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HomeMy WebLinkAboutORD NO 2248ORDINANCE NO. 2248 NEW SERIES AN ORDINANCE OF THE COUNCIL OF THE CITY OF BAKERSFIELD APPROVING A FORMAL AGREE- MENT RELATING TO A PUBLIC LEASEBACK, AND THE EXECUTION THEREOF BY AND BETWEEN THE CITY OF BAKERSFIELD AND THE CITY OF BAKERSFIELD WATER FACILITIES CORPORATION. WHEREAS, Government Code Section 54241 provides that no public leaseback of any local agency shall be entered into until the act of entering into a formal agreement with the public lease- back corporation shall have been approved by such local agency by ordinance which shall state that it is subject to provisions for referendum applicable to such local agency; and WHEREAS, the City Council of the City of Bakersfield ("City") desires to enter into a public leaseback with the City of Bakersfield Water Facilities Corporation ("Corporation") for the use by City of the Kern River Canal. NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Bakersfield, as follows: SECTION 1. The Lease Agreement by and between the City and the Corporation, which Agreement is a "public leaseback" as that term is defined by Government Code Section 54240(b), is approved. Three copies of said Agreement entitled "Kern River Canal Lease," ('~greement") are on file with the City Clerk of the City. SECTION 2. Execution The Mayor of the City is hereby authorized to execute, and the City Clerk of the City is hereby authorized to. attest said Agreement; provided, however, that the "base rent" required by Section 3 of said Agreement does not exceed the amount specified in Section 3 hereof. SECTION 3. Base Rent The annual "base rent" required by Section 3 of said Agreement shall not exceed $280,000. to the as the SECTION 4. Referendum This ordinance shall be subject to referendum pursuant provisions of the Elections Code of the State of California, same relate to referendum. SECTION 5. This ordinance shall become effective thirty days from and after the date of its passage. .......... 000 .......... I HEREBY CERTIFY that the foregoing ordinance was passed and adopted by the Council of the City of Bakersfield at a regular meeting thereof held on the 6th day of October, 1975, by the following vote: AYRES: COUNCILMEN 9ARTON, BLEECKER, CHRISTENSEN, MEDD£R~, ~, $CEALES, STRONG N~S: COUNCiL~EN: ~ .~ CITy~.~ERK and ~, Officio Clerk of Council of the (Yity of Bakersfield the APPROVED this day of October, 1975 e City of Bakersfield APPROVED as to form: Pmof oY OCTOBER 3, 1975 BAKERSFIELD---6357 GALLEY I Bowne of San Francisco, Inc., 981-7882 KERN RIVER CANAL LEASE This Kern River Canal Lease, dated as of l)ecembcr 15, i975, between CITY OF BAKERSFIELn WATER I~'AC[LITIES (~ORPORATIUN (h(q'ein called the "Corporation"), as lossor, and the (~TV ~r B.~K~asrm~.~, a municipal corporation organized and existing undor and hy virtue of its charter and the laws of the State of California (herein called the "City"), as lessee; WITNESSETH : In consideration of the mutual covehautE hereinafter contained, the parties hereto agree as follows: SECTraN 1. Defi~titiom~. Unless the context otherwise l'mluircs, the terms defined in this section shall, for all purposes of this leas% have the meanings here- in specified, the foilewing (lefinitiuns to be equally applicabl~? to both the ~ingular and plm'al forms of any of the terms herein defined: The tm'm "Bonds" lncan~ lhe ~'ity of Bakersfield Water Facil- ities Corporation 1975 Leas~hohl Mortgag.~ Borate issued hy the .,'or- poration and authorized umhq' and sccurt.d by the Indenture, and any other indci)tedness incurr~.d by the ('orporation to financo the acquisition of the l)eufised Premises. The t.rm "Demised l'rmnises" m.,ans that certain real prop~ erty situated in the County of Kern. State of ('alifornia, described in Exhibit A attached hereto aud mmh~ a part hereof (subject. how- ever, to any conditions or i'esot'vations of rceor(I or known to tile City), together with all improvmnenls and water supply and trans- mission facilities located thereon. including canal facilities, pipe- lines, pumping facilities, diversion facilities and rolated facilities, but exeludlng water rights and ontitlement~. The term "Indenture" moans the imlonture, dated as of Decem- ber 15, 1975, between the ('orporatiol~ and the Trustee. as m'iginally executed or as i¢ may front time to time he supplemejtted or amcmled by any supplemental indeutur{. entered into pursuant to the pro- visions thereof. The .term "Tru~4ee" meaas the trustee und-r aad as (leftned the Indent.re. SECTION 2. The Corpm'ation hereby leaso~ t,, the City and the City }.q'ehy hires front t}t~ Corpuratim~. m~ the terms and c.nditiun~ hor~.iuafter set forth, the Demised Premis~'s. The term uf this lease shall commence on lhe (h;te of recorda- tion of this lease in the office of the County Rccol(ter of Kern P~eof ef OCTOB£1t 3, 1976 BAKERSFIELD--6357 GALLEY 2 Bowne of San Francisco, Inc., 981-7882 County, State of California, or on August 1, 1976, whichever ix earlier, and shall end on July 31, 2006, unless such term is extended or sooner terminated as hereinafter provided. The City will take possession of the Demised Premises upon commencement of this lease, and the first payment of rental shall be due on August 1, 1976, as provided in section 3 hereof. If on July 31, 2006, th{, Bonds shall not be fully paid and retired, or if the rental payable hereunder shall have beeu abated at any time and for any reason, lhen the term of this lease shall be extend~d until ten (10) days after all Bonds shall bc fully paid and retired, except that the term of this lease shall in no event be extendod beyond July 31, 2011. If prior to July 31, 2006 all Bonds shall I)e fully paid and retir{~d, the term of this lease shall end ten (10) days thereafter or ten (10) days after written notice by the City to the Corporation. whichever is earlier. Sm'Tm~- 3. Re~ztetl. The City agroes to pay to the (_!oi'poration, its successors or assigns, as rental for th{~ use and occupancy of the Demised Prem- ises, the fnllowing amonnts at the times and in the manner s~,t fo~h herein (bnt subject to the pr,~visions of sections 2, 12, 20 and 24 hereof): (a) B~se Rental. The Uity shall lmy to the Corporati~n as a base rental (herein called the "Base Rental"), semiannnally, the amount of ()ne Hundred Forty Thousand Dollars ($140,0(}0) on August l, 1976 and on t. ach F~'bruat'y I and August l there- after to and including February 1, 2006, or, if the term of this lease shall have been extm~d+,d Imrsmmt to section 2 herenf, continuing to and inelmling tht, date of t{.rmiuation of this h:'ase. Each semiannual payment of Base Rental shall be for the use of the Demised Premises for the six-month period commencing on the first day of the month in which such rental is due. (b) Additiomd Re,tal. The~ City shall also pay to the {'orporatiofi, as rental hereraider in additit)n to the foregoing Base Rental (herein called the "Additimml Rental"), snch amonnts in each )'oar as shall be r~,quired by the Corporation for the payment of th{. lollowing': {1) A]I taxes and ass~ssments of any type or nature charged to the Corporation or tho Trustee affecting t~t. Demised Premises or tho respeetivo interests or estates of th,, City or the Corl~m'ation or the Trustee thereiu, ~r aftoct- ing the amonnt available t,~ the Corporation from rentals Pflof o~ OCTOBER 3. 1975 BAKERS FIELD---6357 GALLEY 3 Bowne of San Francisco, Inc., 981-7882 received hereunder for the retirement of the Bonds (includ- ing taxes or assessments assessed or levied hy any govern- mental agency or district having power to levy taxes or assessments); and (2) All administrative costs of the Corporation related to the Demised Premises and the Bonds. including, without l~iting the generality of the foregoing, salaries and wages of employees, all expenses, compensation and indemnifica- tion of the Trustee payable by the Corporation under the Indenture, fees of auditors, accountants, attorneys or engineers, and all other necessary administrative costs of the Corporation or charges required to he paid by it in order to maintain its existence or to comply with the temps of the Bonds or of the Indenture. Such Additional Rental shall he billed to the City hy the Corporation or the Trustee from time to time. together with a statement certifying that the amount billed has been paid by the Corpnration or hy the Trustee ou behalf ,ff the Corporatiou, for one or more of the itoms above described, or that sneh amount is then payable by the Corporation or the Truste~* for such items. Following commencenwnt of the rental due hereunder, amounts so billed shall be paid hy th,. City within ten (10) days after receipt of the bill by the City. Sueh payments of Base Rental aud Additional Rental for each rental payment period during the term nf this lease shall constitute the total rental for said rental payment period, and shall be paid by the City in ea(.b rental payment period for and in consideration of the right of the use and oc('ulumcy of, and the continued quiet use and enjoyment of, the Demised ['remises during each such period for which said rental is to he paid. The parties hereto have agreed and determined that such total rental represents t}le fair rental value of the Demised Premises. In making such dt]t~,rmination, considera- tion has b~en Wen to costs of acquisition and financing of the De- raised Premises, other obligations of the parties under this lease, the uses and pro'poses which may be served hy the l)mnised Premises and the hmmfits therefrom which wdl accrue to the City and the general imblie. Eadh installme~t of reutaI payable herounder shall he lmid in lawful money of the United States of Am~*rica to or upon the order of the Uorl~oration at the principal nfiiee of the Trustee in i~os geles, California, or such other plat,, as the Corporation shall (tesig- nate. Any such mstalbnent of rental accruing betemptier which shall not be paid when due shall hear interest at the rate of ,qght l)er eent (85';) per annum from the date wh,m the same is ,lu~· hereunder uutil the same Mmll be lmid. N~,twithstandmg any disIrate between the Corporation and the City, the ('ity shall make all rental payments OCTOBER 3, 1975 BAKERSFIELD--6357 Bowne of San Francisco, Inc., 981-7882 GALLEY 4 when due and shall not withhold any rental imYments pending the final resolution of such disirate. In the event of a determination that the City was not liable for said rental pay~nents or any portton thereof, said payments or excess of payments, as file ease may be, shall be credited against subsequent rental payments due hereunder or refunded at the time of such deternfination. The City covenauts to take such action as nmy be uecessaD, to include all such rental payments due hereunder in its annual budget and to make the necessary annual appropriations for all such renal payments. The ('ity will furnish to the ('orporation and the Trustee eopies of each proposed and final budget of the City ~thin ten (10) days after the filing or adoption thereof. The cove- nants on the part of the l'ity herein contained shall be deemed to be and shall be construed to be duties imposed by htw and it shall be the duty of each and every public official of the ('ity to take such action and do such things as are required by law in the per- formante of the official duty of sm)h officials to enable the City to carry out and perform the tort.haters and a~reements in this lease agreed to be carried out and I,erfo~ed by the City. S~;cTl. N 4. ¢'Ontl,lia~u'e tcilb .19rectacut. The ('it.;' agrees to cOlnl)lY with all of the terns, covenants and conditions to be performed or eomtfiit'd with hy it pursuant to that Agroenwnt. dated ........................... 1975, between the City. the Corporation, Tenneco West, hn'., Kern Island Water Company, and Kern Rivt'r Canal and Irrigating Company. Szc~xos 5. Mointenancc o~d Utilities. Throughout the term of thi~ lease, as part of the consideration for the rental of the Demised Premises, all maintenance and repair of the Demised Premi~e~ shall he the responsibility of the City, and the City shall pay for m' o,O~erwis*. arrange for the payment of all utility services shpplied to the Demised Premises, which shall include without limitation ja.itor ~ervice, power, gas, tele- phone, light, heatlug, water, security service, garbage and refuse removal and all other utility serviee~, and shall pay.~or or olher- ~4se arrange for tin, payment of the cost of the repair and replace- or want of care on the part of the ('ity or any assignee or suhlessee thereof. In exchange for t}n~ rentals herein provided. the Corpora- tion agrees to provide only the Demised ['rendsos. The (qty waives the benefits of subsections 1 aml 2 of section 1932 of the ('alifornia Civil Code, hut such waiver shall not limit any of the rights of the City under the terms of this P~ef e~ OCTOOER 3, 1975 BAKERSFIELD--oC,57 Bowne of San Francisco, Inc., 981-7882 GALLEY 5 Ssc~oN 6. Changes to Demised Premises. The City shall have the right during the term of this lease to make alterations or improvements or to attach fixtures, structures or signs to the Demised Premises if said alterations, improvements, fixtures, structures and signs are necessary or beneficial for the use of the Demised Premises by the City. Upon termination of this lease, the City may remove any fixture or sign added hy the City, hut such removal shall t)e ac- complished su as to leave the l)emised Premises, except for ordinary wear and tear, in substantially the same condition as it was in t)et'ore the fixture or sign was attaehed. Sgc~r~oN 7. Fire, F. xtended Uotwr~tge and Earthquake Insur.nce. The City shall procure m' cause to he procured and maintain or cause to be maintained throughout the term of this lease, insur- ance against loss or damage to any buildings constituting any part of the Demised Premises hy fire and lightning, with extended cover- age, vandalism aud malieious misehief insuranc% and earthquake insurance (but as to such earthquake insurance only if such insur- ance is available on the open market from reptttahle insnrunce com- panies). Said extended (.overage insurane. shall. as nearly as prac- ticable, cover loss or damage by exphmion, windstorm, riot, aircraft, vehicle danrage, smoke and such other hazards as are normally covered by such insurance. Such insurance shall be in an amount ~ual tn the reldaemnent co.t (without d.duction for depreciation) of all buildings eonstituting any part of the Demised l'remises. ex- cluding the cost of excavations, of grading and filliug, and of the land (except that sm,h earlhquake insurance umy he subject to a deductible clause of not t{, exceed either (at ten per cent of said rel~laeement cost for any one loss (b) or the lesser of 100,01~) or the amount in any Reserve Fund established m~der the hntenture which is in ex(,ess of one-half (t,,5) of Maximtun Annual l)oht Service such te~ is defined in the [ndenlure), and exeept that such other insurance umy be 'subject to dedm'tible elauses for any one loss of not to exe-ed thv lesser' pf $111().t~a) or l[)(~ am(rant in any said Re- serve Fm~d which is in excess of one-half (~:~) of said Maximum Annual D-ht Service), or, in the alternative, s}mll he in an amount and in a form :mffieie~lt (t,)g.th?r with moneys in the Reserve 9'nml ei'qated under the .Indenture and available for the purpnse), in the event of total or partial loss, to emthle the Corporation either to retire all Bonds then outstanding or to restore such buildings to the condition .xisting hef,~r~, such loss. Src'rms 8. Li(tbilit.q l.s.r~tncc. The I*ity shall procare. and maintain throughout the term of this lease, a standard eompreh.nsive general liability (inchiding automobile liability) insurance policy or policies in protection of the Corporalion and its member% directors, officers, agents and hf ef OCTOBER 3. 1975 BAKERSFIELD--6357 GALLEY 6, Bowne of San Francisco, Inc., 981-7882 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 the Demised Prpmises, with ndnimum liability limits of $5,000,000 for personal injury or death of each person and $10,000,000 for personal injury or deaths of two or more persons in each accident or event, and in a mioimum amount of $200,000 (subject to a deductible clause of not to exceed $5,000) for dmnage to properly resulting from each accident or event. Such public llability and property damage insurance may, however, tie in the form of a single lindt policy in the amount of $10,000,000 covering all such risks. Such liability insurance may be maintained as part of or in cm~junction with any other liability insurance carried by the City. SscTms 9. Rent.l Interruption or Use and Occupancy Insura~we. The City shall procure, and maintain throughout the term of this lease, rental intel'ruption or use and occupancy insurance to cover loss, total or partial, of lhe rental income from or the use of each building constituting any part of the Demised Premises as the result of any of the hazards covered by the insurance required by section 7 hereof, in an amount su~eient to pay the part of the total rent hereunder attributable lo said building (determined hy reference lo the proportion which th. acquisition cost of such build- ing bears to the acquisition cost of the Denfised Premises) for a period of at least the time originally allowed for construction of such building plus three (3) months. except that such insm'ance may be subject to a deductible clause of not to exceed the aggregate total rental attributabh. 1o bniblings and payable during the first thirty (30) days of any loss and except that such insurance need be maintained as to the peril of earlbquake only if such insurauee is availabh, on the open market from repulabte insurance companies. Ssc~rto,~ 10. lns.r,..'e Proceeds; Form of Polit:ies. All policies of insuran,'e required h) sections 7 and 9 hereof shall p?vide that all In'ocecds thereunder shall be fayable to the Trustee .pursuant tq a lender's loss payable endorsemenl substan- tially in accordance with the form approved by the lnsurauee ~erv- ices ()~ce amt the CMif,,:'nia Bank~rs A~s:,c~ation. l'he l'ru~tec slyall collect, adj.st and re~.eive all mon,.y. which may becomp due and payable tamer any sueb polMes. may ~'omprmnise any and all claims thereunder and shall apply the I,ro~'eeds of sneb insm'anee as pro- vided in tie' Indentore. All I.dieies of insurance required hy this lease shall be in fo~ satisfactory to the Trustee and shall provide that the Trustee shall b. given thirty (30) days' notice of each ex- Proot o~ OCTOBER 3, 1975 BAKEI4SFIELI)~6357 Bowre- of San Francisco, Inc., 981-788~ GALLEY 7--- piration thereof m' any initruled cancellation thereof or redm.tion of the caverage provided therelay. The Trustee shall not be responsible for the sufficiency of any insm'anee herein reqaired and shall I)e fully protected in a('et,J~ing payn~ent ozl ttcoatHlt of sHoh iHstll*altot~ OF at/y adjustnl{mt, ~'onq,romisc or seHh'ment of all? iOSs a~'l'(~t,d to }iv the Trustee. The City shall pay when (hw the l}r~'mitnus for all iasnr- anee policies required }}5 Ibis It, as,.. and shall pro~nptly farnish evi- denec ~}1' such payments to the (!orporation and the Truste*,. Sl.x"ri~,x 1l. Defaldl. (a) If' the City shall fail to pay any rental payable hereunder whm~ the same becomes due and payable, time being expressly elated to be of the essence of this h,as,~, m' the City shall fail to keela OBSeFVe OF l~pt'fot'~11 all? othoF ~Pl'~l~ Covp~lltnt or condition cont;tined herein to 1.' kept m' performed by the City, o,' II[}Oll the happening of any of the events Sl)ccifi~d in stfi,seetion (b) of this s¢.ction, the City shall be deemed to h,. in default hereunder and it shall be lawful for the Corl~oratio,~ t, eXCl'eise all? and all remedies available pnr- stroh[ to law or granted i,ursuant to this lease. [tl;On any such defaalt, the Corporatimu in addition lo all other rights and reinedlos it may have at law, shall have the optio,, to do ~, '[)r ~} f the h,llaxving: (1) To terrainaft. this lease in the 1111tllllOl' hereimtfter pro- vialed on a(.(.omtt of del'aalt by th*~ City, notwithstanding any re-entry or rodelling of the Demised Premises as hereinafter IWox'ided fro' in sul)lntragralfi~ (2) her,.o[, aml lo re-entel' the J)elnis~'d I~rea~ises and remove all l>ersons in iressession thereof and all i~crsonal l,rOl>m'ty whatsoever siluatod upon lhe l)mnised /}I'i'111i>CS aIId place sttc}t I}('rsmml l)rOla, rty in StOl'ilg'l~ ill ally wart,hotxse Or Ot}l~q' sailnbh' ld;tct, in the (~otlnty of Kern, N{ate of (~aJil'ornia. In the ex,'nl o1' such tt,t'tnination, the ('ity to SIIl'Fpltdpl' immediatoly l,Ossossion of the ])emis,.d l'rentises, withm,t l,.t (,r himh'am~(., am{ to pay the (*(>rimration all dam- ages m'~'(,veraJd(. at law t}mt the ('m'l,oration may incre' by I'PlI8OII OJ' defaltlt b5 the ('ity, ira.lading, without limitation, any ('osts, ]{}ss or da[aag'e whalsoevt,r arising (nit of, in with, or inei(h,nt t(, any sm'h re-~,ntr3 Ul,On the l),,mised Prem- ises and removal and sto)'ag'(, of' such i)rol)erty I))- the Corl)o- r;ttioa ov its duly authoriz,,d ag'en~s in accordance with l)rOViSmns h(,rt,in eontain(,(]. Neither notit'e to [)a? rent or to tO law IiOF all}' ('11{I'5' of )'('-('llIl'5' })5' )ho ('Orl)oration nor ally (','eding in unlawful delaim, r, ov otherwist., brought })y the Col t)(n'afion for the I)m'l)os(, (,f ('ff(,eling such r('-ent['v or i,osses>~ion o)' th(' lh'mis('d I'remis(,s nor llle al)l)oiatment of l)oralion's interest under )}ils I,,as,, shall of ilself Ol)*,rat(, t- Proof of OCTOaER 3, 1975 BAKERSFII£[ ,1)--6357 131)wn{, of San Francisco, Inc., 981-7882 GALLEY 8--- ternlinato this ]east., and no ttq'lllill;tlioll of lhis lease on account of dr,fault by the (qty shall be or Iwcmne effective by oper:tlion until the (Mrl)oration shah haxe g'ivpn written re)lice to tlw City of the eh,ction on lhe part of the (~orporathm to terminate this lease. '1%' City I'oVOll;tlltN &lll(l ;t~'l'O¢s that lIO SnlTendel' o]¢ tilt' ])(,lnised Pr('ntis(,s 4)i' of tilt' rcnmh~(ler ()f the t(q')ll ]Hq'('Of 01' an)T t~'rmination of this leas(' shall be valid in any nmnn(q' for any imrl)(,se W}IiII~OCVPI' IllI[OSS stat(,d or aceel~t(,d by the (k)rl)orati(m ])v such xx J'ithq~ (2) Without terminating' this h,aso, (i) to collect ead~ in- stal[lliplll of l't'llt ;Is ~1 })('(*olIle~ dlt(' ;1111[ ('11['OF('O ttll)' otJl(q' or provision hercol to be kcld (,r performed hv the Cily or (ii) to exm'eise any amt all rix}tts of pnh'y an, I re cutry Ul)On the ])cnliscd I)renlises. In the ('VOlIt the Corporation does not (,lee(h) terlltinate this lease in lilt, IIlallllel' i)rovided for ill Sllt)- par;tgraph (1) h(,re()f, th(, City shall )'enmin ]ial)le anti a~r('es to k('('[) ()F ])ol'fol'm ltII {'ovt, llallts }tll(] conditions }lOft, ill to 1)(, k('id or !)(,)'f()rm('d hy tilt, (qly and, il' the [)enlis,'d ]>reln- ist,s is n()t )'edet. t() })a3 the Rdl amount o1' the r(mt h) the the (t,l'tll ,)]' this It,as(, o1', in tim (,xtq/t that the Demised Premises is rc-I('t, to pay any d(qM('n('v in r,m( that results thtq'et'rom; and furt]t(')' ngv(,(.s to pay s:li(l reid aml, ov rent (h,ficit,n('y at tin, sam(' tiHlt, all(1 ill 1]lt, s;[1111, 11111IIllt'F its htq't'ill;t})ov(' pl'O- vidt'([ For (he ]royrot. lit of rent ht, rt'nn(h'r (without at'toleration). nolw[thst:niding' lhc [aut that tht' ('Ol'[)01'atioll lit;t)' }I~LVO feet'ired in ])rex ions y('a)'s of llllt)' )'('('PiX(' (ht,rt.al't(,r i~} substi(ltl(qd years rental in (.xccss oF lb(' rental ht'r,,in Sl)m'ified. and m)twithst:'md- ing any entry or re-curry hx th(, ('orl)m'ati(m o)' suit in Imlawftd {h,tain,,r. m' ()lh(q'wis('. })rmtg'hI by the' ('orl)()ration for lhe l)OSe (d' elT(,('ti)~g' sm'h re cnh') m' obtaining' possession o[ the I)emis,'d Premises. Sh(.uld Ihe ('orl)oration (.h,ct to re-cnt('r herehi l)rovided, Ihe City hereby irrcXoca})ly al)l)t,ints the Col I)Oratimt ~s the ag'cnt ~md ath)rn(,y in-I'ac( of (h(, City 1<) re-hd the I)(.mi~(,(l Premises. m' nny l)a)t theycol', f'rom time to ltfl(l ('o)t([itiOllS HIld J'()l' 8tt('h Ils(' alld [)pl'i()d ils t]l(' 111113- dp('lll a(lx'isahh, ;IFt(l to I'tqltOVl' ~l]l ])(q'NOIIS ill ])OSS('SSiOll lh(,rt'of and all pt.rs(raM i)r(q)ert5 whMsocver sitmttcd upon the I)(,mis(,d Prcmis(,s and to i,Im,e such [)(?l'SOIl;ll i)r.)l)Crty in stozagc i~) :~l,y w.~r'(,h~,q~(, o)' ~)ti),'v >mitahh, ldm,o it) t}n, (%*ndy Kern, Sial(, of (Sdit'ornia, [or the m'coun( of and ~tt lhe exi)ense of the (qly, anti lb(, ('ity }l('l'pl)y OX('IIII)IS and ;lgreps 1o save 11lll'1111('ss t}tl' ('orporalion fl'OIll any (,oats, loss or dlttnage what- s(..v(,r a)'isin~ out of. in conn(,ction with. m' incident to any Proof of (}CTOB£1t 3, 1975 BAKEIlS FIEI.D---6357 Bowre, of San Francisco, Inc., 9.ql-78S2 (;ALLEY rentoval and .stor}tgc of such property by lhe (~orporat[on or its duly authorized agents in accordance wilh the provisions herein contained. The (5ty agrm,s that tllt~ terms of this lease conslitute full and suflicient notice of the right of the poratim~ to redel the Ihqni~ed Premises in the event of such re-entry witlmut eftcoting a sluq'cnder of this lease, and further agrees that no acts o[' lhe ('orpm'ation in eftcoting such letting shall constitute a surfentire' or termination of this lease irrespective of the use or tim term for which such re-letting is madt, or the terms lind conditions of such re-letting, or other- wise, but that, on the 0OlHDu'y, in the event of such default hy the (qty the right to terminate this lease shall vesl in rite ('orporation to h,~ {qfected in the sole aml ,,xelusive manner provided for in snbparagraph (1) hereof. The (!ity further waives the right to any reBlal obtained by tilt, ('orpora(ion in exee:qs of the l'en~al herein specified and hereby conveys and releases such excess 1o the ('Orlml'ation as compensation to the Corpm'ation for its services in re letting' the Demised Premises or any part (her~of. The ('it>' t'urther agr{,es to pay to the Cm'- potation the cost of any alle~afions or additions to the l)cmised Premist,s or any part thereof necessary to place the l)cmised 1)remises or any part thereo[' in condition for re-letting' imme- diately upon notice to tim ('ity of the coml>letion and iimtalla- lion of such addi{imm or alterations. Ti~e {'ily luq'eby waives any and all claims for d:mmges caused m' which may be caused by the (*orporation in re-entering and takiug p,}ssession of the Demised Premises as herein provided and all claims for damages that may result from the destruction of or injury ti, lb(, ])emisml ])ri.mises and all claims for damages to or loss of any proptq'ty bolon~ing tr) lhe ('ity, m' itlly oilier person, that ma> he in or upon the. lh.ntlsed lh'e,nises. [,;ach and all of thv re,re'dies given to tim ('orporation he,'e- the exercise of m~e r[g'hl or r('ntedy shall not impair the rig'ht oJ' the (~orpm'ation lo any or all other remedies. The term "re-let" or "re Ictti~g" as used in this scctim~ shah inchMe, hut not be limited to, rc-h41ing' by means of the op,q'ation hy the {kn'poration of the Demised Prmnises. It~ any slatuh~ m' rule of the law validly shall limit the rerumties given Io dm ("orporatirm heretrader, the Uor potation nevertheless shall bu entitled to whatever remedies are alloxvai}le under ;ill)' statute or Ft;h, o[' law. In the ,,vent the ('Orl)m'alion shall pl'exrail ill ally action In'ought to enforce any of the 1ol'111s illIll provisions of this lease, the (Sty ineurr,'d hy ihe (!orporaiion in alh.mpting to eriEore,, any of the remedies avaihtble to} the (!or]ml';fiii,n ]lel'ellll~lel', whather ()F 11o( lawsuit has been filed and whetlief or llo( any lawstilt enhninates in a judgment. BA K E RS 1vl E l· 1)--6357 Bowrio of Sau Francisco. lno., 981-7889 (;ALLEY 10 .... (b) If (1) the ('ity's inNq'(,sl ilJ lhis lease or any part theft,of lu, assigm,d or {railS[el'red withonl lhe writton consent of the (?Orlmralion, eith.r voluntarily or by operation of law or otherwise, .]' if (2) lb. ('ity m' a.y assigm'c shall tih, any petilion or insli- illtO ally l),'oce~.ling umhq' the Bauk~ul~tey Ae(, cilhvr as such Act be enaetvd, or under any act (u' acts, stale or federal, dmlling wilh or reinling to lb(, sub.jecl or st]bj(,(qs (ff ba]d~ruI,tcy or h~soh'eney, oI' I]Dd¢l' Jill}' HllllqldlllOll~ Of 811('h ;Igt oF ~l('ts, either as a bankrupt OF W}/Ol'Ob? 1110 City asks m' seeks m' prays to be mljt~dieated a bankrupt, or is to be disc}mrgcd from any or all of the (}ity's debts or obligations, or offers t. t}~(. tqty's creditors to eff¢~ct a eomposi- tim) or extension (,f tin.' 1o pay Ow (Sty's (h,l)ts or asks, seeks or lH'a)~s ~'ol a t'oorg'aIlizalio/l of ~o (,['f('('{ ~t plall Of )'t'ot'g'allizatioll, o1' for a r(mdjustment of file ('ity's d,'bts, or f(,r any other similar relief, or if any such ))('lition or il~ airy such proceedings o[ the sam(. or similar kind (,r charach.r I~. fih'd or [)o instituted or against the City, o)' if a r(,eeivtq' (,[ the business or of the I))'ol)erty Ov assels of t}l(' (~i~y shall ])(' al)l)oint('d by nny court, except receiver al)poinled al l}l(' instance o)' r~,(111(,s[ of flit, (~oi'porHl}Oll) Or if the ('ity shall make a g'(,n(,nd or a% assig'mmmt fo,' the benefit of the City's er(.difors, or if (2) lhe (5(y shall aband,m or vacate any )mrl of the Demised Pr,,mis.s (cx.'-l,f pursuant f(, ti()]l 24 h,'['eof), then the ('it)' shall })c (h'e.]('d to I)(. in dofau[t (el Tim ('orpm'alio. shall in m) ('vent I,e in default i. Ihe per- fOl'JIl;lllCt' OJ' Jill)' O)' its O])JigaJiolls JlL'l'('lllld('l' O1' imposed ])y any failed to ]),,rfonll snch obligalim~s wilhin thirly (30) days or such additiomd time as is r('asomtbly r.quir(,d to c<),',','ct any such d('fatJll after )mlic(,})ylh(,(515 to the (k)rporntion properly spe,'ify tit,I]. (a) If th(! wl)oh' .f lb(' l)cInised l'r(.mis(,.'. shall l)e tak(m pt'r- I[lilI/t'11(]~' Itlld(q' the l)ower of OIllillOllt d()lIlaill, l}l(' forIll of Illin leas(, shall e,,ase as of the day l)os~ession shall b(' so takell. If less l}11111 lb(' wholf of lllt' [)(')Hiso({ J'r(q)~ist's shall bt' talloil ])(Wlll:lll(HIt]}', or if lb(, whoh' of fiw Demised ]'remisos shall be tak(,n hmll)o)'arily, und(,r lhc power of cmim'.t d.mai., (I) (his I,,as,. shall c(mtim., in Proof ot OCTOBER 3, {975 13tl;vl*~' of S:ttl Frztncis(:o, lI~c'., 9SI-7882 GA/JLEY 11- - (b) No long as ~ny of the 14~{1s shall }~, oulstandiug, any i~g the' Demised l~remises in whole ov in l~art shall 1~(, lmi,l tu the niada ~l{'{~,t' ;IJ] ¢)f {1l~~ }~o~ds }~:tvt, }~{'t'n fully l)~tid au,{ retired shall }u, l);titl lo th,~ (~orl)or~tIic, n ~l~HI tll,, (qt3' as th~q,' l'esl)ecfive til.m the' tt~rmination ov e~lfimHiou o1' this hutse (oth,q' than us l)rovid~,d in st'~'tiol~ I I h(,t'eof), t}l,, (qty shall s,ll'l'('JidO,' to the ~qv:t'l~ox 14. l~iy/h/ ~,/ ('Ol'l)Oraliotl ;tnd its assig~t~',,s shall }}ax-¢' tht, right t(, ent~'z' with flu, LNty's rig'hts or o})li~r;~tions uu(le:' this lease, aTid (,v Ul,On (1,,' l)t, miso(l I']'e~ises, th,~ ('it>' shall I);i)', f~tll> dis<'i~:tv~'e(l and r,qo;~s~,d ~,1 ~l,,) fi~,~' lh~, Ihat, if lb,' ('ity (I,,sir'{,s 1,> (,onf,,s~ ~tn> su~'h lib,n, it Proof of OCTOaER 3, 1975 13AKl~ HS Pq t~:IA~ Boxvl~c of San Francisco. hie., 9S1-7882 GALLEY 12---- Tim lutrtb.s ]wreto muttlally covenant that the City. by keel)ling ~111d ])~'l'FOl'lllillg' 111~' ('oVtqlttIIlS :tB~l ag'rtq'H~ollts ht,l'(,i/t Ct~lllaillt.d, sha]] al all times during' the to]'m of this [t'aso, i,eac.ahly al.l quivtly, have, hold and mLjoy (h. l)¢,mised I'rcmises, without suit. trouble or ]fin- (h'2/11('l' [FoIII the COl'lmrati{m. S~.:t I'[ox 17. ('ortmr. fio. No! Li~tble. enlp]oyt',~s lind flit. q'l'/lstee shall m~t I.- liable to the City or to any oHmr party whomsoevm' for any d.ath, injm'y or damage that may rosltJt to all)' I~t'I'sol} of property by o1' J'l'oNl ally (qUISt' WJlaiSoeVel' in, on or about the l)emised l'remisos. The (Sty shall indr,mnify and }told the ('o/'l)oration mid its IIItqll}ltq'$, directors. oflivtq's, agonts and (m/I)]o)'('(,s iill(] (lie T)'ust,q. [mrmluss ~1'o111. aml defend each of t}liqll against, any and all claims. liens and judgments for doath of or i]ljllry ~o arty person or datnag'e (o [)rol)erty whatso.x'cr ()o(,111'i'illg in, on m' about the I)cmist.d [>rmnises. Ncilhm- this h,as. nor any intm'¢'st or the (!it3- herr. trader shall lm mortg'ag',.l. phqlg'od, assigned, sublet or transf'errod by the City by vohmtary act m' by Ol,m'ahon of law or oth.rwise, ex(.cpt with the prior written consent of Hie Cm'l,Orati.n, which sitall not b,' m~rea- somddy withheld. ,q~,;,'qmx 19. 7'it/,' to l'r.lwtTq. Tilh, to tlw I)mnisml I'rmnis.s aml all structural additions Tilh. h, all fixtur~,s aml signs added 1o l}le l)cmiscd Prt'nfiscs l)ur in or abutit tim lh'nfis.,l Ih'cmis.s by the ('ity shall r,,main in the Th. r.ntal shall b{, abahql pr.portional~,13, during any l.'riod ill whi('[~ })v )q'ilsoN O[ Itel3' (];mt;LgC Or (lestrlt(qion (otht'r than }(v dtqnnatiou xshi.h is hcrcin}.ffc)l'c provided for) tlwr~. is subst:n~tial int,'l'f('T'mwc with th,' Ils{' aml .ecul}:mcy of lhe I),'nfis.d I>rvmises by th. {'ity, in the ],'.l.)rii<m which th. initial <'.st of fimt portion of the [h,mis~d [h'c/niscs z'cnd,,rvd tm]~sa})h, b.ars to th,, iztitial cost of th,, whoh' o1' lltc lh,n]isml I'r(.mis{,s. Such ~dmtement shall ('onlinut' for t]lv I~c]'i,.l <'omm,,nviujr xxilh such danlag'i, or (1ostrllction i'cc,)n~tru,'tio.. In llm~,x'm,t .f anx sm,h damag,'or(h'sI['ucticm. Proof ef OCTO~tE~I 3, 1975 BAKE BS FIE [,1)--6357 Bownc ot San Franuisco, lnc.~ !)S1-7882 GALLEY ?-;p;('l'1o:~ 21. Lttu' (JtJt ertilH,,I. This lease shall I.' govcrL.,d exclusive[) hy the l.'ovisions Jim'col aim by lb{. laws .r the State oF Califor]lia as the san., from lime All notices. shtt~'ments, demand,4, conse]~ts, approvals. authori- zations, offers. desig'natim/s, l'OqllOSt80l' other COlmnunciati(ms Ilpre- nndcr hv either party 1. the othcr shall hc in wriling and shall be sufficiently given aml served tq.m the other party if delivered per- sinrally or if mailed hy United Shttcs r~,gislm'cd or c~q'tificd mail, l'otllrll r.ceipt requested, poslag'e I.'elmid, and, if 1o the Corpm'alkm, a(hlrpsscd to the COrlmration in care of Fritz R. Stradling, Ih~tan & Tm,ker, 401 ('ix'i. C¢q,t-r Drive West, P.O. Box 1976, Santa Ana. California 92702, or. if to the Cil)'~ addressed to the ('ity in ('are of the (5t3 Chq'k, City Ihdl, 1501 Truxton Avenue, Bakerstifqd, Call [m'nk~ 9;1301 with a COl,5 1o the %'ustet., or m such other addresses in w ritin ~'. N~:c~tox 23. I'ulidit// .~ld ,'~'eccr. bilit.U. If fro' any reason {his h,ase shall bo held by a cm]rt of corn- In,lent jurisdiction to hi. void, voidabh,, or une]tfo,'ccable by COrl~Oration or by the City, m' if fro' any l'(~}lSOll i[ is held by such a cou]q lhat any of the t'ovcnallls alld cml(litions of the Cit5 under, i.chlding' tho covenant h} pay rentals }lpretlltder~ is illl(q}- forc.ahl,, for the full h,rm }tm',,of, Hum mid in such evc~;t this lease is nnd shall }., deenl(,d to ],e a h,as(~ from year t() y(,ar llll(lOf which ]he rentals are to 1)~' [mid hy the City stunjan]really in con- si*h'rati,m .f lhe right o1' the I'ity to possess, occupy and ilSty l)emiscd I'rcmises, aml all of Ihe rmmd aim other terms, t)r.visimis holding. shall ]'cmain in f'ull force and (,fleet. The (Sty coy.hauls that during tho term (ff this ]case, ('xcept as hereiu;fftcr pt.vialed, (a) it will use, or cause the use of, ])cruised Ih'cmis~,s solely for water Sttlqfiy distributimi Imrposcs and rm. the I,tll'posOs I'm' whiuJl tim fa.ilities of the l)cmisvd Itl't' (qtslOJlllll'[]) Itsoil. lind lb) it will 11o( vll('atc of ll}}[IIIdOIl lira l)e miscd lh',.mises ov ;Ill5' part The City shall have the olfiim, to l~tll'CllaSe 1]1(' ilitm'est iu any part of flu. I),,mis.d Ih'cmisos upon l,ayment ,:ff an opli,m I,ric~* mlual to the aggrt'gah' arnOLUll for (lie ~mtirc remaining term ,,r this h,ase or the 11;..1 of the hdal rcnt }~crmmd,-r altribtllabh' to such p;tr{: of tim l)cmised {'rcniises (dctermim,d ],y l'P['kq'(ql('(, th(, I)rUl,ortion wltiuh th(, ViiIll,, of stlt'h part o1' fh(, I)emised Prou[ of OCTOBER 3,{915 BA K E RS F[ 1,; L D--6357 Bowne of San Francisco, Inc., 981-7882 GALLEY 14 iscs bcars to tim value of all iff llw l)cmiaod lq'enfises). Any such payre.hi shall I., made It, the Trustee and shall be treated as rams (as su('h t(q'm is defined in tim h.hmturc), and shall be apl)licd by the Tnmh,e to redeem Ihmds on the curliest date when the I~on(ls ill'/' subject tt) I'{'dpllll~t}Oll ]~111'8111111{ [O lilt' ln'(~visiolm of the shall 1., rcdm.cd i~y th. alllOlltli thereof attributable to sue]l part of the lh.mis,.d Prmnises and l}mlotofore paid pursuant to this sco- tion, (b) sections 20 a~.l 24 of Ibis h,ase shall m~l thereafhq' 1)~' :tlqdieab]o to such part of tim Demised I'r.mis~'s. (c) lhe required by sections 7 and 9 of lhis lease need not bo maintained as to such part or the l)emised Premises. and (d) tith, to such part of the Demised lb'cruises shall vest in the City aml the term of this [ens~. shall cud as to such portion of lira I)emised l'r.mises. The City, in its discrelion, may reques~ the (k~rporation to sell or exchange any pm'somd prop,,rly which may at any time constitute a lmrt of the JJemis~.d Premises, mid to release said persmml prot)er~y froill this lease, if (a) in the opinion of (Sly lh,~ property so sold or exchanged is no longer required or useful iu cormcello. with the operation of the Demised Premises, (b) the consideration to be t'eocived fronl the property is of value substaufially equal to the value of the property to be released, amt (c) if t}lt, value of any such ln'Opm'ty shall, in the opinion of tho (~orporati,m, cxcet'd the atomrot of $50,000, the (Jori)oration shall haw, })t~t~11 furnished a ccrlificatc of an im/elmndent engineer m' other qualiflcd indeptmdent ln'Ofessional consultant (satisfnctory 1o lho (kn'pm'atiou) certifyi.g {he value thereof and further cm'- tlfying l}ml such pr,;pm'l3 is no longer required or useful in 11i,elioll with the operaliOll of l}le l)emised lb'cruises. In {l~t, cveut Of till5' Slleh salo, t}li' full alllOUll{ of i}!o IIIOlH'y eonsidcratif)n re- ccived for the porSOlla] ]n'opm'ty so sohl ttltd released shall be paid io the (5)rt;oration ,)r, if tim hMenhwe so roquires, to the Trustee..kny 111011('> SO paid to the (lotpotation m' the Trustt,o may, s(, long as lhe (qty is not iu default under ally O~' the provi- sions of this lease, bo used Ulmn the written request of the City Io t)urchase personal tn'optq'ty, which tn'opcrty shall become a part of lho Demised Premises leasod h(~r(,umh.r. To the extent required hy t}w lnd(..~ure, the' q~)'u~tet, may require stte}~ opinhms, Cat(~S Illld Ot}l(q' dOOtltll(qlis as it 11111y dt'0111 ll(,C(,sSal'y })ofore })el'lllit- ting any sale or (,XC}lallg't~ of pcr'sonal prOl.','ty subj~ct to this lease or h(,foro I'O](qtsillg' f'or lb(, })/11'c}11tst* Of lli~w persolla] p,'ol~e,'ty uloltcy reeeiv,,d by it For pm'smml l~rOperty so sohl. The (~orl;,ora- subjcc~ to th,' tin'ms of /hc Proof ef OCTOBER 3, 1975 I~AKEBSFI Iq[ ,13--(~357 Bowre, ol San Francisco, hie., 981-7882 CALLEY 15 Faih, r¢, of tht, (~Ot'l)oralim~ to takc advantage of any defaul; on lhc part of lite (qly shall not be, or I)e construed its, a waiver twt,en lb,, parties in lhc coursc of administering this lease be construe(1 to xvaive or t. h'ss{'n t]m right of the (~orporati,m to itlsiSl HI)OH I)~)Ff'OF~DltlCt~ ])V lh¢' ('ity of ~111y ttq'111~ cOVpllallf of ~Oll- diti.n hereof, or to exercise }Lily rights given the (~orporation on account of such default..k waiver t)f a particular default shall not b~, decmv,t to bc ;t waix~cr of the same or any subsequent d,'['ault. The acceptance of I'lllit }lel'f~llltdLq' shall not be. or be construed to })t'~ ;L Waivor of ally It'll/I, ('OVOBitllt Of conditim~ of this lease. This lease shall bc shall J,c an ~lJlsO]tlJo 11~t l'u[111'11 to lhc ('orporation, h'ce, ltlld clear ,ql,:c'l'l~ ~x 27. refcren('~ only and aro nt,1 inh'nd,,d to {h,linc or limit lite scope of any I)rox'i~i.n of this This l,,as(, illtt.v })t, t'XL't'tlt¢'tl in ;In) 11Lllll}}l~l' t)l' coltnterjmrts~ each oJ' whi('h shall t){~ (h.~,me(1 to h. all original. hilt all together shall (.onslitute /)ul t)l/(' illIll th,, afar,, cour~h.rp;irts of this h'as. th,, sanw (',)Hnterjutrt ]lad 1)(,~q) uXt'clth'd the ('ity. Proof ~]f OCTOBER 3, 1975 BAKEIISFII';I~l)--6357 Bowre: ot San Francisco, Inc., 9Sb7882 (;ALLEY 16 Ix WiTX].:ss Wiil,:n~,;m', tin, Cori)~ration and the City have caused this h,as~, to }m ex~,ented hv thiSr rvspt, etiw~ otlk, m's th~,r(,uni~ duly anthorizt,d, all as of th{, day and yi,;n' first ahoy(, u riih,n. [ ,'q eal ] ('i[/! .\pl)r.v~,d as tr~ l'ornl: By Proof o1 OCTOBER 3, 1975 B.~KIV, 11S FII':I ,D---6357 San t;ranc~seu, Inc,, 9,~1-78S2 (;ALI.EY ]7 -- ~tv. tl' o1' ~'alifln'nh~ ] ................... a itohtry lmhJie in and for and ............... , kmm'n to me to be tlu, Neuretary, rt,spee- tJV(~J)'~ ()J' {tITY OF }~.Lli~IISFII';I.I~ ~VATEIi J*~A(qlJTiES ('(llll'OIIA'I'IIIN~ lhe COl'pOl'at}OIl that (~xi,clll¢,(J the WilJliIl illStl'l/lll('111, filial klloXVll Jo to I)e th(, l)ersmis who (,x,.ented th. within instrumt'nt ())~ helmIf of said eorl,oration therein mimed, and aeknowle(lged to me that such eorporath)n exeeutud ill(' Withill instrum(mt pursmmt 1o its by-laws or ;L resolnlio. ,)f its hcmrd of dh'e,'tors. Is \Vrr.'~,:ss Wu[.:m;m., I have huremtto sl]hs('ril;ed ]ny natal, and aflix,,d my offiuial sual in tin' (~omdy of JG'r. on the day ~1111] ?qtl' this certificate first ahoy,, WI'iIIOII. j Nohn'ial M, eM] Noh.'q l'.b/ic i. a.d ]'.r It.' ,q'/. h' .f ('alifortti. My ('l)nlmlssion expires: ~tale o1' t'alifm'nia ] ('ounty of K,'rn f ()it Illis ........ dab ,}1' . ....... inlM. Sear 197.. mr', ........................ a xtot;u')' JmJ)li(' in and fin' l),,ar,,d ......... kn(m'n to mu tu I),' the Mayor, and ................... known h) me h) Iw the ('ity Ch.rk. re~lmutively, Of tJD' (¥1% OF }lAIqt';IlSI"IEiA,, fh4' Illitlli('ij);lJ ('orporali(m IJLM exeuut('d uuted th,' within insl rmm,nl on J.qmH' o1' said muniuilmJ uorlmration tioII ('XO4'IIJOJI ljtp Wilhill illSJl'lllll('l~ !IIII'811HIII t(} II I'p,qOJll[i(lll Of the IN \\'~rx~.:ss \VHI.:I:F:()I.', J }lave her,,unt~) suhsuriimd my mmic affixed n,.~ ofii('ial seal in tim (',muiy of Nern on tim day and ill this u('l'tiJ~('at(' J~l'sJ ;l]~ox'e wrilh.n. A'oh~r// I'Hblic i. altd for ,%'htl(' I)f ('al~j'l~rHilt j Nuhu'ial My commission expires: .......... Affi av ! of os ng r ma es STATE OF CALIFORNIA, f County of Kern ss. H. E. BERGEN, being duly sworn, deposes and says: That he is the duly appointed, acting and qualified City Clerk of the City of Bakersfield; and that o~ .....................................Q.~ .t..Q_b...~..r........8.. .........................................................,19..7..~..... he posted on the Bulletin Board at the City Hall, a full, true and correct copy of an ordinance passed by the Council of said Ci%y at a meeting thereof duly held on ....................Q.c._.t....o..]~.~..r.......~ ..................................., 19...7.~.., which ordinance was numbered ....... ~.~.~ ............New Series, and entitled: AN ORDINANCE OF THE COUNCIL OF THE CITY OF BAKERSFIELD APPROVING A FORMAL AGREE- MENT RELATING TO A PUBLIC LEASEBACK, AND THE EXECUTION THEREOF BY AND BETWEEN THE CITY OF BAKERSFIELD AND THE CITY OF BAKERSFIELD WATER FACILITIES CORPORATION. City C~rk Subscribed and sworn to before me this