on May 27, 1982
under Recorder' s Serial No. 82-59390; and
WHEREAS, the Corporation and the County have
previously entered into a facility lease, entitled "Facility
Lease (Project Lease I ) " and dated as of May 1, 1982 (the
"1982 Lease" ) , which was recorded in the office of the County
141
Recorder of the County of Contra Costa on May 27, 1982 under
Recorder' s Serial Number 82-59391; and
WHEREAS, the Corporation has issued its Contra
Costa County Public Facilities Corporation Bonds (Project 1) ,
Series A in the principal amount of $4, 500, 000 (the "1982
Bonds" ) for the purpose of financing the acquisition for the
use of the County of two office buildings located at
610 Court Street, Martinez, California, and at 30 Muir Road,
Martinez, California (said two office buildings being herein
called "Project Phase I" ) ; and
WHEREAS, the Corporation and the County have
determined that it would be in the best interest of the
Corporation, the County and the residents of the County to
defease the 1982 Bonds through the sale and delivery of
certificates of participation evidencing a fractional
undivided interest in certain base rental payments to be made
pursuant to the hereinafter referred to Facility Lease; and
WHEREAS, the Corporation and the County have
entered into an agreement, entitled "Amended and Restated
Facility Lease (Project Phase I ) " and dated as of the date
hereof (the "Facility Lease" ) , which amends the 1982 Lease
and restates the 1982 Lease as amended; and
WHEREAS, under the Facility Lease, the County is
obligated to make base rental payments to the Corporation for
the lease of Project Phase I ; and
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040034-0008-028-3703s 02/15/84
142
WHEREAS, all rights to receive such base rental
payments (together with the additional rental payments
provided for in the Facility Lease) have been assigned
without recourse by the Corporation to the Trustee pursuant
to an agreement, entitled "Assignment Agreement" and dated as
of April 1, 1984 (the "Assignment Agreement" ) ; and
WHEREAS, in consideration of such assignment and
the execution of an agreement, entitled "Trust Agreement" and
dated as of April 1, 1984 (the "Trust Agreement" ) , Bank of
America National Trust and Savings Association, as trustee
thereunder, has agreed to execute and deliver certificates of
participation in an amount equal to the aggregate principal
components of such base rental payments, each evidencing and
representing a fractional undivided interest in such base
rental payments; and
WHEREAS, all acts, conditions and things required
by law to exist, to have happened and to have been performed
precedent to and in connection with the execution and
entering into of this Agreement do exist, have happened and
have been performed in regular and due time, form and manner
as required by law, and the parties hereto are now duly
authorized to execute and enter into this Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES
AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN
AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES DO HEREBY
AGREE AS FOLLOWS:
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040034-0008-028-3703s 02/15/84
TO
Section 1. The text of the 1982 Deed of Gift be
and it is hereby amended to read as follows:
CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, a corporation incorporated under the
laws of the State of California, Grantor, does by
these presents grant to the COUNTY OF CONTRA
COSTA, a political subdivision of the State of
California, Grantee, its successors and assigns
forever, all of its right, title and interest in
and to that certain real property in the County of
Contra Costa, State of California, described in
Exhibit A attached hereto and made a part hereof,
together with all improvements thereon; reserving,
however, in said Grantor, its successors and
assigns, an estate for twenty years from May 1,
1982, in and to said property; subject, however,
to the condition subsequent that if prior to
May 1, 2002 all principal and interest represented
by certificates of participation (as such term is
defined in a Trust Agreement, dated as of April 1,
1984, between Bank of America National Trust and
Savings Association, as trustee, said Grantor and
said Grantee) in certain base rental payments to
be made pursuant to that certain Amended and
Restated Facility Lease (Project Phase I ) between
said Grantor and said Grantee dated as of April 1,
1984 shall be fully paid, the aforesaid estate for
years reserved herein by said Grantor shall
terminate and title to the aforesaid real
property, together with all improvements thereon,
shall vest in said Grantee.
Section 2 . It is the intention of the County and
the Corporation that, notwithstanding the transfer of
interests effected by the 1982 Deed of Gift, they shall own
the respective interests in the real property described in
the 1982 Deed of Gift provided in Section 1 above.
Accordingly, the County hereby quitclaims to the Corporation,
and the Corporation hereby quitclaims to the County, any
interest which the party quitclaiming may have in the said
real property other than as provided in Section 1 above and
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040034-0008-028-3703s 02/15/84 • 144
except as may have been created or exist under the Facility
Lease, including any amendments thereto, or as may be created
after the date hereof.
Section 3 . Effective Date. This Agreement shall
become effective upon. its execution and delivery and
recordation in the office of the County Recorder of Contra
Costa County, California.
IN WITNESS WHEREOF, the parties hereto have
executed and attested this Agreement by their officers
thereunto duly authorized as of the day and year first
written above.
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
(SEAL)
Attest:
By
Secretary
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040034-0008-028-3703s 02/15/84 145
COUNTY OF CONTRA COSTA
By
Chairman of the Board of Supervisors
(SEAL)
Attest:
County Clerk and Ex-Officio
Clerk of the Board of Supervisors
Approved as to form:
County Counsel
By
Deputy County Counsel
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040034-0008-028-3703s 02/15/84 146
State of California )
ss.
County of Contra Costa )
On this _ day of April, in the year 1984, before
me a notary public in and for the State
of California, duly commissioned and sworn, personally
appeared known to me to be the
President, and , known to me to be the
Secretary, of CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, the corporation that executed the within
instrument, and known to me to be the persons who executed
the within instrument on behalf of said corporation therein
named, and acknowledged to me that such corporation executed
the within instrument pursuant to its bylaws or a resolution
of its board of directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Notary Public in and for the
State of California
[NOTARIAL SEAL]
My Commission Expires:
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040034-0008-028-3703s 02/15/84
197
State of California )
ss.
County of Contra Costa )
On this day of April, in the year 1984, before
me, a Deputy Clerk of the Board of
Supervisors of the County of Contra Costa, State of
California, duly commissioned and sworn, personally appeared
known to me to be the Chairman of the
Board of Supervisors, and known to me to
be the County Clerk and Ex-Officio Clerk of the Board of
Supervisors, of the County of Contra Costa, the county that
executed the within instrument, and known to me to be the
persons who executed the within instrument on behalf of said
political subdivision therein named, and acknowledged to me
that such political subdivision executed the within
instrument pursuant to a resolution of the Board of
Supervisors of the County of Contra Costa.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Deputy Clerk County of Contra
Costa
[ Seal]
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CCd-10
(� 3674s
2-15-84 Draft (3rd Draft)
AMENDED AND RESTATED
FACILITY LEASE
(PROJECT PRASE I )
between
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
and the
COUNTY OF CONTRA COSTA
Dated as of April 1, 1984
149
! R
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . .
Preambles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1 . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2 . Term; Commencement of Rental;
Condition of Project Phase I . . . . . . . . . . .
Section 3 . Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 4. Use of Proceeds; Lease Fund;
Certificate Reserve Fund;
Insurance Reserve Fund; Investments;
No Arbitrage . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section S . Maintenance, Utilities, Taxes
and Assessments . . . . . . . . . . . . . . . . . . . . . . . .
Section 6. Changes to Project Phase I . . . . . . . . . . . . . . .
Section 7 . Fire, Extended Coverage and
Earthquake Insurance . . . . . . . . . . . . . . . . . . .
Section 8. Liability Insurance . . . . . . . . . . . . . . . . . . . . . .
Section 9 . Rental Interruption or Use and
Occupancy Insurance . . . . . . . . . . . . . . . . . . . .
Section 10 . Insurance Proceeds; Form of Policies . . . . .
Section 11 . Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 12 . Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 13 . Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 14. Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 15 . Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 16. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 17 . Corporation Not Liable . . . . . . . . . . . . . . . . . . .
Section 18. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 19 . Title to Demised Premises and
Project Phase I . . . . . . . . . . . . . . . . . . . ... . . .
Section 20 . Abatement of Rental . . . . . . . . . . . . . . . . . . . . . .
Section 21 . Law Governing . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 22 . Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 23 . Validity and Severability . . . . . . . . . . . . . . . .
Section 24. Purpose of Lease; Industrial
Development Bond Covenant; Option
to Purchase; Personal Property . . . . . . . . .
Section 25 . Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 26. Net Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 27 . Restated and Amended 1982 Lease . . . . . . . . . .
Section 28. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 29 . Execution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Execution . . . . . . . . . . . . . . . . . . . . . . . .I . . . . . . . . . . . . . . . . . . . . .
Exhibit A
Exhibit B
Acknowledgments
AMENDED AND RESTATED
FACILITY LEASE
(PROJECT PHASE I )
This Amended and Restated Facility Lease (Project
Phase I ) , dated as of April 1, 1984, between CONTRA COSTA
COUNTY PUBLIC FACILITIES CORPORATION, a nonprofit public
benefit corporation organized and existing under and by
virtue of the laws of the State of California (herein called
the "Corporation" ) , as lessor, and the COUNTY OF CONTRA
COSTA, a political subdivision organized and existing under
and by virtue of the laws of the State of California (herein
called the "County" ) , as lessee;
W I T N E S S E T H :
WHEREAS, the Corporation and the County have
previously entered into a lease, entitled "Facility Lease
(Project Phase I ) " and dated as of May 1, 1982, which was
recorded on May 27, 1982 in the office of the County Recorder
of Contra Costa County under Recorder' s Serial No. 82-59391;
and
WHEREAS, the Corporation has issued its Contra
Costa County Public Facilities Corporation Bonds (Project 1) ,
Series A, in the principal amount of $4;500,000 (herein
called the "1982 Bonds" ) for the purpose of financing the
acquisition of Project Phase I (hereinafter defined) , and the
1982 Bonds are secured by an indenture, dated as of May 1,
1982, between the Corporation and Bank of America National
X51
4
Trust and Savings Association, as Trustee (herein called the
"1982 Indenture" ) ; and
WHEREAS, the County and the Corporation have
determined that it would be in the best interest of the
Corporation and the County to defease the 1982 Bonds through
the sale and delivery of certificates of participation
evidencing proportionate interests in the base rental
payments to be made pursuant to this Amended and Restated
Facility Lease (Project Phase I ) .
In consideration of the mutual covenants
hereinafter contained, the parties hereto agree as follows:
Section 1 . Definitions.
Unless the context otherwise requires, the terms
defined in this Section shall, for all purposes of this
Lease, have the meanings herein specified, the following
definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
The term "Additional Rental" means all amounts
payable to the Corporation or the Trustee from the County as
Additional Rental pursuant to Section 3(b) hereof.
The term "Base Rental" means all amounts payable to
the Corporation from the County as Base Rental pursuant to
Section 3( a) hereof.
The term "Certificate Reserve Fund Requirement"
means the maximum Base Rental payment to be made by the
County pursuant to this Lease on any remaining Base Rental
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040034-0008-028-3674s 02/15/8
payment date during the term of this Lease, provided that the
initial deposit into the Lease Fund pursuant to subsection
(a) of Section 4 hereof shall be deducted from the Base
Rental payment payable on October 15, 1984 in calculating the
Certificate Reserve Fund Requirement.
The term "Certificates" means the certificates of
participation executed and delivered by the Trustee under and
pursuant to the Trust Agreement to defease the 1982 Bonds,
which were issued to finance acquisition of Project Phase I .
The term "Deed of Gift" means the deed, dated as of
May 1, 1982 and entitled "Deed of Gift (Project Phase I ) "
from the Corporation, as grantor, to the County, as grantee,
which was recorded in the office of the County Recorder of
the County of Contra Costa on May 27, 1982 under Recorder' s
Serial No. 82-59390, as amended by that agreement, entitled
"Agreement Amending Deed of Gift (Project Phase I ) " and dated
as of April 1, 1984, between the Corporation and the County.
The term "Demised Premises" means that certain real
property situate in the County of Contra Costa, State of
California, described in Exhibit A attached hereto and made a
part hereof; subject, however, to any conditions,
reservations, and easements of record or known to the County.
The term "Insurance Reserve Fund Requirement" means
the amount of One Hundred Two Thousand Dollars ($102, 000. 00) .
The term "Lease" means this Amended and Restated
Facility Lease (Project Phase I ) , as originally executed and
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recorded or as it may from time to time be supplemented,
modified or amended pursuant to the provisions hereof.
The term "1982 Bonds" means the Bonds (Project 1) ,
Series A, of the Corporation issued under and secured by the
1982 Indenture to finance the acquisition of the Demised
Premises and Project Phase I .
The term "1982 Indenture" means the indenture,
dated as of May 1, 1982 , between the Corporation and Bank of
America National Trust and Savings Association, as trustee,
pursuant to which the 1982 Bonds were issued.
The term "1982 Lease" means the lease, dated as of
May 1, 1982 and entitled "Facility Lease (Project Phase I ) , "
between the Corporation, as lessor, and the County, as
lessee, which was recorded in the office of the County
Recorder of the County of Contra Costa on May 27, 1982 under
Recorder' s Serial No. 82-59391 .
The term "Project Phase I" means (a) an office
building in the City of Martinez, California, commonly known
and designated as 610 Court Street and containing
approximately 7,200 square feet, and (b) an office building
in the City of Martinez, California, commonly known and
designated as 30 Muir Road and containing approximately
40, 600 square feet, including all works, properties and
structures comprising said buildings and facilities, together
with parking, site development, landscaping, utilities,
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equipment, furnishings, improvements and appurtenant and
related facilities, all located on the Demised Premises.
The term "Trust Agreement" means the trust
agreement, dated as of April 1, 1984, by and among the
Trustee, the Corporation and the County, pursuant to which
the Trustee will execute and deliver the Certificates.
The term "Trustee" means Bank of America National
Trust and Savings Association, appointed as trustee pursuant
to the Trust Agreement, and any successor appointed under the
Trust Agreement.
The term "Written Request of the Corporation" means
an instrument in writing signed by or on behalf of the
Corporation by its President or a Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary or by any two persons (whether or not
officers of the Corporation) who are specifically authorized
by resolution of the Board of Directors of the Corporation to
sign or execute such a document on its behalf.
The term "Written Request of the County" means an
instrument in writing signed by the County Administrator of
the County, or by the Assistant County Administrator -
Finance of the County, or by a Deputy County Administrator of
the County, or by any other officer of the County duly
authorized by the Board of Supervisors of the County for that
purpose, with the seal of the County affixed.
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Section 2 . Term; Commencement of Rental; Condition
of Project Phase I .
The Corporation hereby leases to the County and the
County hereby hires from the Corporation, on the terms and
conditions hereinafter set forth, the Demised Premises and
Project Phase I located thereon on the terms and conditions
hereinafter set forth and subject to all easements,
encumbrances, and restrictions that existed at the time the
Corporation obtained title to the Demised Premises, including
without limitation the terms and conditions of the Deed of
Gift by which a reserved estate for years to the Demised
Premises and Project Phase I was retained by the
Corporation. The County hereby agrees and covenants during
the term of this Lease that, except as hereinafter provided,
it will use Project Phase I for public and county purposes so
as to afford the public the benefits contemplated by this
Lease and so as to permit the Corporation to carry out its
agreement and covenants contained in the Trust Agreement.
The term of this Lease commenced on May 27, 1982,
the date of original recordation of this Lease in the office
of the County Recorder of Contra Costa County, State of
California, and shall end on September 30, 1997, unless such
term is extended or sooner terminated as hereinafter
provided. If on September 30, 1997 the Certificates shall
not be fully paid, or if the rental payable hereunder shall
have been abated at any time and for any reason, then the
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term of this Lease shall be extended until ten ( 10) days
after all Certificates shall be fully paid, except that the
term of this Lease shall in no event be extended beyond
May 1, 2002 . If prior to September 30, 1997 all Certificates
shall be fully paid, the term of this Lease shall end ten
(10) days thereafter or ten ( 10) days after written notice by
the County to the Corporation, whichever is earlier.
The County took possession of the Demised Premises
and Project Phase I upon commencement of this Lease, and the
first payment of rental was due and was paid on October 15,
1982 .
The parties hereto agree that the County is
presently in possession of the Demised Premises and Project
Phase I and that the County accepts the Demised Premises and
Project Phase I in their presently existing condition, and
further warrants and holds harmless the Corporation against
any defects presently existing therein. By entry hereunder
upon commencement of the term of this Lease the County
accepted the premises as being in the condition in which the
Corporation was obligated to deliver the premises to the
County.
Section 3 . Rental.
The County agrees to pay to the Corporation, its
successors or assigns, without deduction or offset of any
kind, as rental for the use and occupancy of the Demised
Premises and Project Phase I, the following amounts at the
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a
:M
times and in the manner set forth herein (but subject to the
provisions of Sections 12, 20 and 24 hereof) :
(a) Base Rental. The County shall pay to the
Corporation as abase rental (herein called the "Base
Rental" ) , semiannually, rental payments with principal
and interest components in accordance with the Rental
Payment Schedule attached hereto as Exhibit B and made a
part hereof . Each Base Rental payment shall be payable
on the fifteenth (15th) day of the month immediately
preceding its due date and any interest or other income
with respect thereto accruing prior to such due date
shall belong to the County and shall be returned by the
Corporation to the County on May 1 and November 1 of
each year. The interest components of the Base Rental
payments shall be paid by the County as and constitute
interest paid on the principal components of the Base
Rental payments to be paid by the County hereunder. If
the term of this Lease shall have been extended rursuant
to Section 2 hereof, Base Rental payments shall continue
to be due on May 1 and November 1 in each year, and
payable as hereinabove described, continuing to and
including the date of termination of this Lease, in an
amount equal to the amount of Base Rental payable on
April 15, 1997 . Upon such extension of this Lease, the
principal and interest components of the Base Rental
payments shall be established so that the principal
F8
. 158
040034-0008-028-3674s 02/15/84
components will in the aggregate be sufficient to pay
all unpaid principal components with interest components
sufficient to pay all unpaid interest components plus
interest on the extended principal components at a rate
equal to the rate of interest on the principal component
of the Base Rental payable April 15, 1997 . Each
semiannual payment of Base Rental shall be for the use
of the Demised Premises and Project Phase I for the
six-month period commencing on the first day of the
month in which such rental is payable.
(b) Additional Rental . The County shall also pay
to the Corporation, as rental hereunder in addition to
the foregoing Base Rental, such amounts (herein called
the "Additional Rental" ) in each year as shall be
required by the Corporation for the payment of all costs
and expenses incurred by the Corporation in connection
with the execution, performance or enforcement of this
Lease or any assignment hereof, the Trust Agreement, the
ownership of the Demised Premises and the Lease of the
Demised Premises and Project Phase I to the County,
including but not limited to payment of all fees, costs
and expenses and all administrative costs of the
Corporation related to the Demised Premises and Project
Phase I , including, without limiting the generality of
the foregoing, salaries and wages of employees, all
expenses, compensation and indemnification of the
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040034-0008-028-3674s 02/15/84
Trustee payable by the Corporation under the Trust
Agreement, fees of auditors, accountants, attorneys or
engineers, insurance premiums, taxes and other costs
specified in Section 5 hereof and all other necessary
administrative costs of the Corporation or charges
required to be paid by it in order to maintain its
existence or to comply with the terms of the
Certificates or of the Trust Agreement.
Such Additional Rental shall be billed to the
County by the Corporation or the Trustee from time to
time, together with a statement certifying that the
amount billed has been paid by the Corporation or by the
Trustee on behalf of the Corporation for one or more of
the items above described, or that such amount is then
payable by the Corporation or the Trustee on behalf of
the Corporation for such items. Amounts so billed shall
be due and payable by the County within ten ( 10) days
after receipt of the bill by the County.
The Corporation has issued and intends to issue
bonds and has entered into leases and intends to enter
into leases to finance facilities other than the Demised
Premises and Project Phase I . The administrative costs
of the Corporation shall be allocated among said
facilities and Project Phase I , as hereinafter in this
paragraph provided. Any taxes levied against the
Corporation with respect to the Demised Premises and
Project Phase I , the fees of the Trustee under the Trust
F10
040034-0008-028-3674s 02/15/64 -
160
Agreement, and any other expenses directly attributable
to Project Phase I shall be included in the Additional
Rental payable hereunder. Any taxes levied against the
Corporation with respect to real property other than the
Demised Premises and Project Phase I , the fees of any
trustee or paying agent under any indenture securing
bonds of the Corporation or any trust agreement other
than the Trust Agreement, and any other expenses
directly attributable to any facilities other than
Project Phase I shall not be included in the
administrative costs of Project Phase I and shall not be
paid from the Additional Rental payable hereunder. Any
expenses of the Corporation not directly attributable to
any particular project of the Corporation shall be
equitably allocated among all such projects, including
Project Phase I , in accordance with sound accounting
practice . In the event of any question or dispute as to
such allocation, the written opinion of an independent
firm of certified public accountants, employed by the
Corporation to consider the question and render an
opinion thereon, shall be a final and conclusive
determination as to such allocation. The Trustee may
conclusively rely upon the Written Request of the
Corporation, approved by the Director of Public Works of
the County or his duly authorized representative, in
making any determination that costs are payable as
Additional Rental hereunder, and shall not be required
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040034-0008-028-3674s 02/15/84 - 1 S i
to make any investigation as to whether or not the items
so requested to be paid are expenses of operation of
Project Phase I .
Such payments of Base Rental and Additional Rental
for each rental payment period during the term of this Lease
shall constitute the total rental for said rental payment
period, and shall be paid by the County in each rental
payment period for and in consideration of the right of use
and occupancy of, and continued quiet use and enjoyment of,
the Demised Premises and Project Phase I during each such
period for which said rental is to be paid. The parties
hereto have agreed and determined that such total rental
represents the fair rental value of the Demised Premises and
Project Phase I . In making such determination, consideration
has been given to the purchase prices of the Demised Premises
and Project Phase I , other obligations of the parties under
this Lease, the uses and purposes which may be served by
Project Phase I and the benefits therefrom which will accrue
to the County and the general public.
Each installment of rental payable hereunder shall
be paid in lawful money of the United States of America to or
upon the order of the Corporation at the principal corporate
trust office of the Trustee in San Francisco, California, or
such other place as the Corporation shall designate. Any
such installment of rental accruing hereunder which shall not
be paid when due shall bear interest at the rate of twelve
percent (12%) per annum, or such lesser rate of interest as
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040034-0008-028-3674s 02/15/84� ' 162
may be required by law, from the date when the same is due
hereunder until the same shall be paid. Notwithstanding any
dispute between the Corporation and the County, the County
shall make all rental payments when due without deduction or
offset of any kind and shall not withhold any rental payments
pending the final resolution of such dispute. In the event
of a determination that the County was not liable for said
rental payments or any portion thereof, said payments or
excess of payments, as the case may be, shall, at the option
of the County, be credited against subsequent rental payments
due hereunder or be refunded at the time of such
determination.
The County covenants to take such action as may be
necessary to include all such rental payments due hereunder
in its annual budgets and to make the necessary annual
appropriations for all such rental payments. The County will
furnish to the Corporation and the Trustee copies of each
annual budget of the County within ten (10) days after the
adoption thereof. The covenants on the part of the County
herein contained shall be deemed to be ana shall be construed
to be duties imposed by law and it shall be the duty of each
and every public official of the County to take such action
and do such things as are required by law in the performance
of the official duty of such officials to enable the County
to carry out and perform the covenants and agreements in this
Lease agreed to be carried out and performed by the County.
040034-0008-028-3674s F13 02/15/84 1.63
All rental payments received shall be applied first
to the interest components of the Base Rental due hereunder,
then to the principal components of the Base Rental due
hereunder and thereafter to all Additional Rental due
hereunder, but no such application of any payments which are
less than the total rental due and owing shall be deemed a
waiver of any default hereunder.
Rental is subject to abatement as provided in
Section 20.
Nothing contained in this Lease shall prevent the
County from making from time to time contributions or
advances to the Corporation for any purpose now or hereafter
authorized by law.
Section 4. Use of Proceeds; Lease Fund• Certificate
Reserve Fund; Insurance Reserve Fund; Investments; No Arbitrage.
(a) Use of Proceeds. The parties hereto agree that
the proceeds of the Certificates will be used to defease the
outstanding 1982 Bonds and to finance the costs of issuing the
Certificates .
(b) Lease Fund. In consideration for the agreements
and covenants of the County herein, the Corporation agrees to
pay to the County the amount of accrued interest received by
the Trustee upon the sale and delivery of the Certificates for
deposit with the Trustee in a separate special fund, to be held
by the Trustee for and on behalf of the County, known as the
"Amended and Restated Facility Lease (Project Phase I ) Lease
Fund" (herein called the "Lease Fund" ) . The County agrees to
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040034-0008-028-3674s 02/15/84
maintain the Lease Fund with the Trustee and to apply the
moneys on deposit therein for partial payment of the first Base
Rental payment due and payable by the County as shown in the
Rental Payment Schedule attached hereto as Exhibit B and made a
part hereof.
(c) Certificate Reserve Fund. In further
consideration for the agreements and covenants of the County
herein, the Corporation further agrees to cause to be paid to
the County from the Reserve Fund established pursuant to the
1982 Indenture a sum equal to the Certificate Reserve Fund
Requirement for deposit with the Trustee in a separate special
fund, to be held by the Trustee for and on behalf of the
County, known as the "Amended and Restated Facility Lease
(Project Phase I ) Certificate Reserve Fund" (the "Certificate
Reserve Fund" ) . If on May 1 or November 1 of any year the
amount in the Certificate Reserve Fund exceeds the Certificate
Reserve Fund Requirement, the Trustee, if the County is not
then in default hereunder and if the Corporation and the County
are not then in default under the Trust Agreement, shall pay
the amount of such excess to the County, unless any portion of
such excess shall be needed to increase the balance in the
Trust Administration Fund established pursuant to the Trust
Agreement to the amount required to be on deposit in said fund,
in which event the Trustee shall transfer such portion to the
Trust Administration Fund. The County agrees to apply the
moneys on deposit in the Certificate Reserve Fund solely
F15
040034-0008-028-3674s 02/15/8'p 165
for the payment of Base Rental payments due and payable by
the County if and when rental shall be abated in accordance
with Section 20 hereof or when other moneys of the County are
not otherwise available to make such Base Rental payments.
The County hereby pledges and grants a lien on and a security
interest in the Certificate Reserve Fund to the Corporation
in order to secure the County' s obligation to pay the Base
Rental payments as herein provided. The County further
agrees that if at any time the balance in the Certificate
Reserve Fund shall be reduced below the Certificate Reserve
Fund Requirement, the first payments of Base Rental payments
thereafter payable by the County and not needed to pay Base
Rental interest and principal components payable to the
Certificate Owners on the next Base Rental due date shall be
used to increase the balance in the Certificate Reserve Fund
to the required Certificate Reserve Fund Requirement. At the
termination of this Lease in accordance with its terms, any
balance remaining in the Certificate Reserve Fund shall be
released from the foregoing pledge, lien and security
interest and may be transferred to such other fund or account
of the County, or otherwise used by the County for any other
lawful purposes, as the County may direct.
(d) Insurance Reserve Fund. In further
consideration for the agreements and covenants of the County
herein, the Corporation further agrees to pay to the County a
sum equal to the Insurance Reserve Fund Requirement for
F16 1V�
040034-0008-028-3674s 02/15/84
deposit with the Trustee in a separate special fund, to be
held by the Trustee for and on behalf of the County, known as
the "Amended and Restated Facility Lease (Project Phase I )
Insurance Reserve Fund" (the "Insurance Reserve Fund" ) . If
on May 1 or November 1 of any year the amount in the
Insurance Reserve Fund exceeds the Insurance Reserve Fund
Requirement, the Trustee, if the County is not then in
default hereunder and if the Corporation and the County are
not then in default under the Trust Agreement, shall pay the
amount of such excess to the County. The Trustee agrees to
cause the moneys in the Insurance Reserve Fund, upon the
Written Request of the Corporation and the Written Request of
the County, to be applied to pay, together with insurance
proceeds received or to be received by the Trustee and to
make up for portions of losses not covered by insurance
because of deductible amounts or replacement cost limitations
on the amount of insurance obtained, for the repair,
reconstruction or replacement of any damaged or destroyed
portion of Project Phase I , pursuant to the procedure set
forth in Section 7, or for the loss of rental income not
insured against because of the deductible amount permitted by
Section 9. The County hereby pledges and grants a lien on
and a security interest in the Insurance Reserve Fund to the
Corporation in order to secure the County' s obligation to pay
the Base Rental payments as herein provided. At the
termination of this Lease in accordance with its terms, any
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040034-0008-028-3674s 02/15/84'
balance remaining in the Insurance Reserve Fund shall be
released from the foregoing pledge, lien and security
interest and may be transferred to such other fund or account
of the County, or otherwise used by the County for any other
lawful purposes, as the County may direct.
(e) Investments. Any moneys held by the Trustee
in the Lease Fund may be invested (and, upon the Written
Request of the County, shall be invested) by the Trustee in
Permitted Investments (as that term is defined in the Trust
Agreement) which will mature on or before November 1, 1984.
Any moneys held by the Trustee in the Certificate Reserve
Fund may be invested (and, upon the Written Request of the
County, shall be invested) by the Trustee in Permitted
Investments which will mature within the earlier of five (5)
years or the date of the last scheduled Base Rental payment.
Any moneys held by the Trustee in the Insurance Reserve Fund
may be invested (and, upon the Written Request of the County,
shall be invested) by the Trustee in Permitted Investments
which will mature within the earlier of one (1 ) year or the
date of the last scheduled Base Rental payment.
(f) No-arbitrage. The County will not make any
use of the proceeds of the obligations provided herein or any
other funds of the County which will cause such obligations
to be "arbitrage bonds" subject to federal income taxation by
reason of Section 103 (c) of the Internal Revenue Code of
1954, as amended. To that end, so long as any rental
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040034-0008-028-3674s 02/19/84
payments are unpaid, the County, with respect to such
proceeds and such other funds, will comply with all
requirements of such Section 103 (c ) and all regulations of
the United States Department of the Treasury issued
thereunder to the extent that such requirements are, at the
time, applicable and in effect.
Section 5 . Maintenance, Utilities, Taxes and
Assessments .
During such time as the County is in possession of
the Demised Premises and Project Phase I , all maintenance and
repair, both ordinary and extraordinary, of Project Phase I
shall be the responsibility of the County, which shall at all
times maintain or otherwise arrange for the maintenance of
Project Phase I in first class condition, and the County
shall pay for or otherwise arrange for the payment of all
utility services supplied to Project Phase I and shall pay
for or otherwise arrange for the payment of the costs of the
repair and replacement of Project Phase I resulting from
ordinary wear and tear or want of care on the part of the
County or any other cause and shall pay for or otherwise
arrange for the payment of all insurance policies required to
-be maintained with respect to Project Phase I . In exchange
for the rentals herein provided, the Corporation agrees to
provide only the Demised Premises and Project Phase I .
The County shall also pay directly or pay to the
Corporation as Additional Rental hereunder pursuant to
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040034-0008-028-3674s 02/15/84
Section 3 (b) , such amounts, if any, in each year as shall be
required by the Corporation for the payment of all license
and registration fees and all taxes (including, without
limitation, income, excise, license, franchise, capital
stock, recording, sales, use, value-added, property,
occupational, excess profits and stamp taxes) , levies,
imposts, duties, charges, withholdings, assessments and
governmental charges of any nature whatsoever, together with
any additions to tax, penalties, fines or interest thereon,
including, without limitation, penalties, fines or interest
arising out of any delay or failure by the County to pay any
of the foregoing or failure to file or furnish to the
Corporation or the Trustee for filing in a timely manner any
returns, hereinafter levied or imposed against the
Corporation or Project Phase I , the rentals and other
payments required hereunder or any parts thereof or interests
of the County or the Corporation or the Trustee therein by
any governmental authority.
The County waives the benefits of subsections 1 and
2 of section 1932 of the California Civil Code, but such
waiver shall not limit any of the rights of the County under
the terms of this Lease.
Section 6. Changes to Project Phase I .
The County shall have the right during the term of
this Lease to make alterations or improvements or attach
fixtures, structures or signs to the Demised Premises or
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040034-0008-028-3674s 02/15/84
Project Phase I if said alterations, improvements, fixtures,
structures and signs are necessary or beneficial for the use
of the Demised Premises or Project Phase I by the County,
provided, however, that such actions by the County shall not
materially adversely affect the value of Project Phase I .
Upon termination of this Lease, the County may
remove any fixture, structure or sign added by the County,
but such removal shall be accomplished so as to leave Project
Phase I , except for ordinary wear and tear, in substantially
the same condition as it was in before the fixture, structure
or sign was attached.
Section 7 . Fire, Extended Coverage and Earthquake
Insurance.
The County shall procure or cause to be procured
and maintain or cause to be maintained, throughout the term
of this Lease, insurance against loss or damage to any
structures constituting any part of Project Phase I by fire
and lightning, with extended coverage insurance, vandalism
and malicious mischief insurance, and earthquake insurance
(but as to such earthquake insurance only if such insurance
is available on the open market from reputable insurance
companies) , sprinkler system leakage insurance and boiler
explosion insurance. Said extended coverage insurance shall,
as nearly as practicable, cover loss or damage by explosion,
windstorm, riot, aircraft, vehicle damage, smoke and such
other hazards as are normally covered by such insurance.
111
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040034-0008-028-3674s 02/15/84
Such insurance shall be in an amount equal to the replacement
cost (without deduction for depreciation) of all structures
constituting any part of Project Phase I , excluding the cost
of excavations, of grading and filling, and of the land
(except that such earthquake insurance may be subject to a
deductible clause of not to exceed ten per cent of said
replacement cost for any one loss and except that such other
'insurance may be subject to deductible clauses for any one
loss of not to exceed the lesser of $50, 000 or the amount in
the Insurance Reserve Fund established pursuant to Section
4(d) ) , or, in the alternative, shall be in an amount and in a
form sufficient (together with moneys in the Certificate
Reserve Fund established under Section 4(c ) hereof) , in the
event of total or partial loss, to enable the Corporation to
prepay all Certificates then outstanding.
In the event of any damage to or destruction of any
part of Project Phase I , caused by the perils covered by such
insurance, the Corporation, except as hereinafter provided,
shall cause the proceeds of such insurance to be utilized for
the repair, reconstruction or replacement of the damaged or
destroyed portion of Project Phase I , and the Trustee shall
hold said proceeds separate and apart from all other funds,
to the end that such proceeds shall be applied to the repair,
reconstruction or replacement of Project Phase I to at least
the same good order, repair and condition as it was in prior
to the damage or destruction, insofar as the same may be
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040034-0008-028-3674s 02/19/84
172.
accomplished by the use of said proceeds. The Trustee shall
permit withdrawals of said proceeds from time to time upon
receiving the Written Request of the Corporation, stating
that the Corporation has expended moneys or incurred
liabilities in an amount equal to the amount therein
requested to be paid over to it for the purpose of repair,
reconstruction or replacement, and specifying the items for
which such moneys were expended, or such liabilities were
incurred, in such reasonable detail as the Trustee may in its
discretion require. Any balance of said proceeds not
required for such repair, reconstruction or replacement shall
be treated by the Trustee as Base Rental Payments and applied
in the manner provided by Section 5 .01 of the Trust
Agreement. Alternatively, the Corporation, at its option,
with the written consent of the County, and if the proceeds
of such insurance together with any other moneys then
available for the purpose are at least sufficient to prepay
an aggregate principal amount of outstanding Certificates
equal to the amount of outstanding Certificates attributable
to such structure (determined by reference to the proportion
which the construction cost of such structure bears to the
construction cost of all structures comprising Project Phase
I ) , may elect not to repair, reconstruct or replace the
damaged or destroyed portion of Project Phase I and thereupon
shall cause said proceeds to be used for the prepayment of
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t 173
outstanding Certificates pursuant to the provisions of the
Trust Agreement.
Section 8. Liability Insurance.
Except as hereinafter provided, the County shall
procure or cause to be procured and maintain or cause to be
maintained, throughout the term of this Lease, a standard
comprehensive general liability insurance policy or policies
in protection of the Corporation and its directors, officers,
agents and employees and the Trustee, indemnifying said
parties against all direct or contingent loss or liability
for damages for personal injury, death or property damage
occasioned by reason of the operation of Project Phase I ,
with minimum liability limits of $1, 000, 000 for personal
injury or death of each person and $3 , 000,000 for personal
injury or deaths of two or more persons in each accident or
event, and in a minimum amount of $200, 000 ( subject to a
deductible clause of not to exceed $5, 000) for damage to
property resulting from each accident or event. Such public
liability and property damage insurance may, however, be in
the form of a single limit policy in the amount of $3, 000, 000
covering all such risks. Such liability insurance may be
maintained as part of or in conjunction with any other
liability insurance carried by the County.
As an alternative to providing the insurance
required by the first paragraph of this Section, the County,
with the written consent of the Corporation, may provide a
040034-0008-028-3674s F24 02/15/ 171.
y
self insurance method or plan of protection if and to the
extent such self insurance method or plan of protection shall
afford reasonable protection to the Corporation, its
directors, officers, agents and employees and the Trustee, in
light of all circumstances, giving consideration to cost,
availability and similar plans or methods of protection
adopted by counties in the State of California other than the
County. Before another method or plan may be provided by the
County, there shall be filed with the Trustee a certificate
of an actuary, independent insurance consultant or other
qualified person, stating that, in the opinion of the signer,
the substitute method or plan of protection is in accordance
with the requirements of this Section and, when effective,
would afford adequate protection to the Corporation, its
directors, officers, agents and employees and the Trustee
against loss and damage from the hazards and risks covered
thereby. There shall also be filed a certificate of the
Corporation setting forth the details of such substitute
method or plan.
Section 9. Rental Interruption or Use and Occupancy
Insurance.
The County shall procure or cause to be procured
and maintain or cause to be maintained, throughout the term
of this Lease, rental interruption or use and occupancy
insurance to cover loss, total or partial, of the rental
income from or the use of Project Phase I as the result of
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040034-0008-028-3674s 02/15/84
c: 175
any of the hazards covered by the insurance required by
Section 7 hereof, in an amount sufficient to pay the part of
the total rent hereunder attributable to the portion of
Project Phase 1 rendered unusable (determined by reference to
the proportion which the construction cost of such portion
bears to the construction cost of Project Phase I ) for a
period of at least two years, except that such insurance may
be subject to a deductible clause of not to exceed one
thousand dollars ( $1, 000) , and except that such insurance
need be maintained as to the peril of earthquake only if such
insurance is available on the open market from reputable
insurance companies. Any proceeds of such insurance shall be
used by the Trustee to reimburse to the County any rental
theretofore paid by the County under this Lease attributable
to such structure for a period of time during which the
payment of rental under this Lease is abated, and any
proceeds of such insurance not so used shall be applied as
provided in Section 3 (a) (to the extent required for the
payment of Base Rental ) and in Section 3 (b) (to the extent
required for the payment of Additional Rental) .
Section 10. Insurance Proceeds; Form of Policies.
All policies of insurance required by Sections 7
and 9 hereof shall provide that all proceeds thereunder shall
be payable to the Trustee pursuant to a lender' s loss payable
endorsement substantially in accordance with the form
approved by the Insurance Services Office and the California
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040034-0008-028-3674s 02/15/84
1'7 F3 .
Bankers Association. The Trustee shall collect, adjust and
receive all moneys which may become due and payable under any
such policies, may compromise any and all claims thereunder
and shall apply the proceeds of such insurance as provided in
Sections 7 and 9 . All policies of insurance required by this
Lease shall provide that the Trustee shall be given
thirty (30) days notice of each expiration thereof or any
intended cancellation thereof or reduction of the coverage
provided thereby. The Trustee shall not be responsible for
the sufficiency of any insurance herein required and shall be
fully protected in accepting payment on account of such
insurance or any adjustment, compromise or settlement of any
loss agreed to by the Trustee. The County shall pay when due
the premiums for all insurance policies required by this
Lease, and shall promptly furnish evidence of such payments
to the Corporation and the Trustee.
The County will deliver to the Corporation and the
Trustee in the month of August in each year a schedule, in
such detail as the Trustee in its discretion may request,
setting forth the insurance policies then in force pursuant
to this Section, the names of the insurers which have issued
the policies, the amounts thereof and the property and risks
covered thereby or the report of an actuary, independent
insurance consultant or other qualified person as described
in Section S. Delivery to the Trustee of the schedule of
insurance policies under the provisions of this Section shall
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040034-0008-028-3674s 02/15/84 177
not confer responsibility upon the Trustee as to the
sufficiency of coverage or amounts of such policies. If so
requested in writing by the Trustee, the County shall also
deliver to the Trustee certificates or duplicate originals or
certified copies of each insurance policy described in such
schedule .
Section 11 . Default.
( a) If the County shall fail to pay any rental
payable hereunder when the same becomes due and payable, time
being expressly declared to be of the essence of this Lease,
or the County shall fail to keep, observe or perform any
other term, covenant or condition contained herein to be kept
or performed by the County, or upon the happening of any of
the events specified in subsection (b) of this Section (any
such case above being an "Event of Default" ) , the County
shall be deemed to be in default hereunder and it shall be
lawful for the Corporation to exercise any and all remedies
available pursuant to law or granted pursuant to this. Lease.
Upon any such default, the Corporation, in addition to all
other rights and remedies it may have at law, shall have the
option to do any of the following:
(1 ) To terminate this .Lease in the manner
hereinafter provided on account of default by the
County, notwithstanding any re-entry or re-letting of
Project Phase I as hereinafter provided for in
subparagraph (2) hereof, and to re-enter Project Phase I
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and remove all persons in possession thereof and all
personal property whatsoever situated upon Project
Phase I and place such personal property in storage in
any warehouse or other suitable place in the County of
Contra Costa, State of California. In the event of such
termination, the County agrees to surrender immediately
possession of Project Phase I , without let or hindrance,
and to pay the Corporation all damages recoverable at
law that the Corporation may incur by reason of default
by the County, including, without limitation, any costs,
loss or damage whatsoever arising out of, in connection
with, or incident to any such re-entry upon Project
Phase I and removal or storage of such property by the
Corporation or its duly authorized agents in accordance
with the provisions herein contained. Neither notice to
pay rent or to deliver up possession of Project Phase I
given pursuant to law nor any entry or re-entry by the
Corporation nor any proceeding in unlawful detainer, or
otherwise, brought by the Corporation for the purpose of
effecting such re-entry or obtaining possession of
Project Phase I nor the appointment of a receiver upon
initiative of the Corporation to protect the
Corporation' s interest under this •Lease shall of itself
operate to terminate this Lease, and no termination of
this Lease on account of default by the County shall be
or become effective by operation of law or acts of the
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L .
parties hereto, unless and until the Corporation shall
have given written notice to the County of the election
on the part of the Corporation to terminate this Lease
and unless and until the insurer, if any, insuring
payment of the principal and interest components
represented by the Certificates shall have given its
prior written consent thereto. The County covenants and
agrees that no surrender of Project Phase I or of the
remainder of the term hereof or any termination of this
Lease shall be valid in any manner or for any purpose
whatsoever unless stated or accepted by the Corporation
by such written notice.
(2 ) Without terminating this Lease, (i ) to collect
each installment of rent as it becomes due and enforce
any other term or provision hereof to be kept or
performed by the County and/or (ii) to exercise any and
all rights of entry and re-entry upon Project Phase I .
In the event the Corporation does not elect to terminate
this Lease in the manner provided for in subparagraph
(1) hereof, the County shall remain liable and agrees to
keep or perform all covenants and conditions herein
contained to be kept or performed by the County and, if
Project Phase I is not re-let, to pay the full amount of
the rent to the end of the term of this Lease or, in the
event that Project Phase I is re-let, to pay any
deficiency in rent tha= results therefrom; and further
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040034-0008-028-3674s 02/15/84
uk 1.80
agrees to pay said rent and/or rent deficiency
punctually at the same time and in the same manner as
hereinabove provided for the payment of rent hereunder
(without acceleration) , notwithstanding the fact that
the Corporation may have received in previous years or
may receive thereafter in subsequent years rental in
excess of the rental herein specified and
notwithstanding any entry or re-entry by the Corporation
or suit in unlawful detainer, or otherwise, brought by
the Corporation for the purpose of effecting such
re-entry or obtaining possession of Project Phase 1 .
Should the Corporation elect to re-enter as herein
provided, the County hereby irrevocably appoints the
Corporation as the agent and attorney-in-fact of the
County to re-let Project Phase I , or any part thereof,
from time to time, either in the Corporation' s name or
otherwise, upon such terms and conditions and for such
use and period as the Corporation may deem advisable and
to remove all persons in possession thereof and all
personal property whatsoever situated upon Project
Phase I and to place such personal property in storage
in any warehouse or other suitable place in the County
of Contra Costa, State of California, for the account of
and at the expense of the County, and the County hereby
exempts and agrees to save harmless the Corporation from
any costs, loss or damage whatsoever arising out of, in
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connection with, or incident to any such re-entry upon
and re-letting of Project Phase I and removal and
storage of such property by the Corporation or its duly
authorized agents in accordance with the provisions
herein contained. The County agrees that the terms of
this Lease constitute full and sufficient notice of the
right of the Corporation to re-let Project Phase I in
the event of such re-entry without effecting a surrender
of this Lease, and further agrees that no acts of the
Corporation in effecting such re-letting shall
constitute a surrender or termination of this Lease
irrespective of the use or the term for which such
re-letting is made or the terms and conditions of such
re-letting, or otherwise, but that, on the contrary, in
the event of such default by the County the right to
terminate this Lease shall vest in the Corporation to be
effected in the sole and exclusive manner provided for
in subparagraph ( 1) hereof. The County further waives
the right to rental obtained by the Corporation in
excess of the rental herein specified and hereby conveys
and releases such excess to the Corporation as
compensation to the Corporation for its services in
reletting Project Phase I or any part thereof. The
County further agrees to pay the Corporation the cost of
any alterations or additions to Project Phase I or any
part thereof necessary to place Project Phase I or any
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�� 182
part thereof in condition for re-letting immediately
upon notice to the County of the completion and
installation of such additions or alterations.
The County hereby waives any and all claims for
damages caused or which may be caused by the Corporation in
re-entering and taking possession of Project Phase I as
herein provided and all claims for damages that may result
from the destruction of or injury to Project Phase I and all
claims for damages to or loss of any property belonging to
the County, or any other person, that may be in or upon
Project Phase I .
Each and all of the remedies given to the
Corporation hereunder or by any law now or hereafter enacted
are cumulative and the exercise of one right or remedy shall
not impair the right of the Corporation to any or all other
remedies . The term "re-let" or "re-letting" as used in this
Section shall include, but not be limited to, re-letting by
means of the operation by the Corporation of Project
Phase I . If any statute or rule of law validly shall limit
the remedies given to the Corporation hereunder, the
Corporation nevertheless shall be entitled to whatever
remedies are allowable under any statute or rule of law.
In the event the Corporation shall prevail in any
action brought to enforce any of the terms and provisions of
this Lease, the County agrees to pay 'a reasonable amount as
and for attorney' s fees incurred by the Corporation in
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t 183
attempting to enforce any of the remedies available to the
Corporation hereunder, whether or not a lawsuit has been
filed and whether or not any lawsuit culminates in a judgment.
(b) If (1) the County' s interest in this Lease or
any part thereof be assigned or transferred without the
written consent of the Corporation, either voluntarily or by
operation of law or otherwise, or if (2) the County or any
assignee shall file any petition or institute any proceeding
under the Bankruptcy Act, either as such Act now exists or
under any amendment thereof which may hereafter be enacted,
or under any act or acts, state or federal, dealing with or
relating to the subject or subjects of bankruptcy or
insolvency, or under any amendment of such act or acts,
either as a bankrupt or as an insolvent or as a debtor or in
any similar capacity, wherein or whereby the County asks or
seeks or prays to be adjudicated a bankrupt, or is to be
discharged from any or all of the County' s debts or
obligations, or offers to the County' s creditors to effect a
composition or extension of time to pay the County' s debts or
asks, seeks or prays for a reorganization or to effect a plan
of reorganization, or for a readjustment of the County' s
debts, or for any other similar relief, or if any such
petition or if any such proceedings of the same or similar
kind or character be filed or be instituted or taken against
the County, or if a receiver of the business or of the
property or assets of the County shall be appointed by any
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184
8A
court, except a receiver appointed at the instance or request
of the Corporation, or if the County shall make a general or
any assignment for the benefit of the County' s creditors, or
if (3 ) the County shall abandon or vacate any part of Project
Phase I (except pursuant to Section 24 hereof) , then the
County shall be deemed to be in default hereunder.
(c ) The Corporation shall in no event be in
default in the performance of any of its obligations
hereunder or imposed by any statute or rule of law unless and
until the Corporation shall have failed to perform such
obligations within thirty (30) days or such additional time
as is reasonably required to correct any such default after
notice by the County to the Corporation properly specifying
wherein the Corporation has failed to perform any such
obligation.
Section 12 . Eminent Domain.
If the whole of the Demised Premises and Project
Phase I or so much thereof as to render the remainder
unusable for the purposes for which it was used by the County
shall be taken under the power of eminent domain, the term of
this Lease shall cease as of the day that possession shall be
so taken. If less than the whole of the Demised Premises and
Project Phase I shall be taken under the power of eminent
domain and the remainder is usable for the purposes for which
it was used by the County at the time of such taking, then
this Lease shall continue in full force and effect as to such
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040034-0008-028-3674s 02/15/84 1 8 J
remainder, and the parties waive the benefits of any law to
the contrary, and in such event there shall be a partial
abatement of the Base Rental due hereunder in an amount
equivalent to that proportion of the Base Rental due
hereunder which the fair market value of the portion taken
bears to the fair market value of the Demised Premises and
Project Phase I as a whole . So long as any of the
Certificates shall be outstanding (as such term is defined in
the Trust Agreement) any award made in eminent domain
proceedings for taking the Demised Premises and Project
Phase I or any portion thereof shall be applied to the
prepayment of Base Rental payments as provided in Section 13
hereof. Any such award made after all of the Certificates
have been fully paid and retired shall be paid to the
Corporation and to the County as their respective interests
may appear.
Section 13 . Prepayment.
The County shall prepay on any date from insurance
and eminent domain proceeds, to the extent provided in
Sections 7, 9 and 12 hereof (provided, however, that in the
event of partial damage to or destruction of Project Phase I ,
if in the judgment of the Corporation the insurance proceeds
are sufficient to repair or rebuild Project Phase I , such
proceeds shall be held by the Trustee and used to repair or
rebuild Project Phase I, pursuant to the procedure set forth
in Section 7 for proceeds of insurance) , and may at its
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040034-0008-028-3674s 02/15/84
L . 1S6
option prepay from any source of available moneys for
prepayment of Certificates on or after May 1, 1994, pursuant
to Section 4. 01 of the Trust Agreement, all or any part (in
an integral multiple of $5, 000) of the principal components
of Base Rental payments then unpaid so that the aggregate
semiannual amounts of principal components of Base Rental
payments which shall be payable after such prepayment date
shall be as nearly proportional as practicable to the
aggregate semiannual amounts of principal components of Base
Rental payments unpaid prior to the prepayment date, at a
prepayment amount equal to the sum of the principal component
prepaid plus accrued interest thereon to the date of
prepayment, plus any applicable premium. Before making any
prepayment pursuant to this Section, the County shall, within
five (5) days following the event creating such obligation to
prepay, give written notice to the Corporation describing
such event and specifying the date on which the prepayment
will be made, which date shall be not less than thirty (30)
nor more than forty-five (45) days from the date such notice
is given.
Section 14. Right of Entry.
The Corporation and its assignees shall have the
right to enter the Demised Premises and Project Phase I
during reasonable business hours (and in emergencies at all
times) (a) to inspect the same, (b) for any purpose connected
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with the Corporation' s or the County' s rights or obligations
under this Lease, and (c) for all other lawful purposes.
Section 15 . Liens.
In the event the County shall at any time during
the term of this Lease cause any changes, alterations,
additions, improvements, or other work to be done or
performed or materials to be supplied, in or upon the Demised
Premises or Project Phase I , the County shall pay, when due,
all sums of money that may become due for, or purporting to
be for, any labor, services, materials, supplies or equipment
furnished or alleged to have been furnished to or for the
County in, upon or about the Demised Premises or Project
Phase I and shall keep the Demised Premises and Project
Phase I free of any and all mechanics' or materialmen' s liens
or other liens against the Demised Premises or Project
Phase I or the Corporation' s interest therein. In the event
any such lien attaches to or is filed against the Demised
Premises or Project Phase I or the Corporation' s interest
therein, the County shall cause each such lien to be fully
discharged and released at the time the performance of any
obligation secured by any such lien matures or becomes due,
except that if the County desires to contest any such lien it
may do so. If any 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, the County shall
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040034-0008-028-3674s 02/15/84 1 8
forthwith pay or cause to be paid and discharged such
judgment. The County agrees to and shall, to the maximum
extent permitted by law, indemnify and hold the Corporation,
its directors, agents, successors and assigns, harmless from
and against, and defend each of them against, any claim,
demand, loss, damage, liability or expense (including
attorney' s fees) as a result of any such lien or claim of
lien against the Demised Premises or Project Phase I or the
Corporation' s interest therein.
Section 16. Quiet Enjoyment.
The parties hereto mutually covenant that the
County, so long as it keeps and performs the covenants and
agreements herein contained and is not in default hereunder,
shall at all times during the term of this Lease peaceably
and quietly, have, hold and enjoy the Demised Premises and
Project Phase I without suit, trouble or hindrance from the
Corporation.
Section 17 . Corporation Not Liable.
The Corporation and its directors, officers, agents
and employees and the Trustee shall not be liable to the
County or to any other party whomsoever for any death, injury
or damage that may result to any person or property by or
from any cause whatsoever in, on or about the Demised
Premises or Project Phase I . The County, to the extent
permitted by law, shall indemnify and hold the Corporation
and its directors, officers . agents and employees and the
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040034-0008-028-3674s 02/15/84
Trustee harmless. from, and defend each of them against, any
and all claims, liens and judgments for death of or injury to
any person or damage to property whatsoever occurring in, on
or about the Demised Premises or Project Phase I .
Section 18. Assignment.
Neither this Lease nor any interest of the County
hereunder shall be mortgaged, pledged, assigned, sublet or
transferred by the County by voluntary act or by operation of
law or otherwise, except with the prior written consent of
the Corporation, which, in the case of subletting, shall not
be unreasonably withheld. No such mortgage, pledge,
assignment, sublease or transfer shall in any event effect or
reduce the obligation of the County to make the Base Rental
and Additional Rental payments required hereunder.
Section 19 . Title to Demised Premises and Project
Phase I .
Title to the Demised Premises and Project Phase I
and all structural additions thereto shall remain in the
Corporation during the term of this Lease, subject, in the
case of the Demised Premises, to the terms and conditions of
the Deed of Gift. Title to all fixtures added to Project
Phase I pursuant to Section 6 of this Lease and to all
personal property placed in or about Project Phase I by the
County shall remain in the County.
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040034-0008-028-3674s 02/15/84
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Upon the termination or expiration of this Lease
(other than as provided in Sections 11 and 12 hereof) , title
to Project Phase I shall vest in the County.
Section 20 . Abatement of Rental .
The rental shall be abated proportionately, during
any period in which by reason of any damage or destruction
(other than by condemnation which is hereinbefore provided
for) there is substantial interference with the use and
occupancy of the Demised Premises and Project Phase I by the
County, in the proportion in which the initial cost of that
portion of the Demised Premises and Project Phase I rendered
unusable bears to the initial cost of the whole of the
Demised Premises and Project Phase I . Such abatement shall
continue for the period commencing with such damage or
destruction and ending with the substantial completion of the
work of repair or reconstruction. In the event of any such
damage or destruction, this Lease shall continue in full
force and effect and the County waives any right to terminate
this Lease by virtue of any such damage or destruction.
Section 21 . Law Governing.
This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State of California
as the same may from time to time exist.
Section 22 . Notices.
All notices, statements, demands, consents,
approvals, authorizations, cffers, designations, requests or
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other communications hereunder by either party to the other
shall be in writing and shall be sufficiently given and
served upon the other party if delivered personally or if
mailed by United States registered or certified mail, return
receipt requested, postage prepaid, and, if to the
Corporation, addressed to the Corporation in care of the
County Clerk and Clerk of the Board of Supervisors, County of
Contra Costa, County Administration Building, 651 Pine
Street, Martinez, California 94553, or, if to the County,
addressed to the County in care of County Clerk and Clerk of
the Board of Supervisors, County of Contra Costa, County
Administration Building, 651 Pine Street, Martinez,
California 94553, in either case with a copy to the Trustee,
or to such other addresses as the respective parties may from
time to time designate by notice in writing.
Section 23 . Validity and Severability.
If for any reason this Lease or any part thereof
shall be held by a court of competent jurisdiction to be
void, voidable, or unenforceable by the Corporation or by the
County, all of the remaining terms of this Lease shall
nonetheless continue in full force and effect. If for any
reason it is held by such a court that any of the covenants
and conditions of the County hereunder, including the
covenant to pay rentals hereunder, is unenforceable for the
full term hereof, then and in such event this Lease is and
shall be deemed to be a lease from year to year under which
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040034-0008-028-3674s 02/15/84
��� 192
the rentals are to be paid by the County semiannually in
consideration of the right of the County to possess, occupy
and use the Demised Premises and Project Phase I , and all of
the rental and other terms, provisions and conditions of this
Lease, except to the extent that such terms, provisions and
conditions are contrary to or inconsistent with such holding,
shall remain in full force and effect.
Section 24. Purpose of Lease; Industrial
Development Bond Covenant; Option to Purchase; Personal
Property.
The County covenants that during the term of this
Lease, except as hereinafter provided, (a) it will use, or
cause the use of, the Demised Premises and Project Phase I
for public purposes and for the purposes for which the
Project Phase I facilities are customarily used, (b) it will
not vacate or abandon Project Phase I or any part thereof,
and (c) it will not make any use of the Demised Premises and
Project Phase I which would jeopardize in any way the
insurance coverage required to be maintained pursuant to
Sections 7,. 8 and 9 hereof.
The County further covenants that it will not use
or permit the use of Project Phase I by any person not an
"exempt person" within the meaning of Section 103(b) (3 ) of
the Internal Revenue Code of 1954, as amended, or by an
"exempt person" (including the County) in an "unrelated trade
or business" within the meaning of Section 513(a) of said
code, in such manner or to such extent as would result in the
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�
loss of exemptionfrom federal income tax of the portion of
the Base Rental payments designated as interest in this Lease
under Section 103 of said code.
The County shall have the option to purchase the
Corporation' s interest in any part of the Demised Premises
and Project Phase I upon payment of an option price equal to
the aggregate amount for the entire remaining term of this
Lease of the part of the total rent hereunder attributable to
such part of Project Phase I (determined by reference to the
proportion which the construction cost of such part of
Project Phase I bears to the construction cost of all of
Project Phase I ) . Any such payment shall be made to the
Trustee and shall be treated as Rental Payments ( as such term
is defined in the Trust Agreement) , and shall be applied by
the Trustee to pay the interest and principal components of
the Certificates and to prepay Certificates on or after
May 1, 1994, pursuant to the provisions of Section 4. 01 of
the Trust Agreement. Upon the making of such payment to the
Trustee, ( a) the interest and principal components of each
semiannual installment of Base Rental thereafter payable
under this Lease shall be reduced by the amount thereof
attributable to such part of Project Phase I and theretofore
paid pursuant to this Section, (b) Section 20 and this
Section of this Lease shall not thereafter be applicable to
such part of Project Phase I , (c) the insurance required by
Sections 7, 8 and 9 of this Lease need not be maintained as
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194
to such part of Project Phase I , and (d) title to such part
of Project Phase I and of the portion of the Demised Premises
upon which such part of Project Phase I is located shall vest
in the County and the term of this Lease shall end as to the
portion of the Demised Premises upon which such part of
Project Phase I is located and to such part of Project
Phase I .
The County, in its discretion, may request the
Corporation to sell or exchange any personal property which
may at any time constitute a part of Project Phase I , and to
release said personal property from this Lease, if (a) in the
opinion of the County the property so sold or exchanged is no
longer required or useful in connection with the operation of
Project Phase I , (b) the consideration to be received from
the property is of a value substantially equal to the value
of the property to be released, and (c) if the value of any
such property shall, in the opinion of the Corporation,
exceed the amount of $50, 000, the Corporation shall have been
furnished a certificate of an independent engineer or other
qualified independent professional consultant (satisfactory
to the Corporation) certifying the value thereof and further
certifying that such property is no longer required or useful
in connection with the operation of Project Phase I . In the
event of any such sale, the full amount of the money
consideration received for the personal property so sold and
released shall be paid to the Corporation. Any money so paid
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r �-5
to the Corporation may, so long as the County is not in
default under any of the provisions of this Lease, be used
upon the written request of the County to purchase personal
property, which property shall become a part of Project
Phase I leased hereunder. The Corporation may require such
opinions, certificates and other documents as it may deem
necessary before permitting any sale or exchange of personal
property subject to this Lease or before releasing for the
purchase of new personal property money received by it for
personal property so sold.
Section 25 . Waiver.
Failure of the Corporation to take advantage of any
default on the part of the County shall not be, or be
construed as, a waiver thereof, nor shall any custom or
practice which may grow up between the parties in the course
of administering this Lease be construed to waive or to
lessen the right of the Corporation to insist upon
performance by the County of any term, covenant or condition
hereof, or to exercise any rights given the Corporation on
account of such default. A waiver of a particular default
shall not be deemed to be a waiver of the same or any
subsequent default. The acceptance of rent hereunder shall
not be, nor be construed to be, a waiver of any term,
covenant or condition of this Lease.
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Section 26. Net Lease.
This Lease shall be deemed and construed to be a
"net lease" and the County hereby agrees that the rents
provided for herein shall be an absolute net return to the
Corporation, free and clear of any expenses, charges or
setoffs whatsoever.
Section 27 . Restated and Amended 1982 Lease.
The 1982 Lease is amended and completely restated
in this Lease .
Section 28 . Headings.
All section headings contained herein are for
convenience of reference only and are not intended to define
or limit the scope of any provision of this Lease.
Section 29 . Execution.
This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an
original, but all together shall constitute but one and the
same Lease . It is also agreed that separate counterparts of
this Lease may separately be executed by the Corporation and
the County, all with the same force and effect as though the
same counterpart had been executed by both the Corporation
and the County.
IN WITNESS WHEREOF, the Corporation and the County
have caused this Lease to be executed by their respective
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officers thereunto duly authorized, all as of the day and
year first above written.
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
[ SEAL]
Attest:
Secretary
COUNTY OF CONTRA COSTA
By
Chairman of the
Board of Supervisors
[ SEAL]
Attest:
County Clerk and ex officio Clerk
of the Board of Supervisors
Approved as to form:
County Counsel
By
Deputy County Counsel
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All that certain real property situated in the State of California,
. County of Contra Costa, City of Martinez, described as follows
(Parcels One through Five being the property commonly known as 30 Muir
Road and Parcels Six and Seven being the property commonly known as
610 Court Street) :
PARCEL ONE:
A portion of Parcels "16 , 02" and 03" , as shown on the Parcel Map
filed November 2, 1981 , in Book 98 of Parcel Maps, Page 12, .Contra
Costa County Records, described as follows:
Beginning on the easterly line of said Parcel 01" distant South 20"
28' 45" West, 421 .82 feet from the northeasterly corner thereof ;
thence from said point of beginning South 20" 28' 45" West, along
said easterly line , 229,37 feet; thence North 61. 00' 00" West,
342.25 feet to a point on the easterly line of Muir Road as shown on
said Parcel Map, distant South 29. 00' 00" West, 70.93 feet from the
southwesterly corner of said Parcel 02" ( 98 PM 12) ; thence along said
easterly line as follows: North 29" 00' 00" East, 314.32 feet,
Northeasterly along a curve to the right with a radius of 190
feet, through a central angle of 17. 48 ' 360 , an arc length of 59.06
feet and northeasterly along a compound curve with a radius of 482.04
feet, through a central angle of 7. 14' 520 , an arc length of 60.97
feet; thence South 35. 56' 32" East leaving said easterly line,
79.24 feet; thence South 29. 00' 00" West, 34.97 feet; thence South
61. 00' 00" East, 86. 25 feet; thence South 29. 00' 00" West, 85. 23
feet; thence North 89. 00' 00" East, 22.70 feet; thence South 200 20 '
45" West, 61.5 feet; thence South 39. 31 ' 15" East, 51 . 54 feet;
thence South 69. 31 ' 15" East, 21 .5 feet; thence North 80" 281. 45"
East, 26.66 feet to the point of beginning.
RESERVING THEREFROM:
1. Two non-exclusive easements for ingress and egress as an appurtenance
to the grantors remaining land to the south, over strips of land 22
feet in width the centerlines of which are described as follows :
A) Beginning on the westerly line of Parcel One above distant North
29. 00' 00" East, 41.00 feet from the southwesterly corner thereof;
thence from said point of beginning South 55" 17' 22" East, 45.22
feet; thence South 61. 00' 00" East, 275.75 feet; thence South 20"
28' 45" West, 36.91 feet to a point on the southerly line of Parcel
One above distant North 61. 00' 00" West, 16.18 feet from the south-
easterly corner thereof.
Exhibit A (rev. )
Page 1 of 5 199
B) Commencing on the westerly line of Parcel One above distant North
29. 00' 00" East, 41 .00 feet from the southwesterly corner thereof;
thence from said point of commencement South 55. 17' 22" East, 32.66
feet to the true point of beginning ; thence from said point of
beginning South 29. 00' 00" West, 37.74 feet to a point on the
southerly line of Parcel One above , which bears South 61. 001 -00"
East 32.5 feet, from the southwesterly corner thereof.
2. Four non-exclusive easements for ingress and egress as an appurtenance
to the grantors remaining land to the north described as follows :
A) A strip of land 22 feet in width, the centerline of which is
described as follows :
Beginning on the westerly line of Parcel One above distant North 29"
00 ' 00" East, 41 .00 feet from the southwesterly corner thereof ;
thence from said point of beginning South 55" 17' 22" East, 32. 66 feet;
thence North 29. 00 ' 00" East, 70.75 feet; thence South 61. 00' 00"
East, 204.435 feet to a point hereinafter referred to as Point "A" ;
thence continuing South 61. 00' 00" East, 57.865 feet to a point
hereinafter referred to as Point "B" .
B) A strip of land 18 feet in width, the centerline of which is
described as follows :
Beginning at Point "A" referred to above ; thence North 200 .28 ' 45"
East, 119.74 feet to the southerly terminus of the line described as
"South 20. 28 ' 45" West, 61 .5 feet" in Parcel One above ; thence
continuing North 20. 28 ' 45" East, along said line , 51 . 54 feet; thence
North 29. 00' 00" East, 67,72 feet.
EXCEPTING THEREFROM: That portion of the above described 18 feet in
width strip lying outside the boundaries of Parcel One above .
C) A strip of land 18 feet in width, the centerline of which is
described as follows :
Begining at point "B" referred to above ; thence North 20" 28 ' 45"
East, 101 .62 feet to a point on the line described as "South 69" 31 '
15" East, 21 .5 feet" in Parcel One above , distant thereon North 690
31 ' 15" West, 9.00 feet from the easterly terminus thereof.
D) A strip of land 22 feet in width the centerline of which is
described as follows :
Exhibit A(rev. )
Page 2 of 5
L . 200
Beginning on the line described as *North 29. 00' 00" East, 314.32
feet•, in Parcel One above distant thereon South 29. 00' 00" West,
39.00 feet from the northerly terminus thereof; thence from said
point of beginning South 61. 00' 00". East, S6.5 feet; thence North
29. 00' 00" East, 66.66 feet; thence northeasterly along a tangent
curve to the right, with a radius of 161.34 feet, through a central
angle of 25. 03' 280 , an arc distance of 70.56 feet to a point on the
line described as "South 35. 56. 32" East, 79.24 feet" in Parcel One
above ,
PARCEL TWO:
A non-exclusive easement for ingress and egress as an appurtenance to
Parcel One above, over a strip of land 22 feet in width , the center
line of which is described as follows:
Beginning on the northerly line of Parcel 01" as shown on the Parcel
Map filed November 2, 1981 , in Book 98 of Parcel Haps, Page 12,
Contra Costa County Records, distant thereon westerly along the arc
of a curve to the left with a radius of 370.03 feet, through a
central angle of 4. 04' 09" , an arc distance of 26. 28 feet, from the
northeasterly corner thereof; thence from said point of beginning ,
South 20 34 ' 44" West, 30.28 feet and South 20. 28 ' 45" West, 200.11
feet.
PARCEL THREE:
A non-exclusive easement for ingress and egress as an appurtenance to
Parcel One above, over a strip of land 22 feet in width the centerline
of which is described as follows :
Commencing on the line described as "North 29. 00' 00" East, 314.32
feet" , in Parcel One above distant thereon South 290 00' 00." West,
39.00 feet from the northerly terminus thereof; thence from said
point of commencement South 61. 00' 00" East, 56.5 feet; thence North
29. 00 ' 00" East, 66 .66 feet; thence northeasterly along a tangent
curve to the right, with a radius of 161.34 feet, through a central
angle of 25. 03' 280 , an are distance of 70.56 feet to a point on the
line described as "South 35. 56" 32" East, 79. 24 feet" in Parcel One
above , being the true point of beginning ; thence from said point of
beginning easterly along a compound curve with a radius of 437 .54
feet, through a central angle of 18. 12' 280 , an arc distance of
139. 04 feet; thence along a compound curve with a radius of 325.53
feet, through a central angle of 19" 29' 590 , an arc distance of
110.80 feet, to a point on the centerline of Parcel Two
above , which bears North 20. 28' 45" East, 185. 11 feet from
the southerly terminus thereof.
Exhibit A(rev. )
Page 3 of 5
4 201
PARCEL FOUR:
A non-exclusive easement for ingress and egress as an appurtenance to
parcel One above , over a strip of land 18 feet in width, the centerline
of which is described as follows:
Beginning at the southerly terminus of Parcel Two above ; thence from
said point of beginning southwesterly along a curve to the. right with
a radius of 44 feet, the tangent of which bears North 20. 28' 45'
East, through a central angle of 68. 31' 15• , an are distance of
52.62 feet; thence South 89. 00' 00' West, 37.96 feet ; thence South
29. 00' 00' West, 67.72 feet to a point on the line described as
•South 20. 28' 45' West, 61 .5 feet" in Parcel One above , distant
North 20. 28 ' 45• East, 51 .54 feet from the southerly terminus
thereof; thence South 20. 28 ' 45' West along said line , 51.54 feet.
EXCEPTING THEREFROM: That portion thereof lying within Parcel One
above .
PARCEL FIVE:
A non-exclusive easement for ingress and egress as an appurtenance to
Parcel One above , over a strip of land 18 feet in width , the centerline
of which is described as follows:
Beginning at the southerly terminus of Parcel Two above ; thence from
said point of beginning along a curve to the right with a radius of
44 feet, the tangent of which bears Noith 200 28 ' 45' East, through a
central angle of 35. 13 ' 15' , an arc distance of 27 . 05 feet ; thence
along a reverse curve with a radius of 44 feet, through a central
angle of 350 13 ' I V , an arc distance of 27.05 feet ; thence South 200
28 ' 45' West, 148 . 31 feet to a point on the line described as 'South
690 31 ' 15" East, 21 .5 feet• in Parcel One above , distant North 690
31 ' 15" west; 9. 00 feet from the easterly terminus thereof.
Exhibit A(rev. )
Page 4 of 5
04 202
PARCEL SIX:
Portion of Block 329 of the Additional Survey of the Town of Martinez,
as per maps thereof on file in the office of the Recorder of the
County of Contra Costa, described as follows:
Beginning at the most northerly corner of Block 329 , said point being
the intersection of the south line of Escobar Street with the west
line of Court Street; thence from said point of beginning southerly
along the west line of Court Street, 90 feet; thence westerly and
parallel with the south line of Escobar Street, 41 feet; thence
northerly and parallel with the west line of said Court Street , 90
feet, more or less , to the south line of Escobar Street; thence
easterly along the south line of said Escobar Street; 41 feet to the
point of beginning .
PARCEL SEVEN:
Right of way embodied in the deed to Angie C. Bassi , as an appurtenance
to Parcel Six above , recorded September 2, 1926 , Book 48 , Official
Records , page 393 , over that parcel of land described as follows :
Beginning at a point on the west line of Court Street, distant
thereon , 90 feet southerly from the south line of Escobar Street ;
thence from said point of beginning southerly along said west line of
Court Steet, 8 feet; thence westerly and parallel with the south line
of Escobar Street , 41 feet; thence northerly and parallel with said
west line of Court Street, 8 feet; thence easterly and parallel with
the said south line of Escobar Street, 41 feet to the point of
beginning.
Exhibit A (rev. ) 203
Page 5 of 5
EXHIBIT B
Rental Payment Schedule
Amount Amount
Base Rental Total Base Attributable Attributable
Payment Dates( 1) Rental Payment to Principal to Interest
October 15, 1984 $ $ 0 $
April 15 , 1985
October 15, 1985
April 15, 1986
October 15, 1986
April 15, 1987
October 15, 1987
April 15, 1988
October 15, 1988
April 15, 1989
October 15, 1989
April 15, 1990
October 15, 1990
April 15, 1991
October 15, 1991
April 15, 1992
October 15, 1992
April 15, 1993
October 15, 1993
April 15, 1994
October 15, 1994
April 15, 1995
October 15, 1995
April 15, 1996
October 15, 1996
April 15, 1997
(1) Due date is the first day of the following month.
B-1
040034-0008-028-3674s 01/31/84
ani - �
State of California )
ss.
County of Contra Costa )
On this day of April, in the year 1984, before
me, a notary public in and for the State of
California, duly commissioned and sworn, personally appeared
known to me to be the President, and
known to me to be the Secretary, of
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION, the
corporation that executed the within instrument, and known to
me to be the persons who executed the within instrument on
behalf of said corporation therein named, and acknowledged to
me that such corporation executed the within instrument
pursuant to its bylaws or a resolution of its board of
directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Notary Public in and for the
State of California
My commission expires:
[Notarial Seal ]
v
• u n r
State of California )
ss.
County of Contra Costa )
On this day of April, in the year 1984, before
me, a Deputy Clerk of the County of Contra
Costa, State of California, duly commissioned and sworn,
personally appeared , known to me to be
the Chairman of the Board of Supervisors, and
known to me to be the County Clerk and
Ex-officio Clerk of the Board of Supervisors, of the County
of Contra Costa, the county that executed the within
instrument, and known to me to be the persons who executed
the within instrument on behalf of said political subdivision
therein named, and acknowledged to me that such political
subdivision executed the within instrument pursuant to a
resolution of the Board of Supervisors of the County of
Contra Costa.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Deputy Clerk County of Contra
Costa
[ Seal ]
CCd-8
3680s
i 2-15-84 Draft (3rd Draft)
t
TRUST AGREEMENT
by and among
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
and
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION
and the
COUNTY OF CONTRA COSTA
Dated as of April 1, 1984
RELATING TO $_, 000, 000 1984 CERTIFICATES OF
PARTICIPATION
FOR CAPITAL PROJECT I
(610 Court Street and 30 Muir Road Office Buildings)
ao
I � l
f I
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1 . 01 . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1 . 02 . Equal Security . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE II
TERMS AND CONDITIONS OF CERTIFICATES
SECTION 2 . 01 . Preparation of Certificates . . . . . . . . . . . . . 14
SECTION 2 .02 . Denominations, Medium, Method and
Place of Payment and Dating of
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 2 . 03 . Payment Dates of Certificates . . . . . . . . . . . 15
SECTION 2 . 04. Form of Certificates . . . . . . . . . . . . . . . . . . . . 17
SECTION 2 . 05 . Execution of Certificates . . . . . . . . . . . . . . . 27
SECTION 2 . 06. Transfer and Payment of
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 2 . 07 . Certificate Registration Books . . . . . . . . . . 28
SECTION 2 . 08. Temporary Certificates . . . . . . . . . . . . . . . . . . 28
SECTION 2 . 09 . Certificates Mutilated, Lost,
Destroyed or Stolen . . . . . . . . . . . . . . . . . . . 29
ARTICLE III
PROCEEDS OF CERTIFICATES
SECTION 3 . 01 . Delivery of Certificates . . . . . . . . . . . . . . . . 30
SECTION 3 .02 . Deposit of Proceeds of Certificates
and Other Moneys . . . . . . . . . . . . . . . . . . . . . . 31
SECTION 3 . 03 . Use of Moneys in the Refunding
Expenses Fund . . . . . . . . . . . . . . . . . . . . . . . . . 33
i
t,�E. 207
f r
P_acie
ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4. 01 . Terms of Prepayment . . . . . . . . . . . . . . . . . . . . . 35
SECTION 4. 02 . Selection of Certificates for
Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 4. 03 . Notice of Prepayment . . . . . . . . . . . . . . . . . . . . 37
SECTION 4. 04. Partial Prepayment of Certificates . . . . . . 38
SECTION 4. 05 . Effect of Prepayment . . . . . . . . . . . . . . . . . . . . 39
ARTICLE V
RENTAL PAYMENTS
SECTION 5 .01 . Pledge of Base Rental Payments;
Base Rental Payment Fund . . . . . . . . . . . . . . 39
SECTION 5 . 02 . Deposit of Base Rental Payments . . . . . . . . . 40
( a) Interest Fund . . . . . . . . . . . . . . . . . . . . . . . 40
(b) Principal Fund . . . . . . . . . . . . . . . . . . . . . . 41
(c ) Prepayment Fund . . . . . . . . . . . . . . . . . . . . . 41
SECTION 5 . 03 Trust Administration Fund . . . . . . . . . . . . . . . 42
ARTICLE VI
COVENANTS
SECTION 6. 01 . Compliance with Trust Agreement . . . . . . . . . 43
SECTION 6. 02 . Compliance with or Amendment of
Facility Lease . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 6. 03 . Observance of Laws and Regulations . . . . . . 44
SECTION 6. 04. Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
SECTION 6 . 05 . Prosecution and Defense of Suits . . . . . . . . 46
SECTION 6. 06. Accounting Records and Statements . . . . . . . 47
SECTION 6.07 . Recordation and Filing . . . . . . . . . . . . . . . . . . 48
SECTION 6. 08. Further Assurances . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7 . 01 . Action on Default . . . . . . . . . . . . . . . . . . . . . . . 49
SECTION 7 .02 . Other Remedies of the Trustee . . . . . . . . . . . 50
SECTION 7 . 03 . Non-Waiver 50
SECTION 7 . 04. Remedies Not Exclusive . . . . . . . . . . . . . . . . . . 51
SECTION 7 . 05 . No Liability by the Corporation
to the Owners . . . . . . . . . . . . . . . . . . . . . . . . . 51
SECTION 7.06. No Liability by the County to
the Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
SECTION 7. 07 . No Liability by the Trustee to
the Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
ii
61 208
Page
ARTICLE VIII
THE TRUSTEE
SECTION 8. 01 . Employment of the Trustee . . . . . . . . . . . . . . . 53
SECTION 8. 02 . Duties, Removal and Resignation
of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 8. 03 . Compensation and Indemnification
of the Trustee . . . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 8. 04. Protection of the Trustee . . . . . . . . . . . . . . . 56
ARTICLE IX
AMENDMENT OF OR SUPPLEMENT TO
TRUST AGREEMENT
SECTION 9 . 01 . Amendment or Supplement by Consent
of Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 9 .02 . Disqualified Certificates . . . . . . . . . . . . . . . 60
SECTION 9 . 03 . Endorsement or Replacement of
Certificates After Amendment
or Supplement . . . . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 9 . 04. Amendment by Mutual Consent . . . . . . . . . . . . . 61
ARTICLE X
DEFEASANCE
SECTION 10. 01 . Discharge of Certificates and
Trust Agreement . . . . . . . . . . . . . . . . . . . . . . . 62
SECTION 10. 02 . Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE XI
MISCELLANEOUS
SECTION 11 . 01 . Benefits of Trust Agreement Limited
to Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11 . 02 . Successor Deemed Included in all
References to Predecessor . . . . . . . . . . . . . 64
SECTION 11 . 03 . Execution of Documents by Owners . . . . . . . . 65
SECTION 11 . 04. Waiver of Personal Liability . . . . . . . . . . . . 66
SECTION 11 . 05 . Acquisition of Certificates by County . . . 66
SECTION 11 . 06. Content of Certificates . . . . . . . . . . . . . . . . . 66
SECTION 11 . 07 . Publication for Successive Weeks . . . . . . . . 67
SECTION 11 . 08. Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
SECTION 11 . 09 . Investments . . . . . . . . 68
t. 209
1 ,
Page
SECTION 11 . 10. Article and Section Headings,
Gender and References . . . . . . . . . . . . . . . . . 69
SECTION 11 . 11 . Partial Invalidity . . . . . . . . . . . . . . . . . . . . . . 70
SECTION 11 . 12 . California Law . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11 . 13 . Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11 . 14. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 11 . 15 . Execution in Counterparts . . . . . . . . . . . . . . . 71
EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
IV
�� 210
TRUST AGREEMENT
This TRUST AGREEMENT, made and entered into as of
April 1, 1984, by and among BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national banking association duly
organized and existing under and by virtue of the laws of the
United States of America (the "Trustee" ) , CONTRA COSTA COUNTY
PUBLIC FACILITIES CORPORATION, a nonprofit public benefit
corporation duly organized and existing under and by virtue
of the laws of the State of California (the "Corporation" ) ,
and the COUNTY OF CONTRA COSTA, a political subdivision
organized and existing under and by virtue of the laws of the
State of California (the "County" ) ;
W I T N E S S E T H:
WHEREAS, the Corporation and the County have
previously entered into a facility lease, entitled "Facility
Lease (Project Phase I ) " and dated as of May 1, 1982 (the
"1982 Lease" ) , which was recorded in the office of the County
Recorder of the County of Contra Costa on May 27 , 1982 under
Recorder' s Serial No. 82-59391; and
WHEREAS, the Corporation has issued its Contra
Costa County Public Facilities Corporation Bonds (Project 1 ) ,
Series A in the principal amount of $4, 500, 000 (the "1982
Bonds" ) for the purpose of financing the acquisition for the
use of the County of two office buildings located at
510 Court Street, Martinez, California, and at 30 Muir Road,
is 211
Martinez, California ( said two office buildings being herein
called "Project Phase I" ) ;
WHEREAS, the Corporation and the County have
determined that it would be in the best interest of the
Corporation, the County and the residents of the County to
defease the 1982 Bonds through the sale and delivery of
certificates of participation evidencing a fractional
undivided interest in certain base rental payments to be made
pursuant to the hereinafter referred to Facility Lease;
WHEREAS, the Corporation and the County have
entered into an agreement, entitled "Amended and Restated
Facility Lease (Project Phase I ) " and dated as of the date
hereof (the "Facility Lease" ) , which amends the 1982 Lease
and restates the 1982 Lease as amended.
WHEREAS, under the Facility Lease, the County is
obligated to make base rental payments to the Corporation for
the lease of Project Phase I ; and
WHEREAS, all rights to receive such base rental
payments have been assigned without recourse by the
Corporation to the Trustee pursuant to an agreement, entitled
"Assignment Agreement" and dated as of April 1, 1984 (the
"Assignment Agreement" ) ; and
WHEREAS, in consideration of such assignment and
the execution of this Trust Agreement, the Trustee has agreed
to execute and deliver certificates of participation in an
amount equal to the aggregate principal components of such
2
040034-0008-028-3680s 02/15/84 212
base rental payments, each evidencing and representing a
fractional undivided interest in such base rental payments;
and
WHEREAS, all acts, conditions and things required
by law to exist, to have happened and to have been performed
precedent to and in connection with the execution and
entering into of this Trust Agreement do exist, have happened
and have been performed in regular and due time, form and
manner as required by law, and the parties hereto are now
duly authorized to execute and enter into this Trust
Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES
AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN
AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES DO HEREBY
AGREE AS FOLLOWS:
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1 . 01 . Definitions. Unless the context
otherwise requires, the terms defined in this Section shall
for all purposes hereof and of any amendment hereof or
supplement hereto and of the Certificates and of any
certificate, opinion, request or other document mentioned
herein or therein have the meanings defined herein, the
following definitions to be equally applicable to both the
singular and plural forms of any of the terms defined herein:
3
040034-0008-028-3680s 02/15/84
213
Additional Rental Payments
The term "Additional Rental Payments" means the
additional rental payments payable by the County under and
pursuant to Section 3 (b) of the Facility Lease.
Assignment Agreement
The term "Assignment Agreement" means that certain
Assignment Agreement by and between the Corporation and the
Trustee, dated as of April 1, 1984.
Base Rental Payments
The term "Base Rental Payments" means the base
rental payments with interest components and principal
components payable by the County under and pursuant to
Section 3 ( a) of the Facility Lease.
Base Rental Payment Fund
The term "Base Rental Payment Fund" means the fund
by that name established in Section 5 . 01 .
Certificate of the Corporation
The term "Certificate of the Corporation" means a
certificate signed by the President or a Vice President of
the Corporation and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the
Corporation. If and to the extent required by the provisions
of Section 11.06, each Certificate of the Corporation .shall
include the statements provided for in Section 11. 06.
4
040034-0008-028-3680s 02/15/84 214
Certificate of the County
The term "Certificate of the County" means an
instrument in writing signed by the County Administrator of
the County, or by the Assistant County Administrator-Finance,
or by a Deputy County Administrator, or by any other officer
of the County duly authorized by the Board of Supervisors of
the County for that purpose, with the seal of the County
affixed. If and to the extent required by the provisions of
Section 11 . 06, each Certificate of the County shall include
the statements provided for in Section 11 . 06.
Certificates
The term "Certificates" means the certificates of
participation executed and delivered by the Trustee pursuant
hereto.
Certificates of Participation Purchase Contract
The term "Certificates of Participation Purchase
Contract" means that certain Certificates of Participation
Purchase Contract, dated as of April 1, 1984, by and among
the Purchasers, the Trustee and the County relating to
$ 1984 Certificates of Participation, Capital
Project I (610 Court Street and 30 Muir Road Office
Buildings) .
Corporation
The term "Corporation" means the Contra Costa
County Public Facilities Corporation, a nonprofit public
benefit corporation organized and existing under and by
virtue of the laws of the State of California.
5
040034-0008-028-3680s 02/19/8 . 215
County
The term "County" means the political subdivision
of the State of California known as the County of Contra
Costa, as the same is organized and existing under and by
virtue of the Constitution and laws of the State of
California.
Deed of Gift
The term "Deed of Gift" means the deed, dated as of
May 1, 1982 and entitled "Deed of Gift (Project Phase I ) "
from the Corporation, as grantor, to the County, as grantee,
which was recorded in the office of the County Recorder of
the County of Contra Costa on May 27, 1982 under Recorder' s
Serial No. 82-59390, as amended by that agreement, entitled
"Agreement Amending Deed of Gift (Project Phase I ) " and dated
as of April 1, 1984, between the Corporation and the County.
Demised Premises
The term "Demised Premises" means the real property
described in Exhibit A to the Facility Lease.
Escrow Agreement
The term "Escrow Agreement" means the agreement,
dated as of April 1, 1984 and entitled "Escrow Agreement, "
entered into between the Corporation and the 1982 Trustee.
Facility Lease
The term "Facility Lease" means that certain lease,
entitled "Amended and Restated Facility Lease (Project
Phase I ) , " by and between the Corporation and the County,
6
040034-0008-028-3680s 02/19/84 2 1 6
dated as of April 1, 1984, which was recorded in the office
of the County Recorder of the County of Contra Costa on April
1984 under Recorder' s Serial No. , as
originally executed and recorded or as it may from time to
time be supplemented, modified or amended pursuant to the
provisions hereof and thereof .
Financial Newspaper
The term "Financial Newspaper" means The Wall
Street Journal or The Bond Buyer, or any other newspaper or
journal publishing financial news and selected by the Trustee
that is printed in the English language, is customarily
published on each business day and is circulated in San
Francisco, California.
Interest Fund
The term "Interest Fund" means the fund by that
name established in Section 5 . 02 .
1982 Bonds
The term "1982 Bonds" means the Contra Costa County
Public Facilities Corporation Bonds (Project 1) , Series A, in
the original aggregate principal amount of $4, 500, 000, issued
by the Corporation pursuant to the 1982 Indenture.
1982 Indenture
The term "1982 Indenture" means the indenture,
dated as of May 1, 1982, between the Corporation and the 1982
Trustee, which was recorded in the Office of the County
7
040034-0008-028-3680s 02/15/84
217
Recorder of the County of Contra Costa on May 27, 1982 under
Recorder' s Serial No. 82-59392 .
1982 Lease
The term "1982 Lease" means the lease, dated as of
May 1, 1982 and entitled "Facility Lease (Project Phase I ) , "
between the Corporation, as lessor, and the County, as
lessee, which was recorded in the office of the County
Recorder of the County of Contra Costa on May 27, 1982 under
Recorder' s Serial No. 82-59391, and which was amended and
restated by the Facility Lease.
1982 Trustee
The term "1982 Trustee" means Bank of America
National Trust and Savings Association, as trustee under the
1982 Indenture, its successors and assigns, and any other
corporation or association which may at any time be
substituted in its place.
Opinion of Counsel
The term "Opinion of Counsel" means a written
opinion of counsel of recognized national standing in the
field of law relating to municipal bonds, appointed and paid
by the County or the Corporation and satisfactory to and
approved by the Trustee (who shall be under no liability by
reason of such approval) .
Outstanding
The term "Outstanding, " when used as of any
particular time with reference to Certificates, means
040034-0008-028-3680s 8 02/15/84 218
( subject to the provisions of Section 9 . 02 ) all Certificates
except --
(1) Certificates cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2 ) Certificates paid or deemed to have been paid
within the meaning of Section 10. 01; and
(3 ) Certificates in lieu of or in substitution for
which other Certificates shall have been executed and
delivered by the Trustee pursuant to Section 2 . 09.
Owner
The term "Owner" means any person who shall be the
registered owner of any Outstanding Certificate.
Payment Date
The term "Payment Date" means that May 1 or
November 1 during the period beginning on November 1, 1984
and terminating on May 1, 1997 to which reference is made .
Permitted Investments
The term "Permitted Investments" means any of the
following to the extent then permitted by the general laws of
the State of California applicable to investments by counties
(provided that any moneys invested in any of the investments
specified in clauses (3 ) or (4) below shall be secured at all
times by collateral security, of a market value of no less
than the amount of such moneys so invested, of such types and
in such manner as is required by law to secure deposits of
funds of the County) :
9
040034-0008-028-3680s 02/15/84 219
( 1) United States Treasury notes, bonds, bills, or
certificates of indebtedness, or those for which the
faith and credit of the United States are pledged for
the payment of principal and interest;
(2) Obligations issued by banks for cooperatives,
federal land banks, federal intermediate credit banks,
federal home loan banks, the Federal Home Loan Bank
Board or the Tennessee Valley Authority, or obligations,
participations or other instruments of or issued by, or
fully guaranteed as to principal and interest by, the
Federal National Mortgage Association, or guaranteed
portions of Small Business Administration notes, or
obligations, participations, or other instruments of or
issued by a federal agency or a United States
government-sponsored enterprise;
(3 ) Time certificates of deposit or negotiable
certificates of deposit issued by a state or nationally
chartered bank, including the Trustee, or a state or
national savings and loan association which are readily
marketable with nationally recognized investment
institutions; and
(4) Investments in repurchase agreements or
reverse repurchase agreements of any securities
described by this definition; provided that for purposes
of this definition the term "repurchase agreement" means
a purchase of securities by the Trustee pursuant to an
agreement by which the seller will repurchase such
10
040034-0008-028-3680s 02/16/84 220
20
securities on or before a specified date and for a
specified amount, and the term "reverse repurchase
agreement" means a sale of securities by the Trustee
pursuant to an agreement by which the Trustee will
repurchase such securities on or before a specified date
and for a specified amount.
Prepayment Fund
The term "Prepayment Fund" means the fund by that
name established in Section 5 .02 .
Principal Fund
The term "Principal Fund" means the fund by that
name established in Section 5. 02 .
Project Phase I or Capital Project I
The terms "Project Phase I" and "Capital Project I"
mean the office buildings generally known as 610 Court
Street, Martinez, California, and 30 Muir Road, Martinez,
California, to house offices and facilities of the County,
together with parking, site development, landscaping,
utilities, equipment, furnishings, improvements and
appurtenant and related facilities, located on the Demised
Premises, and leased by the Corporation to the County
pursuant to the Facility Lease.
Purchasers
The term "Purchasers" means Bank of America
National Trust and Savings Association and Rauscher Pierce
Refsnes, Inc . as underwriters and purchasers of the
11
040034-0008-028-3680s 02/19/84 221
Certificates pursuant to the Certificates of Participation
Purchase Contract.
Refunding Expenses Fund
The term "Refunding Expenses Fund" means the fund
by that name established in Section 3 . 02 .
Rental Payments
The term "Rental Payments" means the Base Rental
Payments and the Additional Rental Payments.
Trust Administration Fund
The term "Trust Administration Fund" means the fund
by that name established in Section 5. 03 .
Trust Agreement
The term "Trust Agreement" means this Trust
Agreement by and among the Trustee, the Corporation and the
County, dated as of April 1, 1984, as originally executed and
as it may from time to time be amended or supplemented in
accordance herewith.
Trustee
The term "Trustee" means Bank of America National
Trust and Savings Association, a national banking association
duly organized and existing under and by virtue of the laws
of the United States of America and having a principal
corporate trust office in San Francisco, California, or any
other bank or trust company which may at any time be
substituted in its place as provided in Section 8 .02 .
12
040034-0008-028-3680s 02/15/84
..222.
i
Written Request of the County
The term "Written Request of the County" means an
instrument in writing signed by the County Administrator of
the County or by the Assistant County Administrator-Finance
of the County, or by a Deputy County Administrator of the
County, or by any other officer of the County duly authorized
by the Board of Supervisors of the County for that purpose,
with the seal of the County affixed.
Written Request of the Corporation
The term "Written Request of the Corporation" means
an instrument in writing signed by or on behalf of the
Corporation by its President or a Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary or by any two persons (whether or not '
officers of the Corporation) who are specifically authorized
by resolution of the Board of Directors of the Corporation to
sign or execute such a document on its behalf.
SECTION 1 . 02 . Equal Security. In consideration of
the acceptance of the Certificates by the Owners, the Trust
Agreement shall be deemed to be and shall constitute a
contract between the Trustee and the Owners to secure the
full and final payment of the interest and principal
represented by the Certificates which may be executed and
delivered hereunder, subject to the agreements, conditions,
covenants and terms contained herein; and all agreements,
conditions, covenants and terms contained herein required to
be observed or performed by or on behalf of the Trustee shall
13
040034-0008-028-3680s 02/15/84 _, 223
be for the equal and proportionate benefit, protection and
security of all Owners without distinction, preference or
priority as to security or otherwise of any Certificates over
any other Certificates by reason of the number or date
thereof or the time of execution or. delivery thereof or for
any cause whatsoever, except as expressly provided herein or
therein.
ARTICLE II
TERMS AND CONDITIONS OF CERTIFICATES
SECTION 2 . 01 . Preparation of Certificates. The
Trustee is hereby authorized to prepare the Certificates in
the aggregate principal amount of million hundred
thousand dollars ($ ) , representing the
aggregate principal components of the Base Rental Payments
and each evidencing and representing a fractional undivided
interest in the Base Rental Payments.
SECTION 2 . 02 . Denominations, Medium, Method and
Place of Payment and Dating of Certificates. The
Certificates shall be prepared in the form of fully
registered Certificates in the denomination of five thousand
dollars ($5, 000) each or any integral multiple thereof so
long as no Certificate shall represent principal becoming
payable on more than one principal payment date. The
Certificates shall be payable in lawful money of the United
States of America.
14
040034-0008-028-3680s 02/15/84 . 224
24
The interest represented by the Certificates shall
be payable by check or draft mailed by the Trustee to the
respective Owners of the Certificates at their addresses
shown on the books required to be kept by the Trustee
pursuant to the provisions of Section 2 . 07 . The principal
represented by the Certificates shall be payable upon
surrender thereof on their payment dates or on prepayment
prior thereto at the principal corporate trust office of the
Trustee in San Francisco, California.
The Certificates shall be dated the Payment Date
next preceding the date of delivery thereof by the Trustee,
unless such date of delivery is a Payment Date, in which case
they shall be dated such Payment Date, or unless such date of
delivery is prior to November 1, 1984, in which case they
shall be dated April 1, 1984.
SECTION 2 . 03 . Payment Dates of Certificates. The
principal represented by the Certificates shall be payable on
May 1 and November 1 in the years and in the amounts, with an
interest component with respect thereto at the rates, as
follows:
15
040034-0008-028-3680s 02/15/84 225
Principal Interest
Payment Date Amount Component
May 1, 1985 $ %
November 1, 1985
May 1, 1986
November 1, 1986
May 1, 1987
November 1, 1987
May 1, 1988
November 1, 1988
May 1, 1989
November 1, 1989
May 1, 1990
November 1, 1990
May 1, 1991
November 1, 1991
May 1, 1992
November 1, 1992
May 1, 1993
November 1, 1993
May 1, 1994
November 1, 1994
May 1, 1995
November 1, 1995
May 1, 1996
November 1, 1996
May 1, 1997
The interest represented by the Certificates shall
be payable from their date on May 1 and November 1 of each
year, beginning on the May 1 or November 1 following their
date and continuing to and including their Payment Dates or
on prepayment prior thereto, and shall represent the sum of
the portions of the Base Rental Payments designated as
interest components coming due on the Payment Dates in each
year.
The principal represented by the Certificates shall
be payable on May 1 and November 1 o£ each year, beginning on
May 1, 1985 and continuing to and including May 1, 1997, and
16
040034-0008-028-3680s 02/15/84
226
shall represent the sum of the portions of the Base Rental
Payments designated as principal components coming due on the
Payment Dates in each year.
SECTION 2 . 04. Form of Certificates. The
Certificates and the assignment to appear thereon shall be in
substantially the following forms, respectively, with
necessary or appropriate insertions, omissions and variations
as permitted or required hereby, including placement of a
portion of the form of the Certificate on the reverse side
thereof (provided that on the face of each Certificate, at
the place where the portion on the reverse side appears in
the form set forth below, there shall be inserted the
following sentence: "THE TERMS AND PROVISIONS OF THIS
CERTIFICATE ARE CONTINUED ON THE REVERSE SIDE HEREOF AND SUCH
CONTINUED TERMS AND PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. " ) :
17
040034-0008-028-3680s 02/15/84
227
[FORM OF CERTIFICATE
OF PARTICIPATION]
No. $
1984 CERTIFICATE OF PARTICIPATION
Evidencing and Representing A Fractional Undivided
Interest of the Owner Hereof
in Base Rental Payments to be Made
by the
COUNTY OF CONTRA COSTA
to
CONTRA COSTA COUNTY
PUBLIC FACILITIES CORPORATION
FOR CAPITAL PROJECT I
(610 Court Street and
30 Muir Road Office Buildings)
Certificate
Interest Rate Payment Date Dated as of CUSIP No.
19
THIS IS TO CERTIFY that ,
the registered owner of this Certificate of Participation
(the "Certificate" ) , is the owner of a fractional undivided
interest in the rights to receive certain Base Rental
Payments (as that term is defined in the Trust Agreement
hereinafter mentioned) under and pursuant to that certain
Amended and Restated Facility Lease (Project Phase I ) (the
"Facility Lease" ) dated as of April 1, 1984, by and between
Contra Costa County Public Facilities Corporation (the
"Corporation" ) , a nonprofit public benefit corporation duly
18
040034-0008-028-3680s 02/15/84,%, 228
1 , ,
organized and existing under and by virtue of the laws of the
State of California, and the County of Contra Costa (the
"County" ) , a political subdivision organized and existing
under and by virtue of the laws of the State of California,
all of which rights to receive such Base Rental Payments
having been assigned without recourse by the Corporation to
Bank of America National Trust and Savings Association, as
trustee (the "Trustee" ) , a national banking association duly
organized and existing under and by virtue of the laws of the
State of California and having a principal corporate trust
office in San Francisco, California.
The registered owner of this Certificate is
entitled to receive, subject to the terms of the Facility
Lease and any right of prepayment prior thereto hereinafter
provided for, on the certificate payment date set forth above
(the "Certificate Payment Date" ) , upon surrender of this
Certificate on the Certificate Payment Date or on the date of
prepayment prior thereto at the principal corporate trust
office of the Trustee in San Francisco, California, the
principal sum of
THOUSAND DOLLARS
representing the registered owner' s fractional undivided
share of the Base Rental Payments designated as principal
components coming due on the Certificate Payment Date, and to
receive from the date hereof (which date shall be the
interest payment date next preceding the date of delivery
19
040034-0008-028-3680s 02/15/84 229
hereof by the Trustee, unless such date of delivery is an
interest payment date, in which case the date hereof shall be
such interest payment date, or unless such date of delivery
is prior to November 1, 1984, in which case the date hereof
shall be April 1, 1984) on May 1 and November 1 of each year
•to and including the Certificate Payment Date or the date of
prepayment prior thereto, whichever is earlier, by check or
draft mailed to the registered owner on such dates, the
registered owner' s fractional undivided share of the Base
Rental Payments designated as interest components coming due
on such dates . Such fractional undivided share designated as
interest components is the result of the multiplication of
the aforesaid portion of the Base Rental Payments designated
as principal components coming due on the Certificate Payment
Date by the interest rate per annum stated above. All such
amounts are payable in lawful money of the United States of
America.
This Certificate has been executed by the Trustee
pursuant to the terms of a Trust Agreement (the "Trust
Agreement" ) by and among the Trustee, the Corporation and the
County, dated as of April 1, 1984. Copies of the Trust
Agreement are on file at the principal corporate trust office
of the Trustee in San Francisco, California, and reference is
hereby made to the Trust Agreement and to any and all
amendments thereof and supplements thereto for a description
of the agreements, conditions, covenants and terms securing
20
040034-0008-028-3680s 02/15/84 _2
the Certificates, for the nature, extent and manner of
enforcement of such agreements, conditions, covenants and
terms, for the rights and remedies of the registered owners
of the Certificates with respect thereto and for the other
agreements, conditions, covenants and terms upon which the
Certificates are executed and delivered thereunder.
To the extent and in the manner permitted by the
terms of the Trust Agreement, the provisions of the Trust
Agreement may be amended or supplemented by the parties
thereto, but no such amendment or supplement shall (1) extend
the fixed payment date of this Certificate or reduce the rate
of interest represented hereby or extend the time of payment
of such interest or reduce the amount of principal
represented hereby without the prior written consent of the
registered owner hereof, or (2 ) reduce the percentage of
owners of Certificates whose consent is required for the
execution of any amendment of or supplement to the Trust
Agreement, or (3) modify any rights or obligations of the
Trustee without its prior written consent thereto, or (4)
amend Section 9 . 01 of the Trust Agreement without the prior
written consent of the owners of all Certificates then
outstanding.
This Certificate is transferable by the registered
owner hereof, in person or by his attorney duly authorized in
writing, at the principal corporate trust office of the
Trustee in San Francisco, California, but only in the manner,
21
040034-0008-028-3680s 02/15/84 , 231
subject to the limitations and upon payment of the charges
provided in the Trust Agreement, and upon surrender of this
Certificate for cancellation accompanied by delivery of a
duly executed written instrument of transfer in a form
approved by the Trustee. Upon such transfer, a new
Certificate or Certificates of the same Certificate Payment
Date representing the same principal amount will be issued to
the transferee in exchange herefor. The Trustee may treat
the registered owner hereof as the absolute owner hereof for
all purposes, whether or not this Certificate shall be
overdue, and the Trustee shall not be affected by any
knowledge or notice to the contrary; and payment of the
interest and principal represented by this Certificate shall
be made only to such registered owner, which payments shall
be valid and effectual to satisfy and discharge liability
represented by this Certificate to the extent of the sum or
sums so paid.
The Certificates are authorized to be executed and
delivered in the form of fully registered Certificates in
denominations of five thousand dollars ($5, 000) each or any
integral multiple thereof so long as no Certificate shall
represent principal becoming payable on more than one
Certificate Payment Date.
The Certificates are subject to prepayment on any
date prior to their respective Certificate Payment Dates, as
a whole, or in part by lot within each Certificate Payment
22
040034-0008-028-3680s 02/16/84 232.
Date so that the aggregate semiannual amounts of principal
represented by the Certificates which shall be payable after
such prepayment date shall be as nearly proportional as
practicable to the aggregate semiannual amounts of principal
represented by the Certificates unpaid just prior to said
prepayment date, from prepaid Base Rental Payments made by
the County from funds received by the County due to a
casualty loss or governmental taking of the Demised Premises
and Project Phase I (as those terms are defined in the Trust
Agreement) or portions thereof by eminent domain proceedings,
under the circumstances and upon the conditions and terms
prescribed in the Trust Agreement and in the Facility Lease,
at a prepayment amount equal to the sum of the principal
component represented thereby plus accrued interest
represented thereby to the date fixed for prepayment.
The Certificates payable on or before May 1, 1994
shall not otherwise be subject to prepayment before their
respective stated Certificate Payment Dates. Certificates
payable on or after November 1, 1994 shall also be subject to
prepayment prior to their respective stated Certificate
Payment Dates, at the option of the County, as a whole, or in
part in amounts payable on each Certificate Payment Date as
nearly proportional as practicable to the principal amount
payable at such Certificate Payment Date and by lot within
any such Certificate Payment Date if less than all of the
Certificates payable on such Certificate Payment Date be
23
040034-0008-028-3680s 02/15/84 233
prepaid, from any source of available funds, on any
Certificate Payment Date on or. after May 1, 1994, at the
principal amount represented thereby plus accrued interest
represented thereby to the date fixed for prepayment, plus a
premium of one-fourth of one per cent ( 1/4 of 1%) of such
principal amount for each whole year or fraction thereof
remaining between the date fixed for prepayment and their
respective stated Certificate Payment Dates.
As provided in the Trust Agreement, notice of
prepayment hereof shall be mailed, first class postage
prepaid, not less than fifteen ( 15) nor more than thirty (30)
days before the prepayment date, to the registered owner of
this Certificate at its address as it appears on the
registration books maintained by the Trustee. If this
Certificate is called for prepayment and payment is duly
provided herefor as specified in the Trust Agreement,
interest represented hereby shall cease to accrue from and
after the date fixed for prepayment.
The Certificates each evidence and represent a
fractional undivided interest in the Base Rental Payments in
an amount equal to the aggregate principal amount of
Certificates originally executed and delivered by the Trustee
pursuant to the Trust Agreement and enjoy the benefits of a
security interest in the moneys held in the funds established
pursuant to the Trust Agreement, subject to the provisions of
the Trust Agreement permitting the disbursement thereof for
or to the purposes and on the conditions and terms set forth
24
040034-0008-028-3680s 02/15/84 234
therein. The obligation of the County to make the Base
Rental Payments is a special obligation of the County, and
does not constitute a debt of the County or of the State of
California or of any political subdivision thereof within the
meaning of any constitutional or statutory debt limitation or
restriction.
The Trustee has no obligation or liability to the
Certificate owners for the payment of the interest or
principal represented by the Certificates, but rather the
Trustee ' s sole obligations are to administer, for the benefit
of the County and the Corporation and the Certificate owners,
the various funds established under the Trust Agreement. The
Corporation has no obligation or liability whatsoever to the
Certificate owners.
THIS IS TO FURTHER CERTIFY that all acts,
conditions and things required by the statutes of the State
of California and the Trust Agreement to exist, to have
happened and to have been performed precedent to and in
connection with the execution and delivery of this
Certificate do exist, have happened and have been performed
in regular and due time, form and manner as required by law,
and that the Trustee is duly authorized to execute and
deliver this Certificate, and that the amount of this
Certificate, together with all other Certificates executed
and delivered under the Trust Agreement, is not in excess of
the amount of Certificates authorized to be executed and
delivered thereunder.
25 235
040034-0008-028-3680s 02/15/84
IN WITNESS WHEREOF, this Certificate has been
executed by the manual signature of an authorized officer of
the Trustee on
BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Trustee
By
Authorized Officer
[ FORM OF ASSIGNMENT]
For value received, the undersigned do(es) hereby
sell, assign and transfer unto
the within Certificate and do(es) hereby irrevocably
constitute and appoint
attorney to transfer such
Certificate on the Certificate register of the Trustee, with
full power of substitution in the premises.
Dated:
Note: The signature( s) to this Assignment must correspond
with the name( s) as written on the face of the
within Certificate in every particular, without
alteration or enlargement or any change whatsoever.
26
040034-0008-028-3680s 02/15/84. 236
I
SECTION 2 .05 . Execution of Certificates. The
Certificates shall be executed by the Trustee by the manual
signature of an authorized officer of the Trustee.
SECTION 2 . 06. Transfer and Payment of
Certificates. All Certificates are transferable by the Owner
thereof, in person or by his attorney duly authorized in
writing, at the principal corporate trust office of the
Trustee in San Francisco, California on the books required to
be kept by the Trustee pursuant to the provisions of
Section 2. 07, upon surrender of such Certificates for
cancellation accompanied by delivery of a duly executed
written instrument of transfer in a form approved by the
Trustee. The Trustee may treat the Owner of any Certificate
as the absolute owner of such Certificate for all purposes,
whether or not such Certificate shall be overdue, and the
Trustee shall not be affected by any knowledge or notice to
the contrary; and payment of the interest and principal
represented by such Certificate shall be made only to such
Owner, which payments shall be valid and effectual to satisfy
and discharge the liability represented by such Certificate
to the extent of the sum or sums so paid.
Whenever any Certificate or Certificates shall be
surrendered for transfer, the Trustee shall execute and
deliver a new Certificate or Certificates of the same payment
date representing the same principal amount. The Trustee
shall require the payment by any Owner requesting such
27
040034-0008-028-3680s 02/15/84 ., 237
transfer of any tax or other governmental charge required to
be paid with respect to such transfer.
The Trustee shall not be required to make any
transfer of Certificates during the fifteen ( 15) days next
preceding each Payment Date.
SECTION 2 . 07 . Certificate Registration Books. The
Trustee will keep at its principal corporate trust office in
San Francisco, California sufficient books for the
registration and transfer of the Certificates, which books
shall be available for inspection by the Corporation, the
County or any Owner or his agent duly authorized in writing
at reasonable hours and under reasonable conditions; and upon
presentation for such purpose the Trustee shall, under such
reasonable regulations as it may prescribe, register or
transfer the Certificates on such books as hereinabove
provided.
SECTION 2 . 08. Temporary Certificates. The
Certificates may be initially delivered in temporary form
exchangeable for definitive Certificates when ready for
delivery, which temporary Certificates shall be printed,
lithographed or typewritten, shall be of such denominations
as may be determined by the Trustee, shall be in fully
registered form and shall contain such reference to any of
the provisions hereof as may be appropriate. Every temporary
Certificate shall be executed and delivered by the Trustee
upon the same conditions and terms and in substantially the
040034-0008-028-3680s 28 02/15/84 ' 23.8
same manner as definitive Certificates. If the Trustee
executes and delivers temporary Certificates, it will prepare
and execute definitive Certificates without delay, and
thereupon the temporary Certificates may be surrendered at
the principal corporate trust office of the Trustee in San
Francisco, California in exchange for such definitive
Certificates, and until so exchanged such temporary
Certificates shall be entitled to the same benefits hereunder
as definitive Certificates executed and delivered hereunder.
SECTION 2 . 09 . Certificates Mutilated, Lost,
Destroyed or Stolen. If any Certificate shall become
mutilated, the Trustee, at the expense of the Owner thereof,
shall execute and deliver a new Certificate of like tenor,
payment date and number in exchange and substitution for the
Certificate so mutilated, but only upon surrender to the
Trustee of the Certificate so mutilated. Every mutilated
Certificate so surrendered to the Trustee shall be cancelled
by it. If any Certificate shall be lost, destroyed or
stolen, evidence of such loss, destruction or theft may be
submitted to the Trustee, and if such evidence is
satisfactory to the Trustee and indemnity satisfactory to the
Trustee shall be given, the Trustee, at the expense of the
Owner thereof, shall execute and deliver a new Certificate of
like tenor and payment date, numbered as the Trustee shall
determine, in lieu of and in substitution for the Certificate
so lost, destroyed or stolen. The Trustee may require
29
040034-0008-028-3680s 02/15/84` . 239
payment of a sum not exceeding the actual cost of preparing
each new Certificate executed and delivered by it under this
Section and of the expenses which may be incurred by it under
this Section. Any Certificate executed and delivered under
the provisions of this Section in lieu of any Certificate
alleged to be lost, destroyed or stolen shall be equally and
proportionately entitled to the benefits hereof with all
other Certificates secured hereby, and the Trustee shall not
be required to treat both the original Certificate and any
replacement Certificate as being Outstanding for the purpose
of determining the amount of Certificates which may be
executed and delivered hereunder or for the purpose of
determining any percentage of Certificates Outstanding
hereunder, but both the original and replacement Certificate
shall be treated as one and the same. Notwithstanding any
other provision of this Section, in lieu of executing and
delivering a new Certificate for a Certificate which has been
lost, destroyed or stolen and which has matured, the Trustee
may make payment of such Certificate to the Owner thereof.
ARTICLE III
PROCEEDS OF CERTIFICATES
SECTION 3 . 01 . Delivery of Certificates. The
Trustee is hereby authorized to execute and deliver the
Certificates to the Purchasers pursuant to the Certificates
30
040034-0008-028-368Os 02/19/84, 240
of Participation Purchase Contract upon receipt of a Written
Request of the Corporation and upon receipt of the proceeds
of sale thereof.
SECTION 3 . 02 . Deposit of Proceeds of Certificates
and Other Moneys. (a) The proceeds received from the sale of
the Certificates (except for the amount of accrued interest
received by the Trustee upon the sale and delivery of the
Certificates, which shall be transferred to the County for
deposit by it in the Lease Fund created under the Facility
Lease) shall be deposited by the Trustee in the following
respective funds, as directed by a Written Request of the
Corporation:
( 1 ) The Trustee shall transfer to the 1982 Trustee
for deposit in a separate fund to be known as the
"Escrow Fund, " which the 1982 Trustee shall establish
and maintain pursuant to the Escrow Agreement and the
1982 Indenture, an amount which, in the determination of
an independent certified public accountant, who shall
certify such determination in writing to the 1982
Trustee, together with other moneys to be deposited
therein, will be sufficient to provide for the
defeasance of all outstanding 1982 Bonds at the earliest
possible dates. The moneys and Federal Securities in
the Escrow Fund shall be held by the 1982 Trustee in
trust and invested pursuant to the provisions of the
1982 Indenture and the Escrow Agreement and applied
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pursuant to the 1982 Indenture and the Escrow Agreement
to pay the interest on and principal and redemption
premiums of the 1982 Bonds. Any moneys remaining in the
Escrow Fund after the making of all payments required by
the Escrow Agreement shall be transferred by the 1982
Trustee to the County.
(2 ) The Trustee shall set aside the remainder of
said proceeds in a separate fund to be known as the
"Refunding Expenses Fund, " which the Trustee hereby
agrees to establish and maintain. The money in the
Refunding Expenses Fund shall be used and disbursed in
the manner provided in Section 3 . 03 .
(b) On the date of delivery of the Certificates to
the Purchasers thereof, the Trustee shall obtain certain
funds from the 1982 Trustee, pursuant to the Written Request
of the Corporation required to be delivered by Section 3 .01,
and shall deposit such funds as follows :
(1 ) The Trustee shall deposit in the Trust
Administration Fund to be established pursuant to
Section 5 . 03 the entire balance in the Corporate
Operation Fund established pursuant to Section 4.03 of
the 1982 Indenture .
(2 ) The Trustee shall deposit in the Certificate
Reserve Fund to be established pursuant to Section 4 of .
the Facility Lease, from the balance in the Reserve Fund
established pursuant to Section 4.02(d) of the 1982
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Indenture, a sum equal to the Certificate Reserve Fund
Requirement, as such term is defined in the Facility
Lease.
(3 ) The Trustee shall deposit in the Insurance
Reserve Fund to be established pursuant to Section 4 of
the Facility Lease, from the balance in the Reserve Fund
established pursuant to Section 4. 02 (d) of the 1982
Indenture, a sum equal to the Insurance Reserve Fund
Requirement, as such term is defined in the Facility
Lease .
SECTION 3 . 03 . Use of Moneys in the Refunding
Expenses Fund. All moneys in the Refunding Expenses Fund
shall be held by the Trustee in trust and applied by the
Trustee to the payment of all costs incidental to or
connected with the issuance of the Certificates and the
defeasance of the 1982 Bonds (or for making reimbursements to
the Corporation or any other person, firm or corporation for
such costs theretofore paid by him or it) .
Before any payment is made from the Refunding
Expenses Fund by the Trustee, the Corporation shall file with
the Trustee a Written Request of the Corporation showing with
respect to each payment to be made --
(a) the name and address of the person to whom
payment is due;
(b) the amount to be paid; and
040034-0008-028-3680s 33 02/15/84 243
(c) the purpose for which the obligation to be
paid was incurred.
Each such Written Request of the Corporation shall
state and shall be sufficient evidence to the Trustee --
(a) that obligations in the stated amounts have
been incurred and that each such obligation is a proper
charge against the Refunding Expenses Fund; and
(b) that there has not been filed with or served
upon the Corporation or the County notice of any lien,
right to lien or attachment upon, or claim affecting the
right to receive payment of, any of the moneys payable
to any of the persons named in such Written Request of
the County which has not been released or will not be
released with the payment of such obligation.
Upon receipt of each such Written Request of the
Corporation, the Trustee shall pay the amount set forth
therein as directed by the terms thereof, except that the
Trustee need not make any such payment if it has received
notice of any lien, right to lien or attachment upon, or
claim affecting the right to receive payment of, any of the
moneys to be so paid which has not been released or will not
be released simultaneously with such payment.
When all expenses payable from the Refunding
Expenses Fund have been paid, the Corporation shall deliver a
Certificate of the Corporation to the Trustee stating such
fact. Upon the receipt of such certificate, the Trustee
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o '
shall transfer any remaining balance in the Refunding
Expenses Fund to the County.
ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4. 01 . Terms of Prepayment. (a) The
Certificates are subject to prepayment on any date prior to
their respective Payment Dates, upon notice as hereinafter
provided, as a whole, or in part by lot within each payment
date so that the aggregate semiannual amounts of principal
represented by the Certificates which shall be payable after
such prepayment date shall be as nearly proportional as
practicable to the aggregate semiannual amounts of principal
represented by the Certificates unpaid just prior to said
prepayment date, from prepaid Base Rental Payments made by
the County from funds received by the County due to a
casualty loss or governmental taking of the Demised Premises
and Project Phase I or portions thereof by eminent domain
proceedings, if such amounts are not used to repair or
replace the Demised Premises and/or Project Phase I in
accordance with the provisions of the Facility Lease, under
the circumstances and upon the conditions and terms
prescribed herein and in the Facility Lease, at a prepayment
price equal to the sum of the principal amount represented
thereby plus accrued interest represented thereby to the date
fixed for prepayment.
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(b) The Certificates payable on or before May 1,
1994 shall not otherwise be subject to prepayment before
their respective stated Payment Dates. Certificates payable
on or after November 1, 1994 shall also be subject to
prepayment prior to their respective stated Payment Dates, at
the option of the County, as a whole, or in part in amounts
payable on each Payment Date as nearly proportional as
practicable to the principal amount payable at such Payment
Date and by lot within any such Payment Date if less than all
of the Certificates payable on such Payment Date be prepaid,
from any source of available funds, on any Payment Date on or
after May 1, 1994, at the principal amount represented
thereby plus accrued interest represented thereby to the date
fixed for prepayment, plus a premium of one-fourth of one per
cent (1/4 of 1%) of such principal amount for each whole year
or fraction thereof remaining between the date fixed for
prepayment and their respective stated Payment Dates.
SECTION 4. 02 . Selection of Certificates for
Prepayment. Whenever less than all the Outstanding
Certificates payable on any one Payment Date are to be
prepaid on any one date, the Trustee shall select the
Certificates of such Payment Date to be prepaid from the
Outstanding Certificates payable on such Payment Date by lot
in any manner that the Trustee deems fair, and the Trustee
shall promptly notify the Corporation and the County in
writing of the numbers of the Certificates so selected for
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prepayment on such date. For purposes of such selection,
Certificates shall be deemed to be composed of $5, 000
portions, and any such portion may be separately prepaid.
SECTION 4. 03 . Notice of Prepayment. Notice of
prepayment shall be mailed, first class postage prepaid, to
the Purchasers and to the respective Owners of any
Certificates designated for prepayment at their addresses
appearing on the books required to be kept by the Trustee
pursuant to the provisions of Section 2 . 07 not less than
fifteen ( 15 ) nor more than thirty (30) days prior to the
prepayment date, which notice shall, in addition to setting
forth the above information, in the case of each Certificate
called for prepayment in part only state the amount of the
principal amount represented thereby which is to be prepaid.
Each notice of prepayment shall state the prepayment date,
the prepayment place and the prepayment price, shall
designate the serial numbers of the Certificates to be
prepaid by giving the individual number of each Certificate
or by stating that all Certificates between two stated
numbers, both inclusive, have been called for prepayment, and
shall require that such Certificates be then surrendered for
prepayment; and shall also state that the interest
represented by the Certificates designated for prepayment
shall cease to accrue from and after such prepayment date and
that on such prepayment date there will become due and
payable on each of the Certificates designated for prepayment
the prepayment price represented thereby.
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In case of the prepayment as permitted herein of
all the Certificates then Outstanding, or of all the
Certificates of any one Payment Date then Outstanding, notice
of prepayment shall be given by mailing as hereinabove
provided, except that the notice of prepayment need not
specify the serial numbers of the Certificates to be prepaid.
The Trustee shall give notice of prepayment of any
Certificates to be prepaid upon receipt of a Written Request
of the County (which request shall be given to the Trustee at
least thirty (30) days prior to the date fixed for
prepayment) , but only after the County shall have made a
prepaid Base Rental Payment to the Trustee and the Trustee
shall have deposited in the Prepayment Fund established
pursuant to Section 5 . 02 (c) such prepaid Base Rental Payment
in an amount sufficient for the payment of the prepayment
price represented by all Certificates to be prepaid (or the
Trustee determines that a prepaid Base Rental Payment will be
made available to it in an amount sufficient and in time
sufficient for such purpose) , together with the estimated
expense of giving such notice.
SECTION 4.04. Partial Prepayment of Certificates.
Upon surrender of any Certificate prepaid in part only, the
Trustee shall execute and deliver to the Owner thereof a new
Certificate or Certificates representing the unprepaid
principal amount of the Certificate surrendered.
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SECTION 4.05 . Effect of Prepayment. If notice of
prepayment has been duly given as aforesaid and moneys for
the payment of the prepayment price on the Certificates to be
prepaid are held by the Trustee, then on the prepayment- date
designated in such notice the Certificates so called for
prepayment shall become payable at the prepayment price
specified in such notice; and from and after the date so
designated interest represented by the Certificates so called
for prepayment shall cease to accrue, such Certificates shall
cease to be entitled to any benefit or security hereunder and
the Owners of such Certificates shall have no rights in
respect thereof except to receive payment of the prepayment
price represented thereby. The Trustee shall, upon surrender
for payment of any of the Certificates to be prepaid, pay
such Certificates at the prepayment price thereof.
All Certificates prepaid pursuant to the provisions
of this Article shall be cancelled by the Trustee and shall
not be redelivered.
ARTICLE V
RENTAL PAYMENTS
SECTION 5. 01 . Pledge of Base Rental Payments; Base
Rental Payment Fund. The Base Rental Payments are hereby
irrevocably pledged to and shall be used for the punctual
payment of the interest and principal represented by the
Certificates, and the Base Rental Payments shall not be used
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for any other purpose while any of the Certificates remain
Outstanding. This pledge shall constitute a first and
exclusive lien on the Base Rental Payments in accordance with
the terms hereof.
All Base Rental Payments shall be paid directly by
the County to the Trustee, and if received by the Corporation
at any time shall be deposited by the Corporation with the
Trustee within one business day after the receipt thereof.
All Base Rental Payments shall be held in trust by the
Trustee in the Base Rental Payment Fund, which fund the
Trustee hereby agrees to establish and maintain so long as
any Certificates are Outstanding, for the benefit of the
County until deposited in the funds provided in Section 5. 02,
whereupon they shall be held in trust by the Trustee in such
funds for the benefit of the Owners from time to time.
SECTION 5 . 02 . Deposit of Base Rental Payments.
The Trustee shall deposit the Base Rental Payments contained
in the Base Rental Payment Fund at the times and in the
manner hereinafter provided in the following respective
funds, each of which the Trustee hereby agrees to establish
and maintain so long as any Certificates are Outstanding, and
the moneys in each of such funds shall be disbursed only for
the purposes and uses hereinafter authorized.
(a) Interest Fund. The Trustee, on May 1 and
November 1 of each year (commencing on November 1,
1984) , shall deposit in the Interest Fund that amount of
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moneys representing the portion of the Rental Payments
designated as interest components coming due on each
such May 1 and November 1 date, respectively. Moneys in
the Interest Fund shall be used and withdrawn by the
Trustee solely for the purpose of paying the interest
represented by the Certificates when due and payable.
(b) Principal Fund. The Trustee, on May 1 and
November 1 of each year (commencing on May 1, 1985) ,
shall deposit in the Principal Fund that amount of
moneys representing the portion of the Base Rental
Payments designated as the principal component coming
due on such May 1 or November 1 date, respectively.
Moneys in the Principal Fund shall be used and withdrawn
by the Trustee solely for the purpose of paying the
principal represented by the Certificates when due and
payable.
(c) Prepayment Fund. The Trustee, on the
prepayment date specified in the Written Request of the
County filed with the Trustee at the time that any
prepaid Base Rental Payment is paid to the Trustee
pursuant to the Facility Lease, shall deposit in the
Prepayment Fund that amount of moneys representing the
portion of the Base Rental Payments designated as
prepaid Base Rental Payments. Moneys in the Prepayment
Fund shall be used and withdrawn by the Trustee solely
for the purpose of paying the interest and principal
represented by the Certificates to be prepaid.
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SECTION 5 . 03 . Trust Administration Fund. The
Trustee shall deposit in the Trust Administration Fund (the
initial payment into which is provided for in Section 3 . 02 (b)
and which fund the Trustee hereby agrees to establish and
maintain so long as any Certificates are Outstanding) all
amounts received from the County to be applied as Additional
Rental Payments under the Facility Lease, to be held by the
Trustee for the benefit of the County until disbursed. The
moneys in the Trust Administration Fund shall be disbursed by
the Trustee upon the Written Request of the Corporation for
the payment of administrative costs of the Corporation,
including salaries, wages, all expenses, compensation and
indemnification of the Trustee payable by the Corporation
under this Trust Agreement, fees of the auditors,
accountants, attorneys or engineers, insurance premiums and
all other necessary administrative costs of the Corporation
or charges required to be paid by it in order to maintain its
corporate existence or to comply with the terms of the
Certificates or of this Trust Agreement. The Trustee shall,
from time to time and as often as necessary to replenish and
maintain a balance of five thousand dollars ($5, 000) in said
Fund, give notice to the County of such Additional Rental
required to be paid pursuant to the Facility Lease.
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ARTICLE VI
COVENANTS
SECTION 6 . 01 . Compliance with Trust Agreement.
The Trustee will not execute or deliver any Certificates in
any manner other than in accordance with the provisions
hereof, and the Corporation and the County will not suffer or
permit any default by them to occur hereunder, but will
faithfully comply with, keep, observe and perform all the
agreements, conditions, covenants and terms hereof required
to be complied with, kept, observed and performed by them.
SECTION 6. 02 . Compliance with or Amendment of
Facility Lease, The Corporation and the County will
faithfully comply with, keep, observe and perform all the
agreements, conditions, covenants and terms contained in the
Facility Lease required to be complied with, kept, observed
and performed by them and, together with the Trustee, will
enforce the Facility Lease against the other party thereto in
accordance with its terms.
The Corporation and the County will not alter,
amend or modify the Facility Lease without the prior written
consent of the Trustee, which consent shall be given only
(i ) if, in the opinion of the Trustee (which opinion may, in
the discretion of the Trustee, be based upon an Opinion of
Counsel or a Certificate of the County) , such alterations,
amendments or modifications will not result in any material
impairment of the security given or intended to be given for
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the payment of the Base Rental Payments, or (ii ) if the
Trustee first obtains the written consents of the Owners of
at least a majority in aggregate principal amount of the
Certificates then Outstanding to such alterations, amendments
or modifications; provided, however, that no such alteration,
amendment or modification shall extend the fixed payment date
of any Certificate or reduce the rate of interest represented
thereby or extend the time of payment of such interest or
reduce the amount of principal represented thereby without
the prior written consent of the Owner of the Certificate so
affected, or reduce the percentage of Owners whose consent is
required for the execution of any alteration, amendment or
supplement thereof, and further provided that the Trustee
shall first obtain the prior written approval of the insurer,
if any, insuring payment of the amounts of principal and
interest represented by the Certificates.
SECTION 6. 03 . Observance of Laws and Regulations.
The Corporation and the County and the Trustee will
faithfully comply with, keep, observe and perform all valid
and lawful obligations or regulations now or hereafter
imposed on them by contract, or prescribed by any law of the
United States of America or of the State of California, or by
any officer, board or commission having jurisdiction or
control, as a condition of the continued enjoyment of each
and every franchise, right or privilege now owned or
hereafter acquired by them, including their right to exist
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and carry on their respective businesses, to the end that
such franchises, rights and privileges shall be maintained
and preserved and shall not become abandoned, forfeited or in
any manner impaired.
SECTION 6.04. Other Liens. The County will keep
the Demised Premises and Project Phase I and all parts
thereof free from judgments and materialmen' s and mechanics'
liens and free from all claims, demands, encumbrances and
other liens of whatever nature or character, and free from
any claim or liability which, in the judgment of the Trustee
(and its determination thereof shall be final ) , might
embarrass or hamper the County in conducting its business or
utilizing the Demised Premises and Project Phase I , and the
Trustee at its option ( after first giving the County ten
days ' written notice to comply therewith and failure of the
County to so comply within such ten-day period) may defend
against any and all actions or proceedings in which the
validity hereof is or might be questioned, or may pay or
compromise any claim or demand asserted in any such actions
or proceedings; provided, however, that, in defending against
any such actions or proceedings or in paying or compromising
any such claims or demands, the Trustee shall not in any
event be deemed to have waived or released the County from
liability for or on account of any of its agreements and
covenants contained herein, or from its liability hereunder
to defend the validity hereof and to perform such agreements
and covenants.
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e
So long as any Certificates are Outstanding,
neither the Corporation nor the County will create or suffer
to be created any pledge of or lien on the Base Rental
Payments other than the pledge and lien hereof.
SECTION 6. 05 . Prosecution and Defense of Suits.
The County will promptly, upon request of the Trustee or any
Owner, take such action from time to time as may be necessary
or proper to remedy or cure any cloud upon or defect in the
title to the Demised Premises or Project Phase I or any part
thereof, whether now existing or hereafter developing, will
prosecute all actions, suits or other proceedings as may be
appropriate for such purpose and will indemnify and save the
Trustee and every Owner harmless from all cost, damage,
expense or loss, including attorneys' fees, which they or any
of them may incur by reason of any such cloud, defect,
action, suit or other proceeding.
The County will defend against every action, suit
or other proceeding at any time brought against the Trustee
or any Owner upon any claim arising out of the receipt,
deposit or disbursement of any of the Base Rental Payments or
involving the rights of the Trustee or any Owner hereunder;
provided, however, that the Trustee or any Owner at its or
his election may appear in and defend any such action, suit
or other proceeding. The County will indemnify and hold
harmless the Trustee and the Owners against any and all
liability claimed or asserted by any person arising out of
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any such receipt, deposit or disbursement, and will indemnify
and hold harmless the Owners against any attorneys' fees or
other expenses which any of them may incur in connection with
any litigation or otherwise in connection with the foregoing
to which any of them may become a party in order to enforce
their rights hereunder or under the Certificates, provided
that such litigation shall be concluded favorably to such
Owners' contentions therein.
SECTION 6.06 . Accounting Records and Statements.
The Trustee will keep proper accounting records in which
complete and correct entries shall be made of all
transactions relating to the receipt, deposit and
disbursement of the Rental Payments, and such accounting
records shall be available for inspection by the Corporation,
the County or any Owner or his agent duly authorized in
writing at reasonable hours and under reasonable conditions.
Not later than December 31 in each year, commencing on
December 31, 1984 and continuing so long as any Certificates
are Outstanding, the Corporation will furnish to the Trustee,
the County and any Owner who may so request a complete
statement covering the receipts, deposits and disbursements
of the Rental Payments for the twelve-month period ending on
the preceding June 30, accompanied by an audit report and
related opinion of an independent firm of certified public
accountants to be employed by the Corporation, or, if so
requested in writing by the Owners of at least sixty percent
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(60%) in aggregate principal amount of the Certificates then
Outstanding, accompanied by an audit report and related
opinion of an independent firm of certified public
accountants of their selection.
SECTION 6. 07 . Recordation and Filing. The
Corporation will file, record, register, renew, refile and
rerecord all such documents, including financing statements
( or continuation statements in connection therewith) , as may
be required by law in order to maintain the Facility Lease
and the Assignment Agreement and this Trust Agreement at all
times as a security interest in the Base Rental Payments, all
in such manner, at such times and in such places as may be
required and to the extent permitted by law in order to fully
perfect, preserve and protect the security of the Owners and
the rights and security interests of the Trustee, and the
Corporation will do whatever else may be necessary or be
reasonably required in order to perfect and continue the lien
of the Facility Lease, the Assignment Agreement and this
Trust Agreement.
SECTION 6. 08. Further Assurances. Whenever and so
often as requested to do so by the Trustee or any Owner, the
Corporation and the County will promptly execute and deliver
or cause to be executed and delivered all such other and
further assurances, documents or instruments and promptly do
or cause to be done all such other and further things as may
be necessary or reasonably required in order to further and
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more fully vest in the Trustee and the Owners all advantages,
benefits, interests, powers, privileges and rights conferred
or intended to be conferred upon them hereby or by the
Assignment Agreement or the Facility Lease.
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7 . 01 . Action on Default. If an Event of
Default ( as that term is defined in Section 11 of the
Facility Lease) shall happen, then such Event of Default
shall constitute a default hereunder, and in each and every
such case during the continuance of such Event of Default the
Trustee or the Owners of not less than a majority in
aggregate principal amount represented by the Certificates at
the time Outstanding shall be entitled, upon notice in
writing to the County and the Corporation, to exercise the
remedies provided to the Corporation in the Facility Lease
and to the Trustee in the Assignment Agreement; provided,
however, that the Trustee shall not terminate, nor consent to
the termination, of the Facility Lease, without the prior
written consent of the insurer, if any, insuring payment of
. the amounts of principal and interest represented by the
Certificates.
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SECTION 7 . 02 . Other Remedies of the Trustee. The
Trustee shall have the right --
(a) by mandamus or other action or proceeding or
suit at law or in equity to enforce its rights against
the Corporation or the County or any member of the Board
of Supervisors, officer or employee thereof, and to
compel the Corporation or the County or any such member
of the Board of Supervisors, officer or employee to
perform, or carry out its or his or her duties under law
and the agreements and covenants required to be
performed by it or him or her contained herein;
(b) by suit in equity to enjoin any acts or things
which are unlawful or violate the rights of the Trustee;
or
(c) by suit in equity upon the happening of any
default hereunder to require the Corporation and the
County and the members of its Board of Supervisors,
officers and employees to account as the trustee of an
express trust.
SECTION 7 . 03 . Non-Waiver. A waiver of any default
or breach of duty or contract by the Trustee shall not affect
any subsequent default or breach of duty or contract or
impair any rights or remedies on any such subsequent default
or breach of duty or contract. No delay or omission by the
Trustee to exercise any right or remedy accruing upon any
default or breach of duty or contract shall impair any such
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right or remedy or shall be construed to be a waiver of any
such default or breach of duty or contract or an acquiescence
therein, and every right or remedy conferred upon the Trustee
by law or by this Article may be enforced and exercised from
time to time and as often as shall be deemed expedient by the
Trustee .
If any action, proceeding or suit to enforce any
right or to exercise any remedy is abandoned or determined
adversely to the Trustee, the Trustee and the Corporation and
the County shall be restored to their former positions,
rights and remedies as if such action, proceeding or suit had
not been brought or taken.
SECTION 7 .04. Remedies Not Exclusive. No remedy
herein conferred upon or reserved to the Trustee is intended
to be exclusive of any other remedy, and each such remedy
shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing in law or
in equity or by statute or otherwise and may be exercised
without exhausting and without regard to any other remedy
conferred by any law.
SECTION 7 . 05 . No Liability by the Corporation to
the Owners. Except as expressly provided herein, the
Corporation shall not have any obligation or liability to the
Owners with respect to the payment when due of the Rental
Payments by the County, or with respect to the performance by
the County of the other agreements and covenants required to
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261
be performed by it contained in the Facility Lease or herein,
or with respect to the performance by the Trustee of any
right or obligation required to be performed by it contained
herein.
SECTION 7 . 06. No Liability by the County to the
Owners. Except for the payment when due of the Rental
Payments and the performance of the other agreements and
covenants required to be performed by it contained in the
Facility Lease or herein, the County shall not have any
obligation or liability to the Owners with respect to the
Trust Agreement or the preparation, execution, delivery or
transfer of the Certificates or the disbursement of the Base
Rental Payments by the Trustee to the Owners, or with respect
to the performance by the Trustee of any right or obligation
required to be performed by it contained herein.
SECTION 7 . 07 . No Liability by the Trustee to the
Owners. Except as expressly provided herein, the Trustee
shall not have any obligation or liability to the Owners with
respect to the payment when due of the Base Rental Payments
by the County, or with respect to the performance by the
County of the other agreements and covenants required to be
performed by it contained in the Facility Lease or herein.
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ARTICLE VIII
THE TRUSTEE
SECTION 8. 01 . Employment of the Trustee. The
Corporation and the County hereby appoint and employ the
Trustee to receive, deposit and disburse the Rental Payments,
to prepare, execute, deliver and transfer the Certificates
and to perform the other functions contained herein; all in
the manner provided herein and subject to the conditions and
terms hereof . By executing and delivering the Trust
Agreement, the Trustee accepts the appointment and employment
hereinabove referred to and accepts the rights and
obligations of the Trustee provided herein, as well as the
obligations of the Trustee set forth in Section 4 of the
Facility Lease, subject to the conditions and terms hereof.
SECTION 8. 02 . Duties, Removal and Resignation of
the Trustee. The Corporation and the County, or the Owners
of a majority in aggregate principal amount represented by
the Certificates at the time Outstanding, may by an
instrument in writing remove the Trustee initially a party
hereto and any successor thereto and may appoint a successor
Trustee, but any such successor Trustee shall be a bank or
trust company doing business and having a principal corporate
trust office in San Francisco, California, having a combined
capital (exclusive of borrowed capital ) and surplus of at
least fifty million dollars ( $50, 000, 000) and subject to
supervision or examination by federal or state authorities.
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263
If such bank or trust company publishes a report of condition
at least annually, pursuant to law or to the requirements of
any supervising or examining authority above referred to,
then for the purposes of this Section the combined capital
and surplus of such bank or trust company shall be deemed to
be its combined capital and surplus as set forth in its most
recent report of condition so published.
The Trustee may at any time resign by giving
written notice of such resignation to the Corporation and the
County and by giving notice by publication of such
resignation to the Owners, which notice shall be published at
least once in a Financial Newspaper. Upon receiving such
notice of resignation, the Corporation shall promptly appoint
a successor Trustee by an instrument in writing; provided,
however, that in the event the Corporation does not appoint a
successor Trustee within thirty (30) days following receipt
of such notice of resignation, the resigning Trustee may
petition the appropriate court having jurisdiction to appoint
a successor Trustee. Any resignation or removal of a Trustee
and appointment of a successor Trustee shall become effective
only upon acceptance of appointment by the successor Trustee.
SECTION 8. 03 . Compensation and Indemnification of
the Trustee. The Corporation shall from time to time,
subject to any agreement then in effect with the Trustee, pay
the Trustee compensation for its services and reimburse the
Trustee for all its advances and expenditures hereunder,
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including but not limited to advances to and fees and
expenses of accountants, agents, appraisers, consultants,
counsel or other experts employed by it in the exercise and
performance of its rights and obligations hereunder;
provided, however, that the Trustee shall not have any lien
for such compensation or reimbursement against any moneys
held by it in any of the funds established hereunder or under
the Facility Lease (except that such compensation or
reimbursement may be made from the Trust Administration Fund
established pursuant to Section 5 . 03 or from interest and
income received from the investment of moneys on deposit in
the Certificate Reserve Fund created under the Facility Lease
so long as the moneys on deposit therein are equal to the
Certificate Reserve Fund Requirement (as that term is defined
in the Facility Lease) ) . The Trustee may take whatever legal
actions are lawfully available to it directly against the
Corporation or the County.
The County shall indemnify and hold harmless the
Trustee to the extent and in the amounts provided by the laws
of the State of California from and against all claims,
damages and losses, including legal fees and expenses,
arising out of (i ) the condition, management, maintenance or
use of or from any work or thing done in connection with the
Demised Premises and Project Phase I by the County, or
(ii) any act of negligence of the County or of any of its
agents, contractors, employees, invitees, licensees, officers
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or servants in connection with the Demised Premises and
Project Phase I , provided that no indemnification will be
made for willful misconduct or gross negligence by the
Trustee.
SECTION 8. 04. Protection of the Trustee. The
Trustee shall be protected and shall incur no liability in
acting or proceeding in good faith upon any affidavit, bond,
certificate, consent, notice, request, requisition,
resolution, statement, telegram, voucher, waiver or other
paper or document which it shall in good faith believe to be
genuine and to have been adopted, executed or delivered by
the proper party or pursuant to any of the provisions hereof,
and the Trustee shall be under no duty to make any
investigation or inquiry as to any statements contained or
matters referred to in any such instrument, but may accept
and rely upon the same as conclusive evidence of the truth
and accuracy of such statements. The Trustee shall not be
bound to recognize any person as an Owner of any Certificate
or to take any action at the request of any such person
unless such Certificate shall be deposited with the Trustee
or satisfactory evidence of the ownership of such Certificate
shall be furnished to the Trustee. The Trustee may consult
with counsel, who may be counsel to the Corporation or the
County, with regard to legal questions, and the opinion of
such counsel shall be full and complete authorization and
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protection in respect to any action taken or suffered by it
hereunder in good faith in accordance therewith.
The Trustee shall not be responsible for the
sufficiency of the Facility Lease, or of the assignment made
to it by the Assignment Agreement of all rights to receive
the Rental Payments thereunder, or of the title to or value
of the Demised Premises and Project Phase I .
Whenever in the administration of its rights and
obligations hereunder the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and
established by a Certificate of the County or a Certificate
of the Corporation, and such certificate shall be full
warrant to the Trustee for any action taken or suffered under
the provisions hereof upon the faith thereof, but in its
discretion the Trustee may, in lieu thereof, accept other
evidence of such matter or may require such additional
evidence as to it may seem reasonable.
The Trustee may buy, sell, own, hold and deal in
any of the Certificates and may join in any action which any
Owner may be entitled to take with like effect as if the
Trustee were not a party hereto. The Trustee, either as
principal or agent, may also engage in or be interested in
any financial or other transaction with the Corporation or
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the County, and may act as agent, depositary or trustee for
any committee or body of Owners or of owners of obligations
of the Corporation or the County as freely as if it were not
the Trustee hereunder.
The Trustee may, to the extent reasonably
necessary, execute any of the trusts or powers hereof and
perform any rights and obligations required of it hereunder
by or through agents, attorneys or receivers, and shall be
entitled to advice of counsel concerning all matters of trust
and its rights and obligations hereunder, and the Trustee
shall not be answerable for the default or misconduct of any
such agent, attorney or receiver selected by it with
reasonable care .
The Trustee shall not be answerable for the
exercise of any trusts or powers hereunder or for anything
whatsoever in connection with the funds established
hereunder, except only for its own willful misconduct, gross
negligence or breach of an obligation hereunder.
ARTICLE IX
AMENDMENT OF OR SUPPLEMENT TO
TRUST AGREEMENT
SECTION 9. 01 . Amendment or Supplement by Consent
of Owners. The Trust Agreement and the rights and
obligations of the Corporation and the County and the Owners
and the Trustee hereunder may be amended or supplemented at
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68
any time by an amendment hereof or supplement hereto which
shall become binding when the written consents of the Owners
of a majority in aggregate principal amount of the
Certificates then Outstanding, exclusive of Certificates
disqualified as provided in Section 9. 02, are filed with the
Trustee . No such amendment or supplement shall (1) extend
the fixed Payment Date of any Certificate or reduce the rate
of interest represented thereby or extend the time of payment
of such interest or reduce the amount of principal
represented thereby without the prior written consent of the
Owner of the Certificate so affected, or (2) reduce the
percentage of Owners whose consent is required for the
execution of any amendment hereof or supplement hereto, or
(3 ) modify any of the rights or obligations of the Trustee
without its prior written consent thereto, or (4) amend this
Section 9 . 01 without the prior written consent of the Owners
of all Certificates then Outstanding.
The Trust Agreement and the rights and obligations
of the Corporation and the County and the Owners and the
Trustee hereunder may also be amended or supplemented at any
time by an amendment hereof or supplement hereto which shall
become binding upon execution without the written consents of
any Owners, but only to the extent permitted by law and after
receipt of an approving Opinion of Counsel and only for any
one or more of the following purposes --
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(a) to add to the agreements, conditions,
covenants and terms required by the Corporation or the
County to be observed or performed herein other
agreements, conditions, covenants and terms thereafter
to be observed or performed by the Corporation or the
County, or to surrender any right or power reserved
herein to or conferred herein on the Corporation or the
County, and which in either case shall not adversely
affect the interests of the Owners; or
(b) to make such provisions for the purpose of
curing any ambiguity or of correcting, curing or
supplementing any defective provision contained herein
or in regard to questions arising hereunder which the
Corporation or the County may deem desirable or
necessary and not inconsistent herewith, and which shall
not materially adversely affect the interests of the
Owners.
SECTION 9 . 02 . Disqualified Certificates.
Certificates owned or held by or for the account of the
County (but excluding Certificates held in any pension or
retirement fund of the County) shall not be deemed
Outstanding for the purpose of any consent or other action or
any calculation of Outstanding Certificates provided in this
Article, and shall not be entitled to consent to or take any
other action provided in this Article, and the Trustee may
adopt appropriate regulations to require each Owner, before
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his consent provided for herein shall be deemed effective, to
reveal if the Certificates as to which such consent is given
are disqualified as provided in this Section.
SECTION 9. 03 . Endorsement or Replacement of
Certificates After Amendment or Supplement. After the
effective date of any action taken as hereinabove provided,
the Trustee may determine that the Certificates may bear a
notation by endorsement in form approved by the Trustee as to
such action, and in that case upon demand of the Owner of any
Outstanding Certificate and presentation of such Certificate
for such purpose at the principal corporate trust office of
the Trustee in San Francisco, California a suitable notation
as to such action shall be made on such Certificate. If the
Trustee shall so determine, new Certificates so modified as
in the opinion of the Trustee shall be necessary to conform
to such action shall be prepared, and in that case upon
demand of the Owner of any Outstanding Certificates such new
Certificates shall be exchanged at the principal corporate
trust office of the Trustee in San Francisco, California
without cost to each Owner for Certificates then Outstanding
upon surrender of such Outstanding Certificates.
SECTION 9 . 04. Amendment by Mutual Consent. The
provisions of this Article shall not prevent any Owner from
accepting any amendment as to the particular Certificates
owned by him, provided that due notation thereof is made on
such Certificates.
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ARTICLE X
DEFEASANCE
SECTION 10. 01 . Discharge of Certificates and Trust
Agreement.
( a) If the Trustee shall pay or cause to be paid
or there shall otherwise be paid to the Owners of all
Outstanding Certificates the interest and principal
represented thereby at the times and in the manner stipulated
herein and therein, then such Owners shall cease to be
entitled to the pledge of and lien on the Base Rental
Payments as provided herein, and all agreements and covenants
of the Corporation, the County and the Trustee to such Owners
hereunder shall thereupon cease, terminate and become void
and shall be discharged and satisfied.
(b) Any Outstanding Certificates shall be deemed
to have been paid within the meaning of and with the effect
expressed in subsection (a) of this Section if there shall be
on deposit with the Trustee moneys or Permitted Securities of
the category specified in clause ( 1) of the definition of
such term contained in Section 1 . 01 in an amount sufficient
(together with the increment, earnings and interest on such
Permitted Securities) to pay the interest and principal
represented by such Certificates payable on their Payment
Dates or on the date of prepayment prior thereto.
(c ) After the payment of all the interest and
principal represented by all Outstanding Certificates as
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provided in this Section, the Trustee shall execute and
deliver to the Corporation and the County all such
instruments as may be necessary or desirable to evidence the
discharge and satisfaction of the Trust Agreement, and the
Trustee shall pay over or deliver to the County all moneys or
securities held by it pursuant hereto which are not required
for the payment of the interest and principal represented by
such Certificates.
SECTION 10. 02 . Unclaimed Moneys . Anything
contained herein to the contrary notwithstanding, any moneys
held by the Trustee in trust for the payment and discharge of
the interest or principal represented by any of the
Certificates which remain unclaimed for six (6) years after
the date when the payments represented by such Certificates
have become payable, if such moneys were held by the Trustee
at such date, or for six (6) years after the date of deposit
of such moneys if deposited with the Trustee after the date
when the interest and principal represented by such
Certificates have become payable, shall at the Written
Request of the County be repaid by the Trustee to the County
as its absolute property free from trust, and the Trustee
shall thereupon be released and discharged with respect
thereto and the Owners shall look only to the County for the
payment of the interest and principal represented by such
Certificates; provided, however, that before being required
to make any such payment to the County, the Trustee shall, at
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the expense of the County, cause to be published once a week
for two (2 ) successive weeks in a Financial Newspaper a
notice that such moneys remain unclaimed and that after a
date named in such notice, which date shall not be less than
thirty (30) days after the date of the first publication of
such notice, the balance of such moneys then unclaimed will
be returned to the County.
ARTICLE XI
MISCELLANEOUS
SECTION 11 . 01 . Benefits of Trust Agreement Limited
to Parties. Nothing contained herein, expressed or implied,
is intended to give to any person other than the Corporation,
the County, the Trustee and the Owners any claim, remedy or
right under or pursuant hereto, and any agreement, condition,
covenant or term required herein to be observed or performed
by or on behalf of the Corporation or the County shall be for
the sole and exclusive benefit of the Trustee and the Owners.
SECTION 11 . 02 . Successor Deemed Included in all
References to Predecessor. Whenever either the Corporation,
the County or the Trustee or any officer thereof is named or
referred to herein, such reference shall be deemed to include
the successor to the powers, duties and functions that are
presently vested in the Corporation, the County or the
Trustee or such officer, and all agreements, conditions,
covenants and terms required hereby to be observed or
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74
performed by or on behalf of the Corporation, the County or
the Trustee or any officer thereof shall bind and inure to
the benefit of the respective successors thereof whether so
expressed or not.
SECTION 11 . 03 . Execution of Documents by Owners.
Any declaration, request or other instrument which is
permitted or required herein to be executed by Owners may be
in one or more instruments of similar tenor and may be
executed by Owners in person or by their attorneys appointed
in writing. The fact and date of the execution by any Owner
or his attorney of any declaration, request or other
instrument or of any writing appointing such attorney may be
proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds to be
recorded in the state or territory in which he purports to
act that the person signing such declaration, request or
other instrument or writing acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution
duly sworn to before such notary public or other officer, or
by such other proof as the Trustee may accept which it may
deem sufficient.
The ownership of any Certificates and the amount,
payment date, number and date of owning the same may be
proved by the books required to be kept by the Trustee
pursuant to the provisions of Section 2 . 07 .
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75
• Any declaration, request or other instrument in
writing of the Owner of any Certificate shall bind all future
Owners of such Certificate with respect to anything done or
suffered to be done by the Corporation or the County or the
Trustee in good faith and in accordance therewith.
SECTION 11 .04. Waiver of Personal Liability. No
member of the Board of Supervisors, officer or employee of
the County shall be individually or personally liable for the
payment of the interest or principal represented by the
Certificates, but nothing contained herein shall relieve any
member of the Board of Supervisors, officer or employee of
the County from the performance of any official duty provided
by any applicable provisions of law or by the Facility Lease
or hereby.
SECTION 11 . 05 . Acquisition of Certificates by
County. All Certificates acquired by the County, whether by
purchase or gift or otherwise, shall be surrendered to the
Trustee for cancellation.
SECTION 11 . 06. Content of Certificates. Every
Certificate of the County or of the Corporation with respect
to compliance with any agreement, condition, covenant or term
contained herein shall include (a) a statement that the
person or persons making or giving such certificate have read
such agreement, condition, covenant or term and the
definitions herein relating thereto; (b) a brief statement as
to the nature and scope of the examination or investigation
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276
upon which the statements contained in such certificate are
based; (c) a statement that, in the opinion of the signers,
they have made or caused to be made such examination or
investigation as is necessary to enable them to express an
informed opinion as to whether or not such agreement,
condition, covenant or term has been complied with; and (d) a
statement as to whether, in the opinion of the signers, such
agreement, condition, covenant or term has been complied with.
Any Certificate of the County or of the Corporation
may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel unless the person making or giving such
certificate knows that the Opinion of Counsel with respect to
the matters upon which his certificate may be based, as
aforesaid, is erroneous, or in the exercise of reasonable
care should have known that the same was erroneous. Any
Opinion of Counsel may be based, insofar as it relates to
factual matters, information with respect to which is in the
possession of the County or the Corporation, upon a
representation by an officer or officers of the County or the
Corporation, as the case may be, unless the counsel executing
such Opinion of Counsel knows that the representation with
respect to the matters upon which his opinion may be based,
as aforesaid, is erroneous, or in the exercise of reasonable
care should have known that the same was erroneous.
SECTION 11 . 07. Publication for Successive Weeks.
Any publication required to be made hereunder for two (2)
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277
' successive weeks in a Financial Newspaper may be made in each
instance upon any business day of the first week and need not
be made on the same business day of any succeeding week or in
the same Financial Newspaper for any subsequent publication,
but may be made on different business days or in different
Financial Newspapers, as the case may be.
SECTION 11 . 08. Funds. Any fund required to be
established and maintained herein by the Trustee may be
established and maintained in the accounting records of the
Trustee either as an account or a fund, and may, for the
purposes of such accounting records, any audits thereof and
any reports or statements with respect thereto, be treated
either as an account or a fund; but all such records with
respect to all such funds shall at all times be maintained in
accordance with sound accounting practice and with due regard
for the protection of the security of the Certificates and
the rights of the Owners.
The Trustee may comingle any of the moneys held by
it hereunder for investment purposes only; provided, however,
that the Trustee shall account separately for the moneys in
each fund or account established pursuant to this Trust
Agreement.
SECTION 11 . 09 . Investments. Any moneys held by
the Trustee in the Base Rental Payment Fund, in the Refunding
Expenses Fund or in the Trust Administration Fund may be
invested (and, upon the Written Request of the County, shall
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278
be invested) by the Trustee in Permitted Investments which
will, as nearly as practicable, mature on or before the dates
when such moneys are anticipated to be needed for
disbursement hereunder. All such moneys invested by the
Trustee shall be invested so as to obtain the highest yield
which the Trustee deems practicable, having due regard for
the safety of such moneys, and the Trustee may act as
principal or agent in the acquisition or disposition of any
such investment. The Trustee shall not be liable or
responsible for any loss suffered in connection with any such
investment made by it under the terms of and in accordance
with this Section. The Trustee may sell or present for
redemption any obligations so purchased whenever it shall be
necessary in order to provide moneys to meet any payment of
the funds so invested, and the Trustee shall not be liable or
responsible for any losses resulting from any such investment
sold or presented for redemption. Any interest or profits on
such investments shall be paid to the County on May 1 and
November 1 of each year.
SECTION 11 . 10. Article and Section Headings,
Gender and References. The headings or titles of the several
Articles and Sections hereof and the table of contents
appended hereto shall be solely for convenience of reference
and shall not affect the meaning, construction or effect
hereof, and words of any gender shall be deemed and construed
to include all genders. All references herein to "Articles, "
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279
"Sections" and other subdivisions or clauses are to the
corresponding Articles, Sections, subdivisions or clauses
hereof; and the words "hereby, " "herein, " "hereof, " "hereto, "
"herewith, " "hereunder" and other words of similar import
refer to this Trust Agreement as a whole and not to any
particular Article, Section, subdivision or clause thereof.
SECTION 11 . 11 . Partial Invalidity. If any one or
more of the agreements, conditions, covenants or terms
required herein to be observed or performed by or on the part
of the Corporation, the County or the Trustee shall be
contrary to law, then such agreement or agreements, such
condition or conditions, such covenant or covenants or such
term or terms shall be null and void and shall be deemed
separable from the remaining agreements, conditions,
covenants and terms hereof and shall in no way affect the
validity hereof or of the Certificates, and the Owners shall
retain all the benefit, protection and security afforded to
them under any applicable provisions of law. The
Corporation, the County and the Trustee hereby declare that
they would have executed this Trust Agreement, and each and
every other Article, Section, paragraph, subdivision,
sentence, clause and phrase hereof and would have authorized
the execution and delivery of the Certificates pursuant
hereto irrespective of the fact that any one or more
Articles, Sections, paragraphs, subdivisions, sentences,
clauses or phrases hereof or the application thereof to any
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80
person or circumstance may be held to be unconstitutional,
unenforceable or invalid.
SECTION 11 . 12 . California Law. This Trust
Agreement shall be construed and governed in accordance with
the laws of the State of California.
SECTION 11 . 13 . Notices. All written notices to be
given hereunder shall be given by mail to the party entitled
thereto at its address set forth below, or at such other
address as such party may provide to the other parties in
writing from time to time, namely:
If to the County: Clerk of the Board of Supervisors
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
I£ to the Corporation: c/o Clerk of the Board of Supervisors
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
If to the Trustee : Bank of America National Trust
and Savings Association
201 Mission Street
San Francisco, California 94105
Attention: Corporate Agency Division
9530
SECTION 11 . 14. Effective Date. This Trust
Agreement shall become effective upon its execution and
delivery.
SECTION 11 . 15 . Execution in Counterparts. This
Trust Agreement may be executed in several counterparts, each
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of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have
executed and attested this Trust Agreement by their officers
thereunto duly authorized as of the day and year first
written above .
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Trust Officer
(SEAL)
Attest:
Assistant Secretary
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
(SEAL)
Attest:
By
Secretary
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A
COUNTY OF CONTRA COSTA
By
Chairman of the Board of Supervisors
( SEAL)
Attest:
County Clerk and Ex-Officio
Clerk of the Board of Supervisors
Approved as to form:
County Counsel
By
Deputy County Counsel
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283
CCd-12
3701s
2-14-84 Draft (2nd Draft)
ASSIGNMENT AGREEMENT
by and between
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Dated as of April 1, 1984
RELATING TO THE AMENDED AND RESTATED FACILITY LEASE
(PROJECT PHASE I )
284
ASSIGNMENT AGREEMENT
RELATING TO AMENDED AND RESTATED FACILITY LEASE
(PROJECT PHASE I )
This ASSIGNMENT AGREEMENT, made and entered into as
of April 1, 1984, by and between CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION, a nonprofit public benefit
corporation organized under the laws of the State of
California (the "Corporation" ) , and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, a national banking association
organized and existing under the laws of the United States of
America (the "Trustee" ) ;
W I T N E S S E T H:
WHEREAS, the Corporation and the County of Contra
Costa, a political subdivision organized and existing under
and by virtue of the laws of the State of California (the
"County" ) , have previously entered into a facility lease,
entitled "Facility Lease (Project Lease I ) " and dated as of
May 1, 1982 (the "1982 Lease" ) , which was recorded in the
office of the County Recorder of the County of Contra Costa
on May 27, 1982 under Recorder' s Serial Number 82-59391, to
lease to the County two office buildings located at 610 Court
Street, Martinez, California, and at 30 Muir Road, Martinez,
California (said two office buildings being herein called
"Project Phase I" ) ;
285
WHEREAS, the Corporation and the County have
entered into an agreement, entitled "Amended and Restated
Facility Lease (Project Phase I ) " and dated as of April 1,
1984 (the "Facility Lease" ) , which amends the 1982 Lease and
restates the 1982 Lease as amended; and
WHEREAS, under the Facility Lease, the County is
obligated to make certain rental payments to the Corporation
for the lease of Project Phase I ; and
WHEREAS, the Corporation desires to assign without
recourse all of its rights to receive such rental payments to
the Trustee for the benefit of the owners of certificates of
participation (the "Certificates" ) to be executed and
delivered under a trust agreement to be entered into by and
among the Trustee, the Corporation and the County, entitled
"Trust Agreement" and dated as of April 1, 1984 (the "Trust
Agreement" ) ; and
WHEREAS, in consideration of such assignment and
the execution of the Trust Agreement, the Trustee has agreed
to execute and deliver the Certificates in an amount equal to
the aggregate principal components of such of said rental
payments as are designated base rental payments in the
Facility Lease, each evidencing and representing a fractional
undivided interest in such base rental payments; and
WHEREAS, all acts, conditions and things required
by law to exist, to have happened and to have been performed
precedent to and in connection with the execution and
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286
entering into of this Assignment Agreement do exist, have
happened and have been performed in regular and due time,
form and manner as required by law, and the parties hereto
are now duly authorized to execute and enter into this
Assignment Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES
AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN
AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO
HEREBY AGREE AS FOLLOWS:
SECTION 1 . Assignment.
The Corporation, for one dollar ($1 .00) and other
good and valuable consideration in hand received, does hereby
sell, assign and transfer to the Trustee without recourse for
the benefit of the owners of the Certificates all its rights
to receive the rental payments from the County under the
Facility Lease and, effective immediately on default by the
County under the Facility Lease and without any further
action on the part of the Corporation, any and all of the
other rights of the Corporation under the Facility Lease as
may be necessary to enforce payment of such rental payments
when due or otherwise to protect the interests of the owners
of the Certificates.
SECTION 2 . Acceptance.
The Trustee hereby accepts the foregoing assignment
for the purpose of securing the rights assigned to it to
receive the rental payments from the County under the
r
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Facility Lease and all other rights assigned to it, subject
to the terms and provisions of the Trust Agreement, and all
such rental payments shall be applied and the rights so
assigned shall be exercised by the Trustee as provided in the
Trust Agreement.
SECTION 3 . Conditions.
This Assignment Agreement shall confer no rights or
impose no obligations upon the Trustee beyond those expressly
provided in the Trust Agreement.
SECTION 4. Execution.
The Assignment Agreement may be executed in any
number of counterparts, each of which shall be deemed to be
an original, but all together shall constitute but one and
the same Assignment Agreement.
IN WITNESS WHEREOF, the parties hereto have
executed and attested this Agreement by their officers
thereunto duly authorized as of the day and year first
written above.
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
(SEAL)
Attest:
Secretary
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288
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Trustee
By
Trust Officer
(SEAL)
Attest:
Assistant Secretary
5
040034-0008-028-3701s 02/15/84
289
State of California )
ss.
County of Contra Costa )
On this _ day of April, in the year 1984, before
me , a notary public in and for the State
of California, residing therein, duly commissioned and sworn,
personally appeared known to me to be
the President, and known to me to be
the Secretary, of CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, the corporation that executed the within
instrument, and known to me to be the persons who executed
the within instrument on behalf of said corporation therein
named, and acknowledged to me that such corporation executed
the within instrument pursuant to its bylaws or a resolution
of its board of directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Notary Public in and for the
State of California
[NOTARIAL SEAL)
My Commission Expires:
6
040034-0008-028-3701s 02/15/84
290
State of California )
ss.
City and County of San Francisco )
On this _ day of April, in the year 1984, before
me, a notary public in and for the
State of California, duly commissioned and sworn, personally
appeared known to me to be a Trust
Officer, and known to me to be an
Assistant Secretary, of BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, the national banking association that
executed the within instrument, and known to me to be the
persons who executed the within instrument on behalf of said
national banking association therein named, and acknowledged
to me that such national banking association executed the
within instrument pursuant to its bylaws or a resolution of
its board of directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the City and County of
San Francisco on the day and year in this certificate first
above written.
Notary Public in and for the
State of California
[NOTARIAL SEAL)
My Commission Expires:
7
040034-0008-028-3701s 02/15/84
291
' CCe-22a
3760s
RESOLUTION NO. D
OF THE BOARD OF SUPERVISORS OF THE
COUNTY OF CONTRA COSTA
CALIFORNIA
RESOLUTION APPROVING FORMS OF AND AUTHORIZING EXECUTION OF AN
AGREEMENT AMENDING DEED OF GIFT (2425 BISSO LANE OFFICE
BUILDING) , AN AMENDED AND RESTATED FACILITY LEASE (2425 BISSO
LANE OFFICE BUILDING) , AND A TRUST AGREEMENT, APPROVING FORM
OF AN ASSIGNMENT AGREEMENT AND AUTHORIZING VALIDATION ACTION.
WHEREAS, Contra Costa County Public Facilities
Corporation, a California nonprofit public benefit
corporation (herein called the "Corporation" ) , has been
incorporated by a group of public spirited citizens of the
County of Contra Costa (herein called the "County" ) for the
specific and primary purpose of providing financial
assistance to the County of Contra Costa by financing the
acquisition, construction, improvement and remodeling of
public buildings and facilities; and
WHEREAS, by its Articles of Incorporation and by
its Bylaws no part of the net earnings, funds or assets of
the Corporation shall inure to the benefit of any director
292
thereof or any other person, firm or corporation, except the
County;
WHEREAS, the Corporation has previously executed
and delivered to the County a deed, entitled "Deed of Gift
(2425 Bisso Lane Office Building) " and dated as of June 1,
1982 (herein called the "1982 Deed of Gift" ) , which was
recorded in the office of the County Recorder of the County
on June 24, 1982 under Recorder' s Serial No. 82-69871; and
WHEREAS, the Corporation and the County have
previously entered into a facility lease/purchase agreement,
entitled "Facility Lease/Purchase Agreement (2425 Bisso Lane
Office Building) " and dated as of June 1, 1982 (herein called
the "1982 Lease" ) , which was recorded in the office of the
County Recorder of the County on June 24, 1982 under
Recorder' s Serial Number 82-69872; and
WHEREAS, the County, Bank of America National Trust
and Savings Association, as trustee, and the Corporation have
entered into an agreement, entitled "Trust Agreement" and
dated as of June 1, 1982 (herein called the "1982 Trust
Agreement" ) , which was recorded in the Office of the County
Recorder of the County on June 24, 1982 under Recorder' s
Serial No. 82-69873 .
WHEREAS, pursuant to the 1982 Trust Agreement the
trustee thereunder executed and delivered certificates of
participation (herein called the "1982 Certificates" ) in the
base rentals payable under the 1982 Lease, and used the
2 293
proceeds to purchase for the useof the County an office
building located at 2425 Bisso Lane, Concord, California
(herein called "Capital Project II" ) ; and
WHEREAS, this Board of Supervisors hereby
determines that it would be in the best interest of the
County and the residents of the County for the Corporation
and the County to enter into an agreement, entitled "Amended
and Restated Facility Lease (2425 Bisso Lane Office
Building) " and tentatively dated as of April 1, 1984 (herein
called the "Facility Lease" ) , which would amend the 1982
Lease and would restate the 1982 Lease as amended; and
WHEREAS, under the Facility Lease, the County would
be obligated to make base rental payments to the Corporation
for the lease of Capital Project II ; and
WHEREAS, it is proposed that all rights to receive
such base rental payments (together with the additional
rental payments provided for in the Facility Lease) will be
assigned without recourse by the Corporation to a trustee
pursuant to an agreement, entitled "Assignment Agreement" and
tentatively dated as of April 1, 1984 (herein called the
"Assignment Agreement" ) ; and
WHEREAS, it is further proposed that the
Corporation, the County and Bank of America National Trust
and Savings Association, as trustee, enter into an agreement,
entitled "Trust Agreement" and tentatively dated as of
April 1, 1984 (herein called the "Trust Agreement" ) , pursuant
3 294
to which said trustee will execute and deliver certificates
of participation in an amount equal to the aggregate
principal components of such base rental payments, each
evidencing and representing a fractional undivided interest
in such base rental payments, and will use the proceeds,
together with other moneys available to the Corporation, to
defease the 1982 Certificates; and
WHEREAS, the County has full legal right, power and
authority under the Constitution and the laws of the State of
California to enter into the transactions hereinafter
authorized;
NOW, THEREFORE, BE IT RESOLVED by the Board of
Supervisors of the County of Contra Costa, as follows:
Section 1 . All of the recitals herein contained
are true and correct and this Board of Supervisors so finds.
Section 2 . This Board of Supervisors hereby finds
and determines that it is in the public interest, convenience
and welfare and for the common benefit of the inhabitants of
the County that the County continue to lease Capital
Project II from the Corporation and that the Corporation
defease the 1982 Certificates to reduce the rentals to be
paid by the County for Capital Project II, and the County
Administrator is hereby authorized to request the Corporation
to take all necessary action to accomplish the defeasance of
the 1982 Certificates.
4
295
Section 3 . The form of agreement, tentatively
dated as of April 1, 1984 and entitled "Agreement Amending
Deed of Gift (2425 Bisso Lane Office Building) , " between the
Corporation and the County, submitted to this Board of
Supervisors, and the terms and conditions thereof, are hereby
approved. The Clerk of the Board of Supervisors is directed
to file a copy of said form of agreement with the minutes of
this meeting, and the Chairman of the Board of Supervisors
and the Clerk of the Board of Supervisors are authorized and
directed to execute and deliver an agreement in substantially
said form.
Section 4. The form of agreement, tentatively
dated as of April 1, 1984 and entitled "Amended and Restated
Facility Lease (2425 Bisso Lane Office Building) , " between
the Corporation and the County, submitted to this Board of
Supervisors, and the terms and conditions thereof, are hereby
approved. The Clerk of the Board of Supervisors is directed
to file a copy of said form of agreement with the minutes of
this meeting. Upon determination of the schedule of base
rentals to be paid under section 3(a) thereof by resolution
of this Board of Supervisors, the Chairman of the Board of
Supervisors and the Clerk of the Board of Supervisors are
authorized and directed to execute and deliver an agreement
in substantially said form, as completed to include such
subsequently determined base rental schedule.
5 296
Section 5 . The form of agreement, tentatively
dated as of April 1, 1984 and entitled "Trust Agreement, "
between the Corporation, the County and Bank of America
National Trust and Savings Association, as Trustee, submitted
to this Board of Supervisors, and the terms and conditions
thereof, are hereby approved. The Clerk of the Board of
Supervisors is directed to file a copy of said form of
agreement with the minutes of this meeting, and the Chairman
of the Board of Supervisors and the Clerk of the Board of
Supervisors are authorized and directed to execute and
deliver an agreement in substantially said form.
Section 6. The form of Assignment Agreement
submitted to this Board of Supervisors is hereby approved.
Section 7 . The Chairman of the Board of
Supervisors and the Clerk of the Board of Supervisors are
authorized to make such changes to said Agreement Amending
Deed of Gift (2425 Bisso Lane Office Building) , the Facility
Lease and the Trust Agreement prior to the execution thereof
as may be required in the interest of the County where such
changes do not materially increase the obligation of the
County or where such changes are first approved by resolution
of this Board of Supervisors.
Section 8. The County Counsel of the County and
the law firm of Orrick, Herrington & Sutcliffe, A
Professional Corporation, which firm is hereby designated as
special counsel to the County with respect to the
6 (. 297
transactions hereby authorized, are hereby authorized to file
an action in the name and on behalf of the County, pursuant
to California Code of Civil Procedure Sections 860 and
following, to validate the transactions herein authorized,
said Agreement Amending Deed of Gift (2425 Bisso Lane Office
Building) , the Facility Lease, the Trust Agreement and the
proceedings leading up to and including the adoption of this
Resolution and all matters related thereto.
Section 9 . The officers of the County 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 or advisable in order to
consummate the transactions herein authorized and otherwise
to carry out, give effect to and comply with the terms and
intent of this Resolution.
7
298
Section 10. This resolution shall take effect from
and after its date of adoption.
PASSED AND ADOPTED this 21st day of February, 1984.
Chairman of the Board of Supervisors
of the County of Contra Costa,
State of California
[ Seal ]
ATTEST: J. R. Olson,
County Clerk and ex-officio
Clerk of the Board of
Supervisors
By �
Deputy Clerk of the Board of
Supervisors of the County of
Contra Costa, State of California
8
t 299
CLERK' S CERTIFICATE
I , Z&a1L.C._.a Chief Deputy
Clerk of the Board of Supervisors of the County of Contra
Costa, hereby certify that the foregoing is a full, true and
correct copy of a resolution duly adopted at a regular
meeting of the Board of Supervisors of said County duly and
regularly held at the regular meeting place thereof on the
21st day of February, 1984, of which meeting all of the
members of said Board of Supervisors had due notice and at
which a majority thereof were present; and that at said
meeting said resolution was adopted by the following vote:
AYES: Powers,Fandc-1, MCPaCk TOMM
NOES:
ABSENT:
I further certify that I have carefully compared
the same with the original minutes of said meeting on file
and of record in my office; that the foregoing resolution is
a full, true and correct copy of the original resolution
adopted at said meeting and entered in said minutes; and that
said resolution has not been amended, modified or rescinded
300
since the date of its adoption, and the same is now in full
force and effect.
WITNESS my hand and the seal of the County of
Contra Costa this day of 1984.
Chief Deputy Clerk
of the Board of Supervisors
of the County of Contra Costa,
State of California
[Seal ]
2
301
CCe-9a
3761s
2-14-84 Draft
AGREEMENT AMENDING DEED OF GIFT
(2425 BISSO LANE OFFICE BUILDING)
by and between
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION
and the
COUNTY OF CONTRA COSTA
Dated as of April 1, 1984
302
AGREEMENT AMENDING DEED OF GIFT
(2425 BISSO LANE OFFICE BUILDING)
This AGREEMENT AMENDING DEED OF GIFT (2425 BISSO
LANE OFFICE BUILDING) , made and entered into as of April 1,
1984, by and among CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, a nonprofit public benefit corporation duly
organized and existing under and by virtue of the laws of the
State of California (the "Corporation" ) , and the COUNTY OF
CONTRA COSTA, a political subdivision organized and existing
under and by virtue of the laws of the State of California
(the "County" ) ;
W I T N E S S E T H:
WHEREAS, the Corporation has previously executed
and delivered to the County a deed, entitled "Deed of Gift
(2425 Bisso Lane Office Building) " and dated as of June 1,
1982 (the "1982 Deed of Gift" ) , which was recorded in the
office of the County Recorder of the County of Contra Costa
on June 24, 1982 under Recorder' s Serial No. 82-69872; and
WHEREAS, the Corporation and the County have
previously entered into a facility lease/purchase agreement,
entitled "Facility Lease/Purchase Agreement (2425 Bisso Lane
Office Building) " and dated as of June 1, . 1982 (the "1982
Lease" ) , which was recorded in the office of the County
303
Recorder of the County of Contra Costa on June 24, 1982 under
Recorder' s Serial Number 82-69872 ; and
WHEREAS, the County, Bank of America National Trust
and Savings Association, as trustee, and the Corporation have
entered into an agreement, entitled "Trust Agreement" and
dated as of June 1, 1982 (the "1982 Trust Agreement" ) , which
was recorded in the Office of the County Recorder of the
County on June 24, 1982 under Recorder' s Serial No. 82-69873 ;
and
WHEREAS, pursuant to the 1982 Trust Agreement the
trustee thereunder executed and delivered certificates of
participation (the "1982 Certificates" ) in the base rentals
payable under the 1982 Lease, and used the proceeds to
purchase for the use of the County an office building located
at 2425 Bisso Lane, Concord, California ( "Capital
Project II" ) ; and
WHEREAS, the Corporation and the County have
determined that it would be in the best interest of the
Corporation, the County and the residents of the County to
refund the 1982 Bonds through the sale and delivery of
certificates of participation evidencing a fractional
undivided interest in certain base rental payments to be made
pursuant to the hereinafter referred to Facility Lease; and
WHEREAS, the Corporation and the County have
entered into an agreement, entitled "Amended and Restated
Facility Lease (2425 Bisso Lane Office Building) " and dated
2
040511-0015-028-3761s 02/19/84
304
as of the date hereof (the "Facility Lease" ) , which amends
the 1982 Lease and restates the 1982 Lease as amended; and
WHEREAS, under the Facility Lease, the County is
obligated to make base rental payments to the Corporation for
the lease of Capital Project II ; and
WHEREAS, all rights to receive such base rental
payments (together with the additional rental payments
provided for in the Facility Lease) have been assigned
without recourse by the Corporation to the Trustee pursuant
to an agreement, entitled "Assignment Agreement" and dated as
of April 1, 1984 (the "Assignment Agreement" ) ; and
WHEREAS, in consideration of such assignment and
the execution of an agreement, entitled "Trust Agreement" and
dated as of April 1, 1984 (the "Trust Agreement" ) , Bank of
America National Trust and Savings Association, as trustee
thereunder, has agreed to execute and deliver certificates of
participation in an amount equal to the aggregate principal
components of such base rental payments, each evidencing and
representing a fractional undivided interest in such base
rental payments; and
WHEREAS, all acts, conditions and things required
by law to exist, to have happened and to have been performed
precedent to and in connection with the execution and
entering into of this Agreement do exist, have happened and
have been performed in regular and due time, form and manner
3
040511-0015-028-3761s 02/15/84 3 015
as required by law, and the parties hereto are now duly
authorized to execute and enter into this Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES
AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN
AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES DO HEREBY
AGREE AS FOLLOWS:
Section 1. The text of the 1982 Deed of Gift be
and it is hereby amended to read as follows:
CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, a corporation incorporated under the
laws of the State of California, Grantor, does by
these presents grant to the COUNTY OF CONTRA
COSTA, a political subdivision of the State of
California, Grantee, its successors and assigns
forever, all of its right, title and interest in
and to that certain real property in the County of
Contra Costa, State of California, described in
Exhibit A attached hereto and made a part hereof,
together with all improvements thereon; reserving,
however, in said Grantor, its successors and
assigns, an estate for twenty years one month from
June 1, 1982, in and to said property; subject,
however, to the condition subsequent that if prior
to July 1, 2002 all principal and interest
represented by certificates of participation (as
such term is defined in a Trust Agreement, dated
as of April 1, 1984, between Bank of America
National Trust and Savings Association, as
trustee, said Grantor and said Grantee) in certain
base rental payments to be made pursuant to that
certain Amended and Restated Facility Lease (2425
Bisso Lane Office Building) between said Grantor
and said Grantee dated as of April 1, 1984 shall
be fully paid, the aforesaid estate for years
reserved herein by said Grantor shall terminate
and title to the aforesaid real property, together
with all improvements thereon, shall vest in said
Grantee.
Section 2 . It is the intention of the County and
the Corporation that, notwithstanding the transfer of
4
040511-0015-028-3761s 02/19/84
306
as required by law, and the parties hereto are now duly
authorized to execute and enter into this Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES
AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN
AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES DO HEREBY
AGREE AS FOLLOWS:
Section 1 . The text of the 1982 Deed of Gift be
and it is hereby amended to read as follows:
CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, a corporation incorporated under the
laws of the State of California, Grantor, does by
these presents grant to the COUNTY OF CONTRA
COSTA, a political subdivision of the State of
California, Grantee, its successors and assigns
forever, all of its right, title and interest in
and to that certain real property in the County of
Contra Costa, State of California, described in
Exhibit A attached hereto and made a part hereof,
together with all improvements thereon; reserving,
however, in said Grantor, its successors and
assigns, an estate for twenty years one month from
June 1, 1982, in and to said property; subject,
however, to the condition subsequent that if prior
to July 1, 2002 all principal and interest
represented by certificates of participation (as
such term is defined in a Trust Agreement, dated
as of April 1, 1984, between Bank of America
National Trust and Savings Association, as
trustee, said Grantor and said Grantee) in certain
base rental payments to be made pursuant to that
certain Amended and Restated Facility Lease
(Project Phase I ) between said Grantor and said
Grantee dated as of April 1, 1984 shall be fully
paid, the aforesaid estate for years reserved
herein by said Grantor shall terminate and title
to the aforesaid real property, together with all
improvements thereon, shall vest in said Grantee.
Section 2 . It is the intention of the County and
the Corporation that, notwithstanding the transfer of
interests effected by the 1982 Deed of Gift, they shall own
4
040511-0015-028-3761s 02/15/84
307
the respective interests in the real property described in
the 1982 Deed of Gift provided in Section 1 above.
Accordingly, the County hereby quitclaims to the Corporation,
and the Corporation hereby quitclaims to the County, any
interest which the party quitclaiming may have in the said
real property other than as provided in Section 1 above and
except as may have been created or exist under the Facility
Lease, including any amendments thereto, or as may be created
after the date hereof.
Section 3 . Effective Date . This Agreement shall
become effective upon its execution and delivery and
recordation in the office of the County Recorder of Contra
. Costa County, California.
IN WITNESS WHEREOF, the parties hereto have
executed and attested this Agreement by their officers
thereunto duly authorized as of the day and year first
written above:
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
(SEAL)
Attest:
By
Secretary
5
040511-0015-028-3761s 02/15/84 308
COUNTY OF CONTRA COSTA
By
Chairman of the Board of Supervisors
(SEAL)
Attest:
County Clerk and Ex-Officio
Clerk of the Board of Supervisors
Approved as to form:
County Counsel
By
Deputy County Counsel
6
040511-0015-028-3761s 02/15/84 3 09
State of California )
ss.
County of Contra Costa )
On this _ day of April, in the year 1984, before
me , a notary public in and for the State
of California, duly commissioned and sworn, personally
appeared known to me to be the
President, and known to me to be the
Secretary, of CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, the corporation that executed the within
instrument, and known to me to be the persons who executed
the within instrument on behalf of said corporation therein
named, and acknowledged to me that such corporation executed
the within instrument pursuant to its bylaws or a resolution
of its board of directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate . first above
written.
Notary Public in and for the
State of California
[NOTARIAL SEAL]
My Commission Expires:
040511-0015-028-3761s 02/15/84
310
State of California )
ss.
County of Contra Costa )
On this day of April, in the year 1984, before
me, , a Deputy Clerk of the Board of
Supervisors of the County of Contra Costa, State of
California, duly commissioned and sworn, personally appeared
, known to me to be the Chairman of the
Board of Supervisors, and , known to me to
-be the County Clerk and Ex-Officio Clerk of the Board of
Supervisors, of the County of Contra Costa, the county that
executed the within instrument, and known to me to be the
persons who executed the within instrument on behalf of said
political subdivision therein named, and acknowledged to me
that such political subdivision executed the within
instrument pursuant to a resolution of the Board of
Supervisors of the County of Contra Costa.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Deputy' Clerk County of Contra
Costa
[ Seal ]
8
040511-0015-028-3761s 02/15/84 r 311
CCe-10
3769s
- 2-15-84 Draft
AMENDED AND RESTATED
FACILITY LEASE
(2425 Bisso Lane Office Building)
between
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
and the
COUNTY OF CONTRA COSTA
Dated as of April 1, 1984
312
TABLE OF CONTENTS
Page
Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Preambles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 1 . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 2 . Term; Commencement of Rental;
Condition of Capital Project II . . . . . . . .
Section 3 . Rental . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 4. Use of Proceeds; Lease Fund;
Certificate Reserve Fund;
Insurance Reserve Fund; Investments;
No Arbitrage . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 5 . Maintenance, Utilities, Taxes
and Assessments . . . . . . . . . . . . . . . . . . . . . . . .
Section 6. Changes to Capital Project II . . . . . . . . . . . .
Section 7 . Fire, Extended Coverage and
Earthquake Insurance . . . . . . . . . . . . . . . . . . .
Section 8. Liability Insurance . . . . . . . . . . . . . . . . . . . . . .
Section 9 . Rental Interruption or Use and
Occupancy Insurance . . . . . . . . . ... . . . . . . . . .
Section 10. Insurance Proceeds; Form of Policies . . . . .
Section 11 . Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 12 . Eminent Domain . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 13 . Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 14. Right of Entry . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 15. Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 16. Quiet Enjoyment . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 17 . Corporation Not Liable . . . . . . . . . . . . . . . . . .
Section 18. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 19 . Title to Demised Premises and
Capital Project II . . . . . . . . . . . . . . . . . . . . .
Section 20. Abatement of Rental . . . . . . . . . . . . . . . . . . . . . .
Section 21 . Law Governing . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 22 . Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 23 . Validity and Severability . . . . . . . . . . . . . . . .
Section 24. Purpose of Lease; Industrial
Development Bond Covenant; Option
to Purchase; Personal Property . . . . . . . .
Section 25. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 26. Net Lease . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 27 . Restated and Amended 1982 Lease . . . . . . . . . .
Section 28. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 29 . Execution . . . . . . . . . . . . . . . . . . . . . . . . 0 . . . . . . .
Execution . . . . . . . . . . . . . . . . . . . .
Exhibit A
Exhibit B
Acknowledgments
_ i _ 313
AMENDED AND RESTATED
FACILITY LEASE
(2425 BISSO LANE OFFICE BUILDING)
This Amended and Restated Facility Lease (2425
Bisso Lane Office Building) , dated as of April 1, 1984,
between CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION, a
nonprofit public benefit corporation organized and existing
under and by virtue of the laws of the State of California
(herein called the "Corporation" ) , as lessor, and the COUNTY
OF CONTRA COSTA, a political subdivision organized and
existing under and by virtue of the laws of the State of
California (herein called the "County" ) , as lessee;
W I T N E S S E T H :
WHEREAS, the Corporation and the County have
previously entered into a facility lease/purchase agreement,
entitled "Facility Lease/Purchase Agreement (2425 Bisso Lane
Office Building) " and dated as of June 1, 1982 (herein called
the "1982 Lease" ) , which was recorded on June 24, 1982 in the
office of the County Recorder of Contra Costa County under
Recorder' s Serial No. 82-69872; and
WHEREAS, the County, Bank of America National Trust
and Savings Association, as trustee, and the Corportion have
entered into an agreement, entitled "Trust Agreement" and
dated as of June 1, 1982 (herein called the "1982 Trust
Agreement" ) , which was recorded in the Office of the County
314
Recorder of the County on June 24, 1982 under Recorder' s
Serial No . 82-69873 ; and
WHEREAS, pursuant to the 1982 Trust Agreement the
trustee thereunder executed and delivered certificates of
participation (herein called the "1982 Certificates" ) in the
base rentals payable under the 1982 Lease, and used the
proceeds to purchase for the use of the County an office
building located at 2425 Bisso Lane, Concord, California
(herein called "Capital Project II" ) ; and
WHEREAS, the County and the Corporation have
determined that it would be in the best interest of the
Corporation and the County to defease the 1982 Certificates
through the sale and delivery of certificates of
participation evidencing proportionate interests in the base
rental payments to be made pursuant to this Amended and
Restated Facility Lease (2425 Bisso Lane Office Building) .
In consideration of the mutual covenants
hereinafter contained, the parties hereto agree as follows:
Section 1 . Definitions.
Unless the context otherwise requires, the terms
defined in this Section shall, for all purposes of this
Lease, have the meanings herein specified, the following
definitions to be equally applicable to both the singular and
plural forms of any of the terms herein defined:
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The term "Additional Rental" means all amounts
payable to the Corporation or the Trustee from the County as
Additional Rental pursuant to Section 3(b) hereof.
The term "Base Rental" means all amounts payable to
the Corporation from the County as Base Rental pursuant to
Section 3 (a) hereof.
The term "Capital Project II" means an office
building in the City of Concord, California, commonly known
and designated as 2425 Bisso Lane and containing
approximately 25, 000 gross square feet, including all works,
properties and structures comprising said building, together
with parking, site development, landscaping, utilities,
equipment, furnishings, improvements and appurtenant and
related facilities, all located on the Demised Premises.
The term "Certificate Reserve Fund Requirement"
means the maximum Base Rental payment to be made by the
County pursuant to this Lease on any remaining Base Rental
payment date during the term of this Lease, provided that the
Base Rental payment payable on December 15, 1984 shall not be
taken into account in calculating the Certificate Reserve
Fund Requirement.
The term "Certificates" means the certificates of
participation executed and delivered by the Trustee under and
pursuant to the Trust Agreement to defease the 1982
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040034-0009-028-3769s 02/19/84 316
Certificates, which were issued to finance acquisition of
Capital Project II .
The term "Deed of Gift" means the deed, dated as of
June 1, 1982 and entitled "Deed of Gift (2425 Bisso Lane
Office Building) " from the Corporation, as grantor, to the
County, as grantee, which was recorded in the office of the
County Recorder of the County of Contra Costa on June 24,
1982 under Recorder' s Serial No. 82-69871, as amended by that
agreement, entitled "Agreement Amending Deed of Gift (2425
Bisso Lane Office Building) " and dated as of April 1, 1984,
between the Corporation and the County.
The term "Demised Premises" means that certain real
property situate in the County of Contra Costa, State of
California, described in Exhibit A attached hereto and made a
part hereof; subject, however, to any conditions,
reservations, and easements of record or known to the County.
The term "Insurance Reserve Fund Requirement" means
the amount of Fifty Two Thousand Dollars ($52, 000. 00) .
The term "Lease" means this Amended and Restated
Facility Lease (2425 Bisso Lane Office Building) , as
originally executed and ,recorded or as it may from time to
time be supplemented, modified or amended pursuant to the
provisions hereof.
The term "1982 Certificates" means the certificates
of participation issued under the 1982 Trust Agreement to
040034-0009-028-3769s F4 02/15/84 317
finance the acquisition of the Demised Premises and Capital
Project II .
The term "1982 Lease" means the facility
lease/purchase agreement, dated as of June 1, 1982 and
entitled "Facility Lease/Purchase Agreement (2425 Bisso Lane
Office Building) , " between the Corporation, as lessor, and
the County, as lessee, which was recorded in the office of
the County Recorder of the County of Contra Costa on June 24,
1982 under Recorder' s Serial No. 82-69872 .
The term "1982 Trust Agreement" means the trust
agreement, dated as of June 1, 1982, between the County, Bank
of America National Trust and Savings Association, as
trustee, and the Corporation, pursuant to which the 1982
Certificates were issued.
The term "Trust Agreement" means the trust
agreement, dated as of April 1, 1984, by and among the
Trustee, the Corporation and the County, pursuant to which
the Trustee will execute and deliver the Certificates.
The term "Trustee" means Bank of America National
Trust and Savings Association, appointed as trustee pursuant
to the Trust Agreement, and any successor appointed under the
Trust Agreement.
The term "Written Request of the Corporation" means
an instrument in writing signed by or on behalf of the
Corporation by its President or a Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an
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Assistant Secretary or by any two persons (whether or not
officers of the Corporation) who are specifically authorized
by resolution of the Board of Directors of the Corporation to
sign or execute such a document on its behalf.
The term "Written Request of the County" means an
instrument in writing signed by the County Administrator of
the County, or by the Assistant County Administrator -
Finance of the County, or by , a Deputy County Administrator of
the County, or by any other officer of the County duly
authorized by the Board of Supervisors of the County for that
purpose, with the seal of the County affixed.
Section 2 . Term; Commencement of Rental; Condition
of Capital Project II .
The Corporation hereby leases to the County and the
County hereby hires from the Corporation, on the terms and
conditions hereinafter set forth, the Demised Premises and
Capital Project II located .thereon on the terms and
conditions hereinafter set forth and subject to all
easements, encumbrances, and restrictions that existed at the
time the Corporation obtained title to the Demised Premises,
including without limitation the terms and conditions of the
Deed of Gift by which a reserved estate for years to the
Demised Premises and Capital Project II was retained by the
Corporation. The County hereby agrees and covenants during
the term of this Lease that, except as hereinafter provided,
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it will use Capital Project II for public and county purposes
so as to afford the public the benefits contemplated by this
Lease and so as to permit the Corporation to carry out its
agreements and covenants contained in the Trust Agreement.
The term of this Lease commenced on June 24, 1982,
the date of original recordation of this Lease in the office
of the County Recorder of Contra Costa County, State of
California, and shall end on July 1, 1992 , unless such term
is extended or sooner terminated as hereinafter provided. If
on July 1, 1992 the Certificates shall not be fully paid, or
if the rental payable hereunder shall have been abated at any
time and for any reason, then the term of this Lease shall be
extended until ten ( 10) days after all Certificates shall be
fully paid, except that the term of this Lease shall in no
event be extended beyond July 1, 2002 . If prior to July 1,
1992 all Certificates shall be fully paid, the term of this
Lease shall end ten ( 10) days thereafter or ten (10) days
after written notice by the County to the Corporation,
whichever is earlier.
The County took possession of the Demised Premises
and Capital Project II upon commencement of this Lease, and
the first payment of rental was due and was paid on
December 15, 1982 .
The parties hereto agree that the County is
presently in possession of the Demised Premises and Capital
Project II and that the County accepts the Demised Premises
040034-0009-028-3769s E7 02/19/84 320
and Capital Project II in their presently existing condition,
and further warrants and holds harmless the Corporation
against any defects presently existing therein. By entry
hereunder upon commencement of the term of this Lease the
County accepted the premises as being in the condition in
which the Corporation was obligated to deliver the premises
to the County.
Section 3 . Rental.
The County agrees to pay to the Corporation, its
successors or assigns, without deduction or offset of any
kind, as rental for the use and occupancy of the Demised
Premises and Capital Project II , the following amounts at the
times and in the manner set forth herein (but subject to the
provisions of Sections 12, 20 and 24 hereof) :
(a) Base Rental . The County shall pay to the
Corporation as a base rental (herein called the "Base
Rental" ) , semiannually, rental payments with principal
and interest components in accordance with the Rental
Payment Schedule attached hereto as Exhibit B and made a
part hereof. Each Base Rental payment shall be payable
on the fifteenth (15th) day of the month immediately
preceding its due date and any interest or other income
with respect thereto accruing prior to such due date
shall belong to the County and shall be returned by the
Corporation to the County on January 1 and July 1 of
each year. The interest components of the Base Rental
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321
payments shall be paid by the County as and constitute
interest paid on the principal components of the Base
Rental payments to be paid by the County hereunder. If
the term of this Lease shall have been extended pursuant
to Section 2 hereof, Base Rental payments shall continue
to be due on January 1 and July 1 in each year, and
payable as hereinabove described, continuing to and
including the date of termination of this Lease, in an
amount equal to the amount of Base Rental payable on
June 15, 1992 . Upon such extension of this Lease, the
principal and interest components of the Base Rental
payments shall be established so that the principal
components will in the aggregate be sufficient to pay
all unpaid principal components with interest components
sufficient to pay all unpaid interest components plus
interest on the extended principal components at a rate
equal to the rate of interest on the principal component
of the Base Rental payable June 15, 1992 . Each
semiannual payment of Base Rental shall be for the use
of the Demised Premises and Capital Project II for the
six-month period commencing on the immediately preceding
January 1 or July 1, as the case may be.
(b) Additional Rental . The County shall also pay
to the Corporation, as rental hereunder in addition to
the foregoing Base Rental, such amounts (herein called
the "Additional Rental" ) in each year as shall be
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322
required by the Corporation for the payment of all costs
and expenses incurred by the Corporation in connection
with the execution, performance or enforcement of this
Lease or any assignment hereof, the Trust Agreement, the
ownership of the Demised Premises and the Lease of the
Demised Premises and Capital Project II to the County,
including but not limited to payment of all fees, costs
and expenses and all administrative costs of the
Corporation related to the Demised Premises and Capital
Project II , including, without limiting the generality
of the foregoing, salaries and wages of employees, all
expenses, compensation and indemnification of the
Trustee payable by the Corporation under the Trust
Agreement, fees of auditors, accountants, attorneys or
engineers, insurance premiums, taxes and other costs
specified in Section 5 hereof and all other necessary
administrative costs of the Corporation or charges
required to be paid by it in order to maintain its
existence or to comply with the terms of the
Certificates or of the Trust Agreement.,
Such Additional Rental shall be billed to the
County by the Corporation or the Trustee from time to
time, together with a statement certifying that the
amount billed has been paid by the Corporation or by the
Trustee on behalf of the Corporation for one or more of
the items above described, or that such amount is then
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040034-0009-028-3769s 02/15/84 323
payable by the Corporation or the Trustee on behalf of
the Corporation for such items. Amounts so billed shall
be due and payable by the County within ten (10) days
after receipt of the bill by the County.
The Corporation has issued and intends to issue
bonds and has entered into leases and intends to enter
into leases to finance facilities other than the Demised
Premises and Capital Project II . The administrative
costs of the Corporation shall be allocated among said
facilities and Capital Project II , as hereinafter in
this paragraph provided. Any taxes levied against the
Corporation with respect to the Demised Premises and
Capital Project II , the fees of the Trustee under the
Trust Agreement, and any other expenses directly
attributable to Capital Project II shall be included in
the Additional Rental payable hereunder. Any taxes
levied against the Corporation with respect to real
property other than the Demised Premises and Capital
Project II , the fees of any trustee or paying agent
under any indenture securing bonds of the Corporation or
any trust agreement other than the Trust Agreement, and
any other expenses directly attributable to any
facilities other than Capital Project II shall not be
included in the administrative costs of Capital
Project II and shall not be paid from the Additional
Rental payable hereunder. Any expenses of the
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040034-0009-028-3769s 02/15/84
Corporation not directly attributable to any particular
project of the Corporation shall be equitably allocated
among all such projects, including Capital Project II ,
in accordance with sound accounting practice. In the
event of any question or dispute as to such allocation,
the written opinion of an independent firm of certified
public accountants, employed by the Corporation to
consider the question and render an opinion thereon,
shall be a final and conclusive determination as to such
allocation. The Trustee may conclusively rely upon the
Written Request of the Corporation, approved by the
Director of Public Works of the County or his duly
authorized representative, in making any determination
that costs are payable as Additional Rental hereunder,
and shall not be required to make any investigation as
to whether or not the items so requested to be paid are
expenses of operation of Capital Project II .
Such payments of Base Rental and Additional Rental
for each rental payment period during the term of this Lease
shall constitute the total rental for said rental payment
period, and shall be paid by the County in each rental
payment period for and in consideration of the right of use
and occupancy of, and continued quiet use and enjoyment of,
the Demised Premises and Capital Project II during each such
period for which said rental is to be paid. The parties
hereto have agreed and determined that such total rental
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represents the fair rental value of the Demised Premises and
Capital Project II . In making such determination,
consideration has been given to the purchase price of the
Demised Premises and Capital Project II , other obligations of
the parties under this Lease, the uses and purposes which may
be served by Capital Project II and the benefits therefrom
which will accrue to the County and the general public.
Each installment of rental payable hereunder shall
be paid in lawful money of the United States of America to or
upon the order of the Corporation at the principal corporate
trust office of the Trustee in San Francisco, California, or
such other place as the Corporation shall designate. Any
such installment of rental accruing hereunder which shall not
be paid when due shall bear interest at the rate of twelve
percent ( 12%) per annum, or such lesser rate of interest as
may be required by law, from the date when the same is due
hereunder until the same shall be paid. Notwithstanding any
dispute between the Corporation and the County, the County
shall make all rental payments when due without deduction or
offset of any kind and shall not withhold any rental payments
pending the final resolution of such dispute. In the event
of a determination that the County was not liable for said
rental payments or any portion thereof, said payments or
excess of payments, as the case may be, shall, at the option
of the County, be credited against subsequent rental payments
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due hereunder or be refunded at the time of such
determination.
The County covenants to take such action as may be
necessary to include all such rental payments due hereunder
in its annual budgets and to make the necessary annual
appropriations for all such rental payments. The County will
furnish to the Corporation and the Trustee copies of each
annual budget of the County within ten ( 10) days after the
adoption thereof. The covenants on the part of the County
herein contained shall be deemed to be and shall be construed
to be duties imposed by law and it shall be the duty of each
and every public official of the County to take such action
and do such things as are required by law in the performance
of the official duty of such officials to enable the County
to carry out and perform the covenants and agreements in this
Lease agreed to be carried out and performed by the County.
All rental payments received shall be applied first
to the interest components of the Base Rental due hereunder,
then to the principal components of the Base Rental due
hereunder and thereafter to all Additional Rental due
hereunder, but no such application of any payments which are
less than the total rental due and owing shall be deemed a
waiver of any default hereunder.
Rental is subject to abatement as provided in
Section 20.
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Nothing contained in this Lease shall prevent the
County from making from time to time contributions or
advances to the Corporation for any purpose now or hereafter
authorized by law.
Section 4. Use of Proceeds; Lease Fund; Certificate
Reserve Fund; Insurance Reserve Fund; Investments; No Arbitrage.
(a) Use of Proceeds. The parties hereto agree that
the proceeds of the Certificates will be used to defease the
outstanding 1982 Certificates and to finance the costs of
issuing the Certificates.
(b) Lease Fund. In consideration for the agreements
and covenants of the County herein, the Corporation agrees to
pay to the County the amount of accrued interest received by
the Trustee upon the sale and delivery of the Certificates for
deposit with the Trustee in a separate special fund, to be held
by the Trustee for and on behalf of the County, known as the
"Amended and Restated Facility Lease (2425 Bisso Lane Office
Building) Lease Fund" (herein called the "Lease Fund" ) . The
County agrees to maintain the Lease Fund with the Trustee and
to apply the moneys on deposit therein for partial payment of
the first Base Rental payment due and payable by the County as
shown in the Rental Payment Schedule attached hereto as
Exhibit B and made a part hereof.
(c) Certificate Reserve Fund. In further
consideration for the agreements and covenants of the County
herein, the Corporation further agrees to cause to be paid to
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the County from the Reserve Fund established pursuant to the
1982 Trust Agreement a sum equal to the Certificate Reserve
Fund Requirement for deposit with the Trustee in a separate
special fund, to be held by the Trustee for and on behalf of
the County, known as the "Amended and Restated Facility Lease
(2425 Bisso Lane Office Building) Certificate Reserve Fund"
(the "Certificate Reserve Fund" ) . If on January 1 or July 1 of
any year the amount in the Certificate Reserve Fund exceeds the
Certificate Reserve Fund Requirement, the Trustee, if the
County is not then in default hereunder and if the Corporation
and the County are not then in default under the Trust
Agreement, shall pay the amount of such excess to the County,
unless any portion of such excess shall be needed to increase
the balance in the Trust Administration Fund established
pursuant to the Trust Agreement to the amount required to be on
deposit in said fund, in which event the Trustee shall transfer
such portion to the Trust Administration Fund. The County
agrees to apply the moneys on deposit in the Certificate
Reserve Fund solely for the payment of Base Rental payments due
and payable by the County if and when rental shall be abated in
accordance with Section 20 hereof or when other moneys of the
County are not otherwise available to make such Base Rental
payments. The County hereby pledges and grants a lien on and a
security interest in the Certificate Reserve Fund to the
Corporation in order to secure the County' s obligation to pay
the Base Rental payments as herein provided. The County
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329
further agrees that if at any time the balance in the
Certificate Reserve Fund shall be reduced below the Certificate
Reserve Fund Requirement, the first payments of Base Rental
payments thereafter payable by the County and not needed to pay
Base Rental interest and principal components payable to the
Certificate Owners on the next Base Rental due date shall be
used to increase the balance in the Certificate Reserve Fund to
the required Certificate Reserve Fund Requirement. At the
termination of this Lease in accordance with its terms, any
balance remaining in the Certificate Reserve Fund shall be
released from the foregoing pledge, lien and security interest
and may be transferred to such other fund or account of the
County, or otherwise used by the County for any other lawful
purposes, as the County may direct.
(d) Insurance Reserve Fund. In further
consideration for the agreements and covenants of the County
herein, the Corporation further agrees to pay to the County a
sum equal to the Insurance Reserve Fund Requirement for deposit
with the Trustee in a separate special fund, to be held by the
Trustee for and on behalf of the County, known as the "Amended
and Restated Facility Lease (2425 Bisso Lane Office Building)
Insurance Reserve Fund" (the "Insurance Reserve Fund" ) . If on
January 1 or July 1 of any year the amount in the Insurance
Reserve Fund exceeds the Insurance Reserve Fund Requirement,
the Trustee, if the County is not then in default hereunder and
if the Corporation and the County are not then in default under
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330
the Trust Agreement, shall pay the amount of such excess to the
County. The Trustee agrees to cause the moneys in the
Insurance Reserve Fund, upon the Written Request of the
Corporation and the Written Request of the County, to be
applied to pay, together with insurance proceeds received or to
be received by the Trustee and to make up for portions of
losses not covered by insurance because of deductible amounts
or replacement cost limitations on the amount of insurance
obtained, for the repair, reconstruction or replacement of any
damaged or destroyed portion of Capital Project II , pursuant to
the procedure set forth in Section 7, or for the loss of rental
income not insured against because of the deductible amount
permitted by Section 9 . The County hereby pledges and grants a
lien on and a security interest in the Insurance Reserve Fund
to the Corporation in order to secure the County' s obligation
to pay the Base Rental payments as herein provided. At the
termination of this Lease in accordance with its terms, any
balance remaining in the Insurance Reserve Fund shall be
released from the foregoing pledge, lien and security interest
and may be transferred to such other fund or account of the
County, or otherwise used by the County for any other lawful
purposes, as the County may direct.
(e) Investments. Any moneys held by the Trustee in
the Lease Fund may be invested (and, upon the Written Request
of the County, shall be invested) by the Trustee in Permitted
Investments (as that term is defined in the Trust Agreement)
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which will mature on or before January 1, 1985 . Any moneys
held by the Trustee in the Certificate Reserve Fund may be
invested (and, upon the Written Request of the County, shall be
invested) by the Trustee in Permitted Investments which will
mature within the earlier of five (5) years or the date of the
last scheduled Base Rental payment. Any moneys held by the
Trustee in the Insurance Reserve Fund may be invested (and,
upon the Written Request of the County, shall be invested) by
the Trustee in Permitted Investments which will mature within
the earlier of one ( 1) year or the date of the last scheduled
Base Rental payment.
( f) No-arbitrage. The County will not make any use
of the proceeds of the obligations provided herein or any other
funds of the County which will cause such obligations to be
"arbitrage bonds" subject to federal income taxation by reason
of Section 103 (c) of the Internal Revenue Code of 1954, as
amended. To that end, so long as any rental payments are
unpaid, the County, with respect to such proceeds and such
other funds, will . comply with all requirements of such Section
103 (c) and all regulations of the United States Department of
the Treasury issued thereunder to the extent that such
requirements are, at the time, applicable and in effect.
Section 5 . Maintenance, Utilities, Taxes and
Assessments.
During such time as the County is in possession of
the Demised Premises and Capital Project II , all maintenance
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and repair, both ordinary and extraordinary, of Capital
Project II shall be the responsibility of the County, which
shall at all times maintain or otherwise arrange for the
maintenance of Capital Project II in first class condition,
and the County shall pay for or otherwise arrange for the
payment of all utility services supplied to Capital
Project II and shall pay for or otherwise arrange for the
payment of the costs of the repair and replacement of Capital
Project II resulting from ordinary wear and tear or want of
care on the part of the County or any other cause and shall
pay for or otherwise arrange for the payment of all insurance
policies required to be maintained with respect to Capital
Project II . In exchange for the rentals herein provided, the
Corporation agrees to provide only the Demised Premises and
Capital Project II .
The County shall also pay directly or pay to the
Corporation as Additional Rental hereunder pursuant to
Section 3(b) , such amounts, if any, in each year as shall be
required by the Corporation for the payment of all license
and registration fees and all taxes (including, without
limitation, income, excise, license, franchise, capital
stock, recording, sales, use, value-added, property,
occupational, excess profits and stamp taxes) , levies,
imposts, duties, charges, withholdings, assessments and
governmental charges of any nature whatsoever, together with
any additions to tax, penalties, fines or interest thereon,
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including, without limitation, penalties, fines or interest
arising out of any delay or failure by the County to pay any
of the foregoing or failure to file or furnish to the
Corporation or the Trustee for filing in a timely manner any
returns, hereinafter levied or imposed against the
Corporation or Capital Project II , the rentals and other
payments required hereunder or any parts thereof or interests
of the County or the Corporation or the Trustee therein by
any governmental authority.
The County waives the benefits of subsections 1 and
2 of section 1932 of the California Civil Code, but such
waiver shall not limit any of the rights of the County under
the terms of this Lease.
Section 6. Changes to Capital Project II .
The County shall have the right during the term of
this Lease to make alterations or improvements or attach
fixtures, structures or signs to the Demised Premises or
Capital Project II if said alterations, improvements,
fixtures, structures and signs are necessary or beneficial
for the use of the Demised Premises or Capital Project II by
the County, provided, however, that such actions by the
County shall not materially adversely affect the value of
Capital Project II .
Upon termination of this Lease, the County may
remove any fixture, structure or sign added by the County,
but such removal shall be accomplished so as to leave Capital
040034-0009-028-3769s F21 02/15/84 334
Project II , except for ordinary wear and tear, in
substantially the same condition as it was in before the
fixture, structure or sign was attached.
Section 7. Fire, Extended Coverage and Earthquake
Insurance.
The County shall procure or cause to be procured
and maintain or cause to be maintained, throughout the term
of this Lease, insurance against loss or damage to any
structures constituting any part of Capital Project II by
fire and lightning, with extended coverage insurance,
vandalism and malicious mischief insurance, and earthquake
insurance (but as to such earthquake insurance only if such
insurance is available on the open market from reputable
insurance companies) , sprinkler system leakage insurance and
boiler explosion insurance. Said extended coverage insurance
shall, as nearly as practicable, cover loss or damage by
explosion, windstorm, riot, aircraft, vehicle damage, smoke
and such other hazards as are normally covered by such
insurance. Such insurance shall be in an amount equal to the
replacement cost (without deduction for depreciation) of all
structures constituting any part of Capital Project II ,
excluding the cost of excavations, of grading and filling,
and of the land (except that such earthquake insurance may be
subject to a deductible clause of not to exceed ten per cent
of said replacement cost for any one loss and except that
such other insurance may be subject to deductible clauses for
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33
any one loss of not to exceed the lesser of $25, 000 or the
amount in the Insurance Reserve Fund established pursuant to
Section 4(d) ) , or, in the alternative, shall be in an amount
and in a form sufficient (together with moneys in the
Certificate Reserve Fund established under Section 4(c)
hereof) , in the event of total or partial loss, to enable the
Corporation to prepay all Certificates then outstanding.
In the event of any damage to or destruction of any
part of Capital Project II , caused by the perils covered by
such insurance, the Corporation, except as hereinafter
provided, shall cause the proceeds of such insurance to be
utilized for the repair, reconstruction or replacement of the
damaged or destroyed portion of Capital Project II , and the
Trustee shall hold said proceeds separate and apart from all
other funds, to the end that such proceeds shall be applied
to the repair, reconstruction or replacement of Capital
Project II to at least the same good order, repair and
condition as it was in prior to the damage or destruction,
insofar as the same may be accomplished by the use of said
proceeds. The Trustee shall permit withdrawals of said
proceeds from time to time upon receiving the Written Request
of the Corporation, stating that the Corporation has expended
moneys or incurred liabilities in an amount equal to the
amount therein requested to be paid over to it for the
purpose of repair, reconstruction or replacement, and
specifying the items for which such moneys were expended, or
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such liabilities were incurred, in such reasonable detail as
the Trustee may in its discretion require. Any balance of
said proceeds not required for such repair, reconstruction or
replacement shall be treated by the Trustee as Base Rental
payments and applied in the manner provided by Section 5 .01
of the Trust Agreement. Alternatively, the Corporation, at
its option, with the written consent of the County, and if
the proceeds of such insurance together with any other moneys
then available for the purpose are at least sufficient to
prepay an aggregate principal amount of outstanding
Certificates equal to the amount of outstanding Certificates
attributable to such structure (determined by reference to
the proportion which the construction cost of such structure
bears to the construction cost of all structures comprising
Capital Project II ) , may elect not to repair, reconstruct or
replace the damaged or destroyed portion of Capital
Project II and thereupon shall cause said proceeds to be used
for the prepayment of outstanding Certificates pursuant to
the provisions of the Trust Agreement.
Section 8. Liability Insurance.
Except as hereinafter provided, the County shall
procure or cause to be procured and maintain or cause to be
maintained, throughout the term of this Lease, a standard
comprehensive general liability insurance policy or policies
in protection of the Corporation and its directors, officers,
agents and employees and the Trustee, indemnifying said
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37
parties against all direct or contingent loss or liability
for damages for personal injury, death or property damage
occasioned by reason of the operation of Capital Project II ,
with minimum liability limits of $1, 000, 000 for personal
injury or death of each person and $3 ,000,000 for personal
injury or deaths of two or more persons in each accident or
event, and in a minimum amount of $200, 000 ( subject to a
deductible clause of not to exceed $5, 000) for damage to
property resulting from each accident or event. Such public
liability and property damage insurance may, however, be in
the form of a single limit policy in the amount of $3,000,000
covering all such risks. Such liability insurance may be
maintained as part of or in conjunction with any other
liability insurance carried by the County.
As an alternative to providing the insurance
required by the first paragraph of this Section, the County,
with the written consent of the Corporation, may provide a
self insurance method or plan of protection if and to the
extent such self insurance method or plan of protection shall
afford reasonable protection to the Corporation, its
directors, officers, agents and employees and the Trustee, in
light of all circumstances, giving consideration to cost,
availability and similar plans or methods of protection
adopted by counties in the State of California other than the
County. Before another method or plan may be provided by the
County, there shall be filed with the Trustee a certificate
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of an actuary, independent insurance consultant or other
qualified person, stating that, in the opinion of the signer,
the substitute method or plan of protection is in accordance
with the requirements of this Section and, when effective,
would afford adequate protection to the Corporation, its
directors, officers, agents and employees and the Trustee
against loss and damage from the hazards and risks covered
thereby. There shall also be filed a certificate of the
Corporation setting forth the details of such substitute
method or plan.
Section 9 . Rental Interruption or Use and Occupancy
Insurance .
The County shall procure or cause to be procured
and maintain or cause to be maintained, throughout the term
of this Lease, rental interruption or use and occupancy
insurance to cover loss, total or partial, of the rental
income from or the use of Capital Project II as the result of
any of the hazards covered by the insurance required by
Section 7 hereof, in an amount sufficient to pay the part of
the total rent hereunder attributable to the portion of
Capital Project II rendered unusable (determined by reference
to the proportion which the construction cost of such portion
bears to the construction cost of Capital Project II ) for a
period of at least two years, except that such insurance may
be subject to a deductible clause of not to exceed one
thousand dollars ($1, 000) , and except that such insurance
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need be maintained as to the peril of earthquake only if such
insurance is available on the open market from reputable
insurance companies. Any proceeds of such insurance shall be
used by the Trustee to reimburse to the County any rental
theretofore paid by the County under this Lease attributable
to such structure for a period of time during which the
payment of rental under this Lease is abated, and any
proceeds of such insurance not so used shall be applied as
provided in Section 3(a) (to the extent required for the
payment of Base Rental) and in Section 3 (b) (to the extent
required for the payment of Additional Rental) .
Section 10. Insurance Proceeds; Form of Policies.
All policies of insurance required by Sections 7
and 9 hereof shall provide that all proceeds thereunder shall
be payable to the Trustee pursuant to a lender' s loss payable
endorsement substantially in accordance with the form
approved by the Insurance Services Office and the California
Bankers Association. The Trustee shall collect, adjust and
receive all moneys which may become due and payable under any
such policies, may compromise any and all claims thereunder
and shall apply the proceeds of such insurance as provided in
Sections 7 and 9 . All policies of insurance required by this
Lease shall provide that the Trustee shall be given
thirty (30) days notice of each expiration thereof or any
intended cancellation thereof or reduction of the coverage
provided thereby. The Trustee shall not be responsible for
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the sufficiency of any insurance herein required and shall be
fully protected in accepting payment on account of such
insurance or any adjustment, compromise or settlement of any
loss agreed to by the Trustee. The County shall pay when due
the premiums for all insurance policies required by this
Lease, and shall promptly furnish evidence of such payments
to the Corporation and the Trustee.
The County will deliver to the Corporation and the
Trustee in the month of August in each year a schedule, in
such detail as the Trustee in its discretion may request,
setting forth the insurance policies then in force pursuant
to this Section, the names of the insurers which have issued
the policies, the amounts thereof and the property and risks
covered thereby or the report of an actuary, independent
insurance consultant or other qualified person as described
in Section 8. Delivery to the Trustee of the schedule of
insurance policies under the provisions of this Section shall
not confer responsibility upon the Trustee as to the
sufficiency of coverage or amounts of such policies. If so
requested in writing by the Trustee, the County shall also
deliver to the Trustee certificates or duplicate originals or
certified copies of each insurance policy described in such
schedule.
Section 11 . Default.
(a) If the County shall fail to pay any rental
payable hereunder when the same becomes due and payable, time
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( 341
being expressly declared to be of the essence of this Lease,
or the County shall fail to keep, observe or perform any
other term, covenant or condition contained herein to be kept
or performed by the County, or upon the happening of any of
the events specified in subsection (b) of this Section ( any
such case above being an "Event of Default" ) , the County
shall be deemed to be in default hereunder and it shall be
lawful for the Corporation to exercise any and all remedies
available pursuant to law or granted pursuant to this Lease.
Upon any such default, the Corporation, in addition to all
other rights and remedies it may have at law, shall have the
option to do any of the following:
( 1 ) To terminate this Lease in the manner
hereinafter provided on account of default by the
County, notwithstanding any re-entry or re-letting of
Capital Project II as hereinafter provided for in
subparagraph (2 ) hereof, and to re-enter Capital
Project II and remove all persons in possession thereof
and all personal property whatsoever situated upon
Capital Project II and place such personal property in
storage in any warehouse or other suitable place in the
County of Contra Costa, State of California. In the
event of such termination, the County agrees to
surrender immediately possession of Capital Project II ,
without let or hindrance, and to pay the Corporation all
damages recoverable at law that the Corporation may
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42
incur by reason of default by the County, including,
without limitation, any costs, loss or damage whatsoever
arising out of, in connection with, or incident to any
such re-entry upon Capital Project II and removal or
storage of such property by the Corporation or its duly
authorized agents in accordance with the provisions
herein contained. Neither notice to pay rent or to
deliver up possession of Capital Project II given
pursuant to law nor any entry or re-entry by the
Corporation nor any proceeding in unlawful detainer, or
otherwise, brought by the Corporation for the purpose of
effecting such re-entry or obtaining possession of
Capital Project II nor the appointment of a receiver
upon initiative of the Corporation to protect the
Corporation' s interest under this Lease shall of itself
operate to terminate this Lease, and no termination of
this Lease on account of default by the County shall be
or become effective by operation of law or acts of the
parties hereto, .unless and until the Corporation shall
have given written notice to the County of the election
on the part of the Corporation to terminate this Lease
and unless and until the insurer, if any, insuring
payment of the principal and interest components
represented by the Certificates shall have given its
prior written consent thereto . The County covenants and
agrees that no surrender of Capital Project II or of the
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remainder of the term hereof or any termination of this
Lease shall be valid in any manner or for any purpose
whatsoever unless stated or accepted by the Corporation
by such written notice.
(2 ) Without terminating this Lease, (i ) to collect
each installment of rent as it becomes due and enforce
any other term or provision hereof to be kept or
performed by the County and/or (ii ) to exercise any and
all rights of entry and re-entry upon Capital
Project II . In the event the Corporation does not elect
to terminate this Lease in the manner provided for in
subparagraph (1) hereof, the County shall remain liable
and agrees to keep or perform all covenants and
conditions herein contained to be kept or performed by
the County and, if Capital Project II is not re-let, to
pay the full amount of the rent to the end of the term
of this Lease or, in the event that Capital Project II
is re-let, to pay any deficiency in rent that results
therefrom; and further agrees to pay said rent and/or
rent deficiency punctually at the same time and in the
same manner as hereinabove provided for the payment of
rent hereunder (without acceleration) , notwithstanding
the fact that the Corporation may have received in
previous years or may receive thereafter in subsequent
years rental in excess of the rental herein specified
and notwithstanding any entry or re-entry by the
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( 344
Corporation or suit in unlawful detainer, or otherwise,
brought by the Corporation for the purpose of effecting
such re-entry or obtaining possession of Capital
Project II . Should the Corporation elect to re-enter as
herein provided, the County hereby irrevocably appoints
the Corporation as the agent and attorney-in-fact of the
County to re-let Capital Project II , or any part
thereof, from time to time, either in the Corporation' s
name or otherwise, upon such terms and conditions and
for such use and period as the Corporation may deem
advisable and to remove all persons in possession
thereof and all personal property whatsoever situated
upon Capital Project II and to place such personal
property in storage in any warehouse or other suitable
place in the County of Contra Costa, State of
California, for the account of and at the expense of the
County, and the County hereby exempts and agrees to save
harmless the Corporation from any costs, loss or damage
whatsoever arising out of, in connection with, or
incident to any such re-entry upon and re-letting of
Capital Project II and removal and storage of such
property by the Corporation or its duly authorized
agents in accordance with the provisions herein
contained. The County agrees that the terms of this
Lease constitute full and sufficient notice of the right
of the Corporation to re-let Capital Project II in the
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event of such re-entry without effecting a surrender of
this Lease, and further agrees that no acts of the
Corporation in effecting such re-letting shall
constitute a surrender or termination of this Lease
irrespective of the use or the term for which such
re-letting is made or the terms and conditions of such
re-letting, or otherwise, but that, on the contrary, in
the event of such default by the County the right to
terminate this Lease shall vest in the Corporation to be
effected in the sole and exclusive manner provided for
in subparagraph ( 1) hereof. The County further waives
the right to rental obtained by the Corporation in
excess of the rental herein specified and hereby conveys
and releases such excess to the Corporation as
compensation to the Corporation for its services in
reletting Capital Project II or any part thereof. The
County further agrees to pay the Corporation the cost of
any alterations or additions to Capital Project II or
any part thereof necessary to place Capital Project II
or any part thereof in condition for re-letting
immediately upon notice to the County of the completion
and installation of such additions or alterations.
The County hereby waives any and all claims for
damages caused or which may be caused by the Corporation in
re-entering and taking possession of Capital Project II as
herein provided and all claims for damages that may result
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346
from the destruction of or injury to Capital Project II and
all claims for damages to or loss of any property belonging
to the County, or any other person, that may be in or upon
Capital Project II .
Each and all of the remedies given to the
Corporation hereunder or by any law now or hereafter enacted
are cumulative and the exercise of one right or remedy shall
not impair the right of the Corporation to any or all other
remedies. The term "re-let" or "re-letting" as used in this
Section shall include, but not be limited to, re-letting by
means of the operation by the Corporation of Capital
Project II . If any statute or rule of law validly shall
limit the remedies given to the Corporation hereunder, the
Corporation nevertheless shall be entitled to whatever
remedies are allowable under any statute or rule of law.
In the event the Corporation shall prevail in any
action brought to enforce any of the terms and provisions of
this Lease, the County agrees to pay a reasonable amount as
and for attorney' s fees incurred by the Corporation in
attempting to enforce any of the remedies available to the
Corporation hereunder, whether or not a lawsuit has been
filed and whether or not any lawsuit culminates in a judgment.
(b) I£ (1) the County' s interest in this Lease or
any part thereof be assigned or transferred without the
written consent of the Corporation, either voluntarily or by
operation of law or otherwise, or if (2) the County or any
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347
assignee shall file any petition or institute any proceeding
under the Bankruptcy Act, either as such Act now exists or
under any amendment thereof which may hereafter be enacted,
or under any act or acts, state or federal, dealing with or
relating to the subject or subjects of bankruptcy or
insolvency, or under any amendment of such act or acts,
either as a bankrupt or as an insolvent or as a debtor or in
any similar capacity, wherein or whereby the County asks or
seeks or prays to be adjudicated a bankrupt, or is to be
discharged from any or all of the County' s debts or
obligations, or offers to the County' s creditors to effect a
composition or extension of time to pay the County' s debts or
asks, seeks or prays for a reorganization or to effect a plan
of reorganization, or for a readjustment of the County' s
debts, or for any other similar relief, or if any such
petition or if any such proceedings of the same or similar
kind or character be filed or be instituted or taken against
the County, or if a receiver of the business or of the
property or assets of the County shall be appointed by any
court, except a receiver appointed at the instance or request
of the Corporation, or if the County shall make a general or
any assignment for the benefit of the County' s creditors, or
if (3) the County shall abandon or vacate any part of Capital
Project II (except pursuant to Section 24 hereof) , then the
County shall be deemed to be in default hereunder.
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348 '
(c) The Corporation shall in no event be in
default in the performance of any of its obligations
hereunder or imposed by any statute or rule of law unless and
until the Corporation shall have failed to perform such -
obligations within thirty (30) days or such additional time
as is reasonably required to correct any such default after
notice by the County to the Corporation properly specifying
wherein the Corporation has failed to perform any such
obligation.
Section 12 . Eminent Domain.
If the whole of the Demised Premises and Capital
Project II or so much thereof as to render the remainder
unusable for the purposes for which it was used by the County
shall be taken under the power of eminent domain, the term of
this Lease shall cease as of the day that possession shall be
so taken. If less than the whole of the Demised Premises and
Capital Project II shall be taken under the power of eminent
domain and the remainder is usable for the purposes for which
it was used by the County at the time of such taking, then
this Lease shall continue in full force and effect as to such
remainder, and the parties waive the benefits of any law to
the contrary, and in such event there shall be a partial
abatement of the Base Rental due hereunder in an amount
equivalent to that proportion of the Base Rental due
hereunder which the fair market value of the portion taken
bears to the fair market value of the Demised Premises and
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49
Capital Project II as a whole. So long as any of the
Certificates shall be outstanding (as such term is defined in
the Trust Agreement) any award made in eminent domain
proceedings for taking the Demised Premises and Capital
Project II or any portion thereof shall be applied to the
prepayment of Base Rental payments as provided in Section 13
hereof. Any such award made after all of the Certificates
have been fully paid and retired shall be paid to the
Corporation and to the County as their respective interests
may appear.
Section 13 . Prepayment.
The County shall prepay on any date from insurance
and eminent domain proceeds, to the extent provided in
Sections 7, 9 and 12 hereof (provided, however, that in the
event of partial damage to or destruction of Capital
Project II , if in the judgment of the Corporation the
insurance proceeds are sufficient to repair or rebuild
Capital Project II , such proceeds shall be held by the
Trustee and used to repair or rebuild Capital Project II ,
pursuant to the procedure set forth in Section 7 for the
proceeds of insurance) , all or any part (in an integral
multiple of $5, 000) of the principal components of Base
Rental payments then unpaid so that the aggregate semiannual
amounts of principal components of Base Rental payments which
shall be payable after such prepayment date shall be as
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355-0
nearly proportional as practicable to the aggregate
semiannual amounts of principal components of Base Rental
payments unpaid prior to the prepayment date, at a prepayment
amount equal to the sum of the principal component prepaid
plus accrued interest thereon to the date of prepayment, plus
any applicable premium. Before making any prepayment
pursuant to this Section, the County shall, within five (5)
days following the event creating such obligation to prepay,
give written notice to the Corporation describing such event
and specifying the date on which the prepayment will be made,
which date shall be not less than thirty (30) nor more than
forty-five (45) days from the date such notice is given.
Section 14. Right of Entry.
The Corporation and its assignees shall have the
right to enter the Demised Premises and Capital Project II
during reasonable business hours (and in emergencies at all
times) (a) to inspect the same, (b) for any purpose connected
with the Corporation' s or the County' s rights or obligations
under this Lease, and (c) for all other lawful purposes.
Section 15. Liens.
In the event the County shall at any time during
the term of this Lease cause any changes, alterations,
additions, improvements, or other work to be done or
performed or materials to be supplied, in or upon the Demised
Premises or Capital Project II, the County shall pay, when
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351
due, all sums of money that may become due for, or purporting
to be for, any labor, services, materials, supplies or
equipment furnished or alleged to have been furnished to or
for the County in, upon or about the Demised Premises or
Capital Project II and shall keep the Demised Premises and
Capital Project II free of any and all mechanics' or
materialmen' s liens or other liens against the Demised
Premises or Capital Project II or the Corporation' s interest
therein. In the event any such lien attaches to or is filed
against the Demised Premises or Capital Project II or the
Corporation' s interest therein, the County shall cause each
such lien to be fully discharged and released at the time the
performance of any obligation secured by any such lien
matures or becomes due, except that if the County desires to
contest any such lien it may do so. If any 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, the County shall forthwith pay or cause to be paid
and discharged such judgment. The County agrees to and
shall, to the maximum extent permitted by law, indemnify and
hold the Corporation, its directors, agents, successors and
assigns, harmless from and against, and defend each of them
against, any claim, demand, loss, damage, liability or
expense (including attorney' s fees) as a result of any such
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lien or claim of lien against the Demised Premises or Capital
Project II or the Corporation' s interest therein.
Section 16. Quiet Enjoyment.
The parties hereto mutually covenant that the
County, so long as it keeps and performs the covenants and
agreements herein contained and is not in default hereunder,
shall at all times during the term of this Lease peaceably
and quietly, have, hold and enjoy the Demised Premises and
Capital Project II without suit, trouble or hindrance from
the Corporation.
Section 17 . Corporation Not Liable.
The Corporation and its directors, officers, agents
and employees and the Trustee shall not be liable to the
County or to any other party whomsoever for any death, injury
or damage that may result to any person or property by or
from any cause whatsoever in, on or about the Demised
Premises or Capital Project II . The County, to the extent
permitted by law, shall indemnify and hold the Corporation
and its directors, officers, agents and employees and the
Trustee harmless from, and defend each of them against, any
and all claims, liens and judgments for death of or injury to
any person or damage to property whatsoever occurring in, on
or about the Demised Premises or Capital Project II .
Section 18. Assignment.
Neither this Lease nor any interest of the County
hereunder shall be mortgaged, pledged, assigned, sublet or
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1 353
transferred by the County by voluntary act or by operation of
law or otherwise, except with the prior written consent of
the Corporation, which, in the case of subletting, shall not
be unreasonably withheld. No such mortgage, pledge,
assignment, sublease or transfer shall in any event effect or
reduce the obligation of the County to make the Base Rental
and Additional Rental payments required hereunder.
Section 19 . Title to Demised Premises and Capital
Project II .
Title to the Demised Premises and Capital
Project II and all structural additions thereto shall remain
in the Corporation during the term of this Lease, subject, in
the case of the Demised Premises, to the terms and conditions
of the Deed of Gift. Title to all fixtures added to Capital
Project II pursuant to Section 6 of this Lease and to all
personal property placed in or about Capital Project II by
the County shall remain in the County.
Upon the termination or expiration of this Lease
(other than as provided in Sections 11 and 12 hereof) , title
to Capital Project II shall vest in the County.
Section 20. Abatement of Rental .
The rental shall be abated proportionately, during
any period in which by reason of any damage or destruction
(other than by condemnation which is hereinbefore provided
for) there is substantial interference with the use and
occupancy of the Demised Premises and Capital Project II by
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the County, in the proportion in which the initial cost of
that portion of the Demised Premises and Capital Project II
rendered unusable bears to the initial cost of the whole of
the Demised Premises and Capital Project H . Such abatement
shall continue for the period commencing with such damage or
destruction and ending with the substantial completion of the
work of repair or reconstruction. In the event of any such
damage or destruction, this Lease shall continue in full
force and effect and the County waives any right to terminate
this Lease by virtue of any such damage or destruction.
Section 21 . Law Governing.
This Lease shall be governed exclusively by the
provisions hereof and by the laws of the State of California
as the same may from time to time exist.
Section 22 . Notices.
All notices, statements, demands, consents,
approvals, authorizations, offers, designations, requests or
other communications hereunder by either party to the other
shall be in writing and shall be sufficiently given and
served upon the other party if delivered personally or if
mailed by United States registered or certified mail, return
receipt requested, postage prepaid, and, if to the
Corporation, addressed to the Corporation in care of the
County Clerk and Clerk of the Board of Supervisors, County of
Contra Costa, County Administration Building, 651 Pine
Street, Martinez, California 94553, or, if to the County,
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addressed to the County in care of County Clerk and Clerk of
the Board of Supervisors, County of Contra Costa, County
Administration Building, 651 Pine Street, Martinez,
California 94553, in either case with a copy to the Trustee,
or to such other addresses as the respective parties may from
time to time designate by notice in writing.
Section 23 . Validity and Severability.
If for any reason this Lease or any part thereof
shall be held by a court of competent jurisdiction to be
void, voidable, or unenforceable by the Corporation or by the
County, all of the remaining terms of this Lease shall
nonetheless continue in full force and effect. If for any
reason it is held by such a court that any of the covenants
and conditions of the County hereunder, including the
covenant to pay rentals hereunder, is unenforceable for the
full term hereof, then and in such event this Lease is and
shall be deemed to be a lease from year to year under which
the rentals are to be paid by the County semiannually in
consideration of the right of the County to possess, occupy
and use the Demised Premises and Capital Project II , and all
of the rental and other terms, provisions and conditions of
this Lease, except to the extent that such terms, provisions
and conditions are contrary to or inconsistent with such
holding, shall remain in full force and effect.
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Section 24. Purpose of Lease; Industrial
Development Bond Covenant; Option to Purchase; Personal
Property.
The County covenants that during the term of this
Lease, except as hereinafter provided, (a) it will use, or
cause the use of, the Demised Premises and Capital Project II
for public purposes and for the purposes for which the
Capital Project II facilities are customarily used, (b) it
will not vacate or abandon Capital Project II or any part
thereof, and (c) it will not make any use of the Demised
Premises and Capital Project II which would jeopardize in any
way the insurance coverage required to be maintained pursuant
to Sections 7, 8 and 9 hereof.
The County further covenants that it will not use
or permit the use of the Capital Project II by any person not
an "exempt person" within the meaning of Section 103 (b) (3 ) of
the Internal Revenue Code of 1954, as amended, or by an
"exempt person" (including the County) in an "unrelated trade
or business" within the meaning of Section 513(a) of said
code, in such manner .or to such extent as would result in the
loss of exemption from federal income tax of the portion of
the Base Rental Payments designated as interest in this Lease
under Section 103 of said code.
The County shall have the option to purchase the
Corporation' s interest in any part of the Demised Premises
and Capital Project II upon payment of an option price equal
to the aggregate amount for the entire remaining term of this
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Lease of the part of the total rent hereunder attributable to
such part of Capital Project II (determined by reference to
the proportion which the construction cost of such part of
Capital Project II bears to the construction cost of all of
Capital Project II ) . Any such payment shall be made to the
Trustee and shall be treated as Rental Payments (as such term
is defined in the Trust Agreement) , and shall be applied by
the Trustee to pay the interest and principal components of
the Certificates. Upon the making of such payment to the
Trustee, (a) the interest and principal components of each
semiannual installment of Base Rental thereafter payable
under this Lease shall be reduced by the amount thereof
attributable to such part of Capital Project II and
theretofore paid pursuant to this Section, (b) Section 20 and
this Section of this Lease shall not thereafter be applicable
to such part of Capital Project II , (c) the insurance
required by Sections 7, 8 and 9 of this Lease need not be
maintained as to such part of Capital Project II , and
(d) title to such part of Capital Project II and of the
portion of the Demised Premises upon which such part of
Capital Project II is located shall vest in the County and
the term of this Lease shall end as to the portion of the
Demised Premises upon which such part of Capital Project II
is located and to such part of Capital Project II .
The County, in its discretion, may request the
Corporation to sell or exchange any personal property which
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may at any time constitute a part of Capital Project II , and
to release said personal property from this Lease, if (a) in
the opinion of the County the property so sold or exchanged
is no longer required or useful in connection with the
operation of Capital Project II , (b) the consideration to be
received from the property is of a value substantially equal
to the value of the property to be released, and (c) if the
value of any such property shall, in the opinion of the
Corporation, exceed the amount of $50, 000, the Corporation
shall have been furnished a certificate of an independent
engineer or other qualified independent professional
consultant ( satisfactory to the Corporation) certifying the
value thereof and further certifying that such property is no
longer required or useful in connection with the operation of
Capital Project II . In the event of any such sale, the full
amount of the money consideration received for the personal
property so sold and released shall be paid to the
Corporation. Any money so paid to the Corporation may, so
long as the County is not in default under any of the
provisions of this Lease, be used upon the Written Request of
the County to purchase personal property, which property
shall become a part of Capital Project II leased hereunder.
The Corporation may require such opinions, certificates and
other documents as it may deem necessary before permitting
any sale or exchange of personal property subject to this
F46
040034-0009-028-3769s 02/19/84
359
Lease or before releasing for the purchase of new personal
property money received by it for personal property so sold.
Section 25. Waiver.
Failure of the Corporation to take advantage of any
default on the part of the County shall not be, or be
construed as, a waiver thereof, nor shall any custom or
practice which may grow up between the parties in the course
of administering this Lease be construed to waive or to
lessen the right of the Corporation to insist upon
performance by the County of any term, covenant or condition
hereof, or to exercise any rights given the Corporation on
account of such default. A waiver of a particular default
shall not be deemed to be a waiver of the same or any
subsequent default. The acceptance of rent hereunder shall
not be, nor be construed to be, a waiver of any term,
covenant or condition of this Lease.
Section 26. Net Lease.
This Lease shall be deemed and construed to be a
"net lease" and the County hereby agrees that the rents
provided for herein shall be an absolute net return to the
Corporation, free and clear of any expenses, charges or
setoffs whatsoever.
Section 27 . Restated and Amended 1982 Lease.
The 1982 Lease is amended and completely restated
in this Lease.
F47
040034-0009-028-3769s 02/15/84 3 O
Section 28. Headings.
All section headings contained herein are for
convenience of reference only and are not intended to define
or limit the scope of any provision of this Lease.
Section 29 . Execution.
This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an
original, but all together shall constitute but one and the
same Lease. It is also agreed that separate counterparts of
this Lease may separately be executed by the Corporation and
the County, all with the same force and effect as though the
same counterpart had been executed by both the Corporation
and the County.
IN WITNESS WHEREOF, the Corporation and the County
have caused this Lease to be executed by their respective
F48
040034-0009-028-3769s 02/15/84 361
officers thereunto duly authorized, all as of the day and
year first above written.
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
[ SEAL]
Attest:
Secretary
COUNTY OF CONTRA COSTA
By
Chairman of the
Board of Supervisors
[ SEAL]
Attest:
County Clerk and ex officio Clerk
of the Board of Supervisors
Approved as to form:
County Counsel
By
Deputy County Counsel
F49
040034-0009-028-3769s 02/15/84 362
EXHIBIT A
All that certain real property situate in the State
of California, County of Contra Costa, City of Concord,
described as follows:
PARCEL ONE:
Parcel "B" of Parcel Map filed April 16, 1976, in
Book 44 of Parcel Maps, page 20, Contra Costa County Records .
Excepting therefrom:
An undivided 1/2:.ihterest in and to all oil, gas,
casinghead gasoline and hydrocarbons and mineral substances
below a point 500 feet below the surface of said real
property, together with the right to take, remove, mine and
dispose of said oil, gas, casinghead gasoline and other
hydrocarbons and minerals, as reserved in the deed from John
D. Bisso, Eleanor M. Bisso and Louis A. Bisso, each as to an
undivided 1/6 interest; and George Bisso, Edith I . B. Firpo,
Louise Minns and Rose Caperton, each as to an undivided 1/8
interest and recorded September 1, 1971, in Book 6468, Page
805, Official Records.
PARCEL TWO:
A portion of Parcel "A" of Record of Survey filed
November 8, 1972, in Book 55 of Licensed Surveyors Maps, page
27, Contra Costa County Records, described as follows:
Beginning at the most easterly corner of said
Parcel "A" (55 L. S.M. 27) ; said point being the true point of
beginning of this description; thence from said true point of
beginning South 140 25' 47" West, 212. 11 feet to the most
southerly corner of said Parcel "A" (55 L. S.M. 27 ) ; thence
North 750 34' 13" West, 30. 00 feet; thence North 140 25 ' 47"
East, 212 . 11 feet; thence South 750 34' 13" East, 30.00 feet
to the true point of beginning of this description.
Excepting therefrom:
(1) That portion thereof described in the Offer of
Dedication to the City of Concord, recorded April 12, 1977,
in Book 8281, Page 66, Official Records, as follows:
Beginning at the most easterly corner of said
Parcel "A" (55 L. S.M. 27) ; thence South 140 25' 47" West,
9.35 feet; thence along the arc of a non-tangent curve to the
left, center of which bears South 330 31' 25" West, having a
radius of 170 feet through a central angle of 10° 25' 47" , an
EXHIBIT A
Page 1 of 3 .3 6.3
arc length of 30. 95 feet; thence leaving said curve on a
non-radial line North 14° 25' 47" East, 1 .94 feet; thence
South 75° 34' 13" East, 30. 00 feet to the true point of
beginning.
(2 ) An undivided 1/2 interest in and to all oil,
gas, casinghead gasoline and hydrocarbons and mineral
substances below a point 500 feet below the surface of said
real property, together with the right to take, remove, mine
and dispose of said oil, gas, casinghead gasoline and other
hydrocarbons and minerals, as reserved in the deed from John
D. Bisso, Eleanor M. Bisso and Louis A, Bisso, each as to an
undivided 1/6 interest; and George Bisso, Edith I . B. Firpo,
Louise Minns and Rose Caperton, each as to an undivided 1/8
interest and recorded September 1, 1971, in Book 6468, Page
805, Official Records.
PARCEL THREE:
The easement described in the deed from Irving
Lutz, et al, to Duffel Financial and Construction Company,
recorded August 10, 1978, in Book 8961, Page 294, Official
Records, as follows:
An ingress-egress and utility easement over a
portion of Parcel "A" of the Record of Survey, filed
November 8, 1972, in Book 55 of Land Surveyor' s Maps, at page
27, in the office of the Contra Costa County Recorder, more
particularly described as follows:
Beginning at the common corner to Parcel "A" & "B"
(55 L. S.M. 27) on the easterly right of way line of Stanwell
Drive, the true point of beginning of this description;
thence from said true point of beginning South 75° 34' 13"
East, 279. 00 feet; thence North 140 25' 47" East, 212 . 04 feet
to a point on a curve on the southerly right of way of Bisso
Lane; thence westerly along the arc of said curve having a
radius of 170 feet the center of which bears South 16° 06'
55" West, through a central angle of 010 41' 06" an arc
length of 5.00 feet; thence tangent to said curve along the
southerly right of way of Bisso Lane North 750 34' 13" West,
19 .00 feet; thence leaving said Bisso Lane right of way South
. 140 25' 47" West, 198. 75 feet; thence North 75° 34' 13" West,
255.00 feet to the easterly right of way line of Stanwell
Drive; thence along the right of way line of Stanwell Drive
South 140 25' 47" West, 13 .36 feet to the true point of
beginning of this description.
EXHIBIT A
Page 2 of 3 364
PARCEL FOUR:
The easement described in the deed from Irving
Lutz, et al, to Duffel Financial and Construction Company,
recorded August 10, 1978, in Book 8961, Page 296, Official
Records, as follows:
An ingress-egress and utility easement over a
portion of Parcel "B" of the Record of Survey, filed
November 8, 1972, in Book 55 of Land Surveyor' s Maps, at page
27, in the office of the Contra Costa County Recorder, more
particularly described as follows:
Beginning at the common corner to Parcels "A" & "B"
(55 L. S.M. 27 ) on the eastefly right of way line of Stanwell
Drive; thence from said point of beginning South 14° 25' 47"
West, 10. 64 feet; thence South 75° 34' 13" East, 227 .00 feet;
thence North 140 25 ' 47" East, 3 . 64 feet; thence South 750
34' 13" East, 15. 00 feet; thence North 140 25' 47" East, 7 . 00
feet; thence North 750 34' 14" West, 242 .00 feet to the point
of beginning of this description.
EXHIBIT A
Page 3 of 3 365
EXHIBIT B
Rental Payment Schedule
Amount Amount
Base Rental Total Base Attributable Attributable
Payment Dates( 1) Rental Payment to Principal to Interest
December 15, 1984 $ $ 0 $
June 15, 1985
December 15, 1985
June 15, 1986
December 15, 1986
June 15, 1987
December 15, 1987
June 15, 1988
December 15, 1988
June 15, 1989
December 15, 1989
June 15, 1990
December 15, 1990
June 15, 1991
December 15, 1991
June 15, 1992
( 1) Due date is the first day of the following month.
B-1
040034-0009-028-3769s 02/15/84 366
State of California )
ss.
County of Contra Costa )
On this day of April, in the year 1984, before
me, a notary public in and for the State of
California, duly commissioned and sworn, personally appeared
known to me to be the President, and
, known to me to be the Secretary, of
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION, the
corporation that executed the within instrument, and known to
me to be the persons who executed the within instrument on
behalf of said corporation therein named, and acknowledged to
me that such corporation executed the within instrument
pursuant to its bylaws or a resolution of its board of
directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Notary Public in and for the
State of California
My commission expires:
[Notarial Seal ]
367
State of California )
ss.
County of Contra Costa )
On this day of April, in the year 1984, before
me, , a Deputy Clerk of the County of Contra
Costa, State of California, duly commissioned and sworn,
personally appeared , known to me to be
the Chairman of the Board of Supervisors, and
, known to me to be the County Clerk and
Ex-officio Clerk of the Board of Supervisors, of the County
of Contra Costa, the county that executed the within
instrument, and known to me to be the persons who executed
the within instrument on behalf of said political subdivision
therein named, and acknowledged to me that such political
subdivision executed the within instrument pursuant to a
resolution of the Board of Supervisors of the County of
Contra Costa.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Deputy Clerk County of Contra
Costa
[ Seal ]
368
� `
��s
yj
r CCe-8
3764s
} 2-14-84 Draft ( 1st Draft)
TRUST AGREEMENT
by and among
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
and
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION
and the
COUNTY OF CONTRA COSTA
Dated as of April 1, 1984
RELATING TO $_, 000, 000 1984 CERTIFICATES OF
PARTICIPATION
FOR CAPITAL PROJECT II
(2425 Bisso Lane Office Building)
370
r
TABLE OF CONTENTS
Page
PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1 . 01 . Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 1 . 02 . Equal Security . . . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE II
TERMS AND CONDITIONS OF CERTIFICATES
SECTION 2 . 01 . Preparation of Certificates . . . . . . . . . . . . .
SECTION 2 . 02 . Denominations, Medium, Method and
Place of Payment and Dating of
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2 . 03 . Payment Dates of Certificates . . . . . . . . . . .
SECTION 2 . 04. Form of Certificates . . . . . . . . . . . . . . . . . . . .
SECTION 2 . 05 . Execution of Certificates . . . . . . . . . . . . . . .
SECTION 2 . 06. Transfer and Payment of
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 2 . 07 . Certificate Registration Books . . . . . . . . . .
SECTION 2 . 08 . Temporary Certificates . . . . . . . . . . . . . . . . . .
SECTION 2 .09 . Certificates Mutilated, Lost,
Destroyed or Stolen . . . . . . . . . . . . . . . . . . .
ARTICLE III
PROCEEDS OF CERTIFICATES
SECTION 3 . 01 . Delivery of Certificates . . . . . . . . . . . . . . . .
SECTION 3 .02 . Deposit of Proceeds of Certificates
and Other Moneys . . . . . . . . . . . . . . . . . . . . . .
SECTION 3 .03 . Use of Moneys in the Refunding
Expenses Fund . . . . . . . . . . . . . . . . . . . . . . . . .
i
371
Page
• ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4. 01 . Terms of Prepayment . . . . . . . . . . . . . . . . . . . . .
SECTION 4. 02 . Selection of Certificates for
Prepayment . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 4. 03 . Notice of Prepayment . . . . . . . . . . . . . . . . . . . .
SECTION 4. 04. Partial Prepayment of Certificates . . . . . .
SECTION 4. 05 . Effect of Prepayment . . . . . . . . . . . . . . . . . . . .
ARTICLE V
RENTAL PAYMENTS
SECTION 5 . 01 . Pledge of Base Rental Payments; Base
Rental Payment Fund . . . . . . . . . . . . . . . . . . .
SECTION 5 . 02 . Deposit of Base Rental Payments . . . . . . . . .
( a) Interest Fund . . . . . . . . . . . . . . . . . . . . . . .
(b) Principal Fund . . . . . . . . . . . . . . . . . . . . . .
(c) Prepayment Fund . . . . . . . . . . . . . . . . . . . . .
SECTION 5 . 03 Trust Administration Fund . . . . . . . . . . . . . . .
ARTICLE VI
COVENANTS
SECTION 6 . 01 . Compliance with Trust Agreement . . . . . . . . .
SECTION 6 . 02 . Compliance with or Amendment of
Facility Lease . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6. 03 . Observance of Laws and Regulations . . . . . .
SECTION 6. 04. Other Liens . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 6. 05 . Prosecution and Defense of Suits . . . . . . . .
SECTION 6. 06. Accounting Records and Statements . . . . . . .
SECTION 6. 07 . Recordation and Filing . . . . . . . . . . . . . . . . . .
SECTION 6. 08 . Further Assurances . . . . . . . . . . . . . . . . . . . . . .
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7 . 01 . Action on Default . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7 . 02 . Other Remedies of the Trustee . . . . . . . . . . .
SECTION 7 . 03 . Non-Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7 . 04. Remedies Not Exclusive . . . . . . . . . . . . . . . . . .
SECTION 7 . 05 . No Liability by the Corporation
to the Owners . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7 . 06. No Liability by the County to
the Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 7 . 07 . No Liability by the Trustee to
the Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . .
ii
372
Page
ARTICLE VIII
THE TRUSTEE
SECTION 8. 01 . Employment of the Trustee . . . . . . . . . . . . . . .
SECTION 8. 02 . Duties, Removal and Resignation
of the Trustee . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8. 03 . Compensation and Indemnification
of the Trustee . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 8. 04. Protection of the Trustee . . . . . . . . . . . . . . .
ARTICLE IX
AMENDMENT OF OR SUPPLEMENT TO
TRUST AGREEMENT
SECTION 9 . 01 . Amendment or Supplement by Consent
of Owners . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 9 . 02 . Disqualified Certificates . . . . . . . . . . . . . . .
SECTION 9 . 03 . Endorsement or Replacement of
Certificates After Amendment
or Supplement . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 9 . 04. Amendment by Mutual Consent . . . . . . . . . . . . .
ARTICLE X
DEFEASANCE
SECTION 10. 01 . Discharge of Certificates and
Trust Agreement . . . . . . . . . . . . . . . . . . . . . . .
SECTION 10. 02 . Unclaimed Moneys . . . . . . . . . . . . . . . . . . . . . . . .
ARTICLE XI
MISCELLANEOUS
SECTION 11 . 01 . Benefits of Trust Agreement Limited
to Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 11 . 02 . Successor Deemed Included in all
References to Predecessor . . . . . . . . . . . . .
SECTION 11 . 03 . Execution of Documents by Owners . . . . . . . .
SECTION 11 . 04. Waiver of Personal Liability . . . . . . . . . . . .
SECTION 11 . 05 . Acquisition of Certificates by County . . .
SECTION 11 . 06. Content of Certificates . . . . . . . . . . . . . . . . .
SECTION 11 . 07 . Publication for Successive Weeks . . . . . . . .
SECTION 11 . 08. Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 11 . 09 . Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iii
373
Page
SECTION 11 . 10. Article and Section Headings,
Gender and References . . . . . . . . . . . . . . . . .
SECTION 11 . 11 . Partial Invalidity . . . . . . . . . . . . . . . . . . . . . .
SECTION 11 . 12 . California Law . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 11 . 13 . Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 11 . 14. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . .
SECTION 11 . 15 . Execution in Counterparts . . . . . . . . . . . . . . .
EXECUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
iv 314
TRUST AGREEMENT
This TRUST AGREEMENT, made and entered into as of
April 1, 1984, by and among BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, a national banking association duly
organized and existing under and by virtue of the laws of the
United States of America (the "Trustee" ) , CONTRA COSTA COUNTY
PUBLIC FACILITIES CORPORATION, a nonprofit public benefit
corporation duly organized and existing under and by virtue
of the laws of the State of California (the "Corporation" ) ,
and the COUNTY OF CONTRA COSTA, a political subdivision
organized and existing under and by virtue of the laws of the
State of California (the "County" ) ;
W I T N E S S E T H:
WHEREAS, the Corporation and the County have
previously entered into a facility lease/purchase agreement,
entitled "Facility Lease/Purchase Agreement (2425 Bisso Lane
Office Building) " and dated as of June 1, 1982 (the "1982
Lease" ) , which was recorded in the office of the County
Recorder of the County of Contra Costa on June 24, 1982 under
Recorder' s Serial No. 82-69872; and
WHEREAS, the County, Bank of America National Trust
and Savings Association, as trustee, and the Corporation have
entered into an agreement, entitled "Trust Agreement" and
dated as of June 1, 1982 (the "1982 Trust Agreement" ) , which
3 r5
was recorded in the Office of the County Recorder of the
County on June 24, 1982 under Recorder' s Serial No. 82-69873;
and
WHEREAS, pursuant to the 1982 Trust Agreement the
trustee thereunder executed and delivered certificates of
participation (the "1982 Certificates" ) in the base rentals
payable under the 1982 Lease, and used the proceeds to
purchase for the use of the County an office building located
at 2425 Bisso Lane, Concord, California ( "Capital Project
II " ) ; and
WHEREAS, the Corporation and the County have
determined that it would be in the best interest of the
Corporation, the County and the residents of the County to
defease the 1982 Certificates through the sale and delivery
of certificates of participation evidencing a fractional
undivided interest in certain base rental payments to be made
pursuant to the hereinafter referred to Facility Lease; and
WHEREAS, the Corporation and the County have
entered into an agreement, entitled "Amended and Restated
Facility Lease (2425 Bisso Lane Office Building) " and dated
as of the date hereof (the "Facility Lease" ) , which amends
the 1982 Lease and restates the 1982 Lease as amended; and
WHEREAS, under the Facility Lease, the County is
obligated to make base rental payments to the Corporation for
the lease of Capital Project II ; and
2
040034-0008-028-3764s 02/19/84
WHEREAS, all rights to receive such base rental
payments have been assigned without recourse by the
Corporation to the Trustee pursuant to an agreement, entitled
"Assignment Agreement" and dated as of April 1, 1984 (the
"Assignment Agreement" ) ; and
WHEREAS, in consideration of such assignment and
the execution of this Trust Agreement, the Trustee has agreed
to execute and deliver certificates of participation in an
amount equal to the aggregate principal components of such
base rental payments, each evidencing and representing a
fractional undivided interest in such base rental payments;
and
WHEREAS, all acts, conditions and things required
by law to exist, to have happened and to have been performed
precedent to and in connection with the execution and
entering into of. this Trust Agreement do exist, have happened
and have been performed in regular and due time, form and
manner as required by law, and the parties hereto are now
duly authorized to execute and enter into this Trust
Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES
AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN
AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES DO HEREBY
AGREE AS FOLLOWS:
040034-0008-028-3764s 3 02/19/84 37 7
ARTICLE I
DEFINITIONS; EQUAL SECURITY
SECTION 1 . 01 . Definitions. Unless the context
otherwise requires, the terms defined in this Section shall
for all purposes hereof and of any amendment hereof or
supplement hereto and of the Certificates and of any
certificate, opinion, request or other document mentioned
herein or therein have the meanings defined herein, the
following definitions to be equally applicable to both the
singular and plural forms of any of the terms defined herein:
Additional Rental Payments
The term "Additional Rental Payments" means the
additional rental payments payable by the County under and
pursuant to Section 3 (b) of the Facility Lease.
Assignment Agreement
The term "Assignment Agreement" means that certain
Assignment Agreement by and between the Corporation and the
Trustee, dated as of April 1, 1984.
Base Rental Payments
The term "Base Rental Payments" means the base
rental payments with interest components and principal
components payable by the County under and pursuant to
Section 3 ( a) of the Facility Lease.
Base Rental Payment Fund
The term "Base Rental Payment Fund" means the fund
by that name established in Section 5 . 01 .
4 378,
040034-0008-028-3764s 02/15/84
Capital Project II
The term "Capital Project II" means the office
building generally known as 2425 Bisso Lane, Concord,
California, to house offices and facilities of the County,
together with parking, site development, landscaping,
utilities, equipment, furnishings, improvements and
appurtenant and related facilities, located on the Demised
Premises, and leased by the Corporation to the County
pursuant to the Facility Lease.
Certificate of the Corporation
The term "Certificate of the Corporation" means a
certificate signed by the President or a Vice President of
the Corporation and by the Treasurer or an Assistant
Treasurer or the Secretary or an Assistant Secretary of the
Corporation. If and to the extent required by the provisions
of Section 11 . 06, each Certificate of the Corporation shall
include the statements provided for in Section 11 . 06.
Certificate of the County
The term "Certificate of the County" means an
instrument in writing signed by the County Administrator of
the County, or by the Assistant County Administrator-Finance,
or by a Deputy County Administrator, or by any other officer
of the County duly authorized by the Board of Supervisors of
the County for that purpose, with the seal of the County
affixed. If and to the extent required by the provisions of
5
040034-0008-028-3764s 02/15/84 3!9
Section 11 . 06, each Certificate of the County shall include
the statements provided for in Section 11.06 .
Certificates
The term "Certificates" means the certificates of
participation executed and delivered by the Trustee pursuant
hereto .
Certificates of Participation Purchase Contract
The term "Certificates of Participation Purchase
Contract" means that certain Certificates of Participation
Purchase Contract, dated as of April 1, 1984, by and among
the Purchasers, the Trustee and the County relating to
$ 198.4 Certificates of Participation, Capital
Project II (2425 Bisso Lane Office Building) .
Corporation
The term "Corporation" means the Contra Costa
County Public Facilities Corporation, a nonprofit public
benefit corporation organized and existing under and by
virtue of the laws of the State of California.
County
The term "County" means the political subdivision
of the State of California known as the County of Contra
Costa, as the same is organized and existing under and by
virtue of the Constitution and laws of the State of
California.
6 380
040034-0008-028-3764s 02/15/84
Deed of Gift
The term "Deed of Gift" means the deed, dated as of
June 1, 1982 and entitled "Deed of Gift (2425 Bisso Lane
Office Building) " from the Corporation, as grantor, to the
County, as grantee, which was recorded in the office of the
County Recorder of the County of Contra Costa on June 24,
1982 under Recorder' s Serial No. 82-69871, as amended by that
agreement, entitled "Agreement Amending Deed of Gift (2425
Bisso Lane Office Building) " and dated as of April 1, 1984,
between the Corporation and the County.
Demised Premises
The term "Demised Premises" means the real property
described in Exhibit A to the Facility Lease .
Escrow Agreement
The term "Escrow Agreement" means the agreement,
dated as of April 1, 1984 and entitled "Escrow Agreement, "
entered into between the Corporation and the 1982 Trustee.
Facility Lease
The term "Facility Lease" means that certain lease,
entitled "Amended and Restated Facility Lease (2425 Bisso
Lane Office Building) , " by and between the Corporation and
the County, dated as of April 1, 1984, which was recorded in
the office of the County Recorder of the County of Contra
Costa on April _, 1984 under Recorder' s Serial No.
as originally executed and recorded or as it may
7 38.
040034-0008-028-3764s 02/15/84
from time to time be supplemented, modified or amended
pursuant to the provisions hereof and thereof.
Financial Newspaper
The term "Financial Newspaper" means The Wall
Street Journal or The Bond Buyer, or any other newspaper or
journal publishing financial news and selected by the Trustee
that is printed in the English language, is customarily
published on each business day and is circulated in San
Francisco, California.
Interest Fund
The term "Interest Fund" means the fund by that
.name established in Section 5 . 02 .
1982 Certificates
The term "1982 Certificates" means the certificates
of participation in the original aggregate principal amount
of $1, 900, 000, issued by the 1982 Trustee pursuant to the
1982 Trust Agreement and representing proportionate interests
in base rental payments to be made pursuant to the 1982 Lease.
1982 Lease
The term "1982 Lease" means the facility
lease/purchase agreement, dated as of June 1, 1982 and
entitled "Facility Lease/Purchase Agreement (2425 Bisso Lane
Office Building) , " between the Corporation, as lessor, and
the County, as lessee, which was recorded in the office of
the County Recorder of the County of Contra Costa on June 24,
8 382
040034-0008-028-3764s 02/15/84
1982 under Recorder' s Serial No. 82-69872, and which was
amended and restated by the Facility Lease.
1982 Trust Agreement
The term "1982 Trust Agreement" means the trust
agreement, dated as of June 1, 1982, between the County, the
1982 Trustee and the Corporation, which was recorded in the
Office of the County Recorder of the County of Contra Costa
on June 24, 1982 under Recorder' s Serial No. 82-69873 .
1982 Trustee
The term "1982 Trustee" means Bank of America
National Trust and Savings Association, as trustee under the
1982 Trust Agreement, its successors and assigns, and any
other corporation or association which may at any time be
substituted in its place.
Opinion of Counsel
The term "Opinion of Counsel" means a written
opinion of counsel of recognized national standing in the
field of law relating to municipal bonds, appointed and paid
by the County or the Corporation and satisfactory to and
approved by the Trustee (who shall be under no liability by
reason of such approval) .
Outstanding
The term "Outstanding, " when used as of any
particular time with reference to Certificates, means
( subject to the provisions of Section 9 . 02 ) all Certificates
except --
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( 1) Certificates cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2 ) Certificates paid or deemed to have been paid
within the meaning of .Section 10. 01; and
(3 ) Certificates in lieu of or in substitution for
which other Certificates shall have been executed and
delivered by the Trustee pursuant to Section 2 . 09 .
Owner
The term "Owner" means any person who shall be the
registered owner of any Outstanding Certificate.
Pavment Date
The term "Payment Date" means that January 1 or
July 1 during the period beginning on January 1, 1985 and
terminating on July 1, 1992 to which reference is made .
Permitted Investments
The term "Permitted Investments" means any of the
following to the extent then permitted by the general laws of
the State of California applicable to investments by counties
(provided that any moneys invested in any of the investments
specified in clauses (3 ) or (4) below shall be secured at all
times by collateral security, of a market value of no less
than the amount of such moneys so invested, of such types and
in such manner as is required by law to secure deposits of
funds of the County) : 1
( 1 ) United States Treasury notes, bonds, bills, or
certificates of indebtedness, or those for which the
10
040034-0008-028-3764s 02/15/84 384
faith and credit of the United States are pledged for
the payment of principal and interest;
(2 ) Obligations issued by banks for cooperatives,
federal land banks, federal intermediate credit banks,
federal home loan banks, the Federal Home Loan Bank
Board or the Tennessee Valley Authority, or obligations,
participations or other instruments of or issued by, or
fully guaranteed as to principal and interest by, the
Federal National Mortgage Association, or guaranteed
portions of Small Business Administration notes, or
obligations, participations, or other instruments of or
issued by a federal agency or a United States
government-sponsored enterprise;
(3 ) Time certificates of deposit or negotiable
certificates of deposits issued by a state or nationally
chartered bank, including the Trustee, or a state or
national savings and loan association which are readily
marketable with nationally recognized investment
institutions; and
(4) Investments in repurchase agreements or
reverse repurchase agreements of any securities
described by this definition; provided that for purposes
of this definition the term "repurchase agreement" means
a purchase of securities by the Trustee pursuant to an
agreement by which the seller will repurchase such
040034-0008-028-3764s 11 02/15/84 385
securities on or before a specified date and for a
specified amount, and the term "reverse repurchase
agreement" means a sale of securities by the Trustee
pursuant to an agreement by which the Trustee will
repurchase such securities on or before a specified date
and for a specified amount.
Prepayment Fund
The term "Prepayment Fund" means the fund by that
name established in Section 5 . 02 .
Principal Fund
The term "Principal Fund" means the fund by that
name established in Section 5 . 02 .
Purchasers
The term "Purchasers" means Bank of America
National Trust and Savings Association and Rauscher Pierce
Refsnes, Inc . as underwriters and purchasers of the
Certificates pursuant to the Certificates of Participation
Purchase Contract.
Refunding Expenses Fund
The term "Refunding Expenses Fund" means the fund
by that name established in Section 3 . 02 .
Rental Payments
The term "Rental Payments" means the Base Rental
Payments and the Additional Rental Payments.
12 386
040034-0008-028-3764s 02/15/84
Trust Administration Fund
The term "Trust Administration Fund" means the fund
by that name established in Section 5 . 03 .
Trust Agreement
The term "Trust Agreement" means this Trust
. Agreement by and among the Trustee, the Corporation and the
County, dated as of April 1, 1984, as originally executed and
as it may from time to time be amended or supplemented in
accordance herewith.
Trustee
The term "Trustee" means Bank of America National
Trust and Savings Association, a national banking association
duly organized and existing under and by virtue of the laws
of the United States of America and having a principal
corporate trust office in San Francisco, California, or any
other bank or trust company which may at any time be
substituted in its place as provided in Section 8. 02 .
Written Request of the Corporation
The term "Written Request of the Corporation" means
an instrument in writing signed by or on behalf of the
Corporation by its President or a Vice President and by its
Treasurer or an Assistant Treasurer or its Secretary or an
Assistant Secretary or by any two persons (whether or not
officers of the Corporation) who are specifically authorized
by resolution of the Board of Directors of the Corporation to
sign or execute such a document on its behalf.
13 3S7
040034-0008-028-3764s 02/15/84
Written Request of the County
The term "Written Request of the County" means an
instrument in writing signed by the County Administrator of
the County, or by the Assistant County Administrator-Finance
of the County, or by a Deputy County Administrator of the
County, or by any other officer of the County duly authorized
by the Board of Supervisors of the County for that purpose,
with the seal of the County affixed.
SECTION 1 . 02 . Equal Security. In consideration of
the acceptance of the Certificates by the Owners, the Trust
Agreement shall be deemed to be and shall constitute a
contract between the Trustee and the Owners to secure the
full and final payment of the interest and principal
represented by the Certificates which may be executed and
delivered hereunder, subject to the agreements, conditions,
covenants and terms contained herein; and all agreements,
conditions, covenants and terms contained herein required to
be observed or performed by or on behalf of the Trustee shall
be for the equal and proportionate benefit, protection and
security of all Owners without distinction, preference or
priority as to security or otherwise of any Certificates over
any other Certificates by reason of the number or date
thereof or the time of execution or delivery thereof or for
any cause whatsoever, except as expressly provided herein or
therein.
040034-0008-028-3764s 14 02/15/84 388
ARTICLE II
TERMS AND CONDITIONS OF CERTIFICATES
SECTION 2 . 01 . Preparation of Certificates. The
Trustee is hereby authorized to prepare the Certificates in
the aggregate principal amount of million hundred
thousand dollars ($ ) , representing the
aggregate principal components of the Base Rental Payments
and each evidencing and representing a fractional undivided
interest in the Base Rental Payments.
SECTION 2 . 02 . Denominations, Medium, Method and
Place of Payment and Dating of Certificates. The
Certificates shall be prepared in the form of fully
registered Certificates in the denomination of five thousand
dollars ($5, 000) each or any integral multiple thereof so .
long as no Certificate shall represent principal becoming
payable on more than one principal payment date. The
Certificates shall be payable in lawful money of the United
States of America.
The interest represented by the Certificates shall
be payable by check or draft mailed by the 'Trustee to the
respective Owners of the Certificates at their addresses
shown on the books required to be kept by the Trustee
pursuant to the provisions of Section 2 . 07 . The principal
represented by the Certificates shall be payable upon
surrender thereof on their payment dates or on prepayment
15 333
040034-0008-028-3764s 02/15/84
prior thereto at the principal corporate trust office of the
• Trustee in San Francisco, California.
The Certificates shall be dated the Payment Date
next preceding the date of delivery thereof by the Trustee,
unless such date of delivery is a Payment Date, in which case
they shall be dated such Payment Date, or unless such date of
delivery is prior to January 1, 1985, in which case they
shall be dated April 1, 1984.
SECTION 2 . 03 . Payment Dates of Certificates. The
principal represented by the Certificates shall be payable on
January 1 and July 1 in the years and in the amounts, with an
interest component with respect thereto at the rates, as
follows:
Principal Interest
Payment Date Amount Component
July 1, 1985 $
January 1, 1986
July 1, 1986
January 1, 1987
July 1, 1987
January 1, 1988
July 1, 1988
January 1, 1989
July 1, 1989
January 1, 1990
July 1, 1990
January 1, 1991'
July 1, 1991
January 1, 1992
July 1, 1992
The interest represented by the Certificates shall
be payable from their date on January 1 and July 1 of each
year, beginning on the January 1 or July 1 following their
16 390
040034-0008-028-3764s 02/15/84
date and continuing to and including their Payment Dates or
on prepayment prior thereto, and shall represent the sum of
the portions of the Base Rental Payments designated as
interest components coming due on the Payment Dates in each
year.
The principal represented by the Certificates shall
be payable on January 1 and July 1 of each year, beginning on
July 1, 1985 and continuing to and including July 1, 1992,
and shall represent the sum of the portions of the Base
Rental Payments designated as principal components coming due
on the Payment Dates in each year.
SECTION 2 . 04. Form of Certificates. The
Certificates and the assignment to appear thereon shall be in
substantially the following forms, respectively, with
necessary or appropriate insertions, omissions and variations
as permitted or required hereby, including placement of a
portion of the form of the Certificate on the reverse side
thereof (provided that on the face of each Certificate, at
the place where the ,portion on the reverse side appears in
the form set forth below, there shall be inserted the
following sentence: "THE TERMS AND PROVISIONS OF THIS
CERTIFICATE ARE CONTINUED ON THE REVERSE SIDE HEREOF AND SUCH
CONTINUED TERMS AND PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE. " ) :
17 391
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[FORM OF CERTIFICATE
OF PARTICIPATION)
No . $
1984 CERTIFICATE OF PARTICIPATION
Evidencing and Representing A Fractional Undivided
Interest of the Owner Hereof
in Base Rental Payments to be Made
by the
COUNTY OF CONTRA COSTA
to
CONTRA COSTA COUNTY
PUBLIC FACILITIES CORPORATION
FOR CAPITAL PROJECT II
(2425 BISSO LANE OFFICE BUILDING)
Certificate
Interest Rate Payment Date Dated as of CUSIP No.
19
THIS IS TO CERTIFY that
the registered owner of this Certificate of Participation
(the "Certificate" ) , is the owner of a fractional undivided
interest in the rights to receive certain Base Rental
Payments (as that term is defined in the Trust Agreement
hereinafter mentioned) under and pursuant to that certain
Amended and Restated Facility Lease (2425 Bisso Lane Office
Building) (the "Facility Lease" ) dated as of April 1, 1984,
by and between Contra Costa County Public Facilities
040034-0008-028-3764s 18 02/15/84 392
Corporation (the "Corporation" ) , a nonprofit public benefit
corporation duly organized and existing under and by virtue
of the laws of the State of California, and the County of
Contra Costa (the "County" ) , a political subdivision
organized and existing under and by virtue of the laws of the
State of California, all of which rights to receive such Base
Rental Payments having been assigned without recourse by the
Corporation to Bank of America National Trust and Savings
Association, as trustee (the "Trustee" ) , a national banking
association duly organized and existing under and by virtue
of the laws of the State of California and having a principal
corporate trust office in San Francisco, California.
The registered owner of this Certificate is
entitled to receive, subject to the terms of the Facility
Lease and any right of prepayment prior thereto hereinafter
provided for, on the certificate payment date set forth above
(the "Certificate Payment Date" ) , upon surrender of this
Certificate on the Certificate Payment Date or on the date of
prepayment prior thereto at the principal corporate trust
office of the Trustee in San Francisco, California, the
principal sum of
THOUSAND DOLLARS
representing the registered owner' s fractional undivided
share of the Base Rental Payments designated as principal
components coming due on the Certificate Payment Date, and to
receive from the date hereof (which date shall be the
19 393
040034-0008-028-3764s 02/15/84
interest payment date next preceding the date of delivery
hereof by the Trustee, unless such date of delivery is an
interest payment date, in which case the date hereof shall be
such interest payment date, or unless such date of delivery
is prior to January 1, 1985, in which case the date hereof
shall be April 1, 1984) on January 1 and July 1 of each year
to and including the Certificate Payment Date or the date of
prepayment prior thereto, whichever is earlier, by check or
draft mailed to the registered owner on such dates, the
registered owner' s fractional undivided share of the Base
Rental Payments designated as interest components coming due
on such dates. Such fractional undivided share designated as
interest components is the result of the multiplication of
the aforesaid portion of the Base Rental Payments designated
as principal components coming due on the Certificate Payment
Date by the interest rate per annum stated above. All such
amounts are payable in lawful money of the United States of
America.
This Certificate has been executed by the Trustee
pursuant to the terms of a Trust Agreement (the "Trust
Agreement" ) by and among the Trustee, the Corporation and the
County, dated as of April 1, 1984. Copies of the Trust
Agreement are on file at the principal corporate trust office
of the Trustee in San Francisco, California, and reference is
hereby made to the Trust Agreement and to any and all
amendments thereof and supplements thereto for a description
20 394
040034-0008-028-3764s 02/15/84
1
of the agreements, conditions, covenants and terms securing
the Certificates, for the nature, extent and manner of
enforcement of such agreements, conditions, covenants and
terms, for the rights and remedies of the registered owners
of the Certificates with respect thereto and for the other
agreements, conditions, covenants and terms upon which the
Certificates are executed and delivered thereunder.
To the extent and in the manner permitted by the
terms of the Trust Agreement, the provisions of the Trust
Agreement may be amended or supplemented by the parties
thereto, but no such amendment or supplement shall ( 1) extend
the fixed payment date of this Certificate or reduce the rate
of interest represented hereby or extend the time of payment
of such interest or reduce the amount of principal
represented hereby without the prior written consent of the
registered owner hereof, or (2 ) reduce the percentage of
owners of Certificates whose consent is required for the
execution of any amendment of or supplement to the Trust
Agreement, or (3 ) modify any rights or obligations of the
Trustee without its prior written consent thereto, or
(4) amend Section 9. 01 of the Trust Agreement without the
prior written consent of the owners of all Certificates then
outstanding.
This Certificate is transferable by the registered
.owner hereof, in person or by his attorney duly authorized in
writing, at the principal corporate trust office of the
21 3q�
040034-0008-028-3764s 02/15/84
Trustee in San Francisco, California, but only in the manner,
subject to the limitations and upon payment of the- charges
provided in the Trust Agreement, and upon surrender of this
Certificate for cancellation accompanied by delivery of a
duly executed written instrument of transfer in a form
approved by the Trustee. Upon such transfer, a new
Certificate or Certificates of the same Certificate Payment
Date representing the same principal amount will be issued to
the transferee in exchange herefor. The Trustee may treat
the registered owner hereof as the absolute owner hereof for
all purposes, whether or not this Certificate shall be
overdue, and the Trustee shall not be affected by any
knowledge or notice to the contrary; and payment of the
interest and principal represented by this Certificate shall
be made only to such registered owner, which payments shall
be valid and effectual to satisfy and discharge liability
represented by this Certificate to the extent of the sum or
sums so paid.
The .Certificates are authorized to be executed and
delivered in the form of fully registered Certificates in
denominations of five thousand dollars ( $5, 000) each or any
integral multiple thereof so long as no Certificate shall
represent principal becoming payable on more than one
Certificate Payment Date.
The Certificates are subject to prepayment on any
date prior to their respective Certificate Payment Dates, as
22 396
040034-0008-028-3764s 02/15/84
a whole, or in part by lot within each Certificate Payment
Date so that the aggregate semiannual amounts of principal
represented by the Certificates which shall be payable after
such prepayment date shall be as nearly proportional as
practicable to the aggregate semiannual amounts of principal
represented by the Certificates unpaid just prior to said
prepayment date, from prepaid Base Rental Payments made by
the County from funds received by the County due to a
casualty loss or governmental taking of the Demised Premises
and Capital Project II (as those terms are defined in the
Trust Agreement) or portions thereof by eminent domain
proceedings, under the circumstances and upon the conditions
and terms prescribed in the Trust Agreement and in the
Facility Lease, at a prepayment amount equal to the sum of
the principal component represented thereby plus accrued
interest represented thereby to the date fixed for prepayment.
The Certificates shall not otherwise be subject to
prepayment before their respective stated Certificate Payment
Dates.
As provided in the Trust Agreement, notice of
prepayment hereof shall be mailed, first class postage
prepaid, not less than fifteen ( 15) nor more than thirty (30)
days before the prepayment date, to the registered owner of
this Certificate at its address as it appears on the
registration books maintained by the Trustee. If this
Certificate is called for prepayment and payment is duly
provided herefor as specified in the Trust Agreement,
23 39#41
040034-0008-028-3764s 02/15/84
interest represented hereby shall cease to accrue from and
after the date fixed for prepayment.
The Certificates each evidence and represent a
fractional undivided interest in the Base Rental Payments in
an amount equal to the aggregate principal amount of
Certificates originally executed and delivered by the Trustee
pursuant to the Trust Agreement and enjoy the benefits of a
security interest in the moneys held in the funds established
pursuant to the Trust Agreement, subject to the provisions of
the Trust Agreement permitting the disbursement thereof for
or to the purposes and on the conditions and terms set forth
therein. The obligation of the County to make the Base
Rental Payments is a special obligation of the County, and
does not constitute a debt of the County or of the State of
California or of any political subdivision thereof within the
meaning of any constitutional or statutory debt limitation or
restriction.
The Trustee has no obligation or liability to the
Certificate owners for the payment of the interest or
principal represented by the Certificates, but rather the
Trustee' s sole obligations are to administer, for the benefit
of the County and the Corporation and the Certificate owners,
the various funds established under the Trust Agreement. The
Corporation has no obligation or liability whatsoever to the
Certificate owners .
24 398
040034-0008-028-3764s 02/15/84
THIS IS TO FURTHER CERTIFY that all acts,
conditions and things required by the statutes of the State
of California and the Trust Agreement to exist, to have
happened and to have been performed precedent to and in
connection with the execution and delivery of this
Certificate do exist, have happened and have been performed
in regular and due time, form and manner as required by law,
and that the Trustee is duly authorized to execute and
deliver this Certificate, and that the amount of this
Certificate, together with all other Certificates executed
and delivered under the Trust Agreement, is not in excess of
the amount of Certificates authorized to be executed and
delivered thereunder.
IN WITNESS WHEREOF, this Certificate has been
executed by the manual signature of an authorized officer of
the Trustee on _
BANK OF AMERICA
NATIONAL TRUST AND
SAVINGS ASSOCIATION,
as Trustee
By
Authorized Officer
25 ^
040034-0008-028-3764s 02/15/84 399
{FORM OF ASSIGNMENT}
For value received, the undersigned do(es) hereby
sell, assign and transfer unto
the within Certificate and do(es) hereby irrevocably
constitute and appoint
attorney to transfer such
Certificate on the Certificate register of the Trustee, with
full power of substitution in the, premises.
Dated:
Note: The signature( s) to this Assignment must correspond
with the name( s) as written on the face of the
within Certificate in every particular, without
alteration or enlargement or any change whatsoever.
SECTION 2 . 05 . Execution of Certificates. The
Certificates shall be executed by the Trustee by the manual
signature of an authorized officer of the Trustee.
SECTION 2 . 06. Transfer and Payment of
Certificates . All Certificates are transferable by the Owner
thereof, in person or by his attorney duly authorized in
writing, at the principal corporate trust office of the
Trustee in, San Francisco, California on the books required to
be kept by the Trustee pursuant to the provisions of
Section 2 . 07, upon surrender of such Certificates for
26 400
040034-0008-028-3764s 02/15/84
cancellation accompanied by delivery of a duly executed
written instrument of transfer in a form approved by the
Trustee. The Trustee may treat the Owner of any Certificate
as the absolute owner of such Certificate for all purposes,
whether or not such Certificate shall be overdue, and the
Trustee shall not be affected by any knowledge or notice to
the contrary; and payment of the interest and principal
represented by such Certificate shall be made only to such
Owner, which payments shall be valid and effectual to satisfy
and discharge the liability represented by such Certificate
to the extent of the sum or sums so paid.
Whenever any Certificate or Certificates shall be
surrendered for transfer, the Trustee shall execute and
deliver a new Certificate or Certificates of the same payment
date representing the same principal amount. The Trustee
shall require the payment by any Owner requesting such
transfer of any tax or other governmental charge required to
be paid with respect to such transfer.
The Trustee shall not be required to make any
transfer of Certificates during the fifteen ( 15) days next
preceding each Payment Date.
SECTION 2 . 07 . Certificate Registration Books. The
Trustee will keep at its principal corporate trust office in
San Francisco, California sufficient books for the
registration and transfer of the Certificates, which books
shall be available for inspection by the Corporation, the
27 401
040034-0008-028-3764s 02/15/84
County or any Owner or his agent duly authorized in writing
at reasonable hours and under reasonable conditions, and upon
presentation for such purpose the Trustee shall, under such
reasonable regulations as it may prescribe, register or
transfer the Certificates on such books as hereinabove
provided.
SECTION 2 .08. Temporary Certificates. The
Certificates may be initially delivered in temporary form
exchangeable for definitive Certificates when ready for
delivery, which temporary Certificates shall be printed,
lithographed or typewritten, shall be of such denominations
as may be determined by the Trustee, shall be in fully
registered form and shall contain such reference to any of
the provisions hereof as may be appropriate. Every temporary
Certificate shall be executed and delivered by the Trustee
upon the same conditions and terms and in substantially the
same manner as definitive Certificates. If the Trustee
executes and delivers temporary Certificates, it will prepare
and execute definitive Certificates without delay, and
thereupon the temporary Certificates may be surrendered at
the principal corporate trust office of the Trustee in San
,Francisco, California in exchange for such definitive
Certificates, and until so exchanged such temporary
Certificates shall be entitled to the same benefits hereunder
as definitive Certificates executed and delivered hereunder.
28 402
040034-0008-028-3764s 02/15/84
SECTION 2 .09 . Certificates Mutilated, Lost,
Destroyed or Stolen. If any Certificate shall become
mutilated, the Trustee, at the expense of the Owner thereof,
shall execute and deliver a new Certificate of like tenor,
payment date and number in exchange and substitution for the
Certificate so mutilated, but only upon surrender to the
Trustee of the Certificate so mutilated. Every mutilated
Certificate so surrendered to the Trustee shall be cancelled
by it. If any Certificate shall be lost, destroyed or
stolen, evidence of such loss, destruction or theft may be
submitted to the Trustee, and if such evidence is
satisfactory to the Trustee and indemnity satisfactory to the
Trustee shall be given, the Trustee, at the expense of the
Owner thereof, shall execute and deliver a new Certificate of
like tenor and payment date, numbered as the Trustee shall
determine, in lieu of and in substitution for the Certificate
so lost, destroyed or stolen. The Trustee may require
payment of a sum not exceeding the actual cost of preparing
each new Certificate executed and delivered by it under this
Section and of the expenses which may be incurred by it under
this Section. Any Certificate executed and delivered under
the provisions of this Section in lieu of any Certificate
alleged to be lost, destroyed or stolen shall be equally and
proportionately entitled to the benefits hereof with all
other Certificates secured hereby, and the Trustee shall not
be required to treat both the original Certificate and any
040034-0008-028-3764s 29 02/15/84 403
replacement Certificate as being Outstanding for the purpose
of determining the amount of Certificates which may be
executed and delivered hereunder or for the purpose of
determining any percentage of Certificates Outstanding
hereunder, but both the original and replacement Certificate
shall be treated as one and the same. Notwithstanding any
other provision of this Section, in lieu of executing and
delivering a new Certificate for a Certificate which has been
lost, destroyed or stolen and which has matured, the Trustee
may make payment of such Certificate to the Owner thereof .
ARTICLE III
PROCEEDS OF CERTIFICATES
SECTION 3 . 01 . Delivery of Certificates. The
Trustee is hereby authorized to execute and deliver the
Certificates to the Purchasers pursuant to the Certificates
of Participation Purchase Contract upon receipt of a Written
Request of the Corporation and upon receipt of the proceeds
of sale thereof .
SECTION 3 . 02 . Deposit of Proceeds of Certificates
and Other Moneys. ( a) The proceeds received from the sale of
the Certificates (except for the amount of accrued interest
received by the Trustee upon the sale and delivery of the
Certificates, which shall be transferred to the County for
deposit by it in the Lease Fund created under the Facility.
040034-0008-028-3764s 30 02/15/84 404
Lease) shall be deposited by the Trustee in the following
respective funds, as directed by a Written Request of the
Corporation:
( 1) The Trustee shall transfer to the 1982 Trustee
for deposit in a separate fund to be known as the
"Escrow Fund, " which the 1982 Trustee shall establish
and maintain pursuant to the Escrow Agreement and the
1982 Trust Agreement, an amount which, in the
determination of an independent certified public
accountant, who shall certify such determination in
writing to the 1982 Trustee, together with other moneys
to be deposited therein, will be sufficient to provide
for the prepayment and defeasance of all outstanding
1982 Certificates at the earliest possible dates. The
moneys and Federal Securities in the Escrow Fund shall
be held by the 1982 Trustee in trust and invested
pursuant to the provisions of the 1982 Trust Agreement
and the Escrow Agreement and applied pursuant to the
1982 Trust Agreement and the Escrow Agreement to pay the
interest on and principal and redemption premiums of the
1982 Certificates. Any moneys remaining in the Escrow
Fund after the making of all payments required by the
Escrow Agreement shall be transferred by the 1982
Trustee to the County.
(2 ) The Trustee shall set aside the remainder of
said proceeds in a separate fund to be known as the
040034-0008-028-3764s 31 02/15/84 4 05
"Refunding Expenses Fund, " which the Trustee hereby
agrees to establish and maintain. The money in the
Refunding Expenses Fund shall be used and disbursed in
the manner provided in Section 3 . 03 .
(b) On the date of delivery of the Certificates to
the Purchasers thereof, the Trustee shall obtain certain
funds from the 1982 Trustee, pursuant to the Written Request
of the Corporation required to be delivered by Section 3 . 01,
and shall deposit such funds as follows:
( 1 ) The Trustee shall deposit in the Trust
Administration Fund to be established pursuant to
Section 5 . 03 the entire balance in the Corporate
Operation Fund established pursuant to Section 5 . 03 of
the 1982 Trust Agreement.
(2 ) The Trustee shall deposit in the Certificate
Reserve Fund to be established pursuant to Section 4 of
the Facility Lease, from the balance in the Reserve Fund
established pursuant to Section 5 .02 (d) of the 1982
Trust Agreement, a sum equal to the Certificate Reserve
Fund Requirement, as such term is defined in the
Facility Lease .
(3 ) The Trustee shall deposit in the Insurance
Reserve Fund to be established pursuant to Section 4 of
the Facility Lease, from the balance in the Reserve Fund
established pursuant to Section 5 . 02(d) of the 1982
Trust Agreement, a sum equal to the Insurance Reserve
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Fund Requirement, as such term is defined in the
Facility Lease .
SECTION 3 . 03 . Use of Moneys in the Refunding
Expenses Fund. All moneys in the Refunding Expenses Fund
shall be held by the Trustee in trust and applied by the
Trustee to the payment of all costs incidental to or
connected with the issuance of the Certificates and the
defeasance of the 1982 Certificates (or for making
reimbursements to the Corporation or any other person, firm
or corporation for such costs theretofore paid by him or
it) .
Before any payment is made from the Refunding
Expenses Fund by the Trustee, the Corporation shall file with
the Trustee a Written Request of the Corporation showing with
respect to each payment to be made --
( a) the name and address of the person to whom
payment is due;
(b) the amount to be paid; and
(c ) the purpose for which the obligation to be
paid was incurred.
Each such Written Request of the Corporation shall
state and shall be sufficient evidence to the Trustee --
(a) that obligations in the stated amounts have
been incurred and that each such obligation is a proper
charge against the Refunding Expenses Fund; and
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(b) that there has not been filed with or served
upon the Corporation or the County notice of any lien,
right to lien or attachment upon, or claim affecting the
right to receive payment of, any of the moneys payable
to any of the persons named in such Written Request of
the County which has not been released or will not be
released with the payment of such obligation.
Upon receipt of each such Written Request of the
Corporation, the Trustee shall pay the amount set forth
therein as directed by the terms thereof, except that the
Trustee need not make any such payment if it has received
notice of any lien, right to lien or attachment upon, or
claim affecting the right to receive payment of, any of the
moneys to be so paid which has not been released or will not
be released simultaneously with such payment.
When all expenses payable from the Refunding
Expenses Fund have been paid, the Corporation shall deliver a
Certificate of the Corporation to the Trustee stating such
fact. Upon the receipt of such certificate, the Trustee
shall transfer any remaining balance in the Refunding
Expenses Fund to the County.
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ARTICLE IV
PREPAYMENT OF CERTIFICATES
SECTION 4. 01 . Terms of Prepayment. The
Certificates are subject to prepayment on any date prior to
their respective Payment Dates, upon notice as hereinafter
provided, as a whole, or in part by lot within each Payment
Date so that the aggregate semiannual amounts of principal
represented by the Certificates which shall be payable after
such prepayment date shall be as nearly proportional as
practicable to the aggregate semiannual amounts of principal
represented by the Certificates unpaid just prior to said
prepayment date, from prepaid Base Rental Payments made by
the County from funds received by the County due to a
casualty loss or governmental taking of the Demised Premises
and Capital Project II .or portions thereof by eminent domain
proceedings, if such amounts are not used to repair or
replace the Demised Premises and/or Capital Project II in
accordance with the provisions of the Facility Lease, under
the circumstances .and upon the conditions and terms
prescribed herein and in the Facility Lease, at a prepayment
price equal to the sum of the principal amount represented
thereby plus accrued interest represented thereby to the date
fixed for prepayment.
The Certificates shall. not otherwise be subject to
prepayment before their respective stated Payment Dates.
040034-0008-028-3764s 35 02/15/84 409
• SECTION 4. 02 . Selection of Certificates for
Prepayment. Whenever less than all the Outstanding
Certificates payable on any one Payment Date are to be
prepaid on any one date, the Trustee shall select the
Certificates of such Payment Date to be prepaid from the
Outstanding Certificates payable on such Payment Date by lot
in any manner that the Trustee deems fair, and the Trustee
shall promptly notify the Corporation and the County in
writing of the numbers of the Certificates so selected for
prepayment on such date. For purposes of such selection,
Certificates shall be deemed to be composed of $5, 000
portions, and any such portion may be separately prepaid.
SECTION 4.03 . Notice of Prepayment. Notice of
prepayment shall be mailed, first class postage prepaid, to
the Purchasers and to the respective Owners of any
Certificates designated for prepayment at their addresses
appearing on the books required to be kept by the Trustee
pursuant to the provisions of Section 2 . 07 not less than
fifteen ( 15 ) nor more than thirty (30) days prior to the
prepayment date, which notice shall, in addition to setting
forth the above information, in the case of each Certificate
called for prepayment in part only state the amount of the
principal amount represented thereby which is to be prepaid.
Each notice of prepayment shall state the prepayment date,
the prepayment place and the prepayment price, shall
designate the serial numbers of the Certificates to be
36 410040034-0008-028-3764s 02/15/84
prepaid by giving the individual number of each Certificate
or by stating that all Certificates between two stated
numbers, both inclusive, have been called for prepayment, and
shall require that such Certificates be then surrendered for
prepayment; and shall also state that the interest
represented by the Certificates designated for prepayment
shall cease to accrue from and after such prepayment date and
that on such prepayment date there will become due and
payable on each of the Certificates designated for prepayment
the prepayment price represented thereby.
In case of the prepayment as permitted herein of
all the Certificates then Outstanding, or of all the
Certificates of any one Payment Date then Outstanding, notice
of prepayment shall be given by mailing as hereinabove
provided, except that the notice of prepayment need not
specify the serial numbers of the Certificates to be prepaid.
The Trustee shall give notice of prepayment of any
Certificates to be prepaid upon receipt of a Written Request
of the County (which request shall be given to the Trustee at
least thirty (30) days prior to the date fixed for
prepayment) , but only after the County shall have made a
prepaid Base Rental Payment to the Trustee and the Trustee
shall have deposited in the Prepayment Fund established
pursuant to Section 5 . 02 (c) such prepaid Base Rental Payment
in an amount sufficient for the pAyment of the prepayment
price represented by all Certificates to be prepaid (or the
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Trustee determines that a prepaid Base Rental Payment will be
made available to it in an amount sufficient and in time
sufficient for such purpose) , together with the estimated
expense of giving such notice.
SECTION 4. 04. Partial Prepayment of Certificates.
Upon surrender of any Certificate prepaid in part only, the
Trustee shall execute and deliver to the Owner thereof a new
Certificate or Certificates representing the unprepaid
principal amount of the Certificate surrendered.
SECTION 4. 05 . Effect of Prepayment. If notice of
prepayment has been duly given as aforesaid and moneys for
the payment of the prepayment price on the Certificates to be
prepaid are held by the Trustee, then on the prepayment date
designated in such notice the Certificates so called for
prepayment shall become payable at the prepayment price
specified in such notice; and from and after the date so
designated interest represented by the Certificates so called
for prepayment shall cease to accrue, such Certificates shall
cease to be entitled to any benefit or security hereunder and
the Owners of such Certificates shall have no rights in
respect thereof except to receive payment of the prepayment
price represented thereby. The Trustee shall, upon surrender
for payment of any of the Certificates to be prepaid, pay
such Certificates at the prepayment price thereof.
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All Certificates prepaid pursuant to the provisions
of this Article shall be cancelled by the Trustee and shall
not be redelivered.
ARTICLE V
RENTAL PAYMENTS
SECTION 5 . 01 . Pledge of Base Rental Payments; Base
Rental Payment Fund. The Base Rental Payments are hereby
irrevocably pledged to and shall be used for the punctual
payment of the interest and principal represented by the
Certificates, and the Base Rental Payments shall not be used
for any other purpose while any of the Certificates remain
Outstanding. This pledge shall constitute a first and
exclusive lien on the Base Rental Payments in accordance with
the terms hereof.
All Base Rental Payments shall be paid directly by
the County to the Trustee, and if received by the Corporation
at any time shall be deposited by the Corporation with the
Trustee within one business day after the receipt thereof.
All Base Rental Payments shall be held in trust by the
Trustee in the Base Rental Payment Fund, which fund the
Trustee hereby agrees to establish and maintain so long as
any Certificates are Outstanding, for the benefit of the
County until deposited in the funds provided in Section 5 . 02,
whereupon they shall be held in trust by the Trustee in such
funds for the benefit of the Owners from time to time.
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T
SECTION 5 .02 . Deposit of Base Rental Payments .
The Trustee shall deposit the Base Rental Payments contained
in the Base Rental Payment Fund at the times and in the
manner hereinafter provided in the following respective
funds, each of which the Trustee hereby agrees to establish
and maintain so long as any Certificates are Outstanding, and
the moneys in each of such funds shall be disbursed only for
the purposes and uses hereinafter authorized.
( a) Interest Fund. The Trustee, on January 1 and
July 1 0£ each year (commencing on January 1, 1985) ,
shall deposit in the Interest Fund that amount of moneys
representing the portion of the Rental Payments
designated as interest components coming due on each
such January 1 and July 1 date, respectively. Moneys in
the Interest Fund shall be used and withdrawn by the
Trustee solely for the purpose of paying the interest
represented by the Certificates when due and payable.
(b) Principal Fund. The Trustee, on January 1 and
July 1 of each year (commencing on July 1, 1985) , shall
deposit in the Principal Fund that amount of moneys
representing the portion of the Base Rental Payments
designated as the principal component coming due on such
January 1 or July 1 date, respectively. Moneys in the
Principal Fund shall be used and withdrawn by the
Trustee solely for the purpose of paying the principal
represented by the Certificates when due and payable.
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1
(c) Prepayment Fund. The Trustee, on the
prepayment date specified in the Written Request of the
County filed with the Trustee at the time that any
prepaid Base Rental Payment is paid to the Trustee
pursuant to the Facility Lease, shall deposit in the
Prepayment Fund that amount of moneys representing the
portion of the Base Rental Payments designated as
prepaid Base Rental Payments. Moneys in the Prepayment
Fund shall be used and withdrawn by the Trustee solely
for the purpose of paying the interest and principal
represented by the Certificates to be prepaid.
SECTION 5 . 03 . Trust Administration Fund. The
Trustee shall deposit in the Trust Administration Fund (the
initial payment into which is provided for in Section 3 . 02 (b)
and which fund the Trustee hereby agrees to establish and
maintain so long as any Certificates are Outstanding) all
amounts received from the County to be applied as Additional
Rental Payments under the Facility Lease, to be held by the
Trustee for the benefit of the County until disbursed. The
moneys in the Trust Administration Fund shall be disbursed by
the Trustee upon the Written Request of the Corporation for
the payment of administrative costs of the Corporation,
including salaries, wages, all expenses, compensation and
indemnification of the Trustee payable by the Corporation
under this Trust Agreement, fees of the auditors,
accountants, attorneys or engineers, insurance premiums and
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all other necessary administrative costs of the Corporation
or charges required to be paid by it in order to maintain its
corporate existence or to comply with the terms of the
Certificates or of this Trust Agreement. The Trustee shall,
from time to time and as often as necessary to replenish and
maintain a balance of five thousand dollars ($5, 000) in said
Fund, give notice to the County of such Additional Rental
required to be paid pursuant to the Facility Lease.
ARTICLE VI
COVENANTS
SECTION 6 .01 . Compliance with Trust Agreement.
The Trustee will not execute or deliver any Certificates in
any manner other than in accordance with the provisions
hereof, and the Corporation and the County will not suffer or
permit any default by them to occur hereunder, but will
faithfully comply with, keep, observe and perform all the
agreements, conditions, covenants and terms hereof required
to be complied with, kept, observed and performed by them.
SECTION 6.02 . Compliance with or Amendment of
Facility Lease. The Corporation and the County will
faithfully comply with, keep, observe and perform all the
agreements, conditions, covenants and terms contained in the
Facility Lease required to be complied with, kept, observed
and performed by them and, together with the Trustee, will
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T
enforce the Facility Lease against the other party thereto in
accordance with its terms.
The Corporation and the County will not alter,
amend or modify the Facility Lease without the prior written
consent of the Trustee, which consent shall be given only
(i ) if, in the opinion of the Trustee (which opinion may, in
the discretion of the Trustee, be based upon an Opinion of
Counsel or a Certificate of the County) , such alterations,
amendments or modifications will not result in any material
impairment of the security given or intended to be given for
the payment of the Base Rental Payments, or (ii ) if the
Trustee first obtains the written consents of the Owners of
at least a majority in aggregate principal amount of the
Certificates then Outstanding to such alterations, amendments
or modifications; provided, however, that no such alteration,
amendment or modification shall extend the fixed payment date
of any Certificate or reduce the rate of interest represented
thereby or extend the time of payment of such interest or
reduce the amount of principal represented thereby without'
the prior written consent .of the Owner of the Certificate so
affected, or reduce the percentage of Owners whose consent is
required for the execution of any alteration, amendment or
supplement thereof, and further provided that the Trustee
shall first obtain the prior written approval of the insurer,
if any, insuring payment of the amounts of principal and
interest represented by the Certificates.
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SECTION 6. 03 . Observance of Laws and Regulations.
The Corporation and the County and the Trustee will
faithfully comply with, keep, observe and perform all valid
and lawful obligations or regulations now or hereafter
imposed on them by contract, or prescribed by any law of the
United States of America or of the State of California, or by
any officer, board or commission having jurisdiction or
control, as a condition of the continued .enjoyment of each
and every franchise, right or privilege now owned or
hereafter acquired by them, including their right to exist
and carry on their respective businesses,' to the end that
such franchises, rights and privileges shall be maintained
and preserved and shall not become abandoned, forfeited or in
any manner impaired.
SECTION 6. 04. Other Liens. The County will keep
the Demised Premises and Capital Project II and all parts
thereof free from judgments and materialmen' s and mechanics'
,liens and free from all claims, demands, encumbrances and
other liens of whatever nature or character, and free from
any claim or liability which, in the judgment of the Trustee
(and its determination thereof shall be final) , might
embarrass or hamper the County in conducting its business or
utilizing the Demised Premises and Capital Project II , and
the Trustee at its option ( after first giving the County ten
days' written notice to comply therewith and failure of the
County to so comply within such ten-day period) may defend
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418
against any and all actions or proceedings in which the
validity hereof is or might be questioned, or may pay or
compromise any claim or demand asserted in any such actions
or proceedings; provided, however, that, in defending against
any such actions or proceedings or in paying or compromising
any such claims or demands, the Trustee shall not in any
event be deemed to have waived or released the County from
liability for or on account of any of its agreements and
covenants contained herein, or from its liability hereunder
to defend the validity hereof and to perform such agreements
and covenants .
So long as any Certificates are Outstanding,
neither the Corporation nor the County will create or suffer
to be created any pledge of or lien on the Base Rental
Payments other than the pledge and lien hereof.
SECTION 6. 05 . Prosecution and Defense of Suits.
The County will promptly, upon request of the Trustee or any
Owner, take such action from time to time as may be necessary
or proper to remedy or cure any cloud upon or defect in the
title to the Demised Premises or Capital Project II or any
part thereof, whether now existing or hereafter developing,
will prosecute all actions, suits or other proceedings as may
be appropriate for such purpose and will indemnify and save
the Trustee and every Owner harmless from all cost, damage,
expense or loss, including attorneys' fees, which they or any
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of them may incur by reason of any such cloud, defect,
action, suit or other proceeding.
The County will defend against every action, suit
or other proceeding at any time brought against the Trustee
or any Owner upon any claim arising out of the receipt,
deposit or disbursement of any of the Base Rental Payments or
involving the rights of the Trustee or any Owner hereunder;
provided, however, that the Trustee or any Owner at its or
his election may appear in and defend any such action, suit
or other proceeding. The County will indemnify and hold
harmless the Trustee and the Owners against any and all
liability claimed or asserted by any person arising out of
any such receipt, deposit or disbursement, and will indemnify
and hold harmless the Owners against any attorneys' fees or
other expenses which any of them may incur in connection with
any litigation or otherwise in connection with the foregoing
to which any of them may become a party in order to enforce
their rights hereunder or under the Certificates, provided
that such litigation shall be concluded favorably to such
Owners ' contentions therein.
SECTION 6. 06. Accounting Records and Statements.
The Trustee will keep proper accounting records in which
complete and correct entries shall be made of all
transactions relating to the receipt, deposit and
disbursement of the Rental Payments, and such accounting
records shall be available for inspection by the Corporation,
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the County or any Owner or his agent duly authorized in
writing at reasonable hours and under reasonable conditions.
Not later than December 31 in each year, commencing on
December 31, 1984 and continuing so long as any Certificates
are Outstanding, the Corporation will furnish to the Trustee,
the County and any Owner who may so request a complete
statement covering the. receipts, deposits and disbursements
of the Rental Payments for the twelve-month period ending on
the preceding June 30, accompanied by an audit report and
related opinion of an independent firm of certified public
accountants to be employed by the Corporation, or, if so
requested in writing by the Owners of at least sixty percent
(60%) in aggregate principal amount of the Certificates then
Outstanding, accompanied by an audit report and related
opinion of an independent firm of certified public
accountants of their selection.
SECTION 6. 07 . Recordation and Filing. The
Corporation will file, record, register, renew, refile and
rerecord all such documents, including financing statements
( or continuation statements in connection therewith) , as may
be required by law in order to maintain the Facility Lease
and the Assignment Agreement and this Trust Agreement at all
times as a security interest in the Base Rental Payments, all
in such manner, at such times and in such places as may be
required and to the extent permitted by law in order to fully
perfect, preserve and protect the security of the Owners and
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the rights and security interests of the Trustee, and the
Corporation will do whatever else may be necessary or be
reasonably required in order to perfect and continue the lien
of the Facility Lease, the Assignment Agreement and this
Trust Agreement.
SECTION 6. 08. Further Assurances. Whenever and so
often as requested to do so by the Trustee or any Owner, the
Corporation and the County will promptly execute and deliver
or cause to be executed and delivered all such other and
further assurances, documents or instruments and promptly do
or cause to be done all such other and further things as may
be necessary or reasonably required in order to further and
more fully vest in the Trustee and the Owners all advantages,
benefits, interests, powers, privileges and rights conferred
or intended to be conferred upon them hereby or by the
Assignment Agreement or the Facility Lease.
ARTICLE VII
DEFAULT AND LIMITATIONS OF LIABILITY
SECTION 7 . 01 . Action on Default. If an Event of
Default ( as that term is defined in Section 11 of the
Facility Lease) shall happen, then such Event of Default
shall constitute a default hereunder, and in each and every
such case during the continuance of such Event of Default the
Trustee or the Owners of not less than a majority in
aggregate principal amount represented by the Certificates at
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the time Outstanding shall be entitled, upon notice in
writing to the County and the Corporation, to exercise the
remedies provided to the Corporation in the Facility Lease
and to the Trustee in the Assignment Agreement; provided,
however, that the Trustee shall not terminate, nor consent to
the termination, of the Facility Lease, without the prior
written consent of the insurer, if any, insuring payment of
the amounts of principal and interest represented by the
Certificates.
SECTION 7 . 02 . Other Remedies of the Trustee. The
Trustee shall have the right --
(a) by mandamus or other action or proceeding or
suit at law or in equity to enforce its rights against
the Corporation or the County or any member of the Board
of Supervisors, officer or employee thereof, and to
compel the Corporation or the County or any such member
of the Board of Supervisors, officer or employee to
perform or carry out its or his or her duties under law
and the agreements and covenants required to be
performed by it or him or her contained herein;
(b) by suit in equity to enjoin any acts or things
which are unlawful or violate the rights of the Trustee;
or
( c) by suit in equity upon the happening of any
default hereunder to require the Corporation and the
County and the members of its Board of Supervisors,
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officers and employees to account as the trustee of an
express trust.
SECTION 7 .03 . Non-Waiver. A waiver of any default
or breach of duty or contract by the Trustee shall not affect
any subsequent default or breach of duty or contract or
impair any rights or remedies on any such -subsequent default
or breach of duty or contract. No delay or omission by the
Trustee to exercise any right or remedy accruing upon any
default or breach of duty or contract shall impair any such
right or remedy or shall be construed to be a waiver of any
such default or breach of duty or contract or an acquiescence
therein, and every right or remedy conferred upon the Trustee
by law or by this Article may be enforced and exercised from
time to time and as often as shall be deemed expedient by the
Trustee .
If any action, proceeding or suit to enforce any
right or to exercise any remedy is abandoned or determined
adversely to the Trustee, the Trustee and the Corporation and
the County shall be restored to their former positions,
rights and remedies as if such action, proceeding or suit had
not been brought or taken.
SECTION 7 . 04. Remedies Not Exclusive. No remedy
herein conferred upon or reserved to the Trustee is intended
to be exclusive of any other remedy, and each such remedy
shall be cumulative and shall be in addition to every other
remedy given hereunder or now or hereafter existing in law or
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in equity or by statute or otherwise and may be exercised
without exhausting and without regard to any other remedy
conferred by any law.
SECTION 7 . 05 . No Liability by the Corporation to
the Owners . Except as expressly provided herein, the
Corporation shall not have any obligation or liability to the
Owners with respect to the payment when due of the Rental
Payments by the County, or with respect to the performance by
the County of the other agreements and covenants required to
be performed by it contained in the Facility Lease or herein,
or with respect to the performance by the Trustee of any
right or obligation required to be performed by it contained
herein.
SECTION 7 . 06. No Liability by the County to the
Owners . Except for the payment when due of the Rental
Payments and the performance of the other agreements and
covenants required to be performed by it contained in the
Facility Lease or herein, the County shall not have any
obligation or liability to the Owners with respect to the
Trust Agreement or the preparation, execution, delivery or
transfer of the Certificates or the disbursement of the Base
Rental Payments by the Trustee to the Owners, or with respect
to the performance by the Trustee of any right or obligation
required to be performed by it contained herein.
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SECTION 7 . 07. No Liability by the Trustee to the
Owners. Except as expressly provided herein, the Trustee
shall not have any obligation or liability to the Owners with
respect to the payment when due of the Base Rental Payments
by the County, or with .respect to the performance by the
County of the other agreements and covenants required to be
performed by it contained in the Facility Lease or herein.
ARTICLE VIII
THE TRUSTEE
SECTION 8. 01 . Employment of the Trustee. The
Corporation and the County hereby appoint and employ the
Trustee to receive, deposit and disburseNthe Rental Payments,
to prepare, execute, deliver and transfer the Certificates
and to perform the other functions contained herein; all in
the manner provided herein and subject to the conditions and
terms hereof. By executing and delivering the Trust
Agreement, the Trustee accepts the appointment and employment
hereinabove referred to and accepts the rights and
obligations of the Trustee provided herein, as well as the
obligations of the Trustee set forth in Section 4 of the
Facility Lease, subject to the conditions and terms hereof.
SECTION 8. 02 . Duties, Removal and Resignation of
the Trustee. The Corporation and the County, or the Owners
of a majority in aggregate principal amount represented by
the Certificates at the time Outstanding, may by an
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426
instrument in writing remove the Trustee initially a party
hereto and any successor thereto and may appoint a successor
Trustee, but any such successor Trustee shall be a bank or
trust company doing business and having a principal corporate
trust office in San Francisco, California, having a combined
capital (exclusive of borrowed capital ) and surplus of at
least fifty million dollars ($50, 000, 000) and subject to
supervision or examination by federal or state authorities .
.If such bank or trust company publishes a report of condition
at least annually, pursuant to law or to the requirements of
any supervising or examining authority above referred to,
then for the purposes of this Section the combined capital
and surplus of such bank or trust company shall be deemed to
be its combined capital and surplus as set forth in its most
recent report of condition so published.
The Trustee may at any time resign by giving
written notice of such resignation to the Corporation and the
County and by giving notice by publication of such
resignation to the Owners, which notice shall be published at
least once in a Financial Newspaper. Upon receiving such
notice of resignation, the Corporation shall promptly appoint
a successor Trustee by an instrument in writing; provided,
however, that in the event the Corporation does not appoint a
successor Trustee within thirty (30) days following receipt
of such notice of resignation, the resigning Trustee may
petition the appropriate court having jurisdiction to appoint
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a successor Trustee. Any resignation or removal of a Trustee
and appointment of a successor Trustee shall become effective
only upon acceptance of appointment by the successor Trustee.
SECTION 8. 03 . Compensation and Indemnification of
the Trustee. The Corporation shall from time to time,
subject to any agreement then in effect with the Trustee, pay
the Trustee compensation for its services and reimburse the
Trustee for all its advances and expenditures hereunder,
including but not limited to advances to and fees and
expenses of accountants, agents, appraisers, consultants,
counsel or other experts employed by it in the exercise and
performance of its rights and obligations hereunder;
provided, however, that the Trustee shall not have any lien
for such compensation or reimbursement against any moneys
held by it in any of the funds established hereunder or under
the Facility Lease (except that such compensation or
reimbursement may be made from the Trust Administration Fund
established pursuant to Section 5. 03 or from interest and
income received from the investment of moneys on deposit in
the Certificate Reserve Fund created under the Facility Lease
so long as the moneys on deposit therein are equal to the
Certificate Reserve Fund Requirement (as that term is defined
in the Facility Lease) ) . The Trustee may take whatever legal
actions are lawfully available to it directly against the
Corporation or the County.
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The County shall indemnify and hold harmless the
Trustee to the extent and in the amounts provided by the laws
of the State of California from and against all claims,
damages and losses, including legal fees and expenses,
arising out of ( i) the condition, management, maintenance or
use of or from any work or thing done in connection with the
Demised Premises and Capital Project II by the County, or
( ii ) any act of negligence of the County or of any of its
agents, contractors, employees, invitees, licensees, officers
or servants in connection with the Demised Premises and
Capital Project II , provided that no indemnification will be
made for willful misconduct or gross negligence by the
Trustee .
SECTION 8. 04. Protection of the Trustee. The
Trustee shall be protected and shall incur no liability in
acting or proceeding in good faith upon any affidavit, bond,
certificate, consent, notice, request, requisition,
resolution, statement, telegram, voucher, waiver or other
paper or document which it shall in good faith believe to be
genuine and to have been adopted, executed or delivered by
the proper party or pursuant to any of the provisions hereof,
and the Trustee shall be under no duty to make any
investigation or inquiry as to any statements contained or
matters referred to in any such instrument, but may accept
and rely upon the same as conclusive evidence of the truth
and accuracy of such statements. The Trustee shall not be
55 `i2
040034-0008-028-3764s 02/15/84 19
bound to recognize any person as an Owner of any Certificate
or to take any action at the request of any such person
unless such Certificate shall be deposited with the Trustee
or satisfactory evidence of the ownership of such Certificate
shall be furnished to the Trustee . The Trustee may consult
with counsel, who may be counsel to the Corporation or the
County, with regard to legal questions, and the opinion of
such counsel shall be full and complete authorization and
protection in respect to any action taken or suffered by it
hereunder in good faith in accordance therewith.
The Trustee shall not be responsible for the
sufficiency of the Facility Lease, or of the assignment made
to it by the Assignment Agreement of all rights to receive
the Rental Payments thereunder, or of the title to or value
of the Demised Premises and Capital Project II .
Whenever in the administration of its rights and
obligations hereunder the Trustee shall deem it necessary or
desirable that a matter be proved or established prior to
taking or suffering any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically
prescribed) may be deemed to be conclusively proved and
established by a Certificate of the County or a Certificate
of the Corporation, and such certificate shall be full
warrant to the Trustee for any action taken or suffered under
the provisions hereof upon the faith thereof, but in its
discretion the Trustee may, in lieu thereof, accept other
56
040034-0008-028-3764s 02/15/84 3
evidence of such matter or may require such additional
evidence as to it may seem reasonable.
The Trustee may buy, sell, own, hold and deal in
any of the Certificates and may join in any action which any
Owner may be entitled to take with like effect as if the
Trustee were not a party hereto. The Trustee, either as
principal or agent, may also engage in or be interested in
any financial or other transaction with the Corporation or
the County, and may act as agent, depositary or trustee for
any committee or body of Owners or of owners of obligations
of the Corporation or the County as freely as if it were not
the Trustee hereunder.
The Trustee may, to the extent reasonably
necessary, execute any of the trusts or powers hereof and
perform any rights and obligations required of it hereunder
by or through agents, attorneys or receivers, and shall be
entitled to advice of counsel concerning all matters of trust
and its rights and obligations hereunder, and the Trustee
shall not be answerable for the default or misconduct of any
such agent, attorney or receiver selected by it with
reasonable care .
The Trustee shall not be answerable for the
exercise of any trusts or powers hereunder or for anything
whatsoever in connection with the funds established
hereunder, except only for its own willful misconduct, gross
negligence or breach of an obligation hereunder.
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040034-0008-028-3764s 02/15/84 43 s
ARTICLE IX
AMENDMENT OF OR SUPPLEMENT TO
TRUST AGREEMENT
SECTION 9 . 01 . Amendment or Supplement by Consent
of Owners. The Trust Agreement and the rights and
obligations of the Corporation and the County and the Owners
and the Trustee hereunder may be amended or supplemented at
any time by an amendment hereof or supplement hereto which
shall become binding when the written consents of the Owners
of a majority in aggregate principal amount of the
Certificates then Outstanding, exclusive of Certificates
disqualified as provided in Section 9 . 02, are filed with the
Trustee. No such amendment or supplement shall ( 1) extend
the fixed Payment Date of any Certificate or reduce the rate
of interest represented thereby or extend the time of payment
of such interest or reduce the amount of principal
represented thereby without the prior written consent of the
Owner of the Certificate so affected, or (2) reduce the
percentage of Owners whose consent is required for the
execution of any amendment hereof or supplement hereto, or
(3 ) modify any of the rights or obligations of the Trustee
without its prior written consent thereto, or (4) amend this
Section 9 . 01 without the prior written consent of the Owners
of all Certificates then Outstanding.
The Trust Agreement and the rights and obligations
of the Corporation and the County and the Owners and the
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040034-0008-028-3764s 02/15/84 432
Trustee hereunder may also be amended or supplemented at any
time by an amendment hereof or supplement hereto which shall
become binding upon execution without the written consents of
any Owners, but only to the extent permitted by law and after
receipt of an approving Opinion of Counsel and only for any
one or more of the following purposes --
( a) to add to the agreements, conditions,
covenants and terms required by the Corporation or the
County to be observed or performed herein other
agreements, conditions, covenants and terms thereafter
to be observed or performed by the Corporation or the
County, or to surrender any right or power reserved
herein to or conferred herein on the Corporation or the
County, and which in either case shall not adversely
affect the interests of the Owners; or
(b) to make such provisions for the purpose of
curing any ambiguity or of correcting, curing or
supplementing any defective provision contained herein
or in regard to questions arising hereunder which the
Corporation or the County may deem desirable or
necessary and not inconsistent herewith, and which shall
not materially adversely affect the interests of the
Owners.
SECTION 9 . 02 . Disqualified Certificates.
Certificates owned or held by or for the account of the
County (but excluding Certificates held in any pension or
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retirement fund of the County) shall not be deemed
Outstanding for the purpose of any consent or other action or
any calculation of Outstanding Certificates provided in this
Article, and shall not be entitled to consent to or take any
other action provided in this Article, and the Trustee may
adopt appropriate regulations to require each Owner, before
his consent provided for herein shall be deemed effective, to
reveal if the Certificates as to which such consent is given
are disqualified as provided in this Section.
SECTION 9 . 03 . Endorsement or Replacement of
Certificates After Amendment or Supplement. After the
effective date of any action taken as hereinabove provided,
the Trustee may determine that the Certificates may bear a
notation by endorsement in form approved by the Trustee as to
such action, and in that case upon demand of the Owner of any
Outstanding Certificate and presentation of such Certificate
for such purpose at the principal corporate trust office of
the Trustee in San Francisco, California a suitable notation
as to such action shall be made on such Certificate. If the
Trustee shall so determine, new Certificates so modified as
in the opinion of the Trustee shall be necessary to conform
to such action shall be prepared, and in that case upon
demand of the Owner of any Outstanding Certificates such new
Certificates shall be exchanged at the principal corporate
trust office of the Trustee in San Francisco, California
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without cost to each Owner for Certificates then Outstanding
upon surrender of such Outstanding Certificates.
SECTION 9 . 04. Amendment by Mutual Consent. The
provisions of this Article shall not prevent any Owner from
accepting any amendment as to the particular Certificates
owned by him, provided that due notation thereof is made on
such Certificates.
ARTICLE X
DEFEASANCE
SECTION 10. 01 . Discharge of Certificates and Trust
Agreement.
( a) If the Trustee shall pay or cause to be paid
or there shall otherwise be paid to the Owners of all
Outstanding Certificates the interest and principal
represented thereby at the times and in the manner stipulated
herein and therein, then such Owners shall cease to be
entitled to the pledge of and lien on the Base Rental
Payments as provided herein, and all agreements and covenants
of the Corporation, the County and the Trustee to such Owners
hereunder shall thereupon cease, terminate and become void
and shall be discharged and satisfied.
(b) Any Outstanding Certificates shall be deemed
to have been paid within the meaning of and with the effect
expressed in subsection (a) of this Section if there shall be
on deposit with the Trustee moneys or Permitted Securities of
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040034-0008-028-3764s 02/15/84 436
the category specified in clause ( 1 ) of the definition of
such term contained in Section 1 . 01 in an amount sufficient
(together with the increment, earnings and interest on such
Permitted Securities) to pay the interest and principal
represented by such Certificates payable on their Payment
Dates or on the date of prepayment prior thereto.
(c ) After the payment of all the interest and
principal represented by all Outstanding Certificates as
provided in this Section, the Trustee shall execute and
deliver to the Corporation and the County all such
instruments as may be necessary or desirable to evidence the
discharge and satisfaction of the Trust Agreement, and the
Trustee shall pay over or deliver to the County all moneys or
securities held by it pursuant hereto which are not required
for the payment of the interest and principal represented by
such Certificates.
SECTION 10. 02 . Unclaimed Moneys. Anything
contained herein to the contrary notwithstanding, any moneys
held by the Trustee in trust for the payment and discharge of
the interest or principal represented by any of the
Certificates which remain unclaimed for six ( 6) years after
the date when the payments represented by such Certificates
have become payable, if such moneys were held by the Trustee
at such date, or for six ( 6) years after the date of deposit
of such moneys if deposited with the Trustee after the date
when the interest and principal represented by such
62 4 3 C
040034-0008-02.8-3764s 02/15/84
Certificates have become payable, shall at the Written
Request of the County be repaid by the Trustee to the County
as its absolute property free from trust, and the Trustee
shall thereupon be released and discharged with respect
thereto and the Owners shall look only to the County for the
payment of the interest and principal represented by such
Certificates; provided, however, that before being required
to make any such payment to the County, the Trustee shall, at
the expense of the County, cause to be published once a week
for two (2 ) successive weeks in a Financial Newspaper a
notice that such moneys remain unclaimed and that after a
date named in such notice, which date shall not be less than
thirty ( 30) days after the date of the first publication of
such notice, the balance of such moneys then unclaimed will
be returned to the County.
ARTICLE XI
MISCELLANEOUS
SECTION 11 . 01 . Benefits of Trust Agreement Limited
to Parties . Nothing contained herein, expressed or implied,
is intended to give to any person other than the Corporation,
the County, the Trustee and the Owners any claim, remedy or
right under or pursuant hereto, and any agreement, condition,
covenant or term required herein to be observed or performed
by or on behalf of the Corporation or the County shall be for
the sole and exclusive benefit of the Trustee and the Owners.
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SECTION 11 . 02 . Successor Deemed Included in all
References to Predecessor. Whenever either the Corporation,
the County or the Trustee or any officer thereof is named or
referred to herein, such reference shall be deemed to include
the successor to the powers, duties and functions that are
presently vested in the Corporation, the County or the
Trustee or such officer, and all agreements, conditions,
covenants and terms required hereby to be observed or
performed by or on behalf of the Corporation, the County or
the Trustee or any officer thereof shall bind and inure to
the benefit of the respective successors thereof whether so
expressed or not.
SECTION 11 . 03 . Execution of Documents by Owners.
Any declaration, request or other instrument which is
permitted or required herein to be executed by Owners may be
in one or more instruments of similar tenor and may be
executed by Owners in person or by their attorneys appointed
in writing. The fact and date of the execution by any Owner
or his attorney of any declaration, request or other
instrument or of any writing appointing such attorney may be
proved by the certificate of any notary public or other
officer authorized to take acknowledgments of deeds to be
recorded in the state or territory in which he purports to
act that the person signing such declaration, request or
other instrument or writing acknowledged to him the execution
thereof, or by an affidavit of a witness of such execution
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040034-0008-028-3764s 02/15/84 438
duly sworn to before such notary public or other officer, or
by such other proof as the Trustee may accept which it may
deem sufficient.
The ownership of any Certificates and the amount,
payment date, number and date of owning the same may be
proved by the books required to be kept by the Trustee
pursuant to the provisions of Section 2. 07 .
Any declaration, request or other instrument in
writing of the Owner of any Certificate shall bind all future
Owners of such Certificate with respect to anything done or
suffered to be done by the Corporation or the County or the
Trustee in good faith and in accordance therewith.
SECTION 11 . 04. Waiver of Personal Liability. No
member of the Board of Supervisors, officer or employee of
the County shall be individually or personally liable for the
payment of the interest or principal represented by the
Certificates, but nothing contained herein shall relieve any
member of the Board of Supervisors, officer or employee of
the County from the performance of any official duty provided
by any applicable provisions of law or by the Facility Lease
or hereby.
SECTION 11 . 05 . Acquisition of Certificates by
County. All Certificates acquired by the County, whether by
purchase or gift or otherwise, shall be surrendered to the
Trustee for cancellation.
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SECTION 11 . 06. Content of Certificates . Every
Certificate of the County or of the Corporation with respect
to compliance with any agreement, condition, covenant or term
contained herein shall include ( a) a statement that the
person or persons making or giving such certificate have read
such agreement, condition, covenant or term and the
definitions herein relating thereto; (b) a brief statement as
to the nature and scope of the examination or investigation
upon which the statements contained in such certificate are
based; ( c) a statement that, in the opinion of the signers,
they have made or caused to be made such examination or
investigation as is necessary to enable them to express an
informed opinion as to whether or not such agreement,
condition, covenant or term has been complied with; and (d) a
statement as to whether, in the opinion of the signers, such
agreement, condition, covenant or term has been complied with.
Any Certificate of the County or of the Corporation
may be based, insofar as it relates to legal matters, upon an
Opinion of Counsel unless the person making or giving such
certificate knows that the Opinion of Counsel with respect to
the matters upon which his certificate may be based, as
aforesaid, is erroneous, or in the exercise of reasonable
care should have known that the same was erroneous . Any
Opinion of Counsel may be based, insofar as it relates to
factual matters, information with respect to which is in the
possession of the County or the Corporation, upon a
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representation by an officer or officers of the County or the
Corporation, as the case may be, unless the counsel executing
such Opinion of Counsel knows that the representation with
respect to the matters upon which his opinion may be based,
as aforesaid, is erroneous, or in the exercise of reasonable
care should have known that the same was erroneous .
SECTION 11 . 07 . Publication for Successive Weeks.
Any publication required to be made hereunder for two (2 )
successive weeks in a Financial Newspaper may be made in each
instance upon any business day of the first week and need not
be made on the same business day of any succeeding week or in
the same Financial Newspaper for any subsequent publication,
but may be made on different business days or in different
Financial Newspapers, as the case may be .
SECTION 11 . 08. Funds. Any fund required to be
established and maintained herein by the Trustee may be
established and maintained in the accounting records of the
Trustee either as an account or a fund, and may, for the
purposes of such accounting records, any audits thereof and
any reports or statements with respect thereto, be treated
either as an account or a fund; but all such records with
respect to all such funds shall at all times be maintained in
accordance with sound accounting practice and with due regard
for the protection of the security of the Certificates and
the rights of the Owners.
040034-0008-028-3764s 67 02/15/84 441
, w
The Trustee may comingle any of the moneys held by
it hereunder for investment purposes only; provided, however,
that the Trustee shall account separately for the moneys in
each fund or account established pursuant to this Trust
Agreement.
SECTION 11 . 09 . Investments. Any moneys held by
the Trustee in the Base Rental Payment Fund, in the Refunding
Expenses Fund or in the Trust Administration Fund may be
invested ( and, upon the Written Request of the County, shall
be invested) by the Trustee in Permitted Investments which
will, as nearly as practicable, mature on or before the dates
when such moneys are anticipated to be needed for
disbursement hereunder. All such moneys invested by the
Trustee shall be invested so as to obtain the highest yield
which the Trustee deems practicable, having due regard for
the safety of such moneys, and the Trustee may act as
principal or agent in the acquisition or disposition of any
such investment. The Trustee shall not be liable or
responsible for any loss suffered in connection with any such
investment made by it under the terms of and in accordance
with this Section. The Trustee may sell or present for
redemption any obligations so purchased whenever it shall be
necessary in order to provide moneys to meet any payment of
the funds so invested, and the Trustee shall not be liable or
responsible for any losses resulting from any such investment
sold or presented for redemption. Any interest or profits on
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such investments shall be paid to the County on January 1 and
July 1 of each year.
SECTION 11 . 10. Article and Section Headings,
Gender and References. The headings or titles of the several
Articles and Sections hereof and the table of contents
appended hereto shall be solely for convenience of reference
and shall not affect the meaning, construction or effect
hereof, and words of any gender shall be deemed and construed
to include all genders. All references herein to "Articles, "
"Sections" and other subdivisions or clauses are to the
corresponding Articles, Sections, subdivisions or clauses
hereof; and the words "hereby, " "herein, " "hereof, " "hereto, "
"herewith, " "hereunder" and other words of similar import
refer to this Trust Agreement as a whole and not to any
particular Article, Section, subdivision or clause thereof.
SECTION 11 . 11. Partial Invalidity. If any one or
more of the agreements, conditions, covenants or terms
required herein to be observed or performed by or on the part
of the Corporation, the County or the Trustee shall be
contrary to law, then such agreement or agreements, such
condition or conditions, such covenant or covenants or such
term or terms shall be null and void and shall be deemed
separable from the remaining agreements, conditions,
covenants and terms hereof and shall in no way affect the
validity hereof or of the Certificates, and the Owners shall
retain all the benefit, protection and security afforded to
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040034-0008-028-3764s 02/15/84 j 44
them under any applicable provisions of law. The
Corporation, the County and the Trustee hereby declare that
they would have executed this Trust Agreement, and each and
every other Article, Section, paragraph, subdivision,
sentence, clause and phrase hereof and would have authorized
the execution and delivery of the Certificates pursuant
hereto irrespective of the fact that any one or more
Articles, Sections, paragraphs, subdivisions, sentences,
clauses or phrases hereof or the application thereof to any
person or circumstance may be held to be unconstitutional,
unenforceable or invalid.
SECTION 11 . 12 . California Law. This Trust
Agreement shall be construed and governed in accordance with
the laws of the State of California.
SECTION 11 . 13 . Notices . All written notices to be
given hereunder shall be given by mail to the party entitled
thereto at its address set forth below, or at such other
address as such party may provide to the other parties in
writing from time to time, namely:
If to the County: Clerk of the Board of Supervisors
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
If to the Corporation: c/o Clerk of the Board of Supervisors
County of Contra Costa
County Administration Building
651 Pine Street
Martinez, California 94553
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040034-0008-028-3764s 02/15/844
• r
If to the Trustee: Bank of America National Trust
and Savings Association
201 Mission Street
San Francisco, California 94105
Attention: Corporate Agency Division
9530
SECTION 11 . 14. Effective Date. This Trust
Agreement shall become effective upon its execution and
delivery.
SECTION 11 . 15 . Execution in Counterparts. This
Trust Agreement may be executed in several counterparts, each
of which shall be deemed an original, and all of which shall
constitute but one and the same instrument.
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040034-0008-028-3764s 02/15/84
< c
IN WITNESS WHEREOF, the parties hereto have
executed and attested this Trust Agreement by their officers
thereunto duly authorized as of the day and year first
written above.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By
Trust Officer
(SEAL)
Attest:
Assistant Secretary
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
( SEAL)
Attest:
By
Secretary
72
040034-0008-028-3764s 02/15/84 446
a
COUNTY OF CONTRA COSTA
By
Chairman of the Board of Supervisors
(SEAL)
Attest:
County Clerk and Ex-Officio
Clerk of the Board of Supervisors
Approved as to form:
County Counsel
By
Deputy County Counsel
447
73
040034-0008-028-3764s 02/15/84
CCe-12
3762s
2-14-84 Draft
ASSIGNMENT AGREEMENT
by and between
CONTRA COSTA COUNTY PUBLIC FACILITIES CORPORATION
and
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION
Dated as of April 1, 1984
RELATING TO THE AMENDED AND RESTATED FACILITY LEASE
(2425 BISSO LANE OFFICE BUILDING)
448
ASSIGNMENT AGREEMENT
RELATING TO AMENDED AND RESTATED FACILITY LEASE
(2425 BISSO LANE OFFICE BUILDING)
This ASSIGNMENT AGREEMENT, made and entered into as
of April 1, 1984, by and between CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION, a nonprofit public benefit
corporation organized under the laws of the State of
California (the "Corporation" ) , and BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION, a national banking association
organized and existing under the laws of the United States of
America (the "Trustee" ) ;
W I T N E S S E T H:
WHEREAS, the Corporation and the County of Contra
Costa, a political subdivision organized and existing under
and by virtue of the laws of the State of California (the
"County" ) , have previously entered into a facility
lease/purchase agreement, entitled "Facility Lease/Purchase
Agreement (2425 Bisso Lane Office Building) " and dated as of
June 1, 1982 (the "1982 Lease" ) , which was recorded in the
office of the County Recorder of the County of Contra Costa
on June 24, 1982 under Recorder' s Serial Number 82-69872, to
lease to the County an office building located at 2425 Bisso
Lane, Concord, California ( "Capital Project II" ) ;
449
WHEREAS, the Corporation and the County have
entered into an agreement, entitled "Amended and Restated
Facility Lease (2425 Bisso Lane Office Building) " and dated
as of April 1, 1984 (the "Facility Lease" ) , which amends the
1982 Lease and restates the 1982 Lease as amended; and
WHEREAS, under the Facility Lease, the County is
obligated to make certain rental payments to the Corporation
for the lease of Capital Project II ; and
WHEREAS, the Corporation desires to assign without
recourse all of its rights to receive such rental payments to
the Trustee for the benefit of the owners of certificates of
participation (the "Certificates" ) to be executed and
delivered under a trust agreement to be entered into by and
among the Trustee, the Corporation and the County, entitled
"Trust Agreement" and dated as of April 1, 1984 (the "Trust
Agreement" ) ; and
WHEREAS, in consideration of such assignment and
the execution of the Trust Agreement, the Trustee has agreed
to execute and deliver the Certificates in an amount equal to
the aggregate principal components of such of said rental
payments as are designated base rental payments in the
Facility Lease, each evidencing and representing a fractional
undivided interest in such base rental payments; and
WHEREAS, all acts, conditions and things required
by law to exist, to have happened and to have been performed
precedent to and in connection with the execution and
2
040511-0015-028-3762s 02/14/84
450
entering into of this Assignment Agreement do exist, have
happened and have been performed in regular and due time,
form and manner as required by law, and the parties hereto
are now duly authorized to execute and enter into this
Assignment Agreement;
NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES
AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN
AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO
HEREBY AGREE AS FOLLOWS:
SECTION 1. Assignment.
The Corporation, for one dollar ($1. 00) and other
good and valuable consideration in hand received, does hereby
sell, assign and transfer to the Trustee without recourse for
the benefit of the owners of the Certificates all its rights
to receive the rental payments from the County under the
Facility Lease and, effective immediately on default by the
County under the Facility Lease and without any further
action on the part of the Corporation, any and all of the
other rights of the Corporation under the Facility Lease as
may be necessary to enforce payment of such rental payments
when due or otherwise to protect the interests of the owners
of the Certificates.
SECTION 2 . Acceptance.
The Trustee hereby accepts the foregoing assignment
for the purpose of securing the rights assigned to it to
receive the rental payments from the County under the
3
040511-0015-028-3762s 02/14/84 451
Facility Lease and all other rights assigned to it, subject
to the terms and provisions of the Trust Agreement, and all
such rental payments shall be applied and the rights so
assigned shall be exercised by the Trustee as provided in the
Trust Agreement.
SECTION 3 . Conditions.
This Assignment Agreement shall confer no rights or
impose no obligations upon the Trustee beyond those expressly
provided in the Trust Agreement.
SECTION 4. Execution.
The Assignment Agreement may be executed in any
number of counterparts, each of which shall be deemed to be
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040511-0015-028-3762s 02/14/84 452
an original, but all together shall constitute but one and
the same Assignment Agreement.
IN WITNESS WHEREOF, the parties hereto have
executed and attested this Agreement by their officers
thereunto duly authorized as of the day and year first
written above.
CONTRA COSTA COUNTY PUBLIC
FACILITIES CORPORATION
By
President
(SEAL)
Attest:
Secretary
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Trustee
By
Trust Officer
(SEAL)
Attest:
Assistant Secretary
5
040511-0015-028-3762s 02/14/84 453
State of California )
ss.
County of Contra Costa )
On this _ day of April, in the year 1984, before
me , a notary public in and for the State
of California, residing therein, duly commissioned and sworn,
personally appeared known to me to be
the President, and known to me to be
the Secretary, of CONTRA COSTA COUNTY PUBLIC FACILITIES
CORPORATION, the corporation that executed the within
instrument, and known to me to be the persons who executed
the within instrument on behalf of said corporation therein
named, and acknowledged to me that such corporation executed
the within instrument pursuant to its bylaws or a resolution
of its board of directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the County of Contra
Costa on the day and year in this certificate first above
written.
Notary Public in and for the
State of California
[NOTARIAL SEAL]
My Commission Expires:
6
040511-0015-028-3762s 02/14/84 454
State of California )
ss.
City and County of San Francisco )
On this _ day of April, in the year 1984, before
me, a notary public in and for the
State of California, duly commissioned and sworn, personally
appeared known to me to be a Trust
Officer, and , known to me to be an
Assistant Secretary, of BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, the national banking association that
executed the within instrument, and known to me to be the
persons who executed the within instrument on behalf of said
national banking association therein named, and acknowledged
to me that such national banking association executed the
within instrument pursuant to its bylaws or a resolution of
its board of directors.
IN WITNESS WHEREOF, I have hereunto subscribed my
name and affixed my official seal in the City and County of
San Francisco on the day and year in this certificate first
above written.
Notary Public in and for the
State of California
[NOTARIAL SEAL]
My Commission Expires:
7
040511-0015-028-3762s 02/14/84
455