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HomeMy WebLinkAboutPFC1 - Fire Station No. 2 Financing, Bond Authorization and Award of Construction Contract No. 8269-2 (15F13) - Amended ResolutionNovember 11, 2020 PFC Item No. 1 RESOLUTION NO. PFC2020-2 A RESOLUTION OF THE BOARD OF DIRECTORS OF THE NEWPORT BEACH PUBLIC FACILITIES CORPORATION APPROVING THE EXECUTION AND DELIVERY OF DOCUMENTS IN CONNECTION WITH THE SALE AND DELIVERY OF NOT TO EXCEED $10,000,000 PRINCIPAL AMOUNT OF CERTIFICATES OF PARTICIPATION AND AUTHORIZING CERTAIN ACTIONS IN CONNECTION THEREWITH WHEREAS, the City of Newport Beach ("City") and the Newport Beach Public Facilities Corporation ("Corporation"), desire to enter into a Site Lease dated as of December 1, 2020 ("Site Lease") and a Lease/Purchase Agreement, dated as of December 1, 2020 ("Lease"), whereby the City, as agent of the Corporation, shall cause the acquisition, improvement and equipping of a new Fire Stati% No. 2, as described therein ("Project"), and the City has agreed to lease the leased property identified in Exhibit A to the Lease from the Corporation WHEREAS, in order to finance the Project, the City and the Corporation desire to authorize the sale of the City of Newport Beach Certificates of Participation 2020A (Fire Station No. 2) (the "Certificates") evidencing fractional interests in the Lease Payments made by the City under the Lease; WHEREAS, Section 5450 of seq. of the California Government Code (the "Government Code") provides statutory authority for pledging collateral for the payment of principal or prepayment price of, and interest on, any agreement, including certificates of participation, and the Government Code creates a continuing perfected security interest which shall attach immediately to such collateral irrespective of whether the parties to the pledge document have notice of the pledge and without the need for any physical delivery, recordation, filing or further act, and, therefore, the City and the Corporation hereby warrant and represent that pursuant to the Lease, the Trust Agreement, to be dated as of December 1, 2020, by and among The Bank of New York Mellon Trust Company, N.A., as trustee ("Trustee"), the City and the Corporation ("Trust Agreement"), and the Government Code, the Trustee will have a first priority perfected security interest in the Lease Payments described in the Lease represented by the Certificates pursuant to the Government Code; Resolution No. PFC2020-2 Page 2 of 4 WHEREAS, the Board of Directors of the Newport Beach Public Facilities Corporation ("Board of Directors") desire to consent to the assignment of certain of the Corporation's rights, title and interest in and to the Site Lease and the Lease Agreement, including the right to receive such lease payments from the City, to the Trustee pursuant to an Assignment Agreement, between the Corporation and the Trustee, to be dated as of December 1, 2020 ("Assignment Agreement"), the form of which together with the form of the Trust Agreement are attached hereto and incorporated herein; WHEREAS, the Board of Directors desire to approve the form of an Agency Agreement between the City and the Corporation, the form of which is attached hereto and incorporated herein; and WHEREAS, the Board of Directors desires to approve the form of the Purchase Agreement ("Purchase Agreement"), by and among, the Corporation, the City and Stifel, Nicolaus & Company, Incorporated ("Purchaser"), pursuant to which the Purchaser will agree to buy the Certificates on the terms and conditions set forth therein, the form of which is attached hereto and incorporated herein. NOW, THEREFORE, the Board of Dire Corporation resolves as follows: Section 1: This Board of Dire delivery of the Certificates in accordance with the terms and amount of the Certificates to b the costs of the Project and to I shall be expended to finance th and the costs of the preparatioi an ag ewport Beach Public Facilities consents to the preparation, sale and unt of not to exceed $10,000,000 in ►rovisions of the Trust Agreement, with the exact principal that determined necessary by the City Manager to pay ay all associated costs. The proceeds of the Certificates costs of the Project, to provide for a reserve fund, if any, , sale and delivery of the Certificates. Resolution No. PFC2020-2 Page 3 of 4 Section 2: The forms of the Site Lease, the Lease Agreement, the Trust Agreement, the Agency Agreement, the Purchase Agreement and the Assignment Agreement attached hereto as Exhibit A, B, C, D, E and F, and incorporated herein by this reference, are hereby approved. The Chairman of the Board of Directors and the President(each an "Authorized Officer") is hereby authorized for and in the name of the Corporation to execute the Site Lease, the Lease Agreement, the Assignment Agreement, the Agency Agreement, the Purchase Agreement and the Trust Agreement in substantially the forms hereby approved, with such additions thereto and changes therein as are recommended or approved by the City Attorney. Approval of such changes shall be conclusively evidenced by the execution and delivery of the foregoing documents by one or more of the authorized officers. Each Authorized Officer is hereby authorized to execute, acknowledge and deliver any and all documents required to consummate the transactions contemplated by the Site Lease, the Lease . Agreement, Purchase Agreement, the Trust Agreement, the Agency Agreement and the Assignment Agreement. Section 3: The recitals provided in this incorporated into the operative part of this resolu Section 4: If any section, resolution is, for any reason, held to k affect the validity or constitutionality c Council hereby declares that it wou subsection, sentence, clause or phn more sections, subsections, sentbr unconstitutional. and correct and are subsection, sentence, clause or phrase of this e invalid or unconstitutional, such decision shall not f the remaining portions of this resolution. The City d have passed this resolution, and each section, ase hereof, irrespective of the fact that any one or cs, clauses or phrases be declared invalid or Section 5: The Board of Directors finds the adoption of this resolution is not subject to the California Environmental Quality Act ("CEQA") pursuant to Sections 15060(c)(2) (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) and 15060(c)(3) (the activity is not a project as defined in Section 15378) of the CEQA Guidelines, California Code of Regulations, Title 14, Division 6, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Resolution No. PFC2020-2 Page 4 of 4 Section 6: Each of the Authorized Officers is hereby authorized, jointly and severally, to do any and all things and to execute and deliver any and all documents which they may deem necessary and advisable in order to consummate the sale and delivery of the Certificates and otherwise effectuate the purposes of this Resolution (including but not limited to the execution and delivery of any consents or agreements to remove encumbrances to title with respect to the real property identified in Exhibit A to the Lease and to substitute, remove or add property to Exhibit A to the Lease, the Site Lease and the Assignment Agreement that is determined by the President to be in the best interests of the Corporation) and such actions previously taken by such officers are hereby ratified and confirmed. In the event the Chairman of the Board of Directors is unavailable or unable to execute and deliver any of the above -referenced documents, any other Director of the Board of Directors may validly execute and deliver suchdocument. Section 7: This resolution shall take effect immediate yrupon its adoption by the Board of Directors, and the Secretary shall certify the vote adopting the resolution. Y ADOPTED this 10th day of November, 2020. Chairman of the Board of Directors Newport Beach Public Facilities Corporation ATTEST: Secretary APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE Aaron C. Harp City Attorney Attachments: Exhibit A - Site Lease Exhibit B - Lease Agreement Exhibit C - Trust Agreement Exhibit D - Agency Agreement Exhibit E - Purchase Agreement Exhibit F - Assignment Agreement i AND WHEN RECORDED MAIL TO: Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attn: Brian P. Forbath, Esq. l/+i'Yocca Carlson & Rauti Draft of 1012912;1,,, [Space above for Recorder's use.] Beach and recording is fee -exempt under §27383 of the GovewntT,tCa& SITE LEASE by and between NEWPORT BEACH PUBLIC FACILITIES CORPORATION Dated as of December 1, 2020 Relating to CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2020A (FIRE STATION NO. 2) This SITE LEASE, dated as of December 1, 2020, by and between the CITY OF NEWPORT BEACH, a chartered city duly organized and existing under and by virtue of the Constitution and laws of the State of California (the "City"), and the NEWPORT BEACH PUBLIC FACILITIES CORPORATION, a 501(c)(4) nonprofit public benefit corporation duly organized and existing under and by virtue of the laws of the State of California (the "Corporation"); WITNESSETH. - WHEREAS, the Corporation has agreed to enter into this Site Lease (the "Site Lease") with the City wherein the City will lease the real property described in Exhibit A hereto and the existing improvements thereon (the "Leased Premises") to the Corporation; and WHEREAS, the Corporation intends to lease back to the Cit edged Premises pursuant to a Lease/Purchase Agreement to be executed and entered into 69 6� ate hereof (the "Lease"); a -td a WHEREAS, all acts, condi have been performed precedent to Lease do exist have ha en n 9 W ,-nd things required by law to exist, to have happened and vt, I connection with the execution and entering into of the Site i66n per ormed n regular and due time, form and manner as zre now duly authorized to execute and enter into the Site 11 11 0011 M-010111 M I no I = MAN 10,4111 mk� IM I a IM M I dMAX IIIO = so I a ki 91 t M Section 1. Definitions. All terms not otherwise defined herein shall have the definitions given such terms in the Trust Agreement. Section 2. The Leased Premises. The City hereby leases to the Corporation and th* Corporation hereby leases from the City, on the terms and conditions hereinafter set forth, the Leased Premises; provided that the Lease is duly executed and delivered by the parties beret* simultaneously herewith. Section 3. Term. The term of this Site Lease shall commence as of the date of execution hereof and shall remain in effect until the later of July 1, 2030 or the Term, as defined in the Lease, expires as provided therein, unless such term is sooner terminated as hereinafter provided; provided, however, that in the event of a default by the City under the Lease and the Corporation's election tit, terminate the Lease under Section 9.2(b) thereof, the term of this Site Lease shall not terminate until such time as all amounts payable by the City under the Lease and the Trust Agreement have been paid in full. Section 4. Rental. The Corporation, and any assignee or successor in interest of the Corporation under this Site Lease, shall pay to the City a single rental payment of $ , from f@,roceeds of sale of the Certificates, by causing such amount to be deposited to the Project Fund under and as further specified in the Trust Agreement. ■ ITA # we] E I MIAMI Section 7. Assignments at assignment by the Corporation of its ri the Assignment Agreement dated as Certificates. This Site Lease may also in part, by the Corporation withi ' efaut occurs under the Lease� i 194 via V401 Upon the exercise by the City of its option to purchase a portion of the Leased Premises, as set forth in Section 7.3 of the Lease and upon payment therefor, a corresponding portion of the Leased Premises may be released from this Site Lease. Upon payment by the City of all Lease Payments and all Additional Payments due during the term of the Lease, as provided for in Article IV thereof, the term of this Site Lease shall terminate. Under no circumstances may the City terminate this Site Lease as a remedy for a default by the Corporation in the performance of any obligation of the Corporation hereunder. Section 9. Quiet Enioyment. The Corporation at all times during the term of this Site Lease shall peaceably and quietly have, hold and enjoy all of the Leased Premises; provided, OJ I nowever, that the City shall have the right to demolish some or all of the existing improvements on the Leased Premises in order to complete the Project or to replace or renovate some or all of th* existing improvements with new improvements of equivalent or greater value. Section 10. Default. In the event the Corporation shall be in default in the performance of any obligation on its part to be performed under the terms of this Site Lease, which default continues for 30 days following written notice and demand for correction thereto by the City, the City may exercise any and all remedies granted by law; provided, however, that no merger of this Site Lease and the Lease shall be deemed to occur as a result thereof and, so long as any Certificates and Additional Certificates are outstanding, the Site Lease shall not be terminated except as provided in Section 8 hereof. Section 11. Taxes. Subject to the provisions of Section 7.7 of the Lease, the City covenants and agrees to pay any and all assessments of any kind or character and also all taxes, including possessory interest taxes, levied or assessed upon the Leased Premises. Section 13. Partial Invalidity. If any conditions of this Site Lease shall to any extent for any reason whatsoever by a court of compq which becomes final, none of the remaining tem Lease shall be affected thereb1i._,w,,A.&w4 to the fullest extent permitted by law. M part of the Leased Premises ri shall be recognized and it dditional Payments due the Section 14. Applicable -Mc This Site Lease shall be governed by and construed in accordance with the laws of the Stat f California. Section 16. Captions. The captions or headings in this Site Lease are for convenience only and in no way define, limit or describe the scope of intent of any provision or Section of this Site Lease. Section 17. Execution in CounteEparts. This Site Lease may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute but one and the same instrument. Section 18. Amendments. This Site Lease may be amended in writing as may lml;� mutually agreed by the City and the Corporation; provided, however, that no such amendment whill 0 materially adversely affects the rights of the Owners of the Certificates and any Additional Certificates shall be effective unless it shall have been consented to by the Trustee and the Owners of a majority in aggregate principal amount of the Certificates then Outstanding. Section 19. Incorporation. This Site Lease shall be subject to all the terms and conditions of the Lease. Section 20. Warranties of the City as to the Leased Premises. The City covenants and warrants to the Corporation that: (a) except for Permitted Encumbrances, the Leased Premises is not subject to a dedication, easement, right of way, reservation in patent, covenant, condition, restriction, lie or encumbrance which would prohibit or materially interfere with the financing contemplated by the I Lease; (b) all taxes, assessments, or impositions of any ki respect to the Leased Premises, except current taxes, have been paid in full; (c) the Leased Premises is properly zoned for U16 ' (d) the Leased Premises is necessary to the City in order for the City to perform its governmental functions. [REMAINDER OF PA GE INTENTIONALL Y LEFT BLANK.] M I'A WITNESS WHEREOF, the parties have caused this Site Lease to be executed by their duly authorized officers as of the date and year first above written. By: ItIlllluuui s: City Manager m //\ Lei MKOJ am 80 Mol I've.11 190 0 This is to certify that the interest in the Leased Premises conveyed under the 01 foregoing to the Newport Beach Public Facilities Corporation (the "Corporation"), a 5 (c)4 nonprofit public benefit corporation duly organized under the laws of the State of California, is hereby accepted by the undersigned officer or agent on behalf of the Corporation, pursuant to authority conferred by resolution of the said Corporation adopted on November 10, 2020, and the grantee consents to recordation thereof by its duly authorized officer. Dated: 2020 NEWPORT BEACH PUBLIC FACILITIES CORPORATION A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. RUMMUD aw,"IMMONAZILI WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. in 0 I certify under PENALTY OF PERJURY under the laws of the S1 paragraph is true and correct. WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC Notary Public, , who proved are subscribed to e in his/her/their person(s), or the Ia that the foregoinb 1 *114 ON I I I I fil V MWN no I D'I 513r I M Real property and improvements thereon in the City of Newport Beach, County of Orange, State of California, described as follows: M Stradling Yocca Carlson & Rauth Draji of 1119120 LEASEIPURCHASE AGREEMENT by and between NEWPORT BEACH PUBLIC FACILITIES CORPORATION, as Lessor and CITY OF NEWPORT BEACH, as Lessee Dated as of December 1, 2020 Relating to CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2020A Section 1. 1. Section 1.2. Definitions and Rules of Construction .............................................................2 Exhibits............................................................................................................. 3 ^^^^^^^^^^^^^^^^3 tion ...................... 5 ...----.--.....7 .............................7 .............................7 .............................8 '^^-^--^^-^---------9 '--------------9 ............................. 9 _____________,_,g NoWithholding -------..—.............._......__-._-_.,,-..-,,,,-,,,,,,,,,,,,,,,,---- /O FairRental Value ............................................................................................ lO Budget and Appropriation .—......_-...........................^^.^.^.^^^^.^..^..^.^^.....^. l l Assignment of Lease Payments ...................................................................... l | Use and Possession ......................................................................................... l | Abatement of Lease Payments and Additional Payments .............................. | | Additional Payments .____...__________......—......--.........—.......-_---- l? Net -Net -Net Lease .......................................................................................... 12 TABO LE OF CNTENTS (continued) MIUMM SectionPublic Liability and Leased Premises Damage .............................................. 13 Section 5.2. Workers' Compensation ................................................................................. 13 Section 5.3. Casualty and Theft Insurance ......................................................................... 13 Section 5.4. Rental Interruption Insurance ......................................................................... 14 Section 5.5. Title Insurance ................................................................................................ 14 Section 5.6. General Insurance Provisions ......................................................................... 15 Section5.7. Cooperation .................................................................................................... 15 Section 7.8. ARTICLE VI 19 DAMAGE, DESTRUCTION AND EMINENT DOMAIN; S'.... OF NET PROCEEDS Encumbrances; Alternative Financing Methods ............................................. Section 6. 1. Application of Net Proceeds ........................................................................... 16 21 ARTICLE VII The City's Right to Enforce Warranties of Vendors or Contractors .............. 21 COVENANTS WITH RESPECT TO THE LEASED PREMISES Substitution or Release of the Leased Premises ............................................. ® 7. 1. Use of the Leased Premises ............................................................................ 17 Section 7.2. Interest in the Leased Premises and the Lease ................................................ 17 Section 7.3. Option to Purchase ......................................................................................... 17 Section7.4. Quiet Enjoyment ............................................................................................. 18 Section 7.5. Installation of the City's Personal Property .................................................... 18 Section 7.6. Access to the Leased Premises ....................................................................... 18 Section 7.7. Maintenance, Utilities, Taxes and Assessments ............................................ 19 Section 7.8. Modification of the Leased Premises ............................................................. 19 Section 7.9. Encumbrances; Alternative Financing Methods ............................................. 20 Section 7. 10. Corporation's Disclaimer of Warranties ......................................................... 21 Section 7.11. The City's Right to Enforce Warranties of Vendors or Contractors .............. 21 Section 7.12. Substitution or Release of the Leased Premises ............................................. 21 Section 7.13. Compliance with Law, Regulations, Etc ........................................................ 22 Section 7.14. Environmental Compliance ............................................................................ 23 Section 7.15. Condemnation of Leased Premises ................................................................. 24 Section 8. 1. Assignment by the Corporation ...................................................................... 25 Section 8 '? Assignment and Subleasing by the City .........................................................2 TABLE OoF CONTENTS (cntinued) Section 8.3. Amendments and Modifications ..................................................................... 2T Section 9. 1. Events of Default Defined .............................................................................. 26 ® 9.2. Remedies on Default ...................................................................................... 26 Section 9.3. No Remedy Exclusive .................................................................................... 28 Section 9.4. Agreement to Pay Attorneys' Fees and Expenses, ................................ 28 ® 9.5. No Additional Waiver Implied by One Waiver .............................................. 28 Section 9.6. Application of the Proceeds from the Re -Lease of the Leased Premises ....... 29 Section 9.7. Trustee and Owners to Exercise Rights .......................................................... 29 Section 10. 1. Security Deposit ............................................................................................. 29 Section 10.2. Extraordinary Prepayment .............................................................................. 29 Section 10.3. Optional Prepayment ...................................................................................... 29 ARTICLE XI SectionI I. I. Notices ............................................................................................................ 30 ® 11.2. Binding Effect ................................................................................................. 30 SectionSeverability..................................................................................................... 30 Section 11.4. Execution in Counterparts .............................................................................. 30 Section11.5. Applicable Law ............................................................................................... 30 Signatures...................................................................................................................... S_ EXHIBIT A SCHEDULE OF LEASE PAYMENTS ....................................................... A-] EXHIBIT C DESCRIPTION OF THE PROJECT ........................................................... C-1 EXHIBIT D LEASE SUPPLEMENT FORM ................................................................... D -I EXHIBIT E FORM OF CERTIFICATE OF SUBSTITUTION OR ADDITION OF PROJECT COMPONENT .......................................................................... E -I ft AD M11-VA-4litiki M1 ■ 1 THIS LEASE/PURCHASE AGREEMENT, dated as of December 1. 2020, by and between the NEWPORT BEACH PUBLIC FACILITIES CORPORATION, a 501(c)(4) nonprofit public benefit corporation duly organized and existing under the laws of the State of California, as lessor (the "Corporation"), and the CITY OF NEWPORT BEACH, a chartered city duly organized and existing under the Constitution and laws of said State, as lessee (the "*City"). WI TNE SS E WHEREAS, the City may enter into leases and agreements relating to real property and buildings to be used by the City; and Isd Kom 114wo ILTIV031AMM03 W WHEREAS, all acts, conditions and things required by law to exist, to have happened and t4t. have been performed precedent to and in connection with the execution and entering into of this Lease 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 Lease; NOW, THEREFORE, in consideration of the above premises and of the mutual covenants hereinafter contained and for other good and valuable consideration, the parties hereto agree as follows: I bin Ila go L6196VA Noll Mia I I H Ir. "Interest Comb -idhns the portion of each Lease Payment designated in Exhibit A "Leased Premises" means the site described in Exhibit B hereto and any improvements thereon being leased to the City by the Corporation. "Permitted Encumbrances" means. as of any particular time: (i) liens for general ad valorem taxes and assessments, if any. not then delinquent, or which the City may, pursuant to provisions of Section 7.7 hereof, permit to remain unpaid: (ii) the Assignment Agreement; (iii) this Lease,- (iv) the Site Lease; (v) any contested right or claim of any mechanic, laborer, materialman, supplier or vendor filed or perfected in the manner prescribed by law to the extent pen-nitted under Section 7.8(b) hereof, (vi) easements, rights of way, mineral rights. drilling rights and other rights, reservations, covenants, conditions, liens or restrictions which exist of record as of the Closing Date, which the City hereby certifies will not materially impair the use of the Leased Premises by the City; and (vii) easements, rights of way., mineral rights. drng rights and other rights, reservations, covenants, conditions or restrictions established following the date of recordation of this Lease and to which the Corporation and the City consent in writing. IN "Principal Co onenf� means the portion of the Lease Payments designated in Exhibit A hereto as the Principal Component. "Project" means the improvements described in Exhibit C hereto, and any and all additions or substitutions thereto made as provided in Section 3.5 hereof. and any additional improvements financed with the proceeds of Additional Certificates. Section 1.2. Exhibits. The following Exhibits are attached to, and by reference made a part of, this Lease: Exhibit A: Schedule of Lease Payments to be paid by the City to the Corporation, showing the Lease Payment Date and amount of each Lease Payment. MEMO] � R IN! [XI"19 1111ill-111ij 1 1 111101MI"6111 SMOUT99INTO "al, 1,191111 Section 2. 1. Representations. covenants and warrants to the Corporati • Existence. The City is a municipal corporation and ,z, r the Constitution and laws of the State. (c) No Conflicts or Default, No Liens or Encumbrances. Neither the execution .2-nd delivery of this Lease, the Site Lease, the Continuing Disclosure Agreement, the Agency Agreement or the Trust Agreement, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts with or results in a breach of the terrns, conditions or provisions of any restriction or any agreement or instrument to which the City is now a party or by which the City is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the City. or upon the Leased Premises except for Permitted Encumbrances and the pledges contained in the Trust Agreement. K (d) Execution and Delivea. The City has duly authorized and executed this Lease in accordance with the Constitution and laws of the State. The City shall not take an action. or fail to take any action, if any such action or failure to y take action would cause the Certificates or any Additional Certificates (to the extent such Certificates are executed and delivered as tax exempt Certificates) to be "'private activity bonds" within the meaning of Section 141 of the Code, and in furtherance thereof. shall not make any use of the proceeds of the Certificates, any Additional Certificates (to the extent such Certificates are executed and delivered as tax exempt Certificates) or the Leased Premises, or any portion thereof, or any other funds of the City. that would cause the Certificates or any Additional Certificates (to the extent such Certificates are executed and delivered as tax exempt Certificates) to be -private activity bonds" within the meaning of Section 141 of the Code. To that end, so long as any Certificates or any Additional Certificates (to the extent such Certificates are executed and delivered as tax exempt Certificates) are outstanding., the City. with respect to such proceeds, the Leased Premises and the 11 Project and such other funds, will comply with applicable requirements of the Code and regulations of the United States Department of the Treasury issued thereunder and under Section I *f the Code, to the extent such requirements are, at the time, applicable and in effect. The City shall not, directly or indirectly, use or permit the use of any proceeds of the Certificates, any Additional Certificates (to the extent such Additional Certificates are executed and delivered as tax exempt Certificates) or of the Leased Premises, or other funds of the City, or take or omit to take any action, that would cause the Certificates or any Additional Certificates (to the extent such Additional Certificates are executed and delivered as tax exempt Certificates) to be "'arbitrage bonds" within the meaning of Section 148 of the Code. To that end, the City shall comply with all requirements of Section 148 of the Code and all regulations of the United States Department of the Treasuryissued thereunder to the extent such requirements are, at the time, in effect and applicable to the Certificates or any Additional Certificates (to the extent such Additional Certificates are executed and delivered as tax exempt Certificates). (g) 100 year flood plain. Z Leased Premises are essential for the City ises. The City hereby represents that the of its governmental functions. MINNO OW W.. I . The City hereby represents that the Leased Premises are the of the ALTA title insurance policy (with western regional policy issued by First American Title Insurance Company Section 2.2. Representations. Covenants and Warranties of the Corporation. The Corporation represents, covenants and warrants to the City as follows: (a) Due Organization and Existence, Enforceabili1y. The Corporation is a 501(c)(4) nonprofit public benefit corporation duly organized. existing and in good standing under and by virtue of the laws of the State, has the power to enter into this Lease, the Assignment Agreement, the Site Lease. the Agency Agreement and the Trust Agreement-, is possessed of full power to own and hold real and personal property. and to lease and sell the same; and has duly authorized the execution and delivery of all of the aforesaid leases and agreements. This Lease, the Assi nment A reement. the Site Lease. the Agency Agreement and the Trust A reement constitute 9 9 9 the legal, valid and binding obligations of the Corporation. enforceable in accordance with their respective terrns, except to the extent limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles affecting the rights of creditors generally. (b) No Conflicts or Defaults; No Liens or Encumbrances. Neither the execution and delivery of this Lease, the Assignment Agreement, the Site Lease, the Agency Agreement or the Trust Agreement, nor the fulfillment of or compliance with the terms and conditions hereof or thereof, nor the consummation of the transactions contemplated hereby or thereby, conflicts with or results in a breach of the terrns, conditions or provisions of the joint powers agreement of the Corporation or any restriction or any agreement or instrument to which the Corporation is now a party or by which the Corporation is bound, or constitutes a default under any of the foregoing, or results in the creation or imposition of any lien, charge or encumbrance whatsoever upon any of the property or assets of the Corporation, or upon the Leased Premises except by Permitted Encumbrances and by the pledge contained in the Trust Agreement. (c) Execution and Delivery. The Corporation has dii this Lease in accordance with the laws of the State. 0 Additional Certificates (to the extent such Additional Certificates are executed and delivered as tax exempt Certificates), the Corporation, with respect to such proceeds, the Leased Premises, the Project and such other funds, will comply with applicable requirements of the Code and all regulations of the United States Department of the Treasury issued thereunder and under Section 103 of the Code, to the extent such requirements are, at the time, applicable and in effect. Milo [W."y I MM] Section 3. 1. ' D606§it of Certificate Proceeds. On the Closing Date for the Certificates and on the Closing Date for any Additional Certcates, the Corporation agrees to pay or cause to be paid to the Trustee the proceeds of the sale of the Certificates and Additional Certificates, which moneys, in the case of the Certificates, shall be deposited with the Trustee as provided in Section 2.05 of the Trust Agreement, or in the case of Additional Certificates as provided in any Supplemental Trust Agreement which relates to such Additional Certificates. Section 3.2. Completion of the Project. The Corporation and the City agree to execute and deliver the Agency Agreement pursuant to which the City, as the agent of the Corporation, will acquire, construct, deliver and install the Project. The City and the Corporation each covenants and agrees to comply with the terms of the Agency Agreement. Section 3.3. Payment of Project and Delivery Costs. Payment of the Project Costs and Delivery Costs shall be made from the moneys deposited with the Trustee in the Project Fund as provided in Section 3.1 hereof and Section 2.05 of the Trust A reement, which shall be disbursed in 9 accordance and upon compliance with Article III of the Trust Agreement. 0 Section 3.4. Completion Certification. The City and the Corporation expect that the Project will be substantially completed in accordance with plans and specifications described in the Agency Agreement on or prior to the dates specified in Section 3 to the Agency Agreement. Upon the completion of acquisition, construction, delivery and installation of the portion of the Project to be financed with the proceeds of the Certificates,,, and upon the completion of the improvements to be financed with each series of Additional Certificates, the City shall deliver to the Trustee a Completion Certificate with respect thereto. A separate Completion Certificate will be filed with respect to the portion of the Project to be financed from the Certificates and the portion to be financed with each series of Additional Certificates. On the date of filing a Completion Certificate, all excess moneys remaining in the Project Fund for the Certificates or issue of Additional Certificates for which such Completion Certificate is delivered shall be applied in accordance with the provisions of Section 3.04 of the Trust Agreement. Section 3.7. ' Further Assurances and Corrective Instruments. The Corporation and the City agree that they will, from time to time, execute, acknowledge and deliver, or cause to be executed, acknowledged and delivered. such supplements hereto and such further instruments as may reasonably be required for correcting any inadequate or incorrect description of the Leased Premises hereby leased or intended so to be or for carrying out the expressed intention of this Lease. Hol Section 4. 1. Lease. The Corporation hereby leases the Leased Premises to the City,, and the City hereby leases the Leased Premises from the Corporation, upon the terms and conditions set forth herein. This Lease shall not operate as a merger of the City's leasehold estate in the Leased Premises pursuant to this Lease and its fee estate in the Leased Premises and shall not cause the extinguishment of the leasehold interest granted to the Corporation under the Site Lease. Section 4.2. Tenn. The Ten -n of this Lease shall commence on the date of execution hereof and shall end on July 1, 2030, unless extended pursuant to Section 4.3 hereof, or unless terminated prior thereto upon the earliest of any of the following events: (a) Default and Termination. A default by the City and the Corporation's election to terminate this Lease under Section 9.2(b) hereof, (b) Payment of All Lease Payments. The payment by the City of all Lease Payments required under Section 4.4 hereof and any Additional Payments required under Section 4. 11 hereof; (c) Prepayment. The deposit of funds or Government Obligations with the Trustee in amounts sufficient to pay all Lease Payments as the same shall become due, as provided in Section 10. 1 hereof and in Section 14.01 of the Trust Agreement; or Section 4.4. Lease Payments. (a) Time and Amount. Subject to the provisions of Section 4. 10 (regardinly abatement in event of loss of use of any portion of the Leased PremiSection 7.3 (regarding option to purchase) and Article X (regarding prepayment of Lease Payments), the City agrees to pay to i its successors and assigns, as annual rental for the use and possession of the Leased Premises, the Lease Payments (denominated into components of principal and interest, the Interest Component of such Lease Payment being paid semiannually) in the amounts specified in Exhibit A. to be due and payable in arrears on the fifteenth (I 5th) day of the month (or if such day is 9 not a Business Day, the next succeeding Business Day) specified in Exhibit A (the "Lease Payment Date"') which are sufficient in both time and amount to pay when due the annual principal and interest represented by the Certificates. In the event that any Additional Certcates are executed and delivered pursuant to the Trust Agreement, the City and the Trustee shall execute an amendment to Exhibit A to state the Lease Payments due hereunder as a result of the execution and delivery of such Additional Cercates. The obligation of the City to pay Lease Payments shall commence on the Closing Date for the Certificates. In the event the City does not pay a Lease Payment due on the respective Lease Payment Date, the Trustee shall provide prompt written notice to the City of such failure to pay-, provided, however, that failure to give such notice shall not excuse any event of default under Section 9.1 hereof. re 5 V W a 141ROMINVE Section 4.6. Fair Rental Value. The Lease Payments and Additional Payments shall be paid by the City in consideration of the right of possession of. and the continued quiet use and enjoyment of, the Leased Premises during each such period for which said Lease Payments are to be paid. The parties hereto have agreed and determined that such total rental represents the fair rental value of the Leased Premises. In making such determination, consideration has been given to the fair market value and replacement cost of the Leased Premises, other obli ations of the parties under this 9 Lease (including but not limited to costs of maintenance, taxes and insurance),, the uses and purposes which may be served by the Leased Premises and the benefits therefrom which will accrue to the City and the general public. and the transfer of the Corporation's leasehold interest in the Leased Premises at the end of the Term. (a) In the Event of Damage, Destruction. Condemnation or Title Defect. Except to the extent that proceeds of the type described in the following paragraph are available, the amount of Lease Payments and Additional Payments shall be abated during any period in which by reason of damage, destruction or taking by eminent domain or condemnation of the Leased Premises or defects in the title with respect to the Leased Premises there is substantial interference with the use and possession of all or a portion of the Leased Premises by the City. The amount of such abatement shall be such that the resulting Lease Payments, exclusive of the amounts described in the following paragraph, do not exceed r rental value (as deten-nined by an independent real estate appraiser selected by the Citywho is not an employee of the City) for the use and possession of the portion of the Leased Premises not damaged, destroyed, interfered with or taken. Such abatement shall continue for the period commencing with such damage, destruction, interference or taking and ending with the substantial completion of the replacement or work of repair or the removal of the title defect causing such interference with use. Except as provided herein, in the event of any such damage, destruction, interference or taking, this Lease shall continue in full force and effect and the City waives any right to terminate this Lease by virtue of any such damage, destruction, interference or taking. HIM A hTINWAN Section 4.11. Additiori pay-suchn 4o� i ii,� ounts -("Additional Or"R9161 MY i HIMM"i Section 4.12. Net -Net -Net Lease. This Lease shall be deemed and construed to be a "net - net -net lease" and the City hereby agrees that the Lease Payments shall be an absolute net return to the Corporation, free and clear of any expenses, taxes. fees, insurance premiums. rebate payments, reserve deposits, costs associated with the Leased Premises, charges or set -offs whatsoever. except as expressly provided herein. IN FRAOMIUM ffillv�� (a) Coverage. The City shall maintain or cause to be maintained, throughout the Term hereof, a standard comprehensive general public liability and property damage insurance policy or policies in protection of the City and the Corporation and their officers, agents and employees. Said policy or policies shall provide for indemnification of said parties against direct or contingent loss or liability for damages for bodily and personal injury, death or property damage occasioned by reason of the use or operation of any City property or portion thereof. (c) Joint or Self -Insurance. S &M 1611 t U Flo 141mir-11162, WVT logm Section # and Theft Insurance. urance, including the deductible, (a) Casualty and Theft Insurance.- Coverage. The City shall procure and maintain, or cause to be procured and maintained. throughout the Term of this Lease, insurance against loss or damage to any portion of the Leased Premises caused by fire and lightning., with extended coverage and theft, vandalism and malicious mischief 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, excluding flood and earthquake. The City shall not be required to purchase or maintain earthquake or flood insurance with respect to the Leased Premises. IN, (b) Amount. Such insurance shall be in an amount not less than the replacement cost of the Leased Premises, subject to a "deductible clause" not to exceed five hundred thousand dollars ($500,000) for any one loss or, in the case of a flood and earthquake rider, ten percent (10%) of the coverage obtained. The term "full replacement value" as used in this Section 5.3 shall mean the actual replacement cost of the improvements constituting the Leased Premises. (c) Joint or Self -Insurance. Such insurance may be maintained as part of or in conjunction with any other insurance carried or required to be carried by the Ciand, subject to compliance with Section 5.6(e) hereof, may be maintained in the form of self-insurance by the City. Insurance obtained through a California joint powers authority of which the City is a member shall not be deemed to be self- i Yb-M-ZTVC--. MIMI (b) Joint Insurance. insurance may be maintained as part of or in conjunction with any other rental income d 6ccupancy insurance carried by the City but may not be maintained in the form of self&Pinsu the City. Section 5.5. Title Insurance. The City shall obtain and, throughout the Term of this Lease, maintain or cause to be maintained title insurance on the Leased Premises, in the forrn of an ALTA title policy (with western regional exceptions) or in the form of a CLTA title policy, in an amount equal to the aggregate principal amount of the Certificates and Additional Certificates Outstanding, issued by a company of recognized standing, duly authorized to issue the same, payable to the Trustee for the benefit of the Owners, subject only to Pen-nitted Encumbrances. Said policy or policies shall insure the City's leasehold estate hereunder in the Leased Premises. subject only to Permitted Encumbrances. All Net Proceeds received under said policy or policies shall be deposited with the Trustee and applied as provided in Section 7.01 of the Trust Agreement. So long as any of the Certificates and Additional Certificates remain Outstanding. each policy of the title insurance obtained pursuant hereto or required hereby shall provide that all proceeds thereunder shall be payable to the Trustee for the benefit of the Certificate Owners and the owners of any Additional Certificates. The Net Proceeds of such insurance shall be applied as provided in Section 6. 1. 21 em"I IISIRI Section 5.7. Cooperation. The Corporation shall cooperate fully with the City at the expense of the City in filing any proof of loss with respect to any insurance policy maintained [IN pursuant to this Article and in the prosecution or defense of any prospective or pending condemnation proceeding with respect to the Leased Premises or any portion thereof. (b) Disbursement for Replace R of the Leased Premises. Upon receipt of the certification described in paragraph ( e requisition described in paragraph (ii) below, the Trustee shall disburse moneys i 6eeds Fund to the person, firm or corporation named in the requisition as provided in do below. (ii) Requisition. The City Representative must deliver to the Trustee �! requisition stating with respect to each payment to be made (1) the requisition number, (2) the name and address of the person, fin -n or corporation to whom payment is due, (3) the amount to be paid ani (4) that each obligation mentioned therein has been properly incurred, is a proper charge against the Net Proceeds Fund, has not been the basis of any previous withdrawal, and specifying in reasonablo detail the nature of the obligation. Each such cost requisition shall be sufficient evidence to the Trustee of the facts stated therein and the Trustee shall have no duty to confirm the accuracy of such &cts. fro Any balance of the Net Proceeds remaining after such replacement or repair has been completed and after payment or provision for payment of all Certificates as provided in Section 7.01 of the Trust Agreement and all Additional Certificates as provided in any Supplemental Trust Agreement pursuant to which such Additional Cercates are executed and delivered shall be paid to the City after payment of amounts due the Trustee pursuant to Sections 9.6 and 9.7 of the Trust Agreement. ARTICLE V11 COVENANTS WITH RESPECT TO THE LEASED PREMISES Section 7. 1. Use of the Leased Premises. The City represents and warrants that it has an immediate need for, and expects to make immediate use of, all of the Leased Premises, which need is not temporary or expected to diminish in the foreseeable future. (a) Corporation Holds Leasehold Interest During Term. During the Term of this Lease, the Corporation does and shall hold a leasehold interest in the Leased Premises pursuant to the Site Lease. The City shall take any and all actions reasonably required, including but not limited to executing and filing any and all documents reasonably required, to maintain and evidence such title and interest at all times during the Term of this Lease. (b) Title Transferred to the City at End of Term. Upon expiration of the Term as provided in Section 4.2(b) or 4.2(c) hereof, all right. title and interest of the Corporation in and to all of the Leased Premises shall be transferred to and vest in the Citywithout the necessity of any additional document of transfer. Section 7.3. Option to Purchase. The City may exercise an option to purchase the Corporation"s interest under the Site Lease and this Lease in the Leased Premises by depositing with the Trustee cash and/or Government Obligations as provided in Section 14.01 of the Trust Agreement. In such event, all or a portion of the obligations of the City under this Lease, and the FA a a 0 INK I IMM Chi' so a Section 7.6. Access to the Leased Premises. The City agrees that the Corporation, any Corporation Representative and the Corporation's successors, assigns or designees shall have the right at all reasonable times to enter upon the Leased Premises or any portion thereof to examine and inspect the Leased Premises. The City further agrees that the Corporation, any such Corporation Representative, and the Corporation's successors. assigns or designees shall have such rights of access to the Leased Premises as may be reasonably necessary to cause the proper maintenance of the Leased Premises in the event of failure by the City to perform its obligations hereunder. UU611 (a) Maintenance: Repair and Replacement. Throughout the Term of this Lease, .zs part of the consideration for the rental of the Leased Premises, all repair and maintenance of the Leased Premises shall be the responsibility of the City, and the City shall pay for or otherwise 9-rrange for the payment of the cost of the repair and replacement of the Leased Premises resulting from ordinary wear and tear or want of care on the part of the City or any sublessee thereof. In Cxchange for the Lease Payments herein provided, the Corporation agrees to provide only the Leased Premises, as hereiribefore more specifically set forth. The City waives the benefits of subsections I 2nd 2 of Section 1932 of the California Civil Code, but such waiver shall not limit any of the rights *f the City under the terms of this Lease. to be paid during the It tall mWifflo", "41 'T (a) Additions. Modifications and Improvements. The City shall, at its own expense, have the right W make additions, modifications, and improvements to any portion of the Leased Premises if such improvements are necessary or beneficial for the use of such portion of the Leased Premises. All such additions, modifications and improvements shall thereafter comprise part of the Leased Premises and be subject to the provisions of this Lease. Such additions, modifications and improvements shall not in any way cause an abatement of Lease Payments with respect to the Leased Premises or cause it to be used for purposes other than those authorized under the provisions of State and federal law or in any way which would impair the State tax-exempt status or the exclusion from gross income for federal income tax purposes of the interest with respect to the Certificates and Additional Certificates (to the extent such Additional Certificates were executed and delivered as tax exempt Certificates); and the Leased Premises, upon completion of any additions, modifications and improvements made pursuant to this Section. shall have an annual fair rental value which is not less than the annual Lease Payments. R (b) No Liens. Except for Permitted Encumbrances, the City will not perrnit any mechanic"s or other lien to be established or remain against the Leased Premises for labor or materials furnished in connection with any additions, modifications or improvements made by the City pursuant to this Section; provided that if any such lien is established and the City shall first notify or cause to be notified the Corporation of the City"s intention to do so, the City may in good faith contest any lien filed or established against the Leased Premises, and in such event may permit the items so contested toremain undischarged and unsatisfied during the period of such contest and any appeal therefrom and shall provide the Corporation with full security against any loss or forfeiture which might arise from the nonpayment of any such item, in form satisfactory to the Trustee (as assignee of the Corporation). The Corporation will cooperate fully in any such contest, upon the request and at the expense of the City. d OUM61, a copy of which thriz, �601,hcement does not adversely 9 of the interest with respect to onal Certificates were executed tin the legal, valid, binding and i) The City shall certify to the Trustee that it has sufficient funds to complete such replacement, redevelopment or renovation-, and (iv) In the case of replacement(s), redevelopment or renovation other than from the proceeds of Additional Certificates, the City and the Trustee receive an independent appraisal from a California certified general appraiser that the annual fair rental value of the Leased Premises following the replacement, redevelopment or renovation will be at least equal to the annual Lease Payments immediately prior to such replacement. redevelopment or renovation. (a) Encumbrances. Except as provided in this Article VII (including without limitation Section 7.8 hereof and this Section 7.9)the City shall not. directly or indirectly., create, incur, assume or suffer to exist any mortgage, pledge. liens. charges. encumbrances or claims, as .?-Pplicable, on or with respect to the Leased Premises. other than Pen-nitted Encumbrances and other than the respective rights of the Corporation and the City as herein provided. Except as expressly M provided in this Article VII, the City shall promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim, for which it is responsible, if the same shall arise at any time-, provided that the City may contest such liens if it desires to do so. The City shall reimburse the Corporation for any expense incurred by it in order to discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim. ............................. 1 1 ;11 1 11•0 1 1 11 1111111`111 (a) The City shall have the right to substitute alternate real property for a portion of the Leased Premises described in Exhibit B hereto or to release a portion of the Leas Premises from the lien of this Lease by providing the Trustee with a supplement to this Lea wr is substantially in the form attached as Exhibit D hereto and by satisfying the conditions set forth in paragraphs (i) through (vi) of this Section 7.12. All costs and expenses incurred in connection with such substitution or release shall be borne by the City. Notwithstanding any substitution pursuant to this Section, there shall be no reduction in or abatement of the Lease Payments due from the City hereunder as a result of such substitution. No substitution or release shall be permitted hereunder u7cless: 0) in the case of a substitution, the City provides the Trustee with a certificate that the substituted real property has an equivalent or greater useful life as the Leased Premises to be released and that the useful life of the substituted Leased Premises exceeds the remaining term of the Lease Payments hereunder-, (iii) the City obtains or causes to policy (with western regional exceptions) or CLTA title substituted nEQi2ertv, with an endorsement so as to be t)AV Owners, showing no prior liens thereon other th comply with Section 5.5 hereof, shall be in the am Payments attributable to the substituted property,, 0 simple interest of the Corporation or the City, as 601 (A) upon the substitution of any real property and improvements thereon for all or a portion of the Leased Premises then existing., or the release of any portion of the Leased - Premises, the City, the Corporation and the Trustee shall execute and the City shall record with the office of the County Recorder, County of Orange, California, any document necessary to reconvey to the City the portion of the Leased Premises being released and to include any substituted real property and/or improvements as all or a portion of the Leased Premises. Section 7.13. Compliance with Law, Regulations. Etc. (a) Except as described in subsection (b) below, the City has. after due inquiry., no knowledge and has not given or received any written notice indicating that the past or present use of the Leased Premises or any practice. procedure or policy employed by it in the conduct of its business materially violates any applicable law. regulation. code. order, rule. judgment or consent agreement. including, without limitation. those relating to zoning. bung, use and occupancy, fire 0. ml underground storage tanks shall only be permitted subject to compliance with subsection (d) and only to the extent necessary to maintain the improvements on the Leased Premises. (b) The City shall comply with, and shall cause all tenants, subtenants, licensees, guests, invitees, contractors, employees and agents on the Leased Premises to comply with, all Environmental Regulations, and shall keep the Leased Premises free and clear of any liens imposed pursuant thereto; provided, however, that notwithstanding that a portion of this covenant is limited to the City"s use of its best efforts, the City shall remain solely responsible for ensuring such compliance and such limitation shall not diminish or affect in any way the City's obligations contained in subsection (c) hereof as provided in subsection (c) hereof. Upon receipt of any notice from any person with regard to the Release of Hazardous Materials other than the Permitted Use on, from or beneath the Leased Premises., the City shall give prompt written notice thereof to the Trustee prior to the expiration of any period in which to respond to such notice under any Environmental Regulation. rranty contained in W, defend, indemnify (d) The City shall conform to and carry out a reasonable program of maintenance and inspection of all underground storage tanks, and shall maintain, repair,, and replace such tanks only in accordance with Lawss. including but not limited to Environmental In Regulations. Section 7.15. Condemnation of Leased Premises. The City hereby covenants and agrees, t* the extent it may lawfully do so, that, except as described in Section 6 of the Site Lease, so long as any of the Certificates or Additional Certificates remain outstanding and unpaid, the City will not exercise the power of condemnation with respect to the Leased Premises. The City further covenants and agrees. to the extent it may lawfully do so. that if for any reason the foregoing covenant is W .1 determined to be unenforceable or if the City shall fail or refuse to abide by such covenant and condemns the Leased Premises, then the appraised value of the Leased Premises shall not be less than the sum of. (i) as to Certcates and Additional Certcates then subject to optional prepayment, the principal and interest components of such Certificates and Additional Certificates outstanding through the date of their prepayment, and (ii) as to Certificates and Additional Certificates not then subject to optional prepayment, the amount necessary to defease such Certificates and Additional Certificates to the first available prepayment date in accordance with this Trust Agreement. FRIAMILII UM MMI I I i � I I IT, TINTE MI M6, I (b) Sublease. City may sublease all or any portion of the Leased Premises subject to all of the following conas* s Lease and the obligation of the City to make Lease Payments and Additional Paymefitmir shall remain obligations of the City, The City shall, within thirty (30) days after the delivery thereof, furnish or cause to be furnished to the Corporation and the Trustee, true and complete copy of such sublease-, and (iii) The City shall fumish to i and the Trustee, an opinion of Special Counsel to the effect that the sublease will not cause the interest due with respect to the Certificates and any Additional Certificates (to the extent such Additional Certificates are executed and delivered as tax exempt Certificates) to be subject to State personal income tax or adversely affect the exclusion from gross income for federal income tax purposes of such amounts, provided that no such opinion shall be required with respect to the subleases in effect upon the Date of Delivery or with respect to any lease with respect to the use of the auditorium, soundstage and recording studio. 0 Section 8.3. Arnendments and Modifications. This Lease may be amended or any of its terms modified with the written consent of the City,, the Corporation and the Trustee, in accordance with Article X of the Trust Agreement. 111gympow Section 9. 1. Lvents of Default Defined. The following shall be "events of default,"' under this Lease and the terms "'events of default"' and "default" shall mean, whenever they are used in this Lease, any one or more of the following events: Section 9.2. ' Remedies on Default. Whenever any event of default referred to in Section 9.1 hereof shall have happened and be continuing, it shall be lawful for the Corporation to exercise any and all remedies available pursuant to law or granted pursuant to this Lease. Notwithstanding anything herein or in the Trust Agreement to the contrary, THERE SHALL BE NO RIGHT UNDER ANY CIRCUMSTANCES TO ACCELERATE THE LEASE PAYMENTS OR OTHERWISE DECLARE ANY LEASE PAYMENTS NOT THEN IN DEFAULT TO BE IMMEDIATELY DUE AND PAYABLE. After the occurrence of an event of default hereunder, the City will surrender possession of the Leased Premises to the Corporation,, if requested to do so by the Corporation, the Trustee or the Owners, in accordance with the provisions of the Trust Agreement. (a) No Termi.nation: Repossession and Re -Lease on Behalf of The Cijy. In thif event the Corporation does not elect to terminate this Lease in the manner hereinafter provided for in subparagraph (b) hereof, the Corporation may, with the consent of the City, which consent is hereby irrevocably given, repossess the Leased Premises and re -lease it for the account of the City, in which W11 event the City's obligation will accrue from year to year in accordance with this Lease and the City will continue to receive the value of the use of the Leased Premises from year to year in the form of credits against its obligation to pay Lease Payments. The obligations of the City shall remain the same as prior to such default, to pay Lease Payments and Additional Payments whether the Corporation re-enters or not. The City agrees to and shall remain liable for the payment of all Lease Payments and Additional Payments and the performance of all conditions contained herein and shall reimburse the Corporation for any deficiency arising out of the re-leasing of the Leased Premises, or, in the event the Corporation is unable to re -lease the Leased Premises, then for the full amount of all Lease Payments and Additional Payments to the end of the Term of this Lease, but said Lease Payments and Additional Payments and/or deficiency shall be payable only at the same time and in the same manner as provided above for the payment of Lease Payments and Additional Payments hereunder, notwithstanding such repossession by the Corporation or any suit brought by the Corporation for the purpose of effecting such repossession of the Leased Premises or the exercise of any other remedy by the Corporation. III ��Jniiilli!lli 1111 111 111! The City shall retain the portion of rental obtained by the Trustee, as assignee of the Corporation, that is in excess of the Lease Payments and Additional Payments, the fees, expenses and costs of the Trustee of re-leasing the Leased Premises. and all amounts payable by the City under this Lease and the Trust Agreement. In the event that the liability of the City under this subsection (a) is held to constitute indebtedness or liability in any year exceeding in any year the income and revenue provided for such year. the Corporation, or the Trustee or the Owners. as assignees, of the Corporation. shall no! exercise the remedies provided in this subsection (a). (b) Termination. Repossession and Re -Lease. In the event of the termination of this Lease by the Corporation at its option and in the manner hereinafter provided on account of default by the City (and notwithstanding any repossession of the Leased Premises by the Corporation in any manner whatsoever or the re-leasing of the Leased Premises). the City nevertheless agrees to a (d) No Termi H 1.11 KI I 1W91.42 HRIM& I this Lease as a remedy for a de Corporation hereunder. Section 9.4. 'Agreement to Pav Attorneys' Fees and Expenses. In the event either party to this Lease should default under any of the provisions hereof and the nondefaulting party should employ attorneys or incur other expenses for the collection of moneys or the enforcement of performance or observance of any obligation or agreement on the part of the defaulting party contained herein, the defaulting party agrees that it will pay on demand to the nondefaulting party the reasonable fees of such attorneys and such other expenses so incurred by the nondefaulting party. Section 9.5. No Additional Waiver Implied by One Waiver. In the event any agreement contained in this Lease should be breached by either party and thereafter waived by the other party. - such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder. Section 9.6. Application of the Proceeds from the Re -Lease of the Leased Premises. All amounts received by the Corporation under this Article IX shall, subject to Section 13.03 of the Trust Agreement, be deposited by the Trustee in the Lease Payment Fund and credited towards the Lease Payments in order of Lease Payment Dates. IM111111 f I Lou"] arl 11 MIN I I M I tM IF"I I I 079�0 ARTICLE X lia Section I I. I. Notices. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed to have been received on the earlier of the day of actual receipt or five Business Days after deposit in the United States mail in first-class or certified form, postage prepaid, to the City or the Corporation, as the case may be, at the addresses indicated in Section 14.05 of the Trust Agreement. The Corporation, the City, and the Trustee, by notice given hereunder, may designate different addresses to which subsequent notices, certificates or other communications will be sent. Section 11.2. Binding Effect. This Lease shall inure to the benefit of and shall be binding upon the ® and the City and their respective successors and assigns. Section 11.3. ' Severabilily. In the event any provision of this Lease shall be held invalid or unenforceable by a court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof. Section 11.4. Execution in Cout s.This Lease may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 11.5. Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the State. [REMAINDER OFPAGE INTENTIONALLY LEFT BLANK] M IN WITNESS WHEREOF, the Corporation has caused this Lease to be executed in its name by its duly authorized officer, and the City has caused this Lease to be executed in its name by its duly authorized officer, as of the date first above written. NEWPORT BEACH PUBLIC FACILITIES CORPORATION, as Lessor CITY OF NEWPORT BEACH, as Lessee Mr. 1111 111 11 i� � � I � I � � I � � 1 � � 1111 ii � lll�If no IBM Aaron C. Harp, City Attorney M This is to certify that the interest in the Leased Premises conveyed under the foregoing to the City of Newport Beach, a chartered city duly organized under the Constitution and the laws of the State of California, is hereby accepted by the undersigned officer or agent on behalf of the City Council of the City of Newport Beach, pursuant to authority conferred by resolution of the said City Council adopted on November 10, 2020, and the grantee consents to recordation thereof by its duly +_ -ut1orized officer. Dated: 202* By: Its: City Manager SCHEDULE OF LEASE PAYMENTS Principal interest DateComponent Component Lease Payments w 11 so I 1 101 I i iii m 1-11-DRIM-109-12 I 1 1111111 11 111 1 U - UUM Real property and improvements located thereon in the City of Newport Beach, County of Orange, State of California, described as follows: IM 1 W4 of II II 1 103 0 if The acquisition, improvement and equipping of a new Fire Station No. 2 consisting of a two story building of approximately 7,084 square feet located within the City and including all design, engineering and soft costs associated therewith. W 1 M_g-110111EI There is hereby subjected to the terms of that certain Lease/Purchase Agreement, dated as of December 1. 2020, by and between the Newport Beach Public Faces Corporation and the City of I Newport Beach (the "City"') the following items which shall comprise a portion of the Leased Premises, as defined therein: EMMIEM =6 M 1. the City Representative, hereby certify that - (2) the above-described portion of the authorized public purposes and can be leased undei Code; M we (4) the above-deso degree of essentiality to the Ci 1, the City R substituted is free an referred to ii the Leasi I= amises will be used by the City forr ons of the Lease and the Government . of the Leased Premises is of approximately the sa on of the Leased Premises being replaced. 1 , hereby certify that the portion of the Leased Premises being, I liens or claims of others, except for P..iEncumbrancel [QIW&QMMfkJjT By: [signature] City Representative FOR of the Cityt "City"') herebyZ that project is to become a part of the Project as defined under Lease/Purchasethe „ Facilitiesand the Newport Beach Public t "Corporation") [in addition to the components of the Project as defined in the Lease or in substitution for component of the Project as defined in the Lease]. This Certificate shall be filedit s r, by and among; the City, the Corporation and The Bank of New York Mellon Trust Company, N.A., thereunder,as trustee until such times the Leases terminated. to r CITY OF '1' r Li am m ma M Draft■ I F EXPRINGM FITKIIIINUMIN, Section 1.01. Definitions and Rules of Construction .......................................................... ? Section1.02. Authorization ............................................................................................................. 9 Section1.03. Equal Security ............................................................................................................ 9 FRINVINWI Section2.0 1. Authorization ............................................................................................................. 9 Section 2.02. Description of Certificates ....................................................................................... 10 Section 2.03. Form of Certificates ....................................................... ......................................... I I Section2.04. Execution ................................................................................................................. I I Section 2.05. Application of Proceeds and Other Amounts .......................................................... I I Section 2.06. Transfer and Exchange ............................................................................................. I I Section 2.07. Certificates Mutilated, Lost, Destroyed or Stolen .................................................... 12 Section 2.08. Execution of Documents and Proof of Ownership .................................................. 13 Section 2.09. Certificate Register .................................................................................................. 13 Section 2. 10. Book -Entry System .................................................................................................. 13 Section 2.11. Destruction of Cancelled Certificates .......................................................... __ ....... 16 Section 2.12. Additional Certificates ............................................................................................. 16 Section 3.0 1. Establishment of Project Fund ............................................................... ................. 18 Section3.02. Purpose ..................................................................................................................... 18 Section 3.03. Deposit of Moneys.- Payment of Project Costs and Delivery Costs ......................... 18 Section 3.04. Transfers of Unexpended Proceeds .......................................................................... 19 "EMPIVINWam Section 4.0 1. Establishment of Prepayment Fund ........................................................................ 19 Section 4.02.Extraordinary Prepayment ....................................................................................... 19 Section 4.03. Prepayment .............................................................. Error! Bookmark not defined. Section 4.04. Selection of Certificates for Prepayment ................................................................. 19 Section 4.05. Notice of Prepayment ............................................................................................... 19 Section 4.06. Partial Prepayment of Certificates .......................................................................... 20 Section 4.07. Effect of Notice ol'Prepayment ............................................................................... 20 Section4.08. Surplus ..................................................................................................................... 2 0 (continued) • Section 5.0 1. Security Provisions .................................................................................................. 21 Section 5.02. Establishment of Lease Payment Fund .................................................................... 21 Section5.03. Deposits ............................................................................................................ 1) 1) Section 5.04. Application of Moneys ................................................................................... Section5.05. Surplus ............................................................................................................. ARTICLE VI [RESERVED] ARTICLE VII NET PROCEEDS FUND Section 7.0 1. Establishment of Net Proceeds Fund: Deposits ....................................................2 Section7.02. Cooperation .............................................................................................................. 23 ARTICLE VIII Section8.0 1. Held in Trust ............................................................................................................ 24 Section 8.02. Investments Authorized ......................................................... ................................. 24 Section 8.03. Crediting of Investments .......................................................................................... 25 Section8.04. Accounting ............................................................................................................... 25 Section 8.05. Valuation and Disposition of Investments .............................................................. 25 Section 8.06. Commingling of Moneys in Funds .......................................................................... 25 Section8.07. Tax Covenants ......................................................................................................... 25 Section8.08. Rebate Fund ............................................................................................................. 26 I Section 9.0 1. Appointment of Trustee ........................................................................................... 28 Section 9.02. Merger or Consolidation .......................................................................................... 29 Section 9.03 ). Protection of the Trustee ........................................................................................... -)9 Section 9.04. Rights of the Trustee ................................................................................................ 30 Section9.05. Standard of Care ....................................................................................................... 30 Section 9.06. Compensation of the Trustee ................................................................................... 31 Section 9.07. Indemnification of Trustee ....................................................................................... 32 Section 9.08. Trustee's Disclaimer of Warranties ......................................................................... 33 TABLE OF CONTENTS (continued) MODIFICATION OR AMENDMENT OF AGREEMENTS Section 10.0 1. Amendments Pen-nitted ............................................................................................ 33 Section 10.02. Procedure for Amendment with Written Consent of the Owners ............................ 35 Section 10.03. Disqualified Certificates .......................................................................................... 35 Section 10.04. Effect of Supplemental Agreement .......................................................................... 35 Section 10.05. Endorsement or Replacement of Certificates Delivered After Amendments .......... 36 Section 10.06. Amendatory Endorsement of Certificates ................................................................ 36 Section 10.07. Copies of Amendments Delivered to Rating Agencies ............................................ 36 141WT 112E.12116=12 R Section 11.01. Compliance With and Enforcement of the Lease .............................................. 36 Section 11.02. Payment of Taxes ..................................................................................................... 36 SectionObservance of Laws and Regulations ..................................................................... 36 Section 11.04. Prosecution and Defense of Suits ............................................................................. 37 Section11.05. City Budgets ........................................................................................................ ... 37 Section 11.06. Further Assurances ................................................................................................... 37 Section 11.07. Continuin2 Disclosure .............................................................................................. 37 -XINHHLINKI Hque W iability6Fthe City .................................................................................... 37 ,V of the City or Corporation for Trustee Performance ........................... 30 6f Riahts to Parties and Certificate Owners ........................................... 3 *4 ty of Corporation to the Owners .............................................................. 3V F.-VIOW1441A M', 11LIVIN21 VKelm DINVA111 Section 13.01. Assignment of Rights ............................................................................................... 38 Section 13.02. Events of Default ..................................................................................................... 38 Section 13.033. Application of Funds ................................................................................................ 39 Section 1 -3.04. Institution of Legal Proceedings .............................................................................. 39 Section13.05. Non -Waiver .............................................................................................................. 40 Section 13.06. Remedies Not Exclusive .......................................................................................... 40 Section 13.07. Power of Trustee to Control Proceedings ................................................................ 40 Section 13.08. Limitation on Certificate Owners' Right to Sue ..................................................... 40 ff TABLE OF CONTENTS Section l4-Ol. Defeasance ............................................................................................................... 4l Section 14.02. mdCertificates .............................................................................. 42 Section 14.03. Acquisition w[Certificates hmCity .......................................................................... 42 Section14J04. Records ............................................................. ........ .^.^........................................... 42 Section 1415. Notices ..._______..-.-..--.........-.^.^^^^^^...^.^^^-^_.....__..._....--------......42 Section 14J06. Governing Law ____...-_____..__...~..~.-.........................------.4B Section 14.07. Binding Effect: S ..... ------.4B Section l4]08. in ..........---44 Section 14.09. —.—...----.--44 Section 14. 10. Waiver of Notice --....._...........__..44 Section I4.| l . Separability ofDnvabd Provisions ...--.__..__..____-44 Signatures ......^^^^^.^^^^.^^...^^^.^^ S-\ EXHIBIT A FORM OF 2020A CERTIFICATE ---.---..-..—._-_.A-] EXHIBIT B-1 FORM OF WRITTEN DELIVERY .............................. B-1-1 [IN THIS TRUST AGREEMENT. is dated as of December 1. 2020, 2020. and entered into by and among THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.. a national banking association organized under the laws of the United States of America, as trustee (the "Trustee"), the NEWPORT BEACH PUBLIC FACILITIES CORPORATION, a 501(c)(4) nonprofit public benefit corporation duly organized and existing under the laws of the State of California. as lessor under the Lease hereinafter referred to (the -Corporation"'),, and the CITY OF NEWPORT BEACH. a chartered city duly organized and existing under the Constitution and laws of the State of California, as lessee under the Lease (the "City"); WI TNESSE WHEREAS. the City and the Corporation have ente Led§&Purchase Agreement, dated as of December 1, 2020, 2020 (the "Lease"). whereby is agent of the Corporation, shall cause the acquisition of certain property. as described t '"Pi0i6cf'). and the City has agreed to lease the Leased Premises (defined below) from the du and V M -W M N HIN WHEREAS. the Trustee has agreed to apply the proceeds of the Certificates deposited in t Project Fund to pay certain Project Costs and Deliven, Costs (as such terrns, are defined herein). NOW. THEREFORE. in consideration of the premises and the Mutual covenants contained herein, the parties hereto hereby agree as follows: Section 1.01. ' Definitions and Rules of Construction. Unless the context otherwise requires, the ten -ns defined in this Section shalll for all purposes of this Trust Agreement, have the meanings herein specified. Unless the context otherwise indicates, words importing the singular number shall include the plural number and vice versa. The terms "hereby," "hereof,," "'hereto," "herein," "hereunder" and any similar terms, as used in this Trust Agreement, refer to this Trust Agreement as a w)iiole. "'Additional Certificates" means certificates of participation authorized by a Supplemental Agreement that are executed and delivered by the Trustee under and pursuant to Section 2.12. "Additional Payments" means all amounts payable by the City dditional Payments as defined in Section 4.11 -of the Lease. ir "Assignment Agreement" means the Assignment Agr 6d as of the date hereof, bp and between the Trustee and the Corporation, and any duly d and executed amendments thereto. 79 rITM a I' R VI Im's W W11 K WOTH "s ""Certificate Year" means the period extending from July 2 each year to July I of the subsequent calendar year, provided that the first Certificate Year shall commence on the Closing Date and end on July 1, 202 1. "Citv" means the City of Newport Beach, a chartered city organized and existing under the laws and Constitution of the State, and its successors and assigns. ."City Representative"' means the City Manager of the City, the Assistant City Manager or any other person authorized by the City Manager of the City to act on behalf of the City with respect to the Lease or this Trust Agreement. "Closi t 'i means the date on which the Certificates, duly executed by the Trustee, are delivered to the Original Purchaser thereof. N "'Code" means the Internal Revenue Code of 1986, and the regulations issued thereunder, as the same may be amended from time to time, and any successor provisions of law. Reference to R particular section of the Code shall be deemed to be a reference to any successor to any such section. "'Continuing Disclosure Agreement" means that certain Continuing Disclosure Agreement dated as of December 11, 2020, 2020, by and between the City and the Digital Assurance Certification, LLC as Dissemination Agent, as it may be amended from time to time in accordance with the terms thereof. "Corporation" means the Newport Beach Public Facilities Corporation, a 501(c)(4) nonprofit public benefit corporation organized under the laws of the State, its successors and assigns. "CoEporation Representative" means the President, Vice President, Secretary, Chief Financial Officer of the Corporation, or any other person authorized to act on behalf of the Corporation under or with respect to the Lease. "Delivery Cost Requisition"' means a written requisition su Y in the form attache—d hereto as Ext B-1. us I 4"Delivery Costs Su Trustee nursua-it to RIMMIM 111110 IN U M eans the fund by that name established and held by tta- ra Wr - Im �0�' "'DTC"' means The Depository Trust Company, New York, New York, a limited purpose trust company organized under the laws of the State of New York in its capacity as securities depository for the Certificates. "Event of Default"" means an event of default under the Lease, as defined in Section 9.1 "Fiscal Year"'means the fiscal year of the City commencing July I and ending June -30 of the next year. Emil! 1111111 lig I III ��11� I "Government Obligations" means Permitted Investments of the type described in paragraphs (A) or (B) of the definition thereof. "Independent Counsel" means an attorney duly admitted to the practice of law before the highest court of the state in which such attorney maintains an office and who is not an employee of the Corporation, the Trustee or the City. "Lease" means the Lease/Purchase Agreement related to the Certates, dated as of the dat,,; hereof, by and between the, City and i; and any duly authorized and executed amendments thereto. "Lease Payment"' means any of the Lease Payments required to be paid by the City to thR Corporation pursuant to Section 4.4 of the Lease. "Lease Payment Date" means the Lease Payment Date define4' which shall be each December 15 and June 15 co..... 0 "'Lease Payment Fund"' means the fund by that nd established and held by the Trustecii pursuant to Section 5.02 hereof. I "Leased Premises"' has the meaning set forth in �h� letters were originally executed or from the City and the Trustee ddliv is Investors Service or any successors or assigns thereto. "'Net Proceeds" vans any proceeds of any insurance, performance bonds or taking b eminent domain or cond nation paid with respect to the Leased Premises remaining after payme therefrom of any expeng (including attorneys' fees) incurred in the collection thereof. "Net Proceeds Fund" means the fund by that name established and held by the Trustee pursuant to Section 7.01 hereof. ` s the nominee of the Depository, which may be the Depository,, as determined from time to time pursuant to Section 2.10 hereof. *"Original Purchasermeans Stifel. Nicolaus & Company, Incorporated, as representative of original purchasers of the Certificates on the Closing Date, or the original purchaser of any Series of Additional Certificates. "Outstanding" when used as of any particular time with respect to Certificates. means (subject to the provisions of Section 10.03 hereof) all Certificates or Additional Certificates theretofore executed and delivered by the Trustee under this Trust Agreement except: t-1 11 (1) Certificates or Additional Certificates theretofore cancelled by the Trustee or surrendered to the Trustee for cancellation, .In `2) Certificates or Additional Certcates for the payment or prepayment of which func= or Government Obligations, together with interest earned thereon, in the necessa amount shall have theretofore been deposited with the Trustee (whether upon or pri I to the maturity or prepayment date of such Certificates or Additional Certificates provided that, if such Certificates are to be prepaid prior to maturity, notice of suc prepayment shall have been given as provided in Section 4.05 hereof or provisio satisfactory to the Trustee shall have been made for the giving of such notice; and (3) Certificates ltional Certificates in lieu of or in exchange for which other Certificates or Additional Certificates shall have been executed and delivered by the Trustee pursuant to Sections 2.06 and 2.07 hereof. "Owner"'or "Certificate Owner"' or"Owner of a Certificate", or any similar tenn, when used wIt h respect to a Certificate means the person in whose name such Certificate is registered on the registration books maintained by the Trustee. "Participants" means those broker-dealers, banks at 4 M** la sitory ncial institutions from time to time for which the Depoholds boo &§ k -entry certces depository. "'Permined Investments" means, if and to the extent permitted by law and by any policy guidelines promulgated by the City: I Farmers Home Administration (FmHA) Certificates of beneficial ownership 2. Federal Housing Administration Debentures (FHA) 3. General Services Administration Participation certificates 4. Government National Mortgage Association (GNMA or "Ginnie GNMA-guaranteed mortgage-backed bonds GNMA-guaranteed pass-through obligations I 5. U.S. Maritime Administration Guaranteed Title XI financing (qualified under the Ship Financing Act of 1972) 6. U.S. Department of Housing and Urban Development (HUD) Project Notes Local Corporation Bonds C. Bonds, debentures, notes or other evidence of indebtedness issued guaranteed by any of the following non -full faith and credit U.S. government agenci (stripped securities are only permitted if they have been stripped by the agency itself)- I I Federal Home Loan Bank System Senior debt obligations Federal Home Loan Mortgage Co[poration (FHLMC or "'Freddie Mac") Participation certificates Senior debt obligations 3. Federal National Morrit 91 ro 1 1 Mortgage-backed securi stripped mortgage secur portion of unpaid bfifiti 4. Student I-Munju peting Association (SLN4A or allie Mae") Senior debTlinummns 5. ResdM Jon Funding Corp (REFCORP) - 'rhe i eiiiid only component of REFCORP strips which have been wiool by request to the Federal Reserve Bank of New York JM ­n Credit S stem Corp. - Consolidated system -wide bonds and D. Whey market funds registered under the Investment Company Act of 194 whose shares are registered under the Securities Act o 1933, and having a rat ng by Standar's z Poor's of "AAArn-G." "AAAm"'or "AAm"' and by Moody's of "Aaa," "Aal- or Aa2, including funds for which the Trustee, its parent holding company, if any, or any affiliates subsidiaries of the Trustee provide investment advisory or other management services. I E. Certificates of deposit secured at all times by collateral described in (A) and/or (B) above and having a maturity of one year or less. Such certificates must be issued - by commercial banks, savings and loan associations or mutual savings banks whose short- term obligations are rated "A -W- by Standard & Poor's and "Prime -I" by Moody's. which may include the Trustee and r The collateral must be held by a third party and the Bondholders must have a perfected first security interest in the collateral. 91 F. Certificates of deposit, savings accounts, deposit accounts, other deposit products or money market deposits which are fully insured by FDIC (including those of the Trustee and its affiliates). G. Commercial paper rated at the time of investment "Prime - I" by Moody's and "A- 1 +1` or better by Standard & Poor's. H. Investment agreements, including guaranteed investment agreements, acceptable to the Trustee. 1. Bonds or notes issued by any state or municipality which are rated by Moody's and Standard & Poor"s in one of the two highest rating categofies assigned by such agencies. term of one year of rating of "Prime - I" I too "s, including those of Standard and Poor"s and that I o Investments described in 30 years from their N. The Local Agency Investment Fund of the State, provided that the Trustee may deposit and withdraw monies in its own name. 0. Any other investment which the City is pen-nitted by law to make (including investment agreements and forward delivery or forward purchase agreements). ""Value"' of the above investments shall be determined by the manner currently emploved by the Trustee or any other manner consistent with industry standard. 19 "PrepayMent" means any payment made by the City pursuant to Article X of the Lease as a prepayment of Lease Payments. "Prepayment Fund"' means the fund by that name established and held by the Trustee pursuant to Section 4.01 hereof. "Principal Office or Cotporate Trust Office" means the corporate trust office of the Trustee at 400 South Hope Street, Suite 500, Los Angeles, California 90071, Attention: Corporate Trus! Services, or such other or additional offices as may be designated by the Trustee; provided, however, that for the purposes of payment, transfer or exchange of Certificates such term means the office or agency of the Trustee at which, at any particular time its corporate trust agency business shall be conducted. 111111111 MMMN�Wll N =_1 ii i I I in the form attache "Pro-ject Cost Requisition"' means a written hereto as Exhibit B-2. Project Fund"' means bi that name established and held by the Trustee pursuant to Section 3.01 hereof. "RecordDate"' M 6 close of business on the fifteenth day of the month preceding each Interest Payment Date. I r not suc i eent ay s a usiness ay. "Series' means � l i 1 1 so=1, Mas= "S&P" or "Standard & Poor's" means S&P Global Ratings, a Standard & Poor's Financi' Services LLC business, or any successors or assigns thereto. I "'Site Lease" means the Site Lease related to the Certificates, dated the date hereof, by and between the Corporation and the City. "Special Counsel"' means Stradling Yocca Carlson & Rauth, a Professional Corporation, or any other attorney or firm of attorneys of nationally recognized standing in matters pertag to the tax-exempt status of interest on obligations issued by states and their political subdivisions and acceptable to the City. TWO "Orallyff MIMI N. -Supplemental Agreement" means a supplement to this Trust Agreement providing for the execution and delivery of Additional Certificates pursuant to Section "Tax Certificate" means the Tax Certificate. dated as of the Closing Date, concerning matters pertaining to the use and investment of proceeds of the Cercates executed and delivered to the City on the date of execution and delivery of the Certificates. including any and all exhibits attached thereto. "Term- means the time during which the Lease is in effect, as provided in Section 4.2 of the -Trustee" means The Bank of New York Mellon Trust Company. N.A.. a national banking association duly organized and existing under the laws of the United States of America. and any successor trustee. ..Trust Agreement- or "Agreement" means this Trust,,ML together with any amendments hereof or supplements hereto pen-nitted to be made he Section 2.01. Authorization. Upon written request of the City Representative. the Trustee will execute and deliver to the Original Purchaser Certificates in an aggregate principal amount of $ representing proportionate ownership interests in the Lease Payments and the Prepayments. The Certificates shall be initially executed and delivered as book -entry certificates. M 0 (a) Each Certificate shall be dated D. Date and shall mature on July I in each of the years and in the amounts, and shall bear interest (calculated on the basis of a 360 -day year of twelve 30 -day months) at the rates, as follows: Maturity Principal Interest (July 1) Amount Rate Th rar e Cdrtil icates shall be delivered in fully registered form, numbered from o upwards in consecutive numerical order (with such alphabetical prefix as the Trustee sha tetermine). The Certifid e§ shall be executed and delivered in the denominations of 5,000 and a irI integral multiple thereof l Each Certificate and any Additional Certificates shall bear interest from the Interest Payment Date next preceding the date of execution thereof, unless (i) it is executed during the period from the ,.fay after the Record Date for an Interest Payment Date to and including such Interest Payment Date, in which event it shall bear interest from such Interest Payment Date, or (ii) it is executed on or prior to the Record Date for the first Interest Payment Date. in which event interest shall be payable from the Delivery Date, provided, however. that if, at the time of execution of any Certificate or any Additional Certificates interest with respect to such Certificate or Additional Certificate is in default, such Certificate or Additional Certificate shall bear interest from the Interest Payment Date to which interest has been paid or made available for payment with respect to such Certificate or Additional Ce-tificate. U1 ■ MWTM U ITWI Section 2.04. ' Executi6i. The Certificates shall be executed by and in the name of the Trustee by the manual signature 6f any authorized signatory of the Trustee. The Trustee shall insert the date of execution of&gdh CeAificate in the place provided thereon. Section 2.05. Abblication of Proceeds and Other Amounts. The proceeds from the sale of the Certificates in the amount of (representing the par amount of the Certificates of $ , plus original premium of less Original Purchaser"s discount of $ shall be deposited with the Trustee as follows- shall be deposited to the Delivery Costs Subaccount A f the Project Fund for the payment of Delivery Costs. and $ to the Project Fund. The Trustee may,, in its discretion, establish a temporary fund or account in its books or records to facilitate such deposits and transfers. (a) Transfer of Certificates. Any Certificate may, in accordance with its terms, be transferred upon the books required to be kept pursuant to the provisions of Section 2.09 by the person in whose name it is registered. in person or by his duly authorized attorney. upon surrender of W such Certificate f7r cancellation at the Principal Office accompanied by delivery of a written instrument of transfer in a form acceptable to the Trustee, duly executed. Whenever any Certificate or Certificates shall be surrendered for transfer, the Trustee shall execute and deliver a new Certificate or Certificates of the same tenor and maturity, for like aggregate principal amount in authorized denominations. The cost of printing Certificates and any services rendered or expenses incurred by the Trustee in connection with any transfer shall be paid by the City. The Trustee shall require the payment by the Owner requesting such transfer of any tax or other governmental charge required to be paid with respect to such transfer, and there shall be no other charge to any Owner for any such transfer. Prior to any transfer of the Certificates outside the book -entry system (including, but not limited to, the initial transfer outside the book -entry system) the transferor shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Internal Revenue Code Section 6045, as amended. The Trustee shall conclusively rely on the inforination provided to it and shall have no responsibility to verify or ensure the accuracy of such information. 91111111111 Mm 11 FIN 1111! hdhg�: The Trustee shall not be obligated to transfer and before the following Interest Payment Date, or I for prepayment, or a er notice o prepayment A Section'108. Execution of Documents and Proof of Ownership. Any request, direction. consent, revocation of consent, or other instrument in writing required or pen-nitted by this Trust Agreement to be signed or executed by Certificate Owners may be in any number of concurrent instruments of similar tenor, and may be signed or executed by such Owners in person or by their attorneys or agents appointed by an instrument in writing for that purpose, or by any bank, trust company or other depository for such Certificates. Proof of the execution of any such instrument, or of any instrument appointing any such attorney or agent, and of the ownership of Certificates shall be sufficient for any purpose of this Trust Agreement (except as otherwise herein provided), if made in the following manner: (a) Election of Book -Entry Svstem. Prior to the execution and delivery of the Certificates. the City may provide that such Certificates shall be initially executed and delivered as book -entry Certificates. If the City shall elect to deliver any Certificates in book -entry. then the City shall cause the delivery of a separate single fully registered Certificate (which may be typewritten) I - 1 Z7 for each maturity date of such Certificates in an authorized denomination corresponding to that total principal amount of the Certificates designated to mature on such date. Upon initial execution and deliverv. the ownership of each such Certificate shall be registered in the Certificate register in the I - R name of the Nominee, as nominee of the Depository, and ownership of the Certificates, or any portion thereof, may not thereafter be transferred except as provided in Section 2.1 0(d). (c) Selection of Deposi1gry. In the event (i) the Depository determines not to continue to act as securities depository for book -entry Certificates, or (ii) the City determines that continuation of the book -entry system is not in the best interest of the beneficial owners of the Certificates or the Cithen the City will discontinue the book -entry system with the Depository. If the City determines to replace the Depository with another qualified securities depository,, the City shall prepare or direct the preparation of a new single, separate, fully registered Certificate for each of the maturity dates of such book -entry Certificates, registered in the name of such successor or substitute qualified securities depository or its Nominee as provided in subsection (d) hereof. If the City fails to identify another qualified securities depository to replace the Depository. then the M Certificates shall no longer be restricted to being registered in such Certificate register in the name of the Nominee, but shall be registered in whatever name or names the Owners transferring or .exchanging such Certificates shall designate, in accordance with the provisions of Section 2.06 hereof. (d) Payments to Depository. Notwithstanding any other provision of this Trust Agreement to the contrary, so long as all Outstanding Certificates are held in book -entry and registered in the name of the Nominee, all payments with respect to principal, prepayment premium, if any, and interest evidenced and represented by such Certificate and all notices with respect to such Certificate shall be made and given, respectively to the Nominees, as provided in the Letter of Representations or as otherwise instructed by the Depository and agreed to by the Trustee notwithstanding any inconsistent provisions herein. y successor of DTC or Substitu Acable laws to provide the servi (i i) In the case of any transfer pursuant to clause (A) or clause (B) subsection (i) of this Section 2.1 0(d), upon receipt of all Outstanding Certificates by t Trustee, together with a written request of the City to the Trustee designating the Substitu Depository,, a single new Certificate, which the City shall prepare or cause to be prepare shall be executed and delivered for each maturity of Certificates then Outstanding., registere in the name of such successor or such Substitute Depository or their Nominees, as the ca may be, all as specified in such written request of the City. In the case of any trans pursuant to clause (C) of subsection (i) of this Section 2.10(dupon receipt of a Outstanding Certificates by the Trustee, together with a written request of the City to t Trustee, new Certificates, which the City shall prepare or cause to be prepared, shall b executed and delivered in such denominations and registered in the names of such persons are requested in such written request of the City. subject to the limitations of Sect R hereof, provided that the Trustee shall not be required to deliver such new Certificates within a period of less than sixty (60) days from the date of receipt of such written request from the City. (iii) In the case of a partial prepayment or an advance refunding of an Certificates evidencing a portion of the principal maturing in a particular year, DTC or i successor (or any Substitute Depository or its successor) shall make an appropriate notatio on such Certificates indicating the date and amounts of such reduction in principal, in fo acceptable to the Trustee, all in ositoryaccordance with the Letter of Represonsentaor errors tions. The Trust shall not be liable for such Dep's failure to make such notatiin makin such . I notations Section 2.11. Destruction of Cancell provision is made for the surrender or cancellE Certificates, the Trustee will cancel and deAi destruction to the City upon its request. N 111ficates. Whenever in this Trust Agreement the Trustee and the delivery to the City of any h Ce-fcates aY,*-dt+rm,—.r-ircw-,.te of such (b) The scheduled principal and interest payable with respect to such Addition' Certificates shall be payable only on Interest Payment Dates applicable to the Certificates, I (c) The Lease shall have been amended, if necessary, to (i) increase or adjust the Lease Payments due and payable on each Lease Payment Date to an amount sufficient to pay the principal, premium (if any) and interest payable with respect to all Outstanding Certificates, including all Additional Certificates as and when the same mature or become due and payable (except to the extent such principal, premium and interest may be payable out of moneys then on a deposit with the Trustee in accordance with this Trust Agreement), (ii) if appropriate, amend the definition of "Leased Premises"" to include as part of the Leased Premises all or any portion of additions, betterments, extensions, improvements or replacements, or such other real or personal property (whether or not located upon the Leased Premises as such Leased Premises is constituted as of the date of this Trust Agreement),, to be financed, acquired or constructed by the preparation, execution and delivery of such Additional Certificates, and (iii) make such other revisions to the Lease as are necessitated by the execution and delivery of such Additional Certificates (provided, however, that such other revisions shall not materially prejudice the rights of the Owners of Outstanding Certificates as granted them under the terms of this Trust Agreement); (d) There shall have been delivered to the Trustee a counterpart of the amendments required by subsection 2.12(c) hereof, (g) There shall have been delivered, to the Trustee an endorsement to or reissuance of the title insurance policy delivered under Section 5.5 of the Lease providing that the insured amount is at least equal to the aggregate principal amount of all of the Certificates and Additional Certificates outstanding upon the execution and delivery of such Additional Certificates; and (h) Such other conditions shall have been satisfied, and such other instruments shall have been duly executed and delivered to the Trustee, as the City or the Corporation shall have reasonably requested. a Upon delivery to the Trustee of the foregoing instruments, the Trustee shall cause to be executed and delivered Additional Certificates of a Series representing the aggregate principal amount specified in such Supplemental Agreement, and ii Certificates shall be equally and ratably secured with all Certificates of like Series, including any Additional Certificates theretofore prepared, executed and delivered, all without preference, priority or distinction (other than with respect to maturity, payment, prepayment or sinking fund payment (if any)) of ■' one Certificate of a Series, including Additional Certificates, over any other; provided, however, that no provision of this Trust Agreement shall require the City to consent to or otherwise permit the preparation, execution and delivery of Additional Certificates, it being understood and agreed that any such consent or other action of the City to permit the preparation, execution and delivery of Additional Certificates., or lack thereof, shall be in the sole discretion of the City. 01411rdIffoul H other funds and moneys held by Fund shall be held and applied by Section 3.04. Transfers of Unexpended Proceeds. Upon the filing with the Trustee of the Certificate of Completion pursuant to Section 3.4 of the Lease, the Trustee shall withdraw all remaining moneys in the Project Fund (other than any moneys retained therein to pay Project Costs not then due and payable and certified by the City Representative) and shall transfer such moneys to the Lease Payment Fund to be applied to the payment of principal and interest with respect to the applicable Series of Certificates as prescribed in Section 5.04 hereof or, at the written election of the City Representative delivered to the Trustee, together with an opinion of Special Counsel that such transfer will not cause interest due with respect to the Certificates to be included in gross income for federal income tax purposes, shall transfer such moneys to the City for the purpose of capital expenditures of the City, and following such transfer, the Project Fund shall be closed. am"ITIT "I Section 4.04. IS616ction of Certificates for Prepayment. For extraordinary prepayment of Certificates pursuant to Section 4.02 hereof, the Trustee shall select Certificates for prepayment so thM t the Net Proceeds will be applied to prepay a proportionate amount of Certificates and Additional Certificates based on the Outstanding principal amount and by lot within any maturity or sinking account prepayment. The Trustee shall promptly notify the City and the Corporation in writing of the Certificates so selected for prepayment by mang to the City and the Corporation copies of the notice of prepayment provided for in Section I (a) Content. When prepayment is authorized or required pursuant to this Article IV, the Trustee shall give notice of the prepayment of the Certificates. Such notice shall specify: (a) the prepayment date. (b) the prepayment price, (c) if less than all of the Outstanding Certificates of a maturity are to be prepaid. the Certificate numbers (and in the case of partial prepayment, the respective principal amounts). (d) the CUSIP numbers of the Certificates to be prepaid. , (e) the place Ell or places where the prepayment will be made, and (f) the original date of execution and delivery of the Certificates. Such notice shall further state that on the specified date there shall become due and payable upon each Certificate to be prepaid, the portion of the principal amount of such Certificate to be prepaid, together with interest accrued to said date, and that from and after such date, provided that moneys therefor have been deposited with the Trustee, interest with respect thereto shall cease to accrue and be payable. tgaw- Tom I I WaILOR1111s. 1 4 If. on the date of a prepayment, moneys for the prepayment of all the Certificates to be prepaid, together with interest to said date of prepayment, shall be held by the Trustee so as to be available therefor on such date of prepayment, and. if notice of prepayment thereof shall have been given as set forth in Section 4.05 hereof. then, from and after said date of prepayment, interest with respect to the Certificates to be prepaid shall cease to accrue and become payable. All moneys held by or on behalf of the Trustee for the prepayment of Certificates shall be held in trust for the account of the Owners of the Certificates so to be prepaid, without liability for interest thereon. All Certificates paid at maturity or prepaid prior to maturity pursuant to the provisions of this Article shall be cancelled upon surrender thereof and destroyed. Section 4.08. SuMIus. Any funds remaining in the Prepayment Fund after prepayment an(e payment of all Certificates Outstanding. including accrued interest and payment of any applicable fees and expenses to the Trustee pursuant to Sections 9.06 and 9.07 hereof and any other Additional Payments payable under the Lease or provision made therefor satisfactory to the Trustee. and WE provision for any amounts required to be transferred to the Rebate Fund pursuant to Sections 8.1 .2-nd 8.08 hereof, shall be withdrawn by the Trustee and remitted to the City. M EMPARM-19M Section 5.02. ' Establishment of Lease Payment Fund. The Trustee shall establish a special fund designated as the "City of Newport Beach (2020A Certificates) Lease Payment Fund,"' referred to herein as the ""Lease Payment Fund."" All moneys at any time deposited by the Trustee in the Lease Payment Fund shall be held by the Trustee in trust for the benefit of the Owners of the Certificates. So long as any Certificates are Outstanding. neither the City nor the Corporation shall have any beneficial right or interest in the Lease Payment Fund or the moneys deposited therein, a except only as provided in this Trust Agreement, and such moneys shall be used and applied by the Trustee is �• i -t after set !ill,. •+ M Section 5.03. Deposits. There shall be deposited in the Lease Payment Fund all Lease Payments and in the Prepayment Fund all Prepayments received by the Trustee, including any moneys received by the Trustee for deposit therein pursuant to Section 2.05 hereof and Section 4.4 of the Lease, including without limitation Section 5.4(c) of the Lease (regarding proceeds of rental interruption insurance) or pursuant to this Trust Agreement, which moneys shall be applied as a credit towards any Lease Payment then due. On or before each Interest Payment Date 6n Which the principal of the Certificates shall "Im-, payable, the Trustee shall set aside an amou I to (i) the principal amount of the Certifica A Additional Certificates coming due and =e on such Interest Payment Date pursuant t� M. Section 7.01. Establishment of Net Proceeds Fund: Deposits. The Trustee shall establish when required a special fund designated as the "City of Newport Beach (2020A Certificates) Net Proceeds Fund,"' referred to herein as the "Net Proceeds Fund,"' to be maintained and held in trust for the benefit of the Owners, subject to disbursement therefrom as provided herein. The Trustee shall deposit Net Proceeds in the Net Proceeds Fund as provided in Section 6. 1 (a) of the Lease. • (ii) If the City deten-nines that the title defect giving rise to such proceeds has substantially interfered with its use and occupancy of the Leased Premises and will result in an abatement of Lease Payments and Additional Payments payable by the City under the Lease, then the Trustee shall immediately deposit such proceeds in the Prepayment Fund and such proceeds shall be applied to the prepayment of Certificates in the manner provided in Section 4.02 hereof. Section 7.02. Cooperation. The Corporation and the Trustee shall cooperate fully with the City at the expense of the City in filing any proof of loss with respect to any insurance policy maintained pursuant to Article V of the Lease and in the prosecution or defense of any prospective or pending condemnation proceeding with respect to the Leased Premises or any item or portion W thereof, provided, however, the Trustee shall not be obligated to take any action hereunder if it is not indemnified to its satisfaction from and against any liability or expense arising therefrom. Section 8.0 1. ' Held in Trust. The moneys and investments held by the Trustee under this Trust Agreement, other than in the Rebate Fund, are irrevocably held in trust for the benefit of the respective Owners and, in the case of the Rebate Fund, for payment as required to the United States Treasury, and for the purposes herein specified, and such moneys, and any income or interest earned thereon, shall be expended only as provided in this Trust Agreement, and shall not be subject to levy or attachment or lien by or for the benefit of any creditor of the Corporation, the Trustee or the City, or any of them. !i iIa menwo I IF, receipt of such confirmations to the extent permitted by law. The Trustee will furnish the City periodic cash transaction statements which shall include detail for all investment transactions made by the Trustee hereunder. (e) Trustee Standard of Care. Except as otherwise provided in Section 9.05, the Trustee shall not be responsible or liable for any consequences of any investment of funds or sale of such investment made by it in accordance with this Section or disposition made by it in accordance with Section 8.05(b). Section 8.03. Crediting of Investments. Except as otherwise provided in this Trust Agreement, any income, profit or loss on the investment of moneys held by the Trustee hereunder shall be credited to the respective fund for which it is held. 044"ITIMMOM z shall sell, or present whenever it shall be 6 wi6drawa�-Q�� e. 0 Investments (except investment agreements) & d6st or the market price, exclusive of accrued stments shall be valued by the Trustee not less making any such valuations. the Trustee may services as may be available to the Trustee, Subject to the provisions of Section 8.08 hereof, the 4it. any Permitted Investment so purchased by the �er to provide moneys to meet any required payment, fund to which such Permitted Investment is credited. Section 8.06. Ommingling of Moneys in Funds. The Trustee may, and upon the written request of the City Representative shall, commingle any of the funds held by it pursuant to this Trust Agreement into a separate fund or funds for investment purposes only, provided, however. that all funds or accounts held by the Trustee hereunder shall be accounted for separately notwithstanding such commingling by the Trustee. The City shall ensure that any such commingling complies with Section 1.148-4 of the Treasury Regulations, and shall provide direction to the Trustee accordingly. In no event shall the Trustee have any duty or obligation, at any time and in any manner to monitor compliance with any governmental regulations relating to commingling of accounts. (a) General. The City and the Corporation hereby covenant with the holders of the Certificates that. notwithstanding any other provisions of this Trust Agreement, (to the extent that the Corporation may have control over the Project. the Leased Premises or the proceeds of the W. Certificates) they shall not take any action, or fail to take any action, if any such action or failure to take action would adversely affect the exclusion from gross income of interest with respect to the Certificates under Section 103 of the Code. The City and the Corporation (to the extent that the Corporation may have control over the Project, the Leased Premises or the proceeds of the Certificates) shall not, directly or indirectly,, use or permit the use of proceeds of the Certificates, the Leased Premises or the Project, or any portion thereof, by any person other than a governmental unit (as such term is used in Section 141 of the Code), in such manner or to such extent as would result in the loss of exclusion from gross income for federal income tax purposes of interest due with respect to the Certificates. a ro 6 lfeg it effect a -td (d) Federal Guarantee. The City and the Corporation (to t e extent that the Corporation may have control over the proceeds of the Certificates) shall not make any use of the proceeds of the Certificates or any other funds of the City, or take or omit to take any other action, that would cause the Certificates to be -federally guaranteed"' within the meaning of Section 149(b) of the Code. (e) Compliance with Tax Certificate. In furtherance of the foregoing tax covenants of this Section, the City covenants that it will comply with the provisions of the Tax Certificate, which is incorporated herein as if fully set forth herein. These covenants shall survive payment in full or defeasance of the Certificates. (a) General. The Trustee shall establish a special fund designated the -City of Newport Beach (2020A Certificates) Rebate Fund" (the **Rebate Fund"). All amounts at any time on R1 .1 deposit in the Rebate Fund shall be held by the Trustee in trust, to the extent required to satisfy the requirement to make rebate payments to the United States (the "Rebate Requirement") pursuant to Section 148 of the Code and the Treasury Regulations promulgated thereunder (the "'Treasury Regulations. Such amounts shall be free and clear of any lien under this Trust Agreement and shall be governed by this Section and Section 8.07 of this Trust Agreement and by the Tax Certificate executed by the City. The Trustee shall be deemed conclusively to have complied with the Rebate Requirement if it follows the directions of the City. and shall have no independent responsibility to, or liability resulting from its failure to, enforce compliance by the City with the Rebate Requirement. ne Trustee shall have no independent responsibility to, or liability resulting from its failure to, enforce compliance by the City with the terms of this Section 8.08 or the Tax Certcate. . �... twwvftql R" I a in 1it 1 1� I I I rotypt] MIS], I I r"I I MIII IN I M Oro. MI 1101 1 M such deficiency and direct the Trustee to deposit an amount received from the City equal to such deficiency into the Rebate Fund prior to the time such payment is due. (f) Withdrawals of Excess Amounts. In the event that immediately following the calculation required by subsection (a) of this Section, but prior to any deposit made under said subsection, the amount on deposit in the Rebate Fund exceeds the "rebate amount" calculated in accordance with said subsection, upon written instructions from the City, the Trustee shall withdraw the excess from the Rebate Fund and credit such excess to the Lease Payment Fund. (g) Record . The City shall retain records of all determinations made hereunder until six years after the complete retirement of the Certificates. (h) Survival after Defeasance. Notwithstanding anything in this Trust Agreement to the contrary, the Rebate Requirement shall survive the payment in full or defeasance of the Certificates. ARTICLE IX THE TRUSTEE ,IT TIF, TO M, off a -117 M - (c) Reliance Upon Requested Certificates. Whenever in the administration of its duties under this Trust Agreement, 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), in the absence of bad faith on its part, shall be deemed to be conclusively proved and established by the certificate of the City Representative or the Corporation Representative and such certificate shall be full warranty to the Trustee for any action taken or suffered under the provisions of this Trust Agreementin reliance M thereon, 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, provided however that the duties and obligations of the Trustee shall not be deemed expanded thereby. (a) Ownership of Certificates. The Trustee may become an Owner with the same rights it would have if it were not Trustee; may acquire and dispose of other bonds or evidence of indebtedness of the City with the same rights it would have if it were not the Trustee; and may act as a depository for and permit any of its officers or directors to act as a member of. or in any other capacity with respect to, any committee formed to protect the rights of Owners, whether or not such committee shall represent the Owners of the majority in principal amount of the Certificates then Outstanding. (b) Mowers hereof and LLo receivers, shall not bi. if appointed by it wi (c) required to be estA additional funds and and shall have the rig' any of the trusts Itorneys, agents, agents or receive .nsel concerning a] mrits establishedT T -nay 11�� VIII III establish suc ts du��I� 111111II IIli ties hereundel The Trustee shall have the right to accept and r .; n ("Iions"') given pursuant to this Trust Agreement and i......... using Electronic Means ("Electronic Means"' shall mean the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the NEI Section 9.06. Compensation of the Trustee. As an Additional Payment under Section 4.11 of the Lease, the City shall, from time to time, pay such amounts as are specified in any written agreement with the City and, on demand, pay to the Trustee to the extent not covered by such agreement reasonable compensation for its services and the services of any accountants, consultants, attomeys, and other experts as may be engaged by the Trustee to provide services under this Trust Agreement pursuant to a written agreement between the City and the Trustee. Further, in the event of a default hereunder, the City agrees that the Trustee's fees and costs shall be deemed to be a substantial contribution to the trust and bankruptcy estate, if applicable. The City's obligation hereunder shall remain valid and binding notwithstanding maturity and payment of the Certificates or resignation and removal of the Trustee. KE to the funds and accounts held herein or where the Trustee h Under no circumstances shall evidenced by the Certificates. No provision of Is Trust Agreement shall require the Trustee to expend or risk its ow funds or otherwise incur Iff flhancial liability in the perfon-nance of its duties hereunder or in ti exercise of any of its rig. or powers. M The Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Owners of not less than a majority in aggregate principal amount of the Certificates at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee or in the exercise of any right hereunder. In the event of conflicting instructions hereunder, the Trustee shall have the right to decide the appropriate course of action and be protected in so doing. The Trustee is authorized and directed to execute, in its capacity as Trustee, the Assignment Agreement. Every provision of this Trust Agreement, the Lease, the Site Lease and the Assignment Agreement relating to the conduct or liability of the Trustee shall be subject to the provisions of this Trust Agreement. including without limitation. this Article IX. W The Trustee shall have no responsibility or liability with respect to any informatio statement or recital in any official statement, offering memorandum or any other disclosure materi prepared or distributed in any respect relating to the Certificates. I The Trustee shall not to be deemed to have knowledge of any Event of Default hereunder or under the Lease unless it has actual knowledge thereof at its Principal Office. Before taking any action under Article XIII or this Article at the request of the Owners, the Trustee may require that a satisfactory indemnity bond be furnished by the Owners for the reimbursement of all expenses to which it may be put and to protect it against all liability, except liability which is adjudicated to have resulted from its negligence or willful misconduct in connection with any action so taken. (a) Owners, and the Lease amended at any time, W Agreement or amendmo Owners of a majority in C zws i*uaMwt No such modific3"v-ar NE CITY OF THE LEASED 'LEDGES THAII III THE CITY JI the Trustee liable for t orarisingouto, t e ease, for the existence, furnishing, (i) extend or have the effect of extending the maturity of any Certificate or reducing the fixed interest rate with respect thereto or extending the time of payment of interest. or reducing the amount of principal thereof or reducing any premium payable upon the prepayment thereof, without the express consent of the Owner of such Certificates being affected, or (ii) reduce or have the effect of reducing the percentage of Certificates required for the affirmative vote or written consent to an amendment or modification of the Lease, or (iii) modify any of the rights or obligations of the Trustee without its written assent thereto. or M (iv) amend this Section 10.0 1 without the prior written consent of the Owners of all Certificates then outstanding. The Trustee shall have the right to require such opinions of counsel as it deems necessary concerning (i) the lack of material adverse effect of the amendment on Owners and (ii) the fact that the zmendment will not affect the tax status of interest with respect to the Certificates or any Additional Certificates. Any such Supplemental Agreement or amendments thereto shall become effective as I*rovided in Section 10.02 hereof. (b) Without Consent. This Trust Agreement and the rights and obligations of the Owners, and the Lease and the rights and obligations of the parties thereto, may be modified or amended at any time by a Supplemental Agreement or amendments thereto or a supplement or amendment to the Lease, without the consent of any such Owners, but only to the extent permitted by law and only: lot accord the City hereunder, iguous or defective , thereunder, as the may be based upon tAversely affect the portion thereof, in ations as may h-* income for federal nts and the interest oi the Certificates, or (viii) to provide for the execution and delivery of Additional Certificates in accordance with the provisions of Section 2.12 hereof. No such modification or amendment, however, shall modify any of the rights or obligations of the Trustee without its written assent thereto. Any such Supplemental Agreement shall become effective upon execution and delivery by the parties hereto or thereto as the case may be. The Trustee shall have the right to require such opinions of counsel as it deems necessary concerning (i) the lack of material adverse effect of the amendment on Owners, (ii) the fact that thii amendment will not affect the tax status of interest with respect to the Certificates or any Additional Certificates and (iii) the Supplemental Agueernent is authorized and permitted by the tenns of the Trusi Agreement. Any such Supplemental Agreement or amendments thereto shall become effective a---% provided in Section 10.02 hereof. KE Section 10.02. Procedure for Amendment with Written Consent of the Owners. This Trust Agreement or the Lease may be amended by Supplemental Agreement as provided in this Section 10.02 in the event the consent of the Owners is required pursuant to Section 10.01 (a) hereof. A copy of the fon-n of such Supplemental Agreement, together with a request to the Owners for their consent thereto, shall be mailed by the Trustee to each Owner of a Certificate at his address as set forth in the Certificate registration books maintained pursuant to Section 2.09 hereof, but failure to receive copies of such Supplemental Agreement and request so mailed shall not affect the validity of the Supplemental Agreement when assented to as in this Section provided. iiiiiiiii Mull 1 1111 lizqW, FAIIII The City or the Trustee may adopt appropriate regulations to require each Owner, before his consent provided for in this Article X shall be deemed effective, to reveal if the Certificates or Additional Certificates as to which such consent is given are disqualified as provided in this Section 10.03 hereof. Section 10.04. Effect of Supplemental Agreement. From and after the time any Supplemental Agreement becomes effective pursuant to this Article X. this Trust Agreement or the Lease, as the case may be, shall be deemed to be modified and amended in accordance therewith, the respective rights, duties and obligations of the parties hereto or thereto and all Owners of Certificates Outstanding, as the case may be, shall thereafter be detennined, exercised and enforced hereunder subject in all respects to such modification and amendment, and all the terms and conditions of any Supplemental Agreement shall be deemed to be part of the terms and conditions of this Trust Agreement or the Lease, as the case may be. for any and all purposes. IR Section 10.05. 'Endorsement or Replacement of Certificates Delivered After Amendments. The City may deten-nine that Certificates delivered after the effective date of any action taken as provided in this Article X shall bear a notation, by endorsement. in fon-n approved by the City., as t* such action. In that case, upon demand of the Owner of any Outstanding Certificate at such effective date and presentation of his Certificate for such purpose at the Principal Office, a suitable notation shall be made on such Certificate. The City may determine that new Certificates, so modified as in the opinion of the City is necessary to conform to such Owner"s action, shall be prepared, executed and delivered. In that case, upon demand of the Owner of any Certificate then Outstanding, such new Certificate shall be exchanged in the Principal Office without cost to such Owner, for �z Certificate of the same character then Outstanding, upon surrender of such Certificate. Section 10.06. Amendatory Endorsement of Certificates. Subject to Section 10.01 hereof, the provisions of this Article X shall not prevent an Owner from accepting any amendment as to the particular Certificates held by him, provided that due notcation thereof is made on such Ce-tates. Section 11.0 1. Compliance With agrees with the Owners to perform all *. Corporation covenants and agrees With tl� it under the Lease. cies. Copies of any se or the Assignment Certificates at least 10 FNITEM f6kement of the Lease. The City covenants an -i is and duties imposed on it under the Lease. Thii rs to perform all obligations and duties imposed on Section 11.02. Payment of Taxes. The City shall pay all taxes as provided in Section of the Lease. Section 11.03. Observance of Laws and Regulations. The City will well and truly keep,, observe and perform all valid and lawful obligations or regulations now or hereafter imposed on it by contract, or prescribed by any law of the United States, or of the State, or by any officer, board or commission having jurisdiction or control, as a condition of the continued enjoyment of any and every right, privilege or franchise now owned or hereafter acquired by the City, including its right to exist and carry on business as a municipal corporation. to the end that such rights, privileges and franchises shall be maintained and preserved. and shall not become abandoned, forfeited or in any manner impaired. M Section 11.04. Prosecution and Defense of Suits. The City shall promptly, and also upon request of the Trustee or any Owner, from time to time take such action as may be necessary or proper to remedy or cure any defect in or cloud upon the title to the Leased Premises, whether now existing or hereafter developing and shall prosecute all such suits, actions and other proceedings as may be appropriate for such purpose. Section 11.06. Further Assurances. The deliver any and all such further resolutions,, in� necessary or proper to carry out the intention or t( for the better assuring and confirming unto the Ow N the I F.110"Wita M. IMMUTIN ".11163MG191 ".1401-Mird SectionLimited Liabty of the Ci!y. Except for the payment of Lease Payments, Additional Payments and Prepayments when due in accordance with the Lease and the performance of the other covenants and agreements of the City contained herein and in the Lease, the City shall have no obligation or liability to any of the other parties hereto or to the Owners with respect to this Trust Agreement or the terms, execution, delivery or transfer of the Certificates, or the distribution of Lease Payments to the Owners by the Trustee. Section 12.02. No Liability of the City or Corporation for Trustee Performance. Except as expressly provided herein, neither the City nor the Corporation shall have any obligation or liability tR any other parties hereto or to the Owners with respect to the performance by the Trustee of any duty imposed upon it under this Trust Agreement. M (a) No Investment Advice. The Trustee shall have no obligation or responsibili for providing information to the Owners concerning the investment character of the Certificates. I (b) Sufficiency of this Trust Agreement or Lease Payments. The Trustee makes no representations as to the validity or sufficiency of the Certificates, shall incur no responsibility or liability in respect thereof, other than in connection with the duties or obligations herein or in the Certificates assigned to or imposed upon it. The Trustee shall not be responsible or liable for the sufficiency or enforceability of the Lease, the Site Lease or the Assignment Agreement. The Trustee shall not be liable for the sufficiency or collection of any Lease Payments or other moneys required to be paid to it under the Lease (except as provided in this Trust Agreement),, its right to receive moneys pursuant to said Lease, or the value of or title to the Leased Premises. Section 12.03. Limitation of Righ Agreement or in the Certificates expresse %serson i i--toratid, remedy or claim under or in respect of thi hereof, and all such covenants, condition-- benefit of the City, the Corporation, the It oil Section 13.01. Assignment of Rights. The parties hereto acknowledge that pursuant to the Assignment Agreement the Corporation has transferred. assigned and set over to the Trustee for the benefit of the Owners, certain of the Corporation's ri hts under the Lease. 9 (a) Remedies. If an Event of Default shall happen. then. and in each and every such case during the continuance of such Event of Default. the Trustee may exercise any and all remedies available pursuant to law or granted pursuant to the Lease: provided. however. that W notwithstanding anything. . contrary, THERE SHALL BE UNDER ANY CIRCUMSTANCES ■ ACCELERATE ■ MATURITIES CERTIFICATES DECLARE ANY LEASE PAYMENTS DEFAULT TO BE IMMEDIATELY DUE AND PAYABLE. Section 9.2 of the Lease is hereby incorporated by reference. (b) Actual Knowledge. The Trustee shall not be deemed to have knowledge of any Event of Default unless and until the trust officer responsible for the administration of this Trust Agreement shall have actual knowledge thereof, or shall have received written notice thereof at the Principal . • • # # ," is # i r # j # r . • . �, . • #+ # . s r # * • # ` ` r • ` • ` ` # • i1791 i # � #1 i r � •. # ..• # # i • # i Y •. !' # 0 E U iii Section 13.04. Institution of Legal Proceedings. If one or more Events of Default shall happen and be continuing, the Trustee may, and upon the written request of the Owners of a majority in principal amount of the Certificates then Outstanding. and upon being indemnified to its satisfaction therefor, shall, proceed to protect or enforce its rights or the rights of the Owners by a suit in equity or action at law, either for the specific performance of any covenant or agreement contained herein or in the Lease, or in aid of the execution of any power herein granted, or by mandamus or other appropriate proceeding for the enforcement of any other legal or equitable remedy as the Trustee shall deem most effectual in support of any of its rights or duties hereunder; provided rt such written request shall notbe ` than accordance with provisions of •, this Trust Agreement and that the Trustee shallhave the right to decline to follow written request if the Trustee shall be advised by counsel that the action or proceeding so requested may not be taken lawfully or if the Trustee in good faith shall determine that the action or proceeding w so requested would be unjustly prejudicial to the Certificate Owners not a party to such written request or expose the Trustee to liability. In no event shall counsel to the Trustee be deemed counsel to the Owners, and any communications between the Trustee and its counsel shall be deemed confidential and privileged. Section 13.05. Non -Waiver. Nothing in this Article X111 or in any other provision of this Trust Agreement or in the Certificates shall affect or impair the obligation of the City to pay or prepay the Lease Payments as provided in the Lease. No delay or omission of the Trustee or of any Owner of any of the Certificates to exercise any right or power arising upon the happening of any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein, and every power and remedy given by this Article XIII to the Trustee or to the Owners may be exercised from time to time and as often as shall be deemed expedient by the Trustee or the Owners. 9 =09 rem W%4 or reserved to MMUM11111 I goo ry such remedy der or now or Such notification, request, tender of indemnity, refusal or omission, and default are hereby declared, in every case, to be conditions precedent to the exercise by any Owner of any remedy hereunder-, it being understood and intended that no one or more Owners shall have any right in any manner whatever by his or their action to enforce any right under this Trust Agreement. except in the manner herein provided and for the equal benefit of all Owners of the Outstanding Certificates. In The right of any Owner of any Certificate to receive payment of said Owner's proportionate interest in the Lease Payments as the same become due, or to institute suit for the enforcement of such payment, shall not be impaired or affected without the consent of such Owner, notwithstanding the foregoing provisions of this Section or any other provision of this Trust Agreement. UNISII NAM W -M (a) Methods. If and when any Outstanding Certificates shall be paid and discharged in any one or more of the following ways - 1 Ito) I 0 sell- 01FROMAIME (b) Surplus Moneys. Any funds held by the Trustee. at the time of payment or ��rovision for payment of all Outstanding Certificates pursuant to one of the procedures described in paragraphs (a)(i) through (a)(iii) of this Section. which are not required for the payment to be made to the Owners, shall be paid over to the City, after the payment of any amounts due to the Trustee pursuant to Sections 9.06 and 9.07 hereof and any other Additional Payments due under the Lease. if (c) Surviving Provisions. Notwithstanding the satisfaction and discharge hereof, the Trustee shall retain such rights, powers and privileges hereunder as may be necessary or convenient for the payment of the principal, interest and prepayment premium, if any, on the Certificates and for the registration, transfer and exchange of the Certificates. (d) Opinions and Reports. Prior to any defeasance becoming effective under this Section, the City shall cause to be delivered (i) unless the defeasance is to be accomplished solely through a cash deposit, an executed copy of a report, addressed to the Trustee, the City, in form and substance acceptable to the City of a nationally recognized firm of certified public accountants, verifying that the Government Obligations and cash, if any, satisfy the requirements of Section 14.01(a) above, (ii) a copy of the escrow deposit agreement entered into in connection with such defeasance, and a copy of an opinion of Special Counsel, dated i of such defeasance and addressed to the Trustee and the City., in forrn and substance acceptable to the City, to the effect that such Certificates are no longer Outstanding under the Trust Agreement. shall not be liable for ai A 2 ri Section 14.04. Records. The Trustee shall keep complete and accurate records of all moneys received and disbursed by it under this Trust Agreement until four years after no Certificate is Outstanding (or such longer period as required by the Trustee's policies and procedures, or by applicable law), which shall be available for inspection by the City, the Corporation and any Owner, or the agent of any of them, at any time during regular business hours upon reasonable prior notice. Section 14.05. Notices. Except as specifically provided otherwise in this Trust Agreement, all written notices to be given under this Trust Agreement shall be given by mail or personal delivery to the party entitled thereto at its address set forth below, or at such address as the party may provide FM to the other party in writing from time to time. Notice shall be deemed to have been received upon the earlier of actual receipt or five Business Days after deposit in the United States mail, in certified form, postage prepaid or, in the case of personal delivery, upon delivery to the address set forth below: If to the City: City of Newport Beach 100 Civic Center Drive Newport Beach, California 92660 Attention: City Manager If to the Corporation: Newport Beach Public Facilities Corporation 100 Civic Center Drive Newport Beach, California 92660 Attpntinn- qPrrPtta METUMM1=11 I MU416"IIA The Bank of New York Mellon Trust Company, N.A. 400 S. Hope St., Ste. 500 Los Angeles, CA 90071 Attention: Corporate Trust Department S&P Global Ratings 55 Water Street New York, New Yo, tured Finance Group - Pitch Ratings, Inc. One State Street Plaza New York, New York 1000,, Attention: Public Finance 302=1 TIME== Section 14.06. Governing Law. This Trust Agreement shall be construed and governed in accordance with the laws of the State. Section 14.07. Binding. Effect: Successors. This Trust Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Whenever in this Trust Agreement either the Corporation, the City or the Trustee is named or referred to, such reference shall be deemed to include the successors or assigns thereof and all the covenants and agreements in this Trust Agreement contained by or on behalf of the Corporation. the City or the Trustee shall bind and inure to the benefit of the respective successors and assigns thereof whether so expressed or not. IN Section 14.08. Execution in Counterparts. This Trust Agreement may be executed in several counterpartS, each of which shall be an original and all of which shall constitute but one and the same agreement. Section 14.09. Headings. The headings or titles of the several Articles and Sections hereof, and any table of contents appended to copies hereof. shall be solely for convenience of reference and shall not affect the meaning, construction or effect of this Trust Agreement. All references herein to "'Articles",, '"Sections" and other subdivisions are to the corresponding Articles, Sections or subdiv i sions of thi s Trust Agreement; and the words "here in,"' "hereof," "hereunder"' and other words of similar import refer to this Trust Agreement as a whole and not to any particular Article, Section or subdivisio-t )iereof. Section 14.11. Separability of Invalid Provisions. In case any one or more of the provisions contained in this Trust Agreement or in the Certificates shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision of this Trust Agreement, and this Trust Agreement shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The parties hereto hereby declare that they would have entered into this Trust Agreement and each and every other section, paragraph, sentence, clause or phrase hereof and authorized the delivery of the Certificates pursuant thereto irrespective of the fact that any one or more sections. I paragraphs, sentences, clauses or phrases of this Trust Agreement may be held illegal, invalid or unenforceable. W IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written. THE BANK OF COMPANY, I NEWPORT BEACH PUBLIC FACILITIES CORPORATION RE Ow lkauffl6l Aaron C. Harp, City AttomeN qI III III I I � I I I III I I I 1 111 -119j"AlMil FOXINUITIM-2 R- $ W"11T. MMU ". In Lease CITY As 14666. Purst relxlrilk ■ 9 Apo it B lk MIND 7MMM - MINTMW to be Made by the [ORTBEACH �n Leased Premises 0a.I W an 11 W In W."E" 14 0 11 DKE40111k,41; L I 1 11, K-11 �11 I DELIVERY DATE CUSIP 12020 THIS IS TO CERTIFY THAT the registered owner named above, or registered assigns, as the Registered Owner of this Certificate of Participation (the ""Certificate") is the owner of a fractional and undivided interest in the right to receive certain Lease Payments thereof under and as defined in that certain Lease/Purchase Agreement dated as of December 1. 2020, 2020 (the "'Lease"), by and between the Newport Beach Public Facilities Corporation. a 501(c)(4) nonprofit ! ':•#M 1 rporationand the City of Newport Beach. a chartered city organized and existing under and by virtue of the laws and Constitution of the State of California (the "City"), which Lease Payments an4 certain other rights and interests under the Lease have been assigned to The Bank of New York Mellon Trust Company., N.A., as trustee (the "Trustee"'). The City is obligated to pay Lease Payments from any source of legally available funds, and the City has covenanted in the Lease to make the necessary annual appropriations therefor. The obligation of the City to pay the Lease Payments does not constitute an obligation of the City for which the City is obligated to levy or pledge any form of taxation or for which the City has levied or pledged any form of taxation. The obligation of the City to pay Lease Payments does not constitute a debt of the City, the State of California or any of its political subdivisions within the meaning of any Constitutional or statutory debt limitation or restriction. The City"s obligation to pay Lease Payments may be completely or partially abated during any period in which, by reason of noncompletion of the Project by the date specified in the Lease or material damage, destruction, title -1 defect, or taking by eminent domain or condemnation there is substantial interference with the use and right of possession by the City of the Leased Premises. Failure of the City to pay Least Payments during any such period shall not constitute a default under the Lease, the Trust Agreemen! or this Certificate. iy [I IL"mej 610jr, t I MUM -I I eg. 1 9 M provided therefor as speed in the Trust Agreement, interest shall cease to accrue with respect hereto from and after the date fixed for prepayment. The City has certed 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. Terms used herein which are not otherwise defined shall have the respective meanings assigned thereto in the Trust Agreement. IN WITNESS WHEREOF,, this Certifica een executed and delivered by the Trustee, acting pursuant to the Trust Agreement. a IM30%= f THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee By: Authorized Officer ME (print or typewrite name, address, including postal zip code, and social security or other identifying number of Transferee) the within Certificate and all rights thereunder, and hereby irrevocably constitutes and appoints to transfer the within Certificate on the books kept for registration thereof. with full power of substitution in the premises. Dated - Signature Guaranteed NOTICE: Signature(s) guarantee should be made by a guarantor institution participating in the Securities Transfer Agents Medallion Program or such other guarantee program acceptable to the Trustee. NOTICE: The signature to this assignment must correspond with the name as it appears Upon the face of the within Certificate in every particular, without alteration or enlargement or any change whatever. BE The Bank of New York Mellon Trust Company, N.A., as Trustes RE: Disbursement from the Project Fund pursuant to Section 3.03 of the Trust Agreement related to the City of Newport Beach Certificates of Participation 2020A (Fire Station No. 2), dated as of December 1, 2020, 2020 (the "Agreement"'), by and among you, as trustee, the Newport Beach Public Facilities Corporation and the City of Newport Beach REQUISITION NO. You are hereby instructed to pay to the City, or $ as a Delivery Cost frv, Section 3.03 of the Agreement. This Delivery Cost has been p� against the Project Fund and has not been the basis of any previol The amount remaining in the Pro ect Fund,91 j Fund plus investment earnings on other funds that wil payment of the amount set forth in this requisition, b and Project Costs as presently estimated. I at Fund as pro111 SII vided in 0, is a proper charge ith interest earnings on the Project ired into the Project Fund, will, after to pay all remaining Delivery Costs F6.111HIDITIA-01M The Bank of New York Mellon Trust Company, N.A., as Trustl RE: Disbursement from the Project Fund pursuant to Section 3.03 of the Trust Agreement related to the City of Newport Beach Certificates of Participation 2020A (Fire Station No. 2), dated as of December 1, 2020, 2020 (the "'Agreement"), by and among you., as trustee, the Newport Beach Public Facilities Corporation and the City of Newport Beach (the "City") ■ You are hereby instructed to pay to the City,, or to at $ as a Project Cost from the Project Fund as provided in Section 3.03 of the Agreement. This Project Cost has been properly incurred, is a proper charge against the Project Fund and has not been the basis of any previous disbursements. The amount remaining in the Project Fund, together with other moneys available to the City and together with interest earnings on the Project Fund plus investment earnings on other funds that will be transferred into the Project Fund, will, after payment of the amount set forth in this requisition, be sufficient to pay all remaining Delivery Costs and Project Costs as presently estimated. Very truly yours. It Representative NOM A ■ �" Draft 1 + 1 by and between mm PORTBEACH amalmamm THIS AGENCY AGREEMENT (the "Agency Agreement"), dated as of December 1, 2020, is entered into by and between NEWPORT BEACH PUBLIC FACILITIES CORPORATION, a 501(c)(4) nonprofit public benefit corporation duly organized and existing under and by virtue of Constitution and laws of the State of California (the "Corporation"), and the CITY OF NEWPORT BEACH, a chartered city duly organized and existing under and by virtue of the Constitution and laws of the State of California WITNESSETH: TION OF THE MUTUAL AGREEMENTS ANS, JIM" JIMA '11 R OTHER VALUABLE CONSIDERATION, THE FOLLOWS: The appointment by the Corporation of the City as its pagent as provided in this Section and the acceptance by the City of such apointment results in the assumption by the City of duties, responsibilities and liabilities which are separate and apart from its duties, responsibilities and liabilities under the Lease, and such assignment does not include or transfer to the City any of the rights of the Corporation under the Lease which have been assigned by the Corporation to the Trustee pursuant to the Assignment Agreement. It is recognized by the parties that the Corporation has appointed the City for the purposes specified in this Agency Agreement, rather than appoint another firm or entity for said purposes, based upon the Corporation's and the City's determination that the City is suitable to perform the duties, responsibilities and liabilities delegated to and assumed I Dy it pursuant to this Agreement due to the expertise, knowledge and ability of the City's personn with respect to similar undertakings. i Section 2. Acceptance. The City, for one dollar ($1.00) and other good and valuable consideration in hand received, does hereby accept the foregoing appointment as agent of the Corporation for the purposes set forth in Section I hereof. Section 3. Time of Com letion. The construction and equipping of the Project shall be p completed on or prior to 1,2023. Section 4. 'Construction and Acquisition of the Project. The City agrees to oversee the construction, acquisition, delivery andinstallation of the Project in accordance with the following terms: 0 5 -S If UTFrf • ith applicable law and contains a M the scheduled completion date WWI N 0 0 I a•MR) I Wq I it till I I il a I I W, I GOT I . 11", 1 11M %-1LJ a"LLIIJLfi LV ifi, a Cuj Representative, eniongtrating that the total amount on deposit to pay for the tion of the Project as planned; deposit in certain City rMe compliance with the Tru payment of Costs of the P (d) Unexpended Monies. The City agrees that unexpended moneys remaining in the Project Fund shall, upon payment in full of all Costs of the Project, be applied solely in accordance with the provisions of the Trust Agreement; and (e) Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Agency Agreement shall to any extent be declared invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, the finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants and conditions of this Agency Agreement shall be affected thereby, and each provision of this Agency Agreement shall be valid and enforceable to the fullest extent permitted by law. N Section 5. Applicable Law. This Agency Agreement shall be governed by and construed in accordance with the laws of the State. Section 6. ' Representatives. Whenever under the provisions of this Agency Agreemen! the approval of the Corporation or the City is required, or the Corporation or the City is required to take some action at the request of the other, such approval or such request shall be given for the Corporation by an Authorized Representative of the Corporation and for the City by an Authorized Representative of the City and any party hereto shall be authorized to rely upon any such approval or request. Section 7. Notices. All notices or other communications hereunder shall be sufficiently given and shall be deemed to have been received five days after deposit in the United States mail in registered or certified form, postage prepaid: City of Newport Beach 100 Civic Center Drive Newport Beach, Californi Attention: City Manager If to the Trustee: The Bank of New York Mellon Trust Company, N.A. 400 South Hope Street, Suite 500 Los Angeles, California 90017 Attention: Corporate Trust Department 1- the Trustee, by notice given hereunder, may designa+- notices or other communications will be sent. I The captions or headings in this Agency Agreement are for define, limit or describe the scope or intent of any provision or Section 9. Execution in Counterparts. number of counterparts, each of which shall be constitute but one and the same instrument. This Agency Agreement may be executed in an deemed to be an ornal but all together shal Section 10. Amendment. The terms of this Agency Agreement shall not be waived, altered, modified, supplemented or amended in any manner whatsoever, except by written instrumeni signed by the Corporation and the City, with the prior written consent of the Trustee for the Certificates. The City hereby irrevocably appoints the Authorized Representative of the City to act as its attomey-in-fact for purposes of providing the foregoing consent. Section 11. Definitions. Capitalized terms not otherwise defined herein shall have definitions set forth in the Trust Agreement or the Lease. IIlIII ■ III, 1111A 'I''ll1 f its r IN WITNESS WHEREOF, the parties hereto have executed this Agency Agreement as of the day and year first written above. 0 0 M I M X RN -06- TIOLY1 M LeiffQ In. M CH PUBLIC FACILITIES 0 0 'TA Aaron C. Harp, City Attorney M, ■ � / l CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2020A (FIRE STATION NO. 2) [a 04 6141 W 11 � i � � , � 1, 1 " I i I City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 The Certificates are being executed and delivered pursuant to a Trust Agreement, dated as of December 1, 2020 (the "Trust Agreement"), by and among The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee"), the Newport Beach Public Facilities Corporation (the orporation") and the City. Capitalized but undefined terms used herein shall have the meanings ascribed thereto in the Preliminary Official Statement (defined below). 1. Purchase and Purchase i , Terms of Certificates. i• Upon conditions y�y y�y and in reliance upon the representations, warranties agreements set forth herein, the City agrees i • r r Trustee to execute r- # deliver to Underwriter, r i,,, ♦,. Underwriter purchaseagrees to purchase, all (but not less than all) of the Certificates at an aggregate price of r original (representing the aggregate principal amount evidenced by the Certificates, plus a net issue premium of s.Underwriter's discount i "� r The Certificates shall be dated the Closing Date. The Certificates shall have the principal payment dates■ ri r - r r annum as provided in the Official Statement and as forthr hereto. ' a + a + r- r ■ r � i. rri � �,. r ri r; i r' ri i- r r r r i r i r r' i. ■r + i r i, r rig . r i i -i # r M r . �. a r + r- . +* .ri ri r i. r r i . i,ii ■ i # - r .i rri i .' • ra. -i i ■ r . i i i r i i r i■ i. 'r rr � i + .! i . i rr i 4 -i i i i M it i .......... i . - r *- ' i i ► , - * a, i r r i i r i r, ` i i r i s r, - - r i■ r r r r rr - r.... i + � lil i■ i r i r i......... 'i i i. r the Certificates. r - i- i r i r +■ Disclosure - r - City herebyauthorizes the Unto use, connection offer ani sale of r Certificates, •following documents: Agreement, i - rLease/Purchase r r r Agreement, dated as of it r by i between the Corporationand the City, the Site Lease, dated as of December 1, 2020 (the "Site Lease"), by and between the Corporation and - -Agreement, ■ r.i as iDecember # -i "Assignment ♦r y=rr by • i between and the Corporation and the Continuing Disclosure `• i t and all informationi . -r herein ■ i therein ■ ! all of documents, certificatesor .i by to the Underwriter connection . transactionsi Purchase 0 The Underwriter agrees that, in connection with the public offering and initial delivery of th(i- Certificates to the purchasers thereof from the Underwriter, the Underwriter will deliver or cause to be delivered to each purchaser a copy of the Official Statement. It shall be a condition to the Underwriter's obligation to purchase, accept delivery of and pay for the Certificates that the entire principal amount of the Certificates shall be sold and delivered by the City on the Closing Date. 2. Closing Date; Certificates. At 8:30 a.m. California Time, on 1 2020, or at such other time or on such earlier or later date as the Underwriter and the City mutually agree upon (the "Closing Date"), the City will deliver or cause to be delivered the executed certificates, opinions and other documents required by Section 4(d) below at the offices of Stradling Yocca Carlson & Rauth, a Professional Corporation ("Special Counsel") in Newport Beach, California, or at such other place as shall have been mutually agreed upon by the Underwriter and the City. 3. Covenants, Representations covenants, represents and warrants to the Und* of the City. The City hereby W V limited by bankruptcy, iq limiting creditors' rights (b) The City is not in material breach of, or default under, any applicable constitutional provision, law or administrative rule or regulation of the State of California or the United States of America material to the conduct of its governmental or financial functions or any applicable judgment or decree or any loan agreement, indenture, bond, certificate, note, resolution or other agreement or instrument to which the City is a party or to which the City or any of its properties is otherwise subject, and no event has occurred and is continuing which, with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any of the foregoing; and the authorization, execution and delivery of this Purchase Agreement, the Certificate Documents to which the City is a party and the Certificates, and compliance with the provisions hereof and thereof, will not conflict with or constitute a material breach of or default under any constitutional provision, law, administrative rule or regulation, or any judgment, decree, license, permit, loan agreement, indenture, bond, certificate, note, resolution, agreement or other instrument to which the M m so that it will not contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the time the Official Statement is delivered to a purchaser, not misleading. As used herein, the term "End of the Underwriting Period" means the later of such time as (i) the Closing Date, or (ii) the Underwriter does not retain, directly or as a member of an underwriting syndicate, an unsold balance of the Certificates for sale to the public. Unless the Underwriter gives notice to the contrary, the End of the Underwriting Period shall be deemed to be the date of the Closing Date. Any notice delivered pursuant to this provision shall be written notice delivered to the City at or prior to the Closing Date, and shall specify a date (other than the Closing Date and not more than 25 days after the Closing Date) to be deemed the "End of the Underwriting Period." N The proceeds from the sale to the Underwriter of the Certificates will be applied in the manner and for the purposes specified in Section I hereof, the Trust Agreement and as described in the Official Staterne.a. Any certificate signed by any official of the Ci "tY transactions contemplated by the Official Statement and this Pu be a representation by the City to the Underwriter as to the state 0) The City agrees to cooperate with Certificates for offer and sale under the securities United States as the Underwriter may reasonably ri be required to consent to service of process in a, corporation in connection with any such qualifi6k shall be solely responsible for the cost of such qualif (k) The City has complie4- respect to the Certificates. WINE !IIIII IL-11MRIMMUMIFAIM1114=4 I Revenue Code of 1986, as amended, witm f. fetermined on a basis si (m) Except as described in the Official Statement, within the last five years the City has not failed to comply in all material respects with any prior continuing disclosure obligations entered into pursuant to Rule 15c2-12. (n) Between the date of this Purchase Agreement and the date of Closing, the City will not, without the prior written consent of the Underwriter, and except as disclosed in the Official Statement, offer or issue any certificates, notes or other obligations for borrowed money, or incur any material liabilities, direct or contingent, secured by or payable from the City's general fund. 4. Conditions to the Obligations of the Underwriter. The obligation of the Underwriter to accept delivery of and pay for the Certificates on the Closing Date shall be subject, at the option of the Underwriter, to theaccuracy in all material respects of the representations, 0 warranties and agreements on it of the City contained herein as of the date hereof and as of the Closing Date, to r in all material respects of the statements of the officers and other officials of the City, the Corporation and the Trustee made in any certificates or other documents furnished pursuant to i hereof or the Certificate Documents, and to the perfon-nance by the City, the Corporation and the Trustee of their respective obligations to be performed hereunder and under the Certificate Documents at or prior to the Closing Date, and to the following addonal conditions: A W.. (i) by or on behalf of the Treasury Department of the United States or the Internal Revenue Service with the purpose or effect, directly or indirectly (except as described in the Official Statement), of imposing federal income taxation upon such interest as would be received by the owners of the Certificates, or 00 by or on behalf of the Securities and Exchange Commission, or any other governmental entity having jurisdiction of the subject matter, to the effect that obligations of the general character of the Certificates, or the Certificates, including any or all underlying arrangements, are not exempt from registration under the Securities Act of 1933, as amended, or that the Trust Agreement is not exempt from tuacation under the Trust Indenture Act of 1939, as amended; No (2) legislation enacted by the legislature of the State or a decision rendered by 2� Court of the State, or a ruling, order, or regulation (final or temporary) made by State authority, which would have the effect of changing, directly or indirectly, the State tax consequences of interest on obligations of the general character of the Certificates in the hands of the holders thereof; (3) there shall have occurred (1) an outbreak or escalation of hostilities or t declaration by the United States of a national emergency or war or (2) any other calamity crisis in the financial markets of the United States or elsewhere or the escalation of suc calamity or crisis; I (4) the declaration of a general banking moratorium by federal, New York or California authorities; (7) the occurreni, of any adverse change of a material nature of the financial condition, results of op6ffli6 �r properties of the City; (8) (9) any event occurring, or information becoming known which, in the reasonable judgment of the Underwriter, makes untrue in any material respect any statement or information contained in the Official Statement, or has the effect that the Official Statement contains any untrue statement of material fact or omits to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; h (10) the marketability of the Certificates or the market price thereof, in the opinion of the Underwriter, has been materially and adversely affected by disruptive events, occurrences or conditions in the securities or debt markets; (11) the suspension by the Securities and Exchange Commission of trading in the outstanding securities of the City; (12) the purchase of and payment for the Certificates by the Underwriter, or thor- resale of the Certificates by the Underwriter, on the terms and conditions herein provided shall be prohibited by any applicable law, governmental authority, board, agency or commission; (d) At or prior to the Q ifig Date, the Underwriter shall have received the followinq documents, in each case satisfactory If6rifi and substance to the Underwriter: I fficii! Statement and each of the Certificate Documents, duly execute' e respective parties thereto, with such amendments, modcations haV6 been agreed to by the Underwriter; I (2) the tinqualified approving opinion of Special Counsel, dated the Closing D and addressed to the City, in substantially the form attached to the Official Statement Appendix D; (3) a letter dated as of the date of Closing and addressed to the Underwriter of Special Counsel to the effect that the Underwriter may rely upon the letter described in (4)(d)(2) above; (4) the supplemental opinion of Special Counsel, dated the Closing Date an addressed to the Underwriter, substantially to the effect that (i) the Certificates are not subje to the registration requirements of the Securities Act of 1933, as amended, and the Tru Agreement is exempt from qualification pursuant to the Trust Indenture Act of 1939, amended, (ii) this Purchase Agreement and the Continuing Disclosure Agreement have bee fuly executed and delivered by, and constitute valid and binding obligations of, the Citjj enforceable in accordance with their respective ten -ns, and (iii) the statements contained in the Official #- captions CERTIFICATES""SECURITY SOURCES OF PAYMENT FOR THE 2020 CERTIFICATES" and "TAX MATTERS" and in"APPENDIX C — SUMMARY OF PRINCIPAL LEGAL DOCUMENTS," excluding any material that may be treated as included under such captions by cross-reference or reference to other documents or sources, insofar as such statements expressly summarize certain provisions of the Certificates, a Lease, . Lease, Agreement, and content of Special Counsel's final legal opinion concerning the validity of the Lease and certain other matters, are accurate in all material respects; opinioni , in hereto, dated the Closing Date, addressed to the Corporation,, the Underwriter and the Trustee; (8) an opinion of counsel to the Trustee, dated the Closing Date, addressed to t a City and the Underwriter, to the effect that (i) the Trustee is a duly organized and validl existing national banking association in good standing under the laws of the United Stat and has full power and authority to undertake the trust of the Trust Agreement and t Assignment Agreement, (ii) the Trustee has duly authorized, executed and delivered the Tru Agreement # the Assignment Agreement # by all proper#o. - action has the acceptance # of Agreement and Assignment 4 Agreement, 9 E m) d rallia-sm IN (20) evidence that the federal tax information Form 8038-G with respect to the Certificates has been prepared for filing, delivered and signed as of the Closing Date; I (21) an opinion of Kutak Rock LLP, Irvine, California, counsel to the Underwrit ("Underwriter's Counsel"), dated the Closing Date and addressed to the Underwriter i form reasonably satisfactory to the Underwriter; and I, (22) such additional legal opinions, certificates, proceedings, instruments anil' other documents as the Underwriter or Special Counsel may reasonably request to evidenc(-,W compliance by the Trustee, the Corporation and the City with legal requirements, the truth and accuracy, as of the Closing Date, of the representations of the Trustee, the Corporation and the City, and the due performance or satisfaction by the Trustee, the Corporation and the City at or prior to such time of all agreements then to be performed and all conditions then to be satisfied by the Trustee, the Corporation and the City. C. The Underwriter confirms that it has offered the Certificates to the public on or before the date of this Purchase Agreement at the offering price or prices (the "initial offering price"), or at the corresponding yield or yields, set forth in Exhibit A attached hereto, except as *therwise set forth therein. Exhibit A also sets forth, as of the date of this Purchase Agreement, the IN maturities, if any, of the Certificates for which the Underwriter represents that (i) the 10% test has been satisfied (assuming orders are confirmed by the close of the business day immediately following the date of this Purchase Agreement) and (ii) the 10% test has not been satisfied and for which the City and the Underwriter agree that the restrictions set forth in the next sentence shall apply, which will allow the City to treat the al offering price to the public of each such maturity as of the sale date as the issue price of that maturity (the "hold-the-offering-priee rule"). So long as the hold -the -offering -price rule remains applicable to any maturity of the Certificates, the Underwriter will neither offer nor sell unsold Certificates of that maturity to any person at a price that is higher than the initial offering price to the public during the period starting on the sale date and ending on the earlier of the following: the close of the fifth (5th) business day after the sale date; A (2) the date on which the Underwriter has sold at least 10% of that maturity of the Certificates to the public at a price that is no higher than the initial offering price to the public. Mail d # 64tds to the public at a price *I. The Underwriter confirms 0 (C) to acknowledge that, unless otherwise advised by the dealer or broker-dealer, the Underwriter shall assume that each order submitted by the dealer or broker-dealer is a sale to the public. (ii) any selling group agreement relating to the initial sale of the Certificates to the public, together with the related pricing wires, contains or will contain language obligating each dealer that is a party to a third -party distribution agreement to be employed in connection with the initial sale of the Certificates to the public to require each broker-dealer that is a party to such third - party distribution agreement to (A) report the prices at which it sells to the public the unsold [E] Certificates of each maturity allocated to it, whether or not the Closing Date has occurred, until either all Certificates of that maturity allocated to it have been sold or it is notified by the Underwriter or the dealer that the 10% test has been satisfied as to the Certificates of that maturity, provided that, the reporting obligation after the Closing Date may be at reasonable periodic intervals or otherwise upon request of the Underwriter or the dealer, and (B) comply with the hold -the -offering -price rule, if applicable, if and for so long as directed by the Underwriter or the dealer and as set forth in the related pricing wires. rr INA 9 r. F. The Underwriter ai that is a related party to an underwriter pa (each such term being used as defined bell this section. Further, for purposes of this s, party; a. .. Public- means any person other than an underwriter or a related C. a purchaser of any of the Certificates is a "related party" to an underwriter if the underwriter and the purchaser are subject, directly or indirectly, to (A) more than 50% common ownership of the voting power or the total value of their stock, if both enes are corporations (including direct ownership by one corporation of another), (B) more than 50% common ownership of their capital interests or profits interests, if both entities are partnerships (including direct ownership by one partnership of another), or (C) more than 50% common ownership of the value of the outstanding stock of the corporation or the capital interests or profit interests of the partnership, as applicable, if one entity is a corporation and the other entity is a M partnership (including direct ownership of the applicable stock r, by one entity of the other); and by all esd. "sale date" means the date of executi parti. on of this Purchase Agreement 6. Fees and Expenses. Except as provided in the following paragraph, the City shall pay all costs and expenses incurred in connection with or relating to the execution and sale of the Certificates, including but not limited to (a) the fees and expenses of Special Counsel, (b) the fees and expenses of Disclosure Counsel, (c) the fees and expenses of counsel to the City and the Corporation, (d) all expenses and costs of the City incident to the performance of its obligations hereunder and in connection with the authorization, execution and sale of the Certificates, (e) the costs of printing, distributing and delivering the Preliminary Official Statement and the Official Statement, (f) the fees and expenses of the Trustee and its counsel, and (g) rating agency fees for rating the Certificates. oil I 1 [*1 7. Notices. All notices, ®1 and other communications provided for hereunder shall be in writing and, if to the City, mailed, certified, return receipt requested, or delivered to it, addressed to it at: City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Attention: City Manager and if to the Underwriter, mailed, certified, return receipt requested, or delivered to it, addressed to it at: • Stifel, Nicolaus & Company, Incorporated One Montgomery Street, 35hFloor San Francisco, CA 94104 Attention: Sara Oberlies Brown, Managing Director or such other address as shall be designated by any such party in a written notice to each of the other parties. 8. Survival of Representations, Warranties and Agreements. All representations, warranties and agreements of the City in this Purchase Agreement shall remain operative and in full force and effect regardless of any investigation made by or on behalf of the Underwriter and shall survive the delivery of the Certificates hereunder. 9. Applicable Law. This Purchase Agreement shall be interpreted, governed and enforced in accordance with the laws of the State of California. 11 10. Effectiveness. This Purchase Agreement shall become effective upon its execution by duly authorized officers of the Underwriter and the City and shall be valid and enforceable from and after the time of such execution. M 11. Counterparts. This Purchase Agreement may be executed in several counterpart r ofwhich shall be an orig..: of i one andthe same The foregoing is hereby agreed to and accepted as rte first above NICOLAUS COMPANY, INCORPORATED r r DI M CITY OF NEWPORT BEACH Assistant PAGE CERTIFICATEPURCHASE AGr r,O r BEACHr ` PARTICIPATION 0 Principal Payment Date III: yd 01 I ` 1; NJ 4_5 Subject to Hold -The - Offering -Price Test Rule Principal r' Test Not (marked if Amount Rate Yield Price Satisfied Satisfied used) MTerm Certificate. (e) Priced1, * At the time of execution of this Purchasei s are confirmed by the close of the business day immediately followingt •s Purchase Agreement. M I W14 Me I 1111-819 J 3 ULM V rff-11V 0 IM tok City of Newport Beach Newport Beach, California The Bank of New York Mellon Trust Company, N.A. Los Angeles, California Stifel, Nicolaus & Company, Incorporated San Francisco, California Re: City of Newport Beach Certificates of Participation 2020A (Fire Station No. 2) Ladies and Gentlemen: We have acted as counsel to the City of Newport Beach (the "City") in connection with the execution and delivery of $ aggregate principal amount of City of Newport Beach Certificates of Participation 2020A (Fire Station No. 2) (the "Certificates"). I . The City is a municipal corporation duly organized and validly existingunder t f4l Constitution and laws of the State of California with full legal right, power and authority to execut ,ieliver and perform all of its obligations under the Purchase Agreement, the Trust Agree ent, t -- 'I Lease, the Site Leaseand the Continuing Disclosure Agreement (collectively, t e "Ci Socuments"), and to parpate in thetransactions contemplated by the Official Statement. 0 ms 2. The Resolution was duly adopted at a meeting of the City Council of the City, which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout, and the Resolution is in full force has not been modified, amended or rescinded. [a 06,4'r i FORM OF OPINION OF COUNSEL TO THE CORPORATION ,2020 City of Newport Beach Newport Beach, California The Bank of New York Mellon Trust Company, N.A. Los Angeles, California Stifel, Nicolaus & Company, Incorporated San Francisco, California Re: City of Newport Beach Certificates of Participation 2020A (Fire Station No. 2) Ladies and Gentlemen: We have acted as counsel to the Newport Beach Public Facilities Corporation (the "Corporation") in connection with the execution and delivery of $ aggregate principal amount of City of Newport Beach Certificates of Participation 202-0A(Fire Station "Certificates"). In connection with rendering this opinion, we have examined documents, obtained certificates and undertaken other actions as we have determined necessary to render this opinion. We have examined the following documents: a Resolution of the Board of Directors of the Corporation adopted on , 2020 (the "Resolution") relating to the Certificates; the Lease/Purchase Agreement, dated as of December 1, 2020 (the "Lease"), by and between the City and the "Si Corporation; a Site Lease, dated as of December 1, 2020 (the te Lease"), by and between the City and the Corporation; the Trust Agreement,dated as of December 1, 2020 (the "Trust Agreement"), by and among The Bank of New York Mellon Trust CompanyN.Aas trustee (the "Trustee"), the Corporation , ., and the City; the Assignment Agreement, dated as of December 1, 2020 (the "Assignment Agreemenf'), by and between the Trustee and the Corporation; the certificates and certifications of the City, the Trustee, the Corporation and others as to certain factual matters; and such other documents and matters to the extent we deemed necessary to render the opinions set forth herein. With your pen-nission we have assumed, without undertaking to verify the same by independent investigation, the following: (a) the authenticity of original documents and thr,� genuineness of all signatures; (b) the conformity to the originals of all documents submitted to us as copies; (c) the truth, accuracy, and completeness of the information, representations, and warranties contained in these documents, certcates, records and papers we have reviewed; and (d) compliance with all covenants and agreements contained in such documents. Based on the foregoing, we are of the opinion that: I . The Corporation is a nonprofit public benefit corporation organized and existin,,,.N under and by virtue of the laws and the Constitution of the State of California and has full legal Ns power and lawful authority to execute and deliver and perform all obligations under the Lease, the Site Lease, the Assignment Agreement and the Trust Agreement (collectively, the "Corporation Documents") and to participate in the transactions contemplated by the Official Statement. 2. The Resolution has been duly adopted at a meeting of the Board of Directors of the Corporation, which was called and held pursuant to law and with all public notice required by law and at which a quorum was present and acting throughout and the Resolution is in full force and effect and has not been modified, amended or rescinded. 4. There is no action, suit, proceeding, inquiry o igdtldh at law or in equity, before or by any court, government agency, public board or bod fig Or, to our knowledge after reasonable investigation, threatened: z (a) which would materially adversely affect the financial position of the Corporation; g to prohibit, restrain or enjoin the execution or the Corporation Documents, or in any way security for the Certificates or the Corporation 0sactions contemplated thereby, or contesting the to execute and deliver the Corporation Documents and to our knowledge there is no basis for any action, suit, proceeding, inquiry or investigation of the nature described in subparagraphs (a) through (c) of this Paragraph 4. 5. The Corporation is not in material breach of or default under any applicable judgment or decree or any it agreement, indenture, bond, note, resolution, agreement or other instrument to which the Corporation is a party or to which the Corporation or any of its property or assets is otherwise subject, and no event has occurred or is continuing which with the passage of time or the giving of notice, or both, would constitute a default or an event of default under any such instrument; and the execution and delivery of the Corporation Documents and compliance with the provisions thereof by the Corporation, will not result in a violation of, a breach of, or a default under the articles of incorporation or bylaws of the Corporation or any indenture, mortgage, deed of trust, note agreement, or other agreement or instrument to which the Corporation is a party or by which it M or any of its property is bound, or any order of any court or other governmental body having jurisdiction of the Corporation. This letter is not to be used, circulated, quoted, or otherwise referred to for any purpose other than the offering of the Certificates and may not be relied upon other than by the addresses hereof without our express written permission. MR, CITY OOF NEWPORT BEACH CERTIFICATES O / PARTICIPATION R°1* fT }ON 2020 (FIRE STATION NO. 2) � A � � 0 0 1k 0 i I P AND WHEN RECORDED MAIL TO: Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attn: Brian P. Forbath, Esq. Stradling Yocca Carlson & Rauth Draft of 10127111 [Space above for Recorder's use.] This document is recorded for the benefit of the City of Newport Beach and recording is fee -exempt under §27383 of the Government Code. ASSIGNMENT AGREEMENT by and between NEWPORT BEACH PUBLIC FACILITIES CORPORATION and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee Dated as of December 1,• 2020 Relating to CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2020A (FIRE STATION NO. 2) This ASSIGNMENT AGREEMENT, dated as of December 1, 2020, by the NEWPORT BEACH PUBLIC FACILITIES CORPORATION, a 501(c)(4) nonprofit public benefit corporation duly organized and existing under and by virtue ♦of the laws of the State of California (the "Corporationand accepted by THE BANK OF NEW YORK MELLON TRUST COMPANY ' N.A., a national banking association organized under the laws of the United States of America, as trustee under the Trust Agreement (defined below) (the "Trustee"); 8 11MA0111W.111 it A to the Site Lease Wsed Premises" k7Z d Premises to the City, as WHEREAS, under and pursuant to the Leasej obligated to make Lease Payments, 0 0 I-rernises; and as defined therein, to the Corporation for the lease of im. ■ let I MIKE= WHEREAS, each party has determined that all acts conditions and things required by law t* exist, to have happened and to have been performed precedent to and in connection with its execution and entering into of this Assignment Agreement (the "Assignment Agreement") do exist, have happened and have been performed in regular and due time, form and manner as required by law and it is now duly authorized to execute and enter into the 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. (a) Site Lease. The Corporation hereby transfers, assigns absolutely and sets over to the Trustee, for the benefit of the Owners (as defined in the Trust Agreement) of the Certificates and any Additional Cercates executed and delivered under the Trust Agreement, all of the Corporation's rights, title, and interest under the Site Lease. o rt r. and Prepayments. ienme-fit f6f Owners of Certificates. All rights assigned by the istered by the Trustee as assignee thereof according to the provisions of i M 6qual and proportionate benefits of the Owners of the Certificates Wes. Section 2. Acceptance. The Trustee hereby accepts the foregoing assignment for thf�- benefit of the Owners of the Certificates and any Additional Certificates, subject to the conditions and terms of the Trust Agreement, and :,i such Lease Payments shall be applied and all such rights so assigned shall be exercised by the Trustee under and pursuant to the Trust Agreement. Section 3. Conditions. The Assignment Agreement shall confer no rights and shall impose no obligations upon the Trustee beyond those expressly provided in the Trust Agreement. The Trustee does not warrant the accuracy of the recitals hereto. The Trustee shall not be responsible for any representations, covenants or warranties of the Corporation. The assignment hereunder is to the Trustee solely in its capacity as Trustee under the Trust Agreement and not in its inddual or personal capacity. The Trustee is not responsible for any representations, warranties or covenants made by the assignor under the Lease or the Site Lease. Kl Section 4. No Other Claim. The Corporation hereby represents and warrants that the Ai� are no present and outstanding claims on Lease Payments or any other moneys assigned by t Corporation to the Trustee hereunder. I Section 5. Counte[parts. This Assignment Agreement may be executed in any number of counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. Section 6. Applicable Law. This Assignment Agreement shall be governed by and construed i with the laws of the State of California. KI IN WITNESS WHEREOF, the parties hereto have executed and entered into the Assignment Agreement by their officers thereunto duly authorized as of the day and year first above written. 00 NEWPORT BEACH PUBLIC FACILITIES CORPORATION By: Its: Preside -a Accepted by: THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee By: Its: Authorized Officer M11 ml. N MMOM I c KIM I Aaron C. Harp, City Attorney m A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. d N 1 r! M V i INK 1161MV21 WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. "FAINuMMIUMMAIMIR9 M91 ANNORM "s ANA IM i(QM RN IM -M I WITNESS my hand and official seal SIGNATURE OF NOTARY PUBLIC Frx'FA 010 1 Do M- M. R 013 1 KI Real property and improvements thereon in the City of Newport Beach, County of Orang State of California, described as follows: I W