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HomeMy WebLinkAboutPFC-2 - PFC-2 - Site LeaseSite Lease RECORDING REQUESTED BY: City of Newport Beach AND WHEN RECORDED MAIL TO: Stradling Yocca Carlson & Rauth 660 Newport Center Drive, Suite 1600 Newport Beach, California 92660 Attn: David R. McEwen, Esq. Stradling Yocca Carlson & Rauth Draft of 10127/10 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. SITE LEASE by and between CITY OF NEWPORT BEACH and NEWPORT BEACH PUBLIC FACILITIES CORPORATION Dated as of November 1, 2010 Relating to CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2010A (TAX EXEMPT) (CIVIC CENTER PROJECT /CENTRAL LIBRARY REFUNDING) and CITY OF NEWPORT BEACH CERTIFICATES OF PARTICIPATION 2010B (FEDERALLY TAXABLE DIRECT PAY BUILD AMERICA BONDS) (CIVIC CENTER PROJECT) DOCSOC/ 1423572v5/022459 -0014 SITE LEASE This SITE LEASE, dated as of November 1, 2010, 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 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 City the Leased Premises pursuant to a Lease/Purchase Agreement to be executed and entered into as of the date hereof (the "Lease "); and WHEREAS, by resolutions the City and the Corporation have agreed to execute this Site Lease, and to deliver it upon performance and compliance by each party with all terms or conditions of this Site Lease to be performed concurrently herewith, including, without limitation, the delivery of the City of Newport Beach Certificates of Participation 2010A (Tax Exempt) (Civic Center Project/Central Library Refunding) (the "2010A Certificates ") and the City of Newport Beach Certificates of Participation 2010B (Federally Taxable Direct Pay Build America Bonds) (Civic Center Project) (the "2010B Certificates" and together with the 2010A Certificates, the "Certificates ") executed and delivered pursuant to a Trust Agreement, dated as of the date hereof (the "Trust Agreement'), by and among the City, the Corporation, and The Bank of New York Mellon Trust Company, N.A., as trustee (the "Trustee "); and WHEREAS, all acts, conditions and things required by law to exist, to have happened and to have been performed precedent to and in connection with the execution and entering into of this Site 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 the Site Lease. NOW, THEREFORE, IN CONSIDERATION OF THE PREMISES AND OF THE MUTUAL AGREEMENTS AND COVENANTS CONTAINED HEREIN AND FOR OTHER VALUABLE CONSIDERATION, THE PARTIES HERETO DO HEREBY AGREE AS FOLLOWS: Section 1. Definitions. All terms not otherwise defined herein shall have the definitions given such terms in the Trust Agreement or the Lease. Section 2. The Leased Premises. The City hereby leases to the Corporation and the 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 hereto simultaneously herewith. DOCSOC/ 1423572v5/022459 -0014 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, 2040 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 to 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 proceeds of sale of the Certificates, by causing such amount to be deposited to the Project Fund and the Lease Payment Fund under the Trust Agreement. Section 5. P=ose. The Corporation shall use the Leased Premises solely for the purpose of leasing back such Leased Premises to the City pursuant to the Lease and for such purposes as may be incidental thereto; provided, that in the event of default by the City under the Lease or termination pursuant thereto, the Corporation may exercise the remedies of repossession of the Leased Premises, as provided in the Lease. Section 6. Interest in Leased Premises. The City warrants and covenants that it has sufficient interest in the Leased Premises to lease it hereunder. hi the event of a title defect in the Leased Premises that impairs the right to use and occupy the Leased Premises, the City covenants that it will exercise its power, including but not limited to, its condemnation powers to the extent permitted by law, to obtain the necessary rights in the Leased Premises and to cure such defect and limitation of the right to use and occupancy. Section 7. Assignments and Subleases. The City acknowledges and affirms the assignment by the Corporation of certain of its rights under this Site Lease to the Trustee, under the terms of the Assignment Agreement dated as of the date hereof, for the benefit of the Owners of the Certificates. This Site Lease may also be assigned and the Leased Premises subleased, as a whole or in part, by the Corporation without necessity of obtaining the consent of the City, if any event of default occurs under the Lease. Section 8. Termination. The Corporation agrees, upon the termination of this Site Lease, to quit and surrender the Leased Premises in the same good order and condition as the same was in at the time of commencement of the term hereunder, reasonable wear and tear excepted, and agrees that any permanent improvements and structures existing upon the Leased Premises at the time of the termination of this Site Lease shall remain thereon and title thereto shall vest in the City. 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. 2 DOCSOC/ 1423572v5/022459 -0014 Section 9. Ouiet Eniovment. 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, however, that the City shall have the right to replace or renovate some or all of the existing improvements to the Leased Premises 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, this 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 12. Eminent Domain. In the event the whole or any part of the Leased Premises is taken by eminent domain proceedings, the interest of the Corporation shall be recognized and is hereby determined to be the amount of unpaid Lease Payments and all Additional Payments due the Corporation under the Lease. Section 13. Partial Invalidity. If any one or more of the terms, provisions, covenants or conditions of this Site Lease 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 Site Lease shall be affected thereby, and each provision of this Site Lease shall be valid and enforceable to the fullest extent permitted by law. Section 14. Applicable Law. This Site Lease shall be governed by and construed in accordance with the laws of the State of California. Section 15. Representatives. Whenever under the provisions of this Site Lease 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 City by the City Manager or the Assistant City Manager, or their written designees, as representative, and for the Corporation by its President, Vice - President, Secretary, Assistant Secretary or Treasurer, or their written designees, as representative, and any parry hereto shall be authorized to rely upon any such approval or request. 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 Counterparts. 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. DOCSOC/ 1423572v5/022459 -0014 Section 18. Amendments. This Site Lease may be amended in writing as may be mutually agreed by the City and the Corporation; provided, however, that no such amendment which 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 any dedication, easement, right of way, reservation in patent, covenant, condition, restriction, lien or encumbrance which would prohibit or materially interfere with the financing as contemplated by the Lease; (b) all taxes, assessments, or impositions of any kind with respect to the Leased Premises, except current taxes, have been paid in full; (c) the Leased Premises is properly zoned for its intended purposes; and (d) the Leased Premises is necessary to the City in order for the City to perform its governmental functions. [REMAINDER OFPAGE INTENTIONALLYLEFT BLANK.] DOCSOC/ 1423572v5/022459 -0014 IN 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. [SEAL] ATTEST: City Clerk ATTEST: Secretary CITY OF NEWPORT BEACH By: Its: Mayor NEWPORT BEACH PUBLIC FACILITIES CORPORATION By: Its: President S -1 DOCSOC/ 1423572v5/022459 -0014 APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: ! David R. Hunt, City Attorney APPROVED AS TO FORM: SPECIAL COUNSEL: 52 Stradling Yocca Carlson & Rauth, a Professional Corporation S -2 DOCSOC/ 1423572v5/022459 -0014 CERTIFICATE OF ACCEPTANCE This is to certify that the interest in the Leased Premises conveyed under the foregoing to the Newport Beach Public Facilities Corporation (the "Corporation'), a 501(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 2010, and the grantee consents to recordation thereof by its duly authorized officer. Dated: November, 2010 NEWPORT BEACH PUBLIC FACILITIES CORPORATION By: Its: [SEAL] ATTEST: Secretary DOCS00 1423572v5/022459 -0014 President EXHIBIT A DESCRIPTION OF THE LEASED PREMISES Real property and improvements thereon in the City of Newport Beach, County of Orange, State of California, described as follows: Newport Coast Community Center: Mariner's Library: Fire Station 7 (Santa Ana Heights): Fire Station 8 (Newport Coast): Central Library: Oasis Senior Center: Fire Station 3 (Newport Center): Fire Station 4 (Balboa Island): Police Station: Civic Center: A -1 DOCSOC/ 1423572v5/022459 -0014 STATE OF CALIFORNIA COUNTY OF ORANGE On ' 2010, before me, the undersigned, personally appeared personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacities, and that by his signature(s) on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. [SEAL] , City Clerk of the City of Newport Beach DOCSOC/ 1423572x5/022459 -0014 STATE OF CALIFORNIA COUNTY OF ORANGE On 2010, before me, Notary Public, personally appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal [SEAL] SIGNATURE OF NOTARY PUBLIC DOCSOC/ 1423572x5/022459 -0014