HomeMy WebLinkAboutJT25S - 4TH DISTRICT COURT
~
COUNCil/FINANCING ~
AUTHORITY /REDEV ElOPM ENT
AGENCY ACTION
REQUEST FOR
CITY COUNCIL MEETING DATE:
CLERK OF COUNCIL USE ONLY:
JUNE 20, 2005
TITLE:
APPROVED
o As Recommended
o As Amended
o Ordinance on 15t Reading
o Ordinance on 2nd Reading
o Implementing Resolution
o Set Public Hearing For
~
RELOCATION OF 4TH DISTRICT
COURT OF APPEAL
FACILITY/CONSTRUCTION OF
PARKING GARAGE
" 'Li
u ()a~
CITY MANAGER
CONTINUED TO
FILE NUMBER
RECOMMENDED ACTION
CITY COUNCIL ACTION
1. Authorize the Ci ty Manager and Clerk of the Council to execute a
revised Purchase and Sale Agreement, and related documents, and
approve the actions necessary for the sale of approximately two acres
of Civic Center land to the California Judicial Council for
construction of a new facility to house Division Three of the
California Fourth District Court of Appeal.
2. Direct the City Attorney to prepare and authori ze the City Manager
and Clerk of the Council to execute a second amendment to the
professional services agreement with Gordon & Williams, Inc. to
provide program management service for construction of the
replacement parking garage for an approximate total project cost of
$6.0 million.
3. Adopt a resolution authorizing and directing the execution of certain
lease financing documents related to construction of the parking
garage, and authorizing and directing certain actions with respect
thereto.
SANTA ANA FINANCING AUTHORITY ACTION
Adopt a resolution authorizing and directing the execution of certain lease
financing documents related to construction of the parking garage, and
authorizing and directing certain actions with respect thereto.
JT25S-1
Fourth District Court of Appeal
June 20, 2005
Page 2
REDEVELOPMENT AGENCY ACTION
Adopt a resolution authorizing and directing the execution of
reimbursement agreement in connection with certain financing proceedings
by the City of Santa Ana and approving related documents and official
actions.
DISCUSSION
The Fourth District Court of Appeal, based in San Diego, is the intermediate
state appellate court serving Santa Ana and Orange County. Division Three of
that court was established in 1982 to provide justices and facilities to
directly serve Orange County. Since its establishment, Division Three has
been located in Santa Ana. Originally housed in a commercial office building
on Santa Ana Boulevard, the Court is currently located in a facility at 925
N. Spurgeon Street in the Midtown Area.
Division Three has now outgrown its Spurgeon Street courthouse and is
seeking a new permanent location. A county-wide search conducted by the
California Judicial Council resulted in the selection of a two acre site at
the northwest corner of Santa Ana Boulevard and Ross Street in the Santa Ana
Civic Center. (See Exhibit 1) The site is now occupied by the vacant
temporary city jail and a portion of the City Hall parking lot.
Under the terms of the proposed purchase and sale agreement, the City will
sell the site for the courthouse to the State of California for a nominal
fee. Further, the City will be responsible for the demolition of the vacant
jail facility and the preparation of the site for the State-funded
construction. The City will also construct a 300 space parking garage in
front of City Hall. This new garage will provide approximately 70 spaces
dedicated to Courthouse operations and personnel, with the balance of the
spaces designed to accommodate the parking stalls displaced by the
courthouse construction. As the agreement is one that is prepared by the
State, it is recommended that the Council approve this agreement with the
provision that non-substantive changes to the terms and conditions may be
authorized by the City Manager and the City Attorney.
In 2002, in anticipation of this project, the City Council approved a
program management agreement with the parking garage design and construction
firm of Gordon & williams. Under that agreement, Gordon & Williams 1S
responsible for designing the garage and administering demolition and
construction contracts for the project. On February 7, 2005 the City Council
approved an amendment to the agreement for a total cost of $5.21 million.
After final negotiation with State of California for the proposed Appellate
JT25S-2
Fourth District Court of Appeal
June 20, 2005
Page 3
Court, the scope and costs of the proj ect has expanded, and a second
amendment is necessary to enhance the scope of work to cover the $6.0
million in construction costs. Upon approval by the State Public Works Board
(PWB) and the State Judicial Council, Gordon & Williams, under the
supervision of the Public Works Agency, will immediately begin preparing
plans and specifications for the garage and be prepared to contract for
demolition and site clearance.
It is anticipated that the parking garage will be completed in 13 months, or
approximately October 2006. The State plans to begin construction of the
courthouse facility by early spring 2007 and move the court personnel into
their new permanent home in the Santa Ana Civic Center by Fall 2008.
The design, construction and financing of the parking garage are estimated
to cost a total of $6 million, in order to complete the financing, the firm
of Quint and Thimmig will serve as bond counsel and Northcross, Hill & Ach
will perform financial advisor services. Upon project approval by the
State, the City would seek competitive lease-purchase financing quotes in
an amount not to exceed five percent.
FISCAL IMPACT
Funds for construction of the parking garage and preparation of the
courthouse development site will be generated from the financing and
available in the capital projects account for the Civic Center Parking
Structure Project (account no. 51-012-6621, Project No. 2740).
CONCUR:
APPROVED AS TO FUNDS AND ACCOUNTS:
~t1~
~rancisco Gutierrez
0- Executive Director, Finance and
Management Services
~~~-
tric . Whi take. I
Executi e Director
Community Development Agency
JT25S-3
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EXHIBIT 1
SANTA ANA
, PW A t
, ,
-.: ..s ACbCY
CITY COl..ta..
AQEN)A DAlE:
.JANJAFN 3. 2005
Title:
CIVIC CENTER PARKING STRUCTIJRE
AND 4TH DISTRICT COURT OF APPEALS
JT25S-4
RESOLUTION NO. 2005-062
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
SANTA ANA AUTHORIZING AND DIRECTING THE
EXECUTION OF CERTAIN LEASE FINANCING
DOCUMENTS AND AUTHORIZING AND DIRECTING
CERTAIN ACTIONS WITH RESPECT THERETO
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SANTA ANA AS
FOLLOWS:
Section 1. The City Council (the "Council") of the City of Santa Ana (the "City")
hereby finds, determines and declares as follows:
A. The City proposes to finance the costs of the construction of a
parking structure on City-owned property located adjacent to the
proposed State Appellate Court Building in Santa Ana, California
(the "Improvements");
B. The City has determined to finance the Improvements by entering
into a site lease (the "Site Lease") and a lease agreement (the
"Lease Agreement") with the Santa Ana Financing Authority (the
"Authority") ;
C. The Authority intends to assign its rights under the Site Lease and
the Lease Agreement to one or more purchasers to be determined;
D. It is in the public interest and for the public benefit that the City
authorize and direct execution of the Site Lease and the Lease
Agreement with the Authority and certain other financing
documents in connection therewith; and
E. The documents below specified have been filed with the City and
the members of the Council, with the aid of its staff, shall review
said documents;
Section 2. Resolution No. 2005-020, previously adopted by the Council on
February 7, 2005, relating to the financing of the Improvements is hereby rescinded.
Section 3. The below-enumerated documents be and are hereby approved, and
the Mayor, the City Manager, the Finance Director, or the designee of any such official,
is hereby authorized and directed to execute said documents, with such changes,
insertions and omissions as may be approved by such official, and the City Clerk is
hereby authorized and directed to attest to such official's signature:
Resolution No. 2005-062
Page 1 of 3
JT25S-5
A. The Site Lease, by and between the City, as lessor, and the
Authority, as lessee, pursuant to which the City will lease certain
real property (the "Site") to the Authority;
B. The Lease Agreement, by and between the Authority, as lessor,
and the City, as lessee, pursuant to which the Authority will lease
the Site and the Improvements back to the City, in such principal
amount as shall be required to finance the Improvements, so long
as the term of the Lease Agreement does not exceed thirty years,
the total cost of the Improvements does not exceed $6,000,000
and the interest rate payable with respect to the Lease Agreement
does not exceed 5%; and
C. A reimbursement agreement, by and between the City and the
Community Redevelopment Agency of the City of Santa Ana (the
"Agency"), pursuant to which the Agency will agree to reimburse
the City for payments made by the City under the Lease
Agreement, to the extent such amounts are available.
Section 3. The firm of Northcross Hill & Ach Inc. is hereby retained as financial
advisor to the City in connection with the lease financing approve by this resolution. The
Mayor, the City Manager, the Finance Director, or the designee of any such official, is
authorized to execute a financial advisory agreement with such firm in such form as
shall be approved by the City Attorney.
Section 4. The firm of Quint & Thimmig LLP is hereby retained as bond counsel
to the City in connection with the lease financing approve by this resolution. The Mayor,
the City Manager, the Finance Director, or the designee of any such official, is
authorized to execute a financial advisory agreement with such firm in such form as
shall be approved by the City Attorney.
Section 5. The Mayor, the City Manager, the Finance Director, the City Clerk and
all other appropriate officials of the City are hereby authorized and directed to execute
such other agreements, documents and certificates as may be necessary to effect the
purposes of this resolution and the financing herein authorized.
Section 6. This Resolution shall take effect upon its adoption by this Council.
ADOPTED this 20th day of June, 2005.
Miguel A. Pulido
Mayor
Resolution No. 2005-062
Page 2 of 3
JT25S-6
APPROVED AS TO FORM:
Joseph W. Fletcher, City Attorney
AYES: Councilmembers
NOES: Councilmembers
ABSTAIN: Councilmembers
NOT PRESENT: Councilmembers
CERTIFICATE OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Clerk of the Council, do hereby attest to and certify the
attached Resolution No. 2005-062 to be the original resolution adopted by the City
Council of the City of Santa Ana on June 20, 2005.
Date:
Clerk of the Council
City of Santa Ana
Resolution No. 2005-062
Page 3 of 3
JT25S-7
Quint & Thimmig LLP
01/31/05
04/29/05
06/13/05
AFTER RECORDATION RETURN TO:
Quint & Thimmig LLP
One Embarcadero Center, Suite 2420
San Francisco, CA 94111-3737
Attention: Brian D. Quint, Esq.
THIS TRANSACTION REFERRED TO IN THIS MEMORANDUM IS EXEMPT FROM CALIFORNIA
DOCUMENTARY TRANSFER TAX PURSUANT TO SECTION 11929 OF THE CALIFORNIA REVENUE
AND TAXATION CODE. THIS DOCUMENT IS EXEMPT FROM RECORDING FEES PURSUANT TO
SECTION 27383 OF THE CALIFORNIA GOVERNMENT CODE.
SITE LEASE
THIS SITE LEASE (this "Site Lease"), dated as of , 2005, is by and between the
CITY OF SANTA ANA, a municipal corporation and chartered city duly organized and
existing under and by virtue of the laws of the State of California (the "City"), as lessor, and the
SANTA ANA FINANCING AUTHORITY, a joint exercise of powers authority duly organized
and existing under and by virtue of the laws of the State of California (the" Authority"), as
lessee;
WITNESSETH:
WHEREAS, the Authority intends to assist the City in undertaking the financing of the
costs of a parking structure on City-owned property located adjacent to the proposed State
Appellate Court Building in Santa Ana, California (the "Improvements"), by leasing certain
existing real property and the Improvements to be constructed thereon to the City pursuant to a
Lease Agreement, dated as of . 2005 (the "Lease Agreement"); and
WHEREAS, the City proposes to enter into this Site Lease with the Authority as a
material consideration for the Authority's agreement to lease such real property and the
Improvements to the City;
NOW, THEREFORE, IT IS HEREBY MUTUALLY AGREED, as follows:
Section 1. Definitions. Capitalized terms used, but not otherwise defined, in this Site
Lease shall have the meanings ascribed to them in the Lease Agreement.
Section 2. Site Lease. The City hereby leases to the Authority and the Authority hereby
leases from the City, on the terms and conditions hereinafter set forth, that certain parcel of real
19014.06
JT25S-8
property situated in the City of Santa Ana, Orange County, State of California, more
particularly described in Exhibit A attached hereto and made a part hereof (the "Site").
Section 3. Term. The term of this Site Lease shall commence on ,2005, and
shall end on , 20---, unless such term is extended or sooner terminated as
hereinafter provided. If, on , 20---, the aggregate amount of Lease Payments (as
defined in and as payable under the Lease Agreement) shall not have been fully paid, or
provision shall not have been made for their payment, then the term of this Site Lease shall be
extended until such Lease Payments shall be fully paid or provision made for such payment. If,
prior to , 20---, all Lease Payments shall be fully paid or provision made for such
payment in accordance with the Lease Agreement, the term of this Site Lease shall end ten (10)
days thereafter.
Section 4. Advance Rental Payment. The City agrees to lease the Site to the Authority in
consideration of the payment by the Authority of a advance rental payment of $ . The
City and the Authority agree that, by reason of the assignment of the Lease Payments to the
Assignee and the Assignee's payment to or to the order of the Authority pursuant to the
provisions of the Assignment Agreement, the advance rental payment referenced in the
preceding sentence shall be deemed to have been paid.
Section 5. Purpose. The Authority shall use the Site solely for the purpose of leasing the
Site and the Improvements to the City pursuant to the Lease Agreement and for such purposes
as may be incidental thereto; provided, however, that in the event of default by the City under the
Lease Agreement, the Authority and its assigns may exercise the remedies provided in the
Lease Agreement, including, without limitation, the right to re-lease the Site and the
Improvements to a third party for any lawful purpose.
Section 6. City's Interest in the Site. The City represents and warrants to the Authority
and its assigns that it is the owner in fee of the Site and that the Site is free and clear of all liens
and encumbrances other than Permitted Encumbrances. The Site constitutes a legal parcel and
has access to a physically open street.
Section 7. Assignments and Subleases. Unless the City shall be in default under the
Lease Agreement, the Authority may not assign its rights under this Site Lease or sublet the
Site, except to the Assignee or as otherwise provided in the Lease Agreement, without the
written consent of the City.
Section 8. Right of Entry. The City reserves the right for any of its duly authorized
representatives to enter upon the Site at any reasonable time to inspect the same or to make any
repairs, improvements or changes necessary for the preservation thereof.
Section 9. Termination. The Authority agrees, upon the termination of this Site Lease, to
quit and surrender the Site in the same good order and condition as the same were in at the
time of commencement of the term hereunder, reasonable wear and tear excepted.
Section 10. Default. In the event the Authority 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 thirty (30) days following notice and demand for correction thereof to the
-2-
JT25S-9
Authority, the City may exercise any and all remedies granted by law, except that no merger of
this Site Lease and of the Lease Agreement shall be deemed to occur as a result thereof.
Section 11. Quiet Enjoyment. The Authority, at all times during the term of this Site
Lease, shall peaceably and quietly have, hold and enjoy all of the Site subject to the provisions
of this Site Lease and the Lease Agreement.
Section 12. Waiver of Personal Liability. All liabilities under this Site Lease on the part of
the Authority or the Assignee are solely liabilities of the Authority or the Assignee,
respectively, and the City hereby releases each and every, member, director, officer, employee
and agent of the Authority and the Assignee of and from any personal or individual liability
under this Site Lease. No member, director, officer, employee or agent of the Authority or the
Assignee shall at any time or under any circumstances be individually or personally liable
under this Site Lease for anything done or omitted to be done by the Authority or the Assignee
hereunder.
Section 13. Taxes. All assessments of any kind or character and also all taxes, including
possessory interest taxes, levied or assessed upon the Site (including both land and
improvements) will be paid in accordance with the Lease Agreement.
Section 14. Use of the Proceeds. The City and the Authority hereby agree that the lease
to the Authority of the City's right and interest in the Site pursuant to Section 1 serves the
public purposes of the City by providing funds to enable the City to finance the Improvements.
The City hereby agrees that the proceeds of the assignment of the Lease Payments shall be used
solely for the purpose of paying the costs of financing the Improvements.
Section 15. Partial Invalidity. If anyone 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, 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 16. Notices. All notices, statements, demands, consents, approvals,
authorizations, offers, designations, requests or other communications hereunder by either
party to the other shall be in writing and shall be sufficiently given and served upon the other
party if delivered personally or if mailed by United States registered mail, return receipt
requested, postage prepaid, and, if to the City, addressed to the City in care of the City
Manager, City of Santa Ana, 20 Civic Center Plaza, Santa Ana, CA 92702, or if to the Authority,
addressed to the Authority in care of the Executive Director, Santa Ana Financing Authority, 20
Civic Center Plaza, Santa Ana, CA 92702, or to such other addresses as the respective parties
may from time to time designate by notice in writing; provided, however, that the party giving
notice to the other under this Site Lease shall also give such notice to the Assignee at
, 275 Broadhollow Road, Melville, NY 11747, Attention: Jonathan
Lewis, or at such other address as the Assignee may from time to time designate by notice in
writing.
-3-
JT25S-1 0
Section 17. Section Headings. All section headings contained herein are for convenience
of reference only and are not intended to define or limit the scope of any provision of this Site
Lease.
Section 18. Applicable Law. This Site Lease shall be governed by and construed in
accordance with the laws of the State of California.
Section 19. Execution in Counterparts. This Site Lease may be executed in any number
of counterparts, each of which shall be deemed to be an original but all together shall constitute
but one and the same instrument.
-4-
JT25S-11
IN WITNESS WHEREOF, the City and the Authority have caused this Site Lease to be
executed by their respective officers thereunto duly authorized, all as of the day and year first
above written.
CITY OF SANTA ANA, as Lessee
By
Name
Title
Attest:
Patricia E. Healy
City Clerk
SANTA ANA FINANCING AUTHORITY,
as Lessor
By
Name
Title
Attest:
Patricia E. Healy
Secretary
-5-
JT25S-12
[NOTARY ACKNOWLEDGMENTS TO BE ATTACHED]
JT25S-13
EXHIBIT A
DESCRIPTION OF THE SITE
All that certain real property situated in the City of Santa Ana, Orange County, State of California,
described as follows:
That portion of Blocks A, B, C, and D of the Ross Addition to Santa Ana as shown on the map filed in
Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County, California, together with
those portions of Fifth Street, 60 feet wide, Sixth Street, 60 feet wide, Van Ness Street, 60 feet wide, and
Parton Street, 60 feet wide, all being shown on said map of the Ross Addition to Santa Ana, as abandoned
by Resolution No. 69-27 of the City Council of the City of Santa Ana, a certified copy of which was
recorded February 19,1969 in Book 8878, Page 863 of Official Records of said Orange County, all in the
City of Santa Ana, County of Orange, State of California, described as follows:
Beginning at the intersection of the centerline of Santa Ana Boulevard (108 feet wide) with the centerline
of Ross Street (106 feet wide) as shown on Record of Survey 95-1031, filed in Book 149, Pages 49 and 50 of
Records of Survey, Records of said County; thence South 49002'03" West 248.90 feet along said centerline
of Santa Ana Boulevard; thence North 40057'57" West 54.00 feet to the northwesterly line of said Santa
Ana Boulevard and the True Point of Beginning, said northwesterly line also being the northwesterly line
of Parcell as described in Resolution No. 68-186 of the City Council of the City of Santa Ana recorded
December 18, 1968 in Book 8819, Page 934 of Official Records of said Orange County, said point being the
beginning of a curve concave northwesterly having a radius of 746.00, a radial bearing to said beginning
bears South 40057'57" East; thence southwesterly along said curve and said northwesterly line 401.75 feet
through a central angle of 30051'21"; thence leaving said northwesterly line North 0005'22" West 53.21
feet; thence North 54013'46" East 27.92 feet; thence North 0005'22" West 36.93 feet; thence South 54013'46"
West 64.85 feet to the centerline of said Parton Street (abandoned); thence North 0005'22" West 186.31 feet
along said centerline to an angle point therein; thence continuing along said centerline North 0003'00"
West 310.62 feet to the intersection with the centerline of said Sixth Street (abandoned) thence North
89058'20" East 309.89 feet to an angle point therein; thence continuing along said centerline North
89057' 41" East 246.29 feet to the westerly line of Ross Street, 106 feet wide; thence South 0037'23" East
235.48 feet along said westerly line to a curve concave northwesterly having a radius of 25.00 feet; thence
southerly and southwesterly along said curve 21.67 feet through a central angle of 49039'26" to the
northwesterly line of said Santa Ana Boulevard; thence South 49002'03" West 213.66 feet along said
northwesterly line to the True Point of Beginning.
Except that portion of said land lying easterly of the following described line:
Beginning at a point on the curved northwesterly line of said Santa Ana Boulevard having a radius of
746.00 feet, as described above, said point being an arc distance of 74.14 feet southwesterly from the
northeasterly terminus of said curve; thence North 0037'23" West 342.65 feet; thence North 89022'37" East
66.00 feet; thence North 0037'23" West 51.08 feet to a non-tangent curve concave westerly having a radius
of 33.00 feet, a radial line to said curve bears South 57047'22" East; thence northerly along said curve 19.53
feet through a central angle of 33054'20"; thence North 1041'42" West 5.71 feet to a curve concave
southeasterly having a radius of 18.00 feet; thence northerly and northeasterly along said curve 14.69 feet
through a central angle of 46044'51"; thence North 45003'09" East 11.84 feet to a point on the centerline of
said Sixth Street (abandoned).
Also except that portion of said land described as follows:
Beginning at the angle point in the centerline of Parton Street (abandoned) as described above; thence
South 0005'22" East 23.18 feet along said centerline; thence North 89058'59" East 17.31 feet to the True
Exhibit A
JT25S-14
Point of Beginning of this exception; thence continuing North 89058'59" East 136.50 feet; thence North
0001'01" West 193.00 feet; thence South 89058'59" West 136.50 feet; thence South 0001'01" East 193.00 feet
to the True Point of Beginning.
Said parcel contains 267,010 square feetj6.1297 acres, more or less.
Exhibit A
JT25S-15
Quint & Thimmig LLP
01/31/05
04/29/05
06/13/05
LEASE AGREEMENT
Dated as of , 2005
by and between the
SANTA ANA FINANCING AUTHORITY, as Lessor
and the
CITY OF SANTA ANA, as Lessee
19014.06
JT25S-16
Section 1.1.
Section 1.2.
Section 2.1.
Section 2.2.
Section 3.1.
Section 3.2.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND EXHIBITS
Definitions....................................................................................................................... ................ 2
Exhibits....................................................................................................................... ..................... 2
ARTICLE II
REPRESENTATIONS, COVENANTS AND WARRANTIES
Representations, Covenants and Warranties of the City .......................................................... 3
Representations, Covenants and Warranties of Authority....................................................... 3
ARTICLE III
DEPOSIT OF MONEYS; DISBURSEMENT
Deposit of Moneys......................................................................................................................... 5
Disbursement.................................................................................................................................. 5
ARTICLE IV
AGREEMENT TO LEASE; TERM OF THIS LEASE AGREEMENT; LEASE PAYMENTS
Section 4.1.
Section 4.2.
Section 4.3.
Section 4.4.
Section 4.5.
Section 4.7.
Lease .............................................................................................................................. .................. 7
Term of Agreement........................................................................................................................ 7
Possession .............................................................................................................................. ......... 7
Lease Payments.............................................................................................................................. 7
Quiet Enjoyment. ........................................................................................................................... 8
Additional Payments..................................................................................................................... 9
ARTICLE V
MAINTENANCE; TAXES; INSURANCE; USE LIMIT A TIONS; AND OTHER MATTERS
Section 5.1.
Section 5.2.
Section 5.3.
Section 5.4.
Section 5.5.
Section 5.6.
Section 5.7.
Section 5.8.
Section 5.9.
Section 5.10.
Section 5.11.
Section 5.12.
Section 5.13.
Section 5.14.
Section 5.15.
Maintenance, Utilities, Taxes and Assessments....................................................................... 10
Modification of Property............................................................................................................. 10
Public Liability and Property Damage Insurance.................................................................... 11
Fire and Extended Coverage Insurance ....................................................................................11
Rental Interruption Insurance.................................................................................................... 12
Title Insurance .............................................................................................................................. 12
Insurance Net Proceeds; Form of Policies................................................................................. 12
Advances....................................................................................................................................... 13
Installation of City's Equipment ................................................................................................13
Liens......................................................................................................................... ...................... 13
Private Activity Bond Limitation............................................................................................... 13
Federal Guarantee Prohibition................................................................................................... 13
Rebate Requirement..................................................................................................................... 13
No Arbitrage................................................................................................................................. 13
Maintenance of Tax-Exemption................................................................................................. 14
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ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN; USE OF NET PROCEEDS
Section 6.1.
Section 6.2.
Section 6.3.
Section 7.1.
Section 7.2.
Section 7.3.
Section 8.1.
Section 8.2.
Section 8.3.
Section 9.1.
Section 9.2.
Section 9.3.
Section 9.4.
Section 9.5.
Section 9.6.
Section 9.7.
Section 9.8.
Section 10.1.
Section 10.2.
Section 11.1.
Section 11.2.
Section 11.3.
Section 11.4.
Section 11.5.
Section 11.6.
Section 11.7.
Section 11.8.
Section 11.9.
Eminent Domain.................... ...................................................................................................... 15
A pplication of Net Proceeds....................................................................................................... 15
Abatement of Lease Payments in the Event of Damage or Destruction............................... 15
ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS; INDEMNIFICATION
Disclaimer of Warranties............................................................................................................ 17
Access to the Property................................................................................................................. 17
Release and Indemnification Covenants................................................................................... 17
ARTICLE VIII
ASSIGNMENT, SUBLEASING AND AMENDMENT
Assignment by the Authority .....................................................................................................18
Assignment and Subleasing by the City ...................................................................................18
Amendment of Lease Agreement.............................................................................................. 18
ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Events of Default Defined........................................................................................................... 21
Remedies on Default.................................................................................................................... 21
Waiver of Statutory Remedies.................................................................................................... 23
No Remedy Exclusive................................................................................................................. 23
Agreement to Pay Attorneys' Fees and Expenses ...................................................................23
No Additional Waiver Implied by One Waiver....................................................................... 23
Application of Proceeds.............................................................................................................. 23
Assignee to Exercise Rights........................................................................................................ 23
ARTICLE X
PREP A YMENT OF LEASE PAYMENTS
Prepayment Option..................................................................................................................... 25
Mandatory Prepayment From Net Proceeds of Insurance, Title Insurance or
Eminent Domain.......................................................................................................................... 25
ARTICLE XI
MISCELLANEOUS
Notices....................................................................................................................... .................... 26
Binding Effect............................................................................................................................... 26
Severability........................................................................................................................ ...........26
Net-net-net Lease......................................................................................................................... 27
Further Assurances and Corrective Instruments..................................................................... 27
Execu tion in Counterparts.......................................................................................................... 27
A pplicable Law............................................................................................................................ 27
Authority and City Representatives ................................. ......... .... ........................... .................27
Captions.................................................................................................................................. ...... 27
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JT25S-18
EXHIBIT A:
EXHIBIT B:
EXHIBIT C:
EXHIBIT D:
EXHIBIT E:
DEFINITIONS
DESCRIPTION OF THE SITE
DESCRIPTION OF THE IMPROVEMENTS
LEASE PAYMENT SCHEDULE
FORM OF DISBURSEMENT CERTIFICATE
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JT25S-19
LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease Agreement"), dated as of , 2005, is by
and between the SANTA ANA FINANCING AUTHORITY, a joint exercise of powers authority
organized and existing under the laws of the State of California, as lessor (the" Authority"), and
the CITY OF SANTA ANA, a municipal corporation and chartered city duly organized and
existing under the laws of the State of California, as lessee (the "City");
WITNESSETH:
WHEREAS, pursuant to that certain Site Lease, dated as of July 12005 (the "Site Lease"),
the City has leased those certain parcels of real property situated in the City of Santa Ana,
Orange County, State of California, more particularly described in Exhibit B attached hereto
and made a part hereof (the "Site"), to the Authority, all for the purpose of enabling the City to
finance the construction of a parking structure on the Site which is located adjacent to the
proposed State Appellate Court Building in Santa Ana, California (the "Improvements");
WHEREAS, the Authority proposes to lease the Site and the Improvements (collectively,
the "Property") back to the City pursuant to this Lease Agreement and to assign its right to
receive lease payments under this Lease Agreement (the "Lease Payments"), its right to enforce
payment of the Lease Payments and otherwise to enforce its interest and rights under this Lease
Agreement in the event of a default hereunder by the City, to , as
assignee (the" Assignee"), pursuant to that certain Assignment Agreement, dated as of July 1
2005, by and between the Authority and the Assignee; and
WHEREAS, the proceeds of the assignment of this Lease Agreement, together with
other available moneys, will be applied by the City to finance the costs of the Improvements;
JT25S-20
ARTICLE I
DEFINITIONS AND EXHIBITS
Section 1.1. Definitions. The terms defined in Exhibit A attached hereto and by this
reference incorporated herein, as used and capitalized herein, shall, for all purposes of this
Lease Agreement, have the meanings ascribed to them in said Exhibit A unless the context
clearly requires some other meaning.
Section 1.2. Exhibits. The following exhibits are attached to, and by this reference made
a part of, this Lease Agreement:
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Definitions
Description of the Site
Description of the Improvements
The schedule of Lease Payments to be paid by the City hereunder with
respect to the Property, showing the Lease Payment Date and amount of
each such Lease Payment
Form of Disbursement Certificate
Exhibit E:
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JT25S-21
ARTICLE II
REPRESENT A TIONS, COVENANTS AND WARRANTIES
Section 2.1. Representations, Covenants and Warranties of the City. The City represents,
covenants and warrants to the Authority and the Assignee as follows:
(a) Due Organization and Existence. The City is a municipal corporation and chartered
city, duly organized and existing under the laws of the State.
(b) Authorization. The laws of the State authorize the City to enter into the Site Lease and
this Lease Agreement and to enter into the transactions contemplated by and to carry out its
obligations under all of the aforesaid agreements; the City has duly authorized and executed all
of the aforesaid agreements and such agreements constitute the legal, valid and binding
agreements of the City, enforceable against the City in accordance with their respective terms.
All procedures and requirements, including any legal bidding requirements, have been
met by the City prior to the execution of this Lease Agreement in order to insure the
enforceability of this Lease Agreement, and all Lease Payments and other payment obligations
will be paid out of funds legally available for such purpose.
The governing body of the City has complied with all applicable open public meeting
and notice laws and requirements with respect to the meeting at which the City's execution of
this Lease Agreement was authorized.
(c) No Violations. Neither the execution and delivery of the Site Lease or this Lease
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 terms, conditions or provisions of any restriction, agreement
or instrument to which the City is now a party or by which the City is bound, constitutes a
default under any of the foregoing, or results in the creation or imposition of any lien, charge or
encumbrances whatsoever upon any of the property or assets of the City, or upon the Property,
except Permitted Encumbrances.
(d) Execution and Delivery. The City has duly authorized and executed this Lease
Agreement in accordance with the laws of the State.
(e) Essential Nature of Property. The Property is essential to the City's operations.
(f) Use of the Property. The City will use the Property for the purpose of performing one
or more governmental or proprietary functions of the City consistent with the permissible
scope of the City's authority.
(g) Value of the Property. The value of the Property is approximately $12,000,000.
Section 2.2. Representations, Covenants and Warranties of Authority. The Authority
represents, covenants and warrants to the Assignee and the City as follows:
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JT25S-22
(a) Due Organization and Existence. The Authority is a joint exercise of powers authority,
duly organized and existing under and by virtue of the laws of the State; has power to enter
into the Site Lease, this Lease Agreement and the Assignment Agreement; is possessed of full
power to own and hold, improve and equip real and personal property and to lease and sell the
same; has duly authorized the execution and delivery of all of the aforesaid agreements and
such agreements constitute the legal, valid and binding agreements of the Authority,
enforceable against the Authority in accordance with their respective terms.
(b) No Encumbrances. The Authority will not pledge the Lease Payments or other
amounts derived from the Property and from its other rights under this Lease Agreement and
will not mortgage or encumber the Property, except as provided under the terms of this Lease
Agreement.
(c) No Violations. Neither the execution and delivery of the Site Lease, this Lease
Agreement or the Assignment Agreement, 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 terms, conditions or provisions of any
restriction or any agreement or instrument to which the Authority is now a party or by which
the Authority is bound, 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 Authority, or upon the Property, except Permitted Encumbrances.
(d) No Assignments. Except for its assignment to the Assignee or as otherwise provided
herein, the Authority will not assign this Lease Agreement, its right to receive Lease Payments
from the City or its duties and obligations hereunder to any other person, firm or corporation
so as to impair or violate the representations, covenants and warranties contained in this
Section 2.2.
(e) Execution and Delivery. The Authority has duly authorized and executed this Lease
Agreement in accordance with the laws of the State.
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JT25S-23
ARTICLE III
DEPOSIT OF MONEYS; DISBURSEMENT
Section 3.1. Deposit of Moneys. On the Closing Date, the Authority shall cause the
Assignee to transfer the amount of $ to or to the order of the Authority. [Upon receipt
of such amounts, the Authority will (a) transfer the amount of $ to or to the order of the
City (the "Funding Amount") for the payment or reimbursement for the payment of the
Improvements, (b) transfer the amount of $ to Quint & Thimmig LLP, for bond counsel
services, and (c) transfer the amount of $ to Northcross Hill & Ach LLC, for financial
advisory services.]
Section 3.2. Disbursement.
(a) The City agrees to establish, on or prior to the Closing Date, an account with the
State of California Local Agency Investment Fund which accounts shall be used solely for the
payment of costs of the Improvements and for no other purpose, the "Improvement Account."
On or prior to the Business Day following the Closing Date, the Funding Amount shall be
deposited in the Improvement Account. Evidence of such deposit shall be provided by the City
to the Assignee.
(b) At least five Business days before any withdrawal by the City from the Improvement
Account shall be made, the City shall file with the Assignee a disbursement certificate,
substantially in the form attached hereto as Exhibit E, stating:
(i) the name of the payee or payees to whom each such payment is due, which
may be the City in the case of reimbursement for costs theretofore paid by the City;
(ii) if such disbursement is for reimbursement to the City, evidence of prior
payment;
(iii) the respective amounts to be paid;
(iv) the purpose for which each obligation to be paid was incurred;
(v) that obligations in the stated amounts have been incurred by the City and are
presently due and payable and that each item thereof is a proper charge against the
Improvement Account, and has not been previously paid therefrom;
(vi) that there has not been filed with or served upon the City notice of any lien,
right to lien or attachment upon, or claim affecting the right to receive payment of, any
of the amounts payable to any of the persons named in such requisition, which has not
been released or will not be released simultaneously with the payment of such
obligation, other than materialmen's or mechanics' liens accruing by mere operation of
law;
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JT25S-24
(vii) that the component of the Improvements for which such payment relates is
satisfactory to the City, and
(viii) that the balance remaining in the Improvement Account after payment of
such amounts, together with any investment income reasonably anticipated to be
deposited in the Improvement Account and any other funds reasonably anticipated to
be available therefor, will be sufficient to pay the costs of the Improvements.
Upon receipt of each such document, the Assignee shall provide its approval of such
payment by countersigning such document and transmitting it back to the City.
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JT25S-25
ARTICLE IV
AGREEMENT TO LEASE; TERM OF THIS LEASE AGREEMENT; LEASE PAYMENTS
Section 4.1. Lease. The Authority hereby leases the Property to the City, and the City
hereby leases the Property from the Authority, upon the terms and conditions set forth in this
Lease Agreement.
Section 4.2. Term of Agreement. The Term of the Lease Agreement shall commence on
the date hereof, and shall end on , 20-, unless such term is extended as
hereinafter provided. If, on , 20-, the Lease Payments payable hereunder shall
have been abated at any time and for any reason, or if an Event of Default shall have occurred
under this Lease Agreement and, as a result, any obligation under this Lease Agreement
remains unpaid, then the Term of the Lease Agreement shall be extended until there has been
deposited with the Assignee an amount sufficient to pay all obligations due under the Lease
Agreement, but in no event shall the Term of the Lease Agreement extend beyond March 1,
2040.
Section 4.3. Possession. The City hereby agrees to accept and take possession of the
Property on or prior to the date hereof. The first Lease Payment shall be due on September
1,2006.
Section 4.4. Lease Payments.
(a) Obligation to Pay. Subject to the provisions of Articles VI and X hereof, the City agrees
to pay to the Authority, its successors and assigns, as rental for the beneficial use and
occupancy of the Property during each Rental Period, the Lease Payments (denominated into
components of principal and interest) in the respective amounts specified in Exhibit D hereto,
to be due and payable on the respective Lease Payment Dates specified in Exhibit D hereto.
Notwithstanding any dispute between the City, the Authority or any other party, the City will
make all Lease Payments when due, without withholding any portion of such rent, pending
final resolution of such dispute by mutual agreement between the parties thereto or by a court
of competent jurisdiction.
(b) Effect of Prepayment. In the event that the City prepays all remaining Lease Payments
in full pursuant to Article X hereof, the City's obligations under this Lease Agreement shall
thereupon cease and terminate including, but not limited to, the City's obligation to pay Lease
Payments under this Section 4.4.
(c) Rate on Overdue Payments. In the event the City should fail to make any of the
payments required in this Section 4.4, the payment in default shall continue as an obligation of
the City until the amount in default shall have been fully paid, and the City agrees to pay the
same with interest thereon, to the extent permitted by law, from the date of such default to the
date of payment at the rate of twelve percent (12%) per annum.
(d) Fair Rental Value. The Lease Payments for the Property for each Rental Period shall
constitute the total rental for the Property for each such Rental Period and shall be paid by the
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JT25S-26
City in each Rental Period for and in consideration of the right of the use and occupancy, and
the continued quiet use and enjoyment, of the Property during each Rental Period. The parties
hereto have agreed and determined that the total Lease Payments for the Property do not
exceed the fair rental value of the Property. In making such determination, consideration has
been given to the obligations of the parties under this Lease Agreement, the uses and purposes
which may be served by the Property, the total amounts which have been expended on the
Property, the value of the Property and the benefits therefrom which will accrue to the City and
the general public.
(e) Source of Payments; Budget and Appropriation. Lease Payments shall be payable from
any source of available funds of the City, subject to the provisions of Articles VI and X hereof.
The City covenants to take such action as may be necessary to include all Lease
Payments due hereunder in each of its budgets during the Term of the Lease Agreement and to
make the necessary annual appropriations for all such Lease Payments. The covenants on the
part of the City herein contained shall be deemed to be and shall be construed to be duties
imposed by law and it shall be the duty of each and every public official of the City to take such
action and do such things as are required by law in the performance of the official duty of such
officials to enable the City to carry out and perform the covenants and agreements in this Lease
Agreement agreed to be carried out and performed by the City.
(f) Assignment. The City understands and agrees that all Lease Payments have been
assigned by the Authority to the Assignee pursuant to the Assignment Agreement, and the City
hereby assents to such assignment. The Authority hereby directs the City, and the City hereby
agrees to pay to the Assignee at the following address, all payments payable by the City
pursuant to this Section 4.4 and all amounts payable by the City pursuant to Article X hereof, in
the respective amounts for each Assignee as set forth in Exhibit D hereof:
275 Broadhollow Road
Melville, NY 11747
Attention: Jonathan Lewis
Wire Information: [TO COME]
or such other account as shall be provided to the City by the Assignee upon request
In addition, all references herein to the Authority, when the context implies the
Assignee, shall be assumed to also refer to the Assignee, even if not specifically so indicated.
Section 4.5. Quiet Enjoyment. During the Term of the Lease Agreement, the Authority
shall provide the City with quiet use and enjoyment of the Property and the City shall, during
such Term, peaceably and quietly have and hold and enjoy the Property without suit, trouble or
hindrance from the Authority, except as expressly set forth in this Lease Agreement. The
Authority will, at the request of the City and at the City's cost, join in any legal action in which
the City asserts its right to such possession and enjoyment to the extent the Authority may
lawfully do so. Notwithstanding the foregoing, the Authority shall have the right to inspect the
Property as provided in Section 7.2 hereof.
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JT25S-27
Section 4.6. Additional Payments. In addition to the Lease Payments, the City shall pay
when due all costs and expenses incurred by the City and the Authority to comply with the
provisions of this Lease Agreement, or otherwise arising from the leasing of the Property,
compensation and indemnification due to the Authority and the Assignee, and all costs and
expenses of auditors, engineers, attorneys and accountants.
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JT25S-28
ARTICLE V
MAINTENANCE; TAXES; INSURANCE; USE LIMITATIONS; AND OTHER MATTERS
Section 5.1. Maintenance, Utilities, Taxes and Assessments. Throughout the Term of the
Lease Agreement, as part of the consideration for the rental of the Property, all improvement,
repair and maintenance of the Property shall be the responsibility of the City and the City shall
pay, or otherwise arrange for the payment of, all utility services supplied to the Property which
may include, without limitation, janitor service, security, power, gas, telephone, light, heating,
water and all other utility services, and shall pay for or otherwise arrange for the payment of
the cost of the repair and replacement of the Property resulting from ordinary wear and tear or
want of care on the part of the City or any assignee or sublessee thereof. In exchange for the
Lease Payments herein provided, the Authority agrees to provide only the Property, as
hereinbefore more specifically set forth. The City waives the benefits of subsections 1 and 2 of
section 1932 of the California Civil Code, but such waiver shall not limit any of the rights of the
City under the terms of this Lease Agreement.
The City shall also pay or cause to be paid all taxes and assessments of any type or
nature, if any, charged to the Authority or the City affecting the Property or the respective
interests or estates therein; provided that with respect to special assessments or other
governmental charges that may lawfully be paid in installments over a period of years, the City
shall be obligated to pay only such installments as are required to be paid during the Term of
the Lease Agreement as and when the same become due.
The City may, at the City's expense and in its name, in good faith contest any such
taxes, assessments, utility and other charges and, in the event of any such contest, may permit
the taxes, assessments or other charges so contested to remain unpaid during the period of such
contest and any appeal therefrom unless the Authority shall notify the City that, in the opinion
of Independent Counsel, by nonpayment of any such items, the interest of the Authority in the
Property will be materially endangered or the Property or any part thereof will be subject to
loss or forfeiture, in which event the City shall promptly pay such taxes, assessments or charges
or provide the Authority with full security against any loss which may result from
nonpayment, in form satisfactory to the Authority.
Section 5.2. Modification of Property. The City shall, at its own expense, have the right
to remodel the Property or to make additions, modifications and improvements to the Property.
All additions, modifications and improvements to the Property, but not any additional
buildings or improvements, shall thereafter comprise part of the Property and be subject to the
provisions of this Lease Agreement. Such additions, modifications and improvements shall not
in any way damage the Property, substantially alter its nature, cause the interest component of
Lease Payments to be subject to federal income taxes or cause the Property to be used for
purposes other than those authorized under the provisions of State and federal1aw; and the
Property, upon completion of any additions, modifications and improvements made thereto
pursuant to this Section 5.2 (but excluding any additional buildings or improvements that do
not comprise part of the Property), shall be of a value which is not substantially less than the
value of the Property immediately prior to the making of such additions, modifications and
improvements. The City will not permit any mechanic's or other lien to be established or
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JT25S-29
remain against the Property for labor or materials furnished in connection with any
remodeling, additions, modifications, improvements, repairs, renewals or replacements made
by the City pursuant to this Section 5.2; provided that if any such lien is established and the
City shall first notify the Authority of the City's intention to do so, the City may in good faith
contest any lien filed or established against the Property, and in such event may permit the
items so contested to remain undischarged and unsatisfied during the period of such contest
and any appeal therefrom and shall provide the Authority with full security against any loss or
forfeiture which might arise from the nonpayment of any such item, in form satisfactory to the
Authority. The Authority will cooperate fully in any such contest, upon the request and at the
expense of the City.
Section 5.3. Public Liability and Property Damage Insurance. The City shall maintain or
cause to be maintained, throughout the Term of the Lease Agreement, insurance policies,
including a standard comprehensive general insurance policy or policies in protection of the
Authority, the City and the Assignee and their respective members, officers, agents and
employees. Such liability insurance may be maintained as part of or in conjunction with any
other liability insurance coverage carried by the City, and may be maintained through a joint
exercise of powers authority created for such purpose or in the form of self-insurance by the
City. Said policy or policies shall provide for indemnification of said parties against direct or
consequential loss or liability for damages for bodily and personal injury, death or property
damage occasioned by reason of the operation of the Property. Said policy or policies shall
provide coverage in the minimum liability limits of $1,000,000 for personal injury or death of
each person and $3,000,000 for personal injury or deaths of two or more persons in each
accident or event, and in a minimum amount of $150,000 for damage to property resulting from
each accident or event. Such public liability and property damage insurance may, however, be
in the form of a single limit policy in the amount of $3,000,000 covering all such risks.
Deductibles, if any, shall be in such amounts as may reasonably be obtained by a city in
California of comparable size to the City, insuring risks comparable to those that are the subject
of said insurance coverage, but shall in no circumstance be in excess of amounts that would be
reasonable in the exercise of prudence and good judgment by the City. The proceeds of such
liability insurance shall be applied toward extinguishment or satisfaction of the liability with
respect to which the proceeds of such insurance shall have been paid.
Section 5.4. Fire and Extended Coverage Insurance. The City shall procure and
maintain, or cause to be procured and maintained, throughout the Term of the Lease
Agreement, insurance against loss or damage to any structures constituting part of the Property
by fire and lightning, with extended coverage and vandalism and malicious mischief insurance,
with the Authority and the Assignee named as loss payees. Said extended coverage insurance
shall, as nearly as practicable, cover loss or damage by explosion, windstorm, riot, aircraft,
vehicle damage, smoke and such other hazards as are normally covered by such insurance.
Such insurance shall be in an amount equal to one hundred percent (100%) of the replacement
cost of such structures. Such insurance may be subject to deductible clauses of not to exceed
$100,000 for anyone loss. Such insurance may be maintained as part of or in conjunction with
any other fire and extended coverage insurance carried by the City and may be maintained in
whole or in part in the form of insurance maintained through a joint exercise of powers
authority created for such purpose or in the form of self-insurance by the City. The Net
Proceeds of such insurance shall be applied as provided in Sections 5.6 and 6.2(a) hereof.
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JT25S-30
Section 5.5. Rental Interruption Insurance. The City shall procure and maintain, or cause
to be maintained, throughout the Term of the Lease Agreement, rental interruption insurance to
cover loss, total or partial, of the use of any part of the Property during the Term of the Lease
Agreement as a result of any of the hazards covered in the insurance required by Section 5.4
hereof, with the Authority and the Assignee named as additional insureds, in an amount at
least equal to the maximum amount of Lease Payments payable in anyone year period in the
case of equipment, and otherwise in any two year period. Such insurance may be carried in
conjunction with, and may be subject to the same provisions as, the insurance required under
Section 5.4. The City hereby assigns to the Authority all right of the City, if any, to collect and
receive Net Proceeds under any of said policies, which right has been assigned by the
Authority to the Assignee pursuant to the Assignment Agreement. The Net Proceeds of such
insurance shall be paid to the Assignee and shall be credited towards the payment of the Lease
Payments in the order in which such Lease Payments come due and payable.
Section 5.6. Title Insurance.
(a) The City shall provide, on the Closing Date, an ALTA title insurance policy covering,
and in the amount of not less than the principal amount of the Lease Agreement, insuring the
City's leasehold estate in the Property, subject only to Permitted Encumbrances. A copy of such
policy shall be delivered to the Assignee.
(b) The Net Proceeds of such title insurance shall be applied as provided in Section
6.2(c) hereof.
Section 5.7. Insurance Net Proceeds; Form of Policies. In the event that the City is not
self-insured as hereinafter provided, the City, at its expense, shall throughout the term of this
Lease Agreement keep the Property insured against theft, fire, collision (in the case of vehicles)
and such other risks as may be customary for each item of Property in the amounts and for the
coverage set forth in this Lease Agreement, with carriers acceptable to the Authority, under a
policy or policies containing a loss payable endorsement in favor of the Authority and the
Assignee, and affording to the Authority such additional protection as the Authority shall
reasonably require. The City shall further, at its expense, maintain in effect throughout the term
of this Lease Agreement a policy or policies of comprehensive public liability and property
damage insurance in the amounts and for the coverage set forth in this Lease Agreement, with
carriers satisfactory to the Authority. Such insurance may be maintained as part of or in
conjunction with any other insurance carried by the City and may be maintained in whole or in
part through a joint exercise of powers authority created for such purpose. The policies
required hereby shall provide that they may not be canceled or materially altered without at
least 30 days prior written notice to the Authority and the Assignee. The City shall deliver to
the Authority and the Assignee copies or other evidence satisfactory to the Authority or the
Assignee, as applicable, of each insurance policy and each renewal thereof. Failure by the
Authority or the Assignee to request evidence of such insurance policies or renewals, or
otherwise to verify the existence of such insurance, shall not constitute a waiver of the
requirements hereof. The Authority, the Assignee and the City shall jointly make claim for,
receive payment of and execute and endorse all documents, checks or drafts received in
payment for loss or damage under said insurance policies.
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JT25S-31
Section 5.8. Advances. If the City shall fail to perform any of its obligations under this
Article V, the Authority or the Assignee may, but shall not be obligated to, take such action as
may be necessary to cure such failure, including the advancement of money, and the City shall
be obligated to repay all such advances as soon as possible, with interest at the rate of twelve
percent (12 %) per annum from the date of the advance to the date of repayment.
Section 5.9. Installation of City's Equipment. The City may, at any time and from time to
time in its sole discretion and at its own expense, install or permit to be installed items of
equipment or other personal property in or upon any portion of the Property. All such items
shall remain the sole property of the City in which neither the Authority nor the Assignee shall
have any interest and may be modified or removed by the City at any time provided that the
City shall repair and restore any and all damage to the Property resulting from the installation,
modification or removal of any such items. Nothing in this Lease Agreement shall prevent the
City from purchasing or leasing items to be installed pursuant to this Section 5.9 under a lease
or conditional sale agreement, or subject to a vendor's lien or security agreement, as security for
the unpaid portion of the purchase price thereof, provided that no such lien or security interest
shall attach to any part of the Property.
Section 5.10. Liens. The City shall not, directly or indirectly, create, incur, assume or
suffer to exist any mortgage, pledge, lien, charge, encumbrance or claim on or with respect to
the Property, other than the respective rights of the Authority and the City as provided herein
and Permitted Encumbrances. Except as expressly provided in this Article V, 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. The City shall reimburse the Authority for any expense
incurred by it in order to discharge or remove any such mortgage, pledge, lien, charge,
encumbrance or claim.
Section 5.11. Private Activity Bond Limitation. The City shall assure that proceeds of the
Lease Agreement are not so used as to cause the Lease Agreement to satisfy the private
business tests of section 141(b) of the Code or the private loan financing test of section 141(c) of
the Code.
Section 5.12. Federal Guarantee Prohibition. The City shall not take any action or permit
or suffer any action to be taken if the result of the same would be to cause the Lease Agreement
to be "federally guaranteed" within the meaning of section 149(b) of the Code.
Section 5.13. Rebate Requirement. The City shall take any and all actions necessary to
assure compliance with section 148(f) of the Code, relating to the rebate of excess investment
earnings, if any, to the federal government, to the extent that such section is applicable to the
Lease Agreement.
Section 5.14. No Arbitrage. The City shall not take, or permit or suffer to be taken, any
action with respect to the proceeds of the Lease Agreement which, if such action had been
reasonably expected to have been taken, or had been deliberately and intentionally taken, on
the effective date of the Lease Agreement, would have caused the Lease Agreement to be
"arbitrage bonds" within the meaning of section 148 of the Code.
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Section 5.15. Maintenance of Tax-Exemption. The City shall take all actions necessary to
assure the exclusion of interest with respect to the Lease Agreement from the gross income to
the same extent as such interest is permitted to be excluded from gross income under the Code
as in effect on the effective date of the Lease Agreement.
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ARTICLE VI
DAMAGE, DESTRUCTION AND EMINENT DOMAIN; USE OF NET PROCEEDS
Section 6.1. Eminent Domain. If all of the Property shall be taken permanently under the
power of eminent domain or sold to a government threatening to exercise the power of eminent
domain, the Term of this Lease Agreement shall cease as of the day possession shall be so
taken. If less than all of the Property shall be taken permanently, or if all of the Property or any
part thereof shall be taken temporarily under the power of eminent domain, (1) this Lease
Agreement shall continue in full force and effect and shall not be terminated by virtue of such
taking and the parties waive the benefit of any law to the contrary, and (2) there shall be a
partial abatement of Lease Payments as a result of the application of the Net Proceeds of any
eminent domain award to the prepayment of the Lease Payments hereunder, in an amount to
be agreed upon by the City and the Authority, and so certified by such parties to the Assignee,
such that the resulting Lease Payments represent fair consideration for the use and occupancy
of the remaining usable portion of the Property.
Section 6.2. Application of Net Proceeds.
(a) From Insurance Award. The Net Proceeds of any insurance award resulting from any
damage to or destruction of any portion of the Property by fire or other casualty shall be paid
by the City to the Assignee, as assignee of the Authority under the Assignment Agreement, and
applied to the prepayment of Lease Payments as described in Section 10.2 hereof.
(b) From Eminent Domain Award. The Net Proceeds of any eminent domain award
resulting from any event described in Section 6.1 hereof shall be paid by the City to the
Assignee, as assignee of the Authority under the Assignment Agreement, and applied to the
prepayment of Lease Payments as described in Section 10.2 hereof.
(c) From Title Insurance. The Net Proceeds of any title insurance award shall be paid by
the City to the Assignee, as assignee of the Authority under the Assignment Agreement, and
applied to the prepayment of Lease Payments as described in Section 10.2 hereof.
Section 6.3. Abatement of Lease Payments in the Event of Damage or Destruction. Lease
Payments shall be abated during any period in which, by reason of damage or destruction,
there is substantial interference with the use and occupancy by the City of the Property or any
portion thereof (other than any additional buildings or improvements that do not comprise part
of the Property as described in Section 5.2 hereof) to the extent to be agreed upon by the City
and the Authority. The parties agree that the amounts of the Lease Payments under such
circumstances shall not be less than the amounts of the unpaid Lease Payments as are then set
forth in Exhibit D, unless such unpaid amounts are determined to be greater than the fair rental
value of the portions of the Property not damaged or destroyed (giving due consideration to
the factors identified in the last sentence of Section 4.4(d)), based upon the opinion of an MAl
appraiser with expertise in valuing such properties or other appropriate method of valuation,
in which event the Lease Payments shall be abated such that they represent said fair rental
value. Such abatement shall continue for the period commencing with such damage or
destruction and ending with the substantial completion of the work of repair or reconstruction.
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In the event of any such damage or destruction, this Lease Agreement shall continue in full
force and effect and the City waives any right to terminate this Lease Agreement by virtue of
any such damage and destruction. Notwithstanding the foregoing, there shall be no abatement
of Lease Payments under this Section 6.3 to the extent that the proceeds of rental interruption
insurance are available to pay Lease Payments which would otherwise be abated under this
Section 6.3, it being hereby declared that such proceeds and amounts constitute special funds
for the payment of the Lease Payments.
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ARTICLE VII
DISCLAIMER OF WARRANTIES; ACCESS; INDEMNIFICATION
Section 7.1. Disclaimer of Warranties. NEITHER THE AUTHORITY NOR ITS ASSIGNS
MAKES ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AS TO
THE VALUE, DESIGN, CONDITION, MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE OR FITNESS FOR THE USE CONTEMPLATED BY THE CITY OF
THE PROPERTY OR ANY OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO
THE PROPERTY. IN NO EVENT SHALL THE AUTHORITY OR ITS ASSIGNS BE LIABLE FOR
INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION
WITH OR ARISING OUT OF THE SITE AND FACILITY LEASE OR THIS LEASE
AGREEMENT FOR THE EXISTENCE, FURNISHING, FUNCTIONING OR THE CITY'S USE
OF THE PROPERTY.
Section 7.2. Access to the Property. The City agrees that the Authority and any
Authority Representative, and the Authority's successors or assigns (including the Assignee),
shall have the right at all reasonable times to enter upon and to examine and inspect the
Property. The City further agrees that the Authority, any Authority Representative, and the
Authority's successors or assigns (including the Assignee) shall have such rights of access to
the Property as may be reasonably necessary to cause the proper maintenance of the Property
in the event of failure by the City to perform its obligations hereunder.
Section 7.3. Release and Indemnification Covenants. The City shall and hereby agrees to
indemnify and save the Authority, the Assignee and their respective officers, agents, successors
and assigns harmless from and against all claims, losses and damages, including legal fees and
expenses, arising out of or from (i) the use, maintenance, condition or management of any work
or thing done on the Property by the City, (ii) any breach or default on the part of the City in
the performance of any of its obligations under this Lease Agreement, (iii) any act or omission
of the City or of any of its agents, contractors, servants, employees or licensees with respect to
the Property, (iv) any act or omission of any sublessee of the City with respect to the Property,
or (v) the payment of costs of the Property. No indemnification is made under this Section 7.3
or elsewhere in this Lease Agreement for willful misconduct, negligence or breach of duty
under this Lease Agreement by the party seeking indemnity or any of its officers, agents or
employees.
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ARTICLE VIII
ASSIGNMENT, SUBLEASING AND AMENDMENT
Section 8.1. Assignment by the Authority. The Authority's rights under this Lease
Agreement, including the right to receive and enforce payment of the Lease Payments to be
made by the City under this Lease Agreement, have been assigned to the Assignee, pursuant to
the Assignment Agreement and the City hereby consents to such assignment.
Section 8.2. Assignment and Subleasing by the City. This Lease Agreement may not be
assigned by the City. The City may not sublease the Property or any portion thereof.
Section 8.3. Amendment of Lease Agreement.
(a) Substitution of Site or Improvements. The City shall have, and is hereby granted, the
option at any time and from time to time during the Term of the Lease Agreement to substitute
other land (a "Substitute Site") and/or a substitute facility or substitute Improvements (a
"Substitute Improvements") for the Site (the "Former Site"), or a portion thereof, and/ or the
Improvements (the "Former Improvements"), or a portion thereof, provided that the City shall
satisfy all of the following requirements (to the extent applicable) which are hereby declared to
be conditions precedent to such substitution:
(i) If a substitution of the Site, the City shall file with the Authority and the
Assignee an amended Exhibit A to the Site Lease which adds thereto a description of
such Substitute Site and deletes therefrom the description of the Former Site;
(ii) If a substitution of the Site, the City shall file with the Authority and the
Assignee an amended Exhibit B to this Lease Agreement which adds thereto a
description of such Substitute Site and deletes therefrom the description of the Former
Site;
(iii) If a substitution of the Improvements, the City shall file with the Authority
and the Assignee an amended Exhibit B to the Site Lease which adds thereto a
description of such Substitute Improvements and deletes therefrom the description of
the Former Improvements;
(iv) If a substitution of the Improvements, the City shall file with the Authority
and the Assignee an amended Exhibit C to this Lease Agreement which adds thereto a
description of such Substitute Improvements and deletes therefrom the description of
the Former Improvements;
(v) The City shall certify in writing to the Authority and the Assignee that such
Substitute Site and/or Substitute Improvements serve the purposes of the City,
constitutes property that is unencumbered, subject to Permitted Encumbrances, it is a
legal parcel, has access to a physically open street and constitutes property which the
City is permitted to lease under the laws of the State;
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(vi) The City delivers to the Assignee and the Authority evidence that the
Substitute Site and/ or Substitute Improvements are of equal or greater value than the
Former Site and Former Improvements;
(vii) The Substitute Site and/ or Substitute Improvements shall not cause the City
to violate any of its covenants, representations and warranties made herein;
(viii) The City shall obtain an amendment to the title insurance policy required
pursuant to Section 5.6 hereof which adds thereto a description of the Substitute Site
and deletes therefrom the description of the Former Site;
(ix) The City shall certify that the Substitute Site and/ or the Substitute
Improvements is of the same or greater essentiality to the City as was the Former Site
and/ or the Former Improvements;
(x) The City shall have received the prior written consent of the Assignee to such
substitution; and
(xi) The City shall furnish the Authority and the Assignee with a written opinion
of nationally-recognized bond counsel, which shall be an Independent Counsel, stating
that such substitution does not cause the interest components of the Lease Payments to
become subject to federal income taxes or State personal income taxes.
(b) Release of Site. The City shall have, and is hereby granted, the option at any time and
from time to time during the Term of the Lease Agreement to release any portion of the Site,
provided that the City shall satisfy all of the following requirements which are hereby declared
to be conditions precedent to such release:
(i) The City shall file with the Authority and the Assignee an amended Exhibit A
to the Site Lease which describes the Site, as revised by such release;
(ii) The City shall file with the Authority and the Assignee an amended Exhibit B
to this Lease Agreement which describes the Site, as revised by such release;
(iii) The City delivers to the Assignee and the Authority evidence that the Site, as
revised by such release, is a legal parcel, has access to a physically open street and is of a
value at least equal to the value of the Site as of the Oosing Date;
(iv) Such release shall not cause the City to violate any of its covenants,
representations and warranties made herein;
(v) The City shall obtain an amendment to the title insurance policy required
pursuant to Section 5.6 hereof which describes the Site, as revised by such release; and
(vi) The City shall have received the prior written consent of the Assignee to
such release; and
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(b) Generally. Neither the City nor the Authority will alter, modify or cancel, or agree or
consent to alter, modify or cancel this Lease Agreement, except in connection with a
substitution or release permitted by this Section 8.3 or upon their mutual consent with the prior
written consent of the Assignee.
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ARTICLE IX
EVENTS OF DEFAULT AND REMEDIES
Section 9.1. Events of Default Defined. The following shall be "Events of Default" under
this Lease Agreement and the terms "Events of Default" and "Default" shall mean, whenever
they are used in this Lease Agreement, anyone or more of the following events:
(a) Failure by the City to pay any Lease Payment or other payment required to be paid
hereunder at the time specified herein.
(b) Failure by the City to observe and perform any covenant, condition or agreement on
its part to be observed or performed under this Lease Agreement, other than as referred to in
clause (a) of this Section 9.1, for a period of thirty (30) days after written notice specifying such
failure and requesting that it be remedied has been given to the City by the Authority or the
Assignee; provided, however, if the failure stated in the notice can be corrected, but not within the
applicable period, the Authority and the Assignee shall not unreasonably withhold their
consent to an extension of such time, for a period not to exceed ninety (90) days, if corrective
action is instituted by the City within the applicable period and diligently pursued until the
Default is corrected.
(c) The filing by the City of a voluntary petition in bankruptcy, or failure by the City
promptly to lift any execution, garnishment or attachment, or adjudication of the City as a
bankrupt, or assignment by the City for the benefit of creditors, or the entry by the City into an
agreement of composition with creditors, or the approval by a court of competent jurisdiction
of a petition applicable to the City in any proceedings instituted under the provisions of the
Federal Bankruptcy Act, as amended, or under any similar acts which may hereafter be
enacted.
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 Authority or the
Assignee to exercise any and all remedies available pursuant to law or granted pursuant to this
Lease Agreement; provided, however, that notwithstanding anything herein 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. Each and every
covenant hereof to be kept and performed by the City is expressly made a condition and upon
the breach thereof the Authority or the Assignee may exercise any and all rights of entry and
re-entry upon the Property, and also, at its option, with or without such entry, may terminate
this Lease Agreement; provided, that no such termination shall be effected either by operation
of law or acts of the parties hereto, except only in the manner herein expressly provided. In the
event of such Default and notwithstanding any re-entry by the Authority or the Assignee, the
City shall, as herein expressly provided, continue to remain liable for the payment of the Lease
Payments and/ or damages for breach of this Lease Agreement and the performance of all
conditions herein contained and, in any event such rent and/ or damages shall be payable to the
Assignee at the time and in the manner as herein provided, to wit:
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(a) In the event the Authority or the Assignee does not elect to terminate this Lease
Agreement in the manner hereinafter provided for in subparagraph (b) hereof, the City agrees
to and shall remain liable for the payment of all Lease Payments and the performance of all
conditions herein contained and shall reimburse the Assignee for any deficiency arising out of
the re-leasing of the Property, or, in the event the Authority or the Assignee are unable to re-
lease the Property, then for the full amount of all Lease Payments to the end of the Term of the
Lease Agreement, but said Lease Payments and/ or deficiency shall be payable only at the same
time and in the same manner as hereinabove provided for the payment of Lease Payments
hereunder, notwithstanding such entry or re-entry by the Authority or the Assignee or any suit
in unlawful detainer, or otherwise, brought by the Authority or the Assignee for the purpose of
effecting such re-entry or obtaining possession of the Property or the exercise of any other
remedy by the Authority or the Assignee. The City hereby irrevocably appoints the Authority
and the Assignee as the agent and attorney-in-fact of the City to enter upon and re-lease the
Property in the Event of Default by the City in the performance of any covenants herein
contained to be performed by the City and to remove all personal property whatsoever situated
upon the Property, to place such property in storage or other suitable place in Orange County,
California, for the account of and at the expense of the City, and the City hereby exempts and
agrees to save harmless the Authority and the Assignee from any costs, loss or damage
whatsoever arising or occasioned by any such entry upon and re-leasing of the Property and
the removal and storage of such property by the Authority or the Assignee or their duly
authorized agents in accordance with the provisions herein contained. The City hereby waives
any and all claims for damages caused or which may be caused by the Authority or the
Assignee in re-entering and taking possession of the Property as herein provided and all claims
for damages that may result from the destruction of or injury to the Property and all claims for
damages to or loss of any property belonging to the City that may be in or upon the Property.
The City agrees that the terms of this Lease Agreement constitute full and sufficient notice of
the right of the Authority and the Assignee to re-lease the Property in the event of such re-entry
without effecting a surrender of this Lease Agreement, and further agrees that no acts of the
Authority or the Assignee in effecting such re-Ieasing shall constitute a surrender or
termination of this Lease Agreement irrespective of the term for which such re-leasing is made
or the terms and conditions of such re-Ieasing, or otherwise, but that, on the contrary, in the
event of such Default by the City the right to terminate this Lease Agreement shall vest in the
Authority and the Assignee to be effected in the sole and exclusive manner hereinafter
provided for in paragraph (b) hereof. The City further waives the right to any rental obtained
by the Authority or the Assignee in excess of the Lease Payments and payments due pursuant
to Section 4.7 hereof and hereby conveys and releases such excess to the Authority or the
Assignee, as applicable, as compensation to the Authority or the Assignee for their services in
re-leasing the Property.
(b) In an Event of Default hereunder, the Authority or the Assignee at their option may
terminate this Lease Agreement and re-lease all or any portion of the Property. In the event of
the termination of this Lease Agreement by the Authority or the Assignee at their option and in
the manner hereinafter provided on account of Default by the City (and notwithstanding any
re-entry upon the Property by the Authority or the Assignee in any manner whatsoever or the
re-leasing of the Property), the City nevertheless agrees to pay to the Authority or the Assignee,
as applicable, all costs, loss or damages howsoever arising or occurring payable at the same
time and in the same manner as is herein provided in the case of payment of Lease Payments.
Any surplus received by the Authority or the Assignee from such re-leasing shall be credited
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towards the Lease Payments next coming due and payable. Neither notice to pay rent or to
deliver up possession of the premises given pursuant to law nor any proceeding in unlawful
detainer taken by the Authority or the Assignee shall of itself operate to terminate this Lease
Agreement, and no termination of this Lease Agreement on account of Default by the City shall
be or become effective by operation of law, or otherwise, unless and until the Authority or the
Assignee shall have given written notice to the City of its election to terminate this Lease
Agreement. The City covenants and agrees that no surrender of the Property and/ or of the
remainder of the Term of the Lease Agreement or any termination of this Lease Agreement
shall be valid in any manner or for any purpose whatsoever unless stated or accepted by the
Assignee by such written notice.
Section 9.3. Waiver of Statutory Remedies. Pursuant to California Civil Code section
1952.6(b), the City hereby waives, to the fullest extent permitted by law, all of the remedies for a
breach of this Lease Agreement provided in sections 1951 to 1952.2, inclusive, of the California
Civil Code, and contracts instead for the remedies set forth in this Article IX.
Section 9.4. No Remedy Exclusive. No remedy herein conferred upon or reserved to the
Authority or the Assignee is intended to be exclusive and every such remedy shall be
cumulative and shall be in addition to every other remedy given under this Lease Agreement
now or hereafter existing at law or in equity. No delay or omission to exercise any right or
power accruing upon any Default shall impair any such right or power or shall be construed to
be a waiver thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient. In order to entitle the Authority or the Assignee to exercise
any remedy reserved to it in this Article IX it shall not be necessary to give any notice, other
than such notice as may be required in this Article IX or by law.
Section 9.5. Agreement to Pay Attorneys' Fees and Expenses. In the event that any party
to this Lease Agreement should default under any of the provisions hereof and the non-
defaulting party should employ attorneys or incur other expenses for the collection of moneys
or the enforcement or performance or observance of any obligation or agreement on the part of
the defaulting party herein contained, the defaulting party agrees that it will on demand
therefor pay to the non-defaulting party the reasonable fees of such attorneys and such other
expenses so incurred by the non-defaulting party.
Section 9.6. No Additional Waiver Implied by One Waiver. In the event any agreement
contained in this Lease Agreement 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 9.7. Application of Proceeds. All net proceeds received from the re-lease or other
disposition of the Property under this Article IX, and all other amounts derived by the
Authority or the Assignee as a result of an Event of Default hereunder, shall be transferred to
the Assignee promptly upon receipt thereof and after payment of all fees and expenses of the
Assignee, including attorneys fees, shall be applied to the Lease Payments in order of payment
date.
Section 9.8. Assignee to Exercise Rights. Such rights and remedies as are given to the
Authority under this Article IX have been assigned by the Authority to the Assignee, under the
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Assignment Agreement, to which assignment the City hereby consents. Such rights and
remedies shall be exercised solely by the Assignee as provided in the Assignment Agreement
and herein.
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ARTICLE X
PREP A YMENT OF LEASE PAYMENTS
Section 10.1. Prepayment Option. The Authority hereby grants an option to the City to
prepay the principal component of the Lease Payments in full, by paying the aggregate unpaid
principal components of the Lease Payments as set forth in Exhibit D hereto, in a prepayment
amount equal to the principal amount of Lease Payments to be prepaid, without premium.
Said option may be exercised on any date on and after December 1, 2002. Said option
shall be exercised by the City by giving written notice to the Authority and the Assignee of the
exercise of such option at least sixty (60) days prior to said date. Such option shall be exercised
by depositing with said notice cash in an amount sufficient to pay the aggregate unpaid
principal component of the Lease Payments on said Lease Payment Date as set forth in Exhibit
D hereto, together with any Lease Payments then due but unpaid and any accrued interest to
such prepayment date.
Section 10.2. Mandatory Prepayment From Net Proceeds of Insurance, Title Insurance or
Eminent Domain. The City shall be obligated to prepay the Lease Payments, in whole on any
date or in part on any Lease Payment Date, from and to the extent of any Net Proceeds of an
insurance, title insurance or condemnation award with respect to the Property. The City, the
Authority and the Assignee hereby agree that such Net Proceeds shall be applied first to the
payment of any delinquent Lease Payments, and thereafter shall be credited towards the City's
obligations under this Section 10.2. Lease Payments due after any such partial prepayment shall
be in the amounts set forth in a revised Lease Payment schedule which shall be provided by, or
caused to be provided by, the City to the Assignee which is reasonably acceptable to the
Assignee and which shall represent an adjustment to the schedule set forth in Exhibit D
attached hereto taking into account said partial prepayment.
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ARTICLE XI
MISCELLANEOUS
Section 11.1. Notices. All notices, certificates or other communications hereunder shall
be sufficiently given and shall be deemed to have been received upon actual receipt after
deposit in the United States mail in first-class form with postage fully prepaid:
If to the Authority:
Santa Ana Financing Authority
20 Civic Center Plaza
Santa Ana, CA 92702
Attention: Executive Director
Phone: (714) _-_
Fax: (714) _-_
If to the City:
City of Santa Ana
20 Civic Center Plaza
Santa Ana, CA 92702
Attention:
Phone: (714) _-_
Fax: (714)_-_
If to the Assignee:
Attention:
Phone: (_) _-_
Fax: (_)_-_
with a copy to
Attention:
Phone: (_) _-_
Fax: (_)_-_
The Authority, the City and the Assignee, by notice given hereunder, may designate
different addresses to which subsequent notices, certificates or other communications will be
sent. Any party giving notice to the other pursuant to this Lease Agreement shall also give such
notice to the Assignee.
Section 11.2. Binding Effect. This Lease Agreement shall inure to the benefit of and shall
be binding upon the Authority and the City and their respective successors and assigns.
Section 11.3. Severability. In the event any provision of this Lease Agreement shall be
held invalid or unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision hereof.
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Section 11.4. Net-net-net Lease. This Lease Agreement 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 Authority or the Assignee, free and clear of any expenses, charges or set-offs
whatsoever.
Section 11.5. Further Assurances and Corrective Instruments. The Authority 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
Property hereby leased or intended so to be or for carrying out the expressed intentions of this
Lease Agreement.
Section 11.6. Execution in Counterparts. This Lease 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 instrument.
Section 11.7. Applicable Law. This Lease Agreement shall be governed by and construed
in accordance with the laws of the State.
Section 11.8. Authority and City Representatives. Whenever under the provisions of this
Lease Agreement the approval of the Authority or the City is required, or the Authority 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 Authority by a Authority Representative and for the City by a City
Representative, and each party hereto shall be authorized to rely upon any such approval or
request.
Section 11.9. Captions. The captions or headings in this Lease Agreement are for
convenience only and in no way define, limit or describe the scope or intent of any provisions
or Section of this Lease Agreement.
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IN WITNESS WHEREOF, the Authority has caused this Lease Agreement to be
executed in its corporate name by its duly authorized officers; and the City has caused this
Lease Agreement to be executed in its name by its duly authorized officers, as of the date first
above written.
SANTA ANA FINANCING AUTHORITY,
as Lessor
By
Name
Title
Attest:
Patricia E. Healy
Secretary
CITY OF SANTA ANA, as Lessee
By
Name
Title
Attest:
Patricia E. Healy
City Clerk
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EXHIBIT A
DEFINITIONS
"Assignee" means
, as assignee, or any successor thereto.
"Assignment Agreement" means the Assignment Agreement, dated as of July 1 2005, by
and between the Authority and the Assignee, together with any duly authorized and executed
amendments thereto.
"Authority" means the Santa Ana Financing Authority, a joint exercise of powers
authority organized and existing under the laws of the State.
"Authority Representative" means the Chairman, the Vice Chairman, the Executive
Director, the Treasurer or any other person authorized by resolution of the Board of Directors of
the Authority to act on behalf of the Authority under or with respect to the Site Lease, the Lease
Agreement and the Assignment Agreement.
"Bond Counsel" means (a) Quint & Thimmig LLP, or (b) any other attorney or firm of
attorneys appointed by or acceptable to the City of nationally-recognized experience in the
issuance of obligations of public entities.
"Business Day" means a day which is not a Saturday, Sunday or legal holiday on which
banking institutions in the state in which the Assignee is located are closed or are required to
close or a day on which the New York Stock Exchange is closed.
"City" means the City of Santa Ana, a municipal corporation and chartered city duly
organized and existing under and by virtue of the constitution and laws of the State.
"City Representative" means the Mayor, the Mayor Pro Tern, the City Manager, the
Finance Director, or the designee of any such official, or any other person authorized to act on
behalf of the City under or with respect to the Site Lease and/ or the Lease Agreement and
identified as such to the Assignee in writing.
"Code" means the Internal Revenue Code of 1986.
"Event of Default" means an event of default under the Lease Agreement, as defined in
Section 9.1 thereof.
"Fiscal Year" means the twelve-month period beginning on July 1 of any year and
ending on June 30 of the next succeeding year, or any other twelve-month period selected by
the City as its fiscal year.
"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 City, the Authority or the Assignee.
Exhibit A
Page 1
JT25S-48
"Improvements" means those improvements to be to be financed with the proceeds of the
Lease Agreement and constructed on the Site more particularly described in Exhibit C to the
Lease Agreement.
"Interest Payment Date" means the 15th day of each March and September, commencing
September 1, 2006.
"Lease Agreement" means the Lease Agreement, dated as of July 1 2005, by and between
the Authority, as lessor, and the City, as lessee, together with any duly authorized and executed
amendments thereto.
"Lease Payments" means all payments required to be paid by the City pursuant to
Section 4.4 of the Lease Agreement, including any prepayment thereof pursuant to Article X of
the Lease Agreement, which payments consist of an interest component and a principal
component.
"Net Proceeds," when used with respect to insurance or condemnation proceeds, means
any insurance proceeds or condemnation award paid with respect to the Property, to the extent
remaining after payment therefrom of all expenses incurred in the collection thereof.
"Permitted Encumbrances" means, as of any particular time: (a) liens for general ad
valorem taxes and assessments, if any, not then delinquent, or which the City may, pursuant to
provisions of Article V of the Lease Agreement, permit to remain unpaid; (b) the Assignment
Agreement; (c) the Lease Agreement; (d) any right or claim of any mechanic, laborer,
materialman, supplier or vendor not filed or perfected in the manner prescribed by law; (e)
easements, rights of way, mineral rights, drilling rights and other rights, reservations,
covenants, conditions or restrictions which exist of record as of the Closing Date and which the
City certifies in writing will not materially impair the use of the Property; and (f) easements,
rights of way, mineral rights, drilling rights and other rights, reservations, covenants,
conditions or restrictions established following the date of recordation of the Lease Agreement
(or a memorandum thereof) and to which the Assignee and the City consent in writing.
"Property" means, collectively, the Site and the Improvements.
"Rental Period" means each twelve-month period during the Term of the Lease
Agreement commencing on March 2 in any year and ending March 1 in the next succeeding
year.
"Site" means that certain real property more particularly described in Exhibit A to the
Site Lease and in Exhibit B to the Lease Agreement.
"Site Lease" means the Site Lease, dated as of July 1 2005, by and between the City, as
lessor, and the Authority, as lessee, together with any duly authorized and executed
amendments thereto.
"State" means the State of California.
Exhibit A
Page 2
JT25S-49
"Term of the Lease Agreement" means the time during which the Lease Agreement is in
effect, as provided in Section 4.2 of the Lease Agreement.
Exhibit A
Page 3
JT25S-50
EXHIBIT B
DESCRIPTION OF THE SITE
All that certain real property situated in the City of Santa Ana, Orange County, State of California,
described as follows:
That portion of Blocks A, B, C, and D of the Ross Addition to Santa Ana as shown on the map filed in
Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County, California, together with
those portions of Fifth Street, 60 feet wide, Sixth Street, 60 feet wide, Van Ness Street, 60 feet wide, and
Parton Street, 60 feet wide, all being shown on said map of the Ross Addition to Santa Ana, as abandoned
by Resolution No. 69-27 of the City Council of the City of Santa Ana, a certified copy of which was
recorded February 19,1969 in Book 8878, Page 863 of Official Records of said Orange County, all in the
City of Santa Ana, County of Orange, State of California, described as follows:
Beginning at the intersection of the centerline of Santa Ana Boulevard (108 feet wide) with the centerline
of Ross Street (106 feet wide) as shown on Record of Survey 95-1031, filed in Book 149, Pages 49 and 50 of
Records of Survey, Records of said County; thence South 49002'03" West 248.90 feet along said centerline
of Santa Ana Boulevard; thence North 40057'57" West 54.00 feet to the northwesterly line of said Santa
Ana Boulevard and the True Point of Beginning, said northwesterly line also being the northwesterly line
of Parcell as described in Resolution No. 68-186 of the City Council of the City of Santa Ana recorded
December 18, 1968 in Book 8819, Page 934 of Official Records of said Orange County, said point being the
beginning of a curve concave northwesterly having a radius of 746.00, a radial bearing to said beginning
bears South 40057'57" East; thence southwesterly along said curve and said northwesterly line 401.75 feet
through a central angle of 30051'21"; thence leaving said northwesterly line North 0005'22" West 53.21
feet; thence North 54013'46" East 27.92 feet; thence North 0005'22" West 36.93 feet; thence South 54013'46"
West 64.85 feet to the centerline of said Parton Street (abandoned); thence North 0005'22" West 186.31 feet
along said centerline to an angle point therein; thence continuing along said centerline North 0003'00"
West 310.62 feet to the intersection with the centerline of said Sixth Street (abandoned) thence North
89058'20" East 309.89 feet to an angle point therein; thence continuing along said centerline North
89057' 41" East 246.29 feet to the westerly line of Ross Street, 106 feet wide; thence South 0037'23" East
235.48 feet along said westerly line to a curve concave northwesterly having a radius of 25.00 feet; thence
southerly and southwesterly along said curve 21.67 feet through a central angle of 49039'26" to the
northwesterly line of said Santa Ana Boulevard; thence South 49002'03" West 213.66 feet along said
northwesterly line to the True Point of Beginning.
Except that portion of said land lying easterly of the following described line:
Beginning at a point on the curved northwesterly line of said Santa Ana Boulevard having a radius of
746.00 feet, as described above, said point being an arc distance of 74.14 feet southwesterly from the
northeasterly terminus of said curve; thence North 0037'23" West 342.65 feet; thence North 89022'37" East
66.00 feet; thence North 0037'23" West 51.08 feet to a non-tangent curve concave westerly having a radius
of 33.00 feet, a radial line to said curve bears South 57047'22" East; thence northerly along said curve 19.53
feet through a central angle of 33054'20"; thence North r41'42" West 5.71 feet to a curve concave
southeasterly having a radius of 18.00 feet; thence northerly and northeasterly along said curve 14.69 feet
through a central angle of 46044'51"; thence North 45003'09" East 11.84 feet to a point on the centerline of
said Sixth Street (abandoned).
Also except that portion of said land described as follows:
Beginning at the angle point in the centerline of Parton Street (abandoned) as described above; thence
South 0005'22" East 23.18 feet along said centerline; thence North 89058'59" East 17.31 feet to the True
Exhibit B
Page 1
JT25S-51
Point of Beginning of this exception; thence continuing North 89058'59" East 136.50 feet; thence North
0001'01" West 193.00 feet; thence South 89058'59" West 136.50 feet; thence South 0001'01" East 193.00 feet
to the True Point of Beginning.
Said parcel contains 267,010 square feetj6.1297 acres, more or less.
Exhibit B
Page 2
JT25S-52
EXHIBIT C
DESCRIPTION OF THE IMPROVEMENTS
The Improvements consist of a three hundred (300) vehicle 3 level parking facility one hundred
and twenty-four feet (124') wide by two hundred and seventy feet (270') long comprising one on grade
level and two elevated levels. The structure shall be long-span, cast-in-place concrete with post-tensioned
slabs and beams, cast-in-place columns, slab on grade with concrete foundations. The structure is a two
bay 3 level parking facility designed for two-way traffic flow and 90-degree parking. The parking
structure is designed as an above-grade "open" parking structure of Group S Division 4 Occupancy; of
Type I fire resistive construction per the 2001 California Building Code.
The primary use of the structure is to offset the parking lost by the sale of the adjacent property to
the State Appellate Court. The ground floor will be designated for the self-parking of seventy (70)
automobiles of Appellate Court Staff. 230 spaces will be provided on the two remaining elevated levels
for general Civic Center parking. The northeast corner of the facility will be devoted to stairs, one elevator
and the elevator machine room for the vertical circulation of pedestrians. A second stair will be located at
the southwest corner of the parking facility.
The vertical vehicle circulation is achieved by means of short ramps that rise one half floor level
before turning and rising another half level to the next level. The short ramps are required because of the
limited site available for the parking facility. The north end of the facility is depressed below grade one
half level to allow vehicles entering the facility at the southwest corner at grade level to ramp up half a
level a point one full level above the parking below at the north end. Vehicles entering on grade at the
southeast corner will ramp down one half level to a point one full level below the parking above at the
north end.
Exhibit C
JT25S-53
Lease
Payment
Date
9/1/06
3/1/07
9/1/07
3/1/08
9/1/08
3/1/09
9/1/09
3/1/10
9/1/10
3/1/11
9/1/11
3/1/12
9/1/12
3/1/13
9/1/13
3/1/14
9/1/14
3/1/15
9/1/15
3/1/16
9/1/16
3/1/17
9/1/17
3/1/18
9/1/18
3/1/19
9/1/19
3/1/20
9/1/20
3/1/21
9/1/21
3/1/22
9/1/22
3/1/23
9/1/23
3/1/24
9/1/24
3/1/25
EXHIBIT D
LEASE PAYMENT SCHEDULE
Principal
Component
Interest
Component*
*Interest component is computed at 4.79% per annum.
Exhibit D
JT25S-54
Total
Lease
Payment
EXHIBIT E
FORM OF DISBURSEMENT CERTIFICATE
$
LEASE AGREEMENT
Dated as of . 2005,
by and between the Santa Ana Financing Authority, as Lessor, and the City of
Santa Ana, as Lessee, Assigned to . as Assignee
DISBURSEMENT CERTIFICATE NO.
The undersigned hereby states and certifies:
(i) that the undersigned is the duly appointed, qualified and acting of City
of Santa Ana, a municipal corporation and charter city, organized and existing under the laws of the State
of California (the IfCitylf), and as such, is familiar with the facts herein certified and is authorized to
certify the sam,e on behalf of the City;
(ii) that, pursuant to Section 3.2 of that certain Lease Agreement, dated as of _, 2005
(If Lease Agreement"), by and between the Santa Ana Financing Authority, as lessor (the If Authoritylf),
and the City, as assigned to , as assignee (the If Assigneelf), the Assignee is
hereby requested to approve the disbursement this date from the Improvement Account (as defined in
Lease Agreement) to the payees designated on Exhibit A attached hereto and by this reference
incorporated herein, at the addresses set forth below such payee name, the sum set forth opposite such
payee, for payment or reimbursement for costs of the Improvements (as defined in Lease Agreement) as
specified;
(ill) that if such disbursement is for reimbursement to the City, evidence of prior payment is
attached hereto;
(iv) that obligations in the stated amounts have been incurred by the City and are presently due
and payable and that each item thereof is a proper charge against the Improvement Account, and has not
been previously paid therefrom;
(v) that there has not been filed with or served upon the City notice of any lien, right to lien or
attachment upon, or claim affecting the right to receive payment of, any of the amounts payable to any of
the persons named in such requisition, which has not been released or will not be released simultaneously
with the payment of such obligation, other than materialmen's or mechanics' liens accruing by mere
operation of law;
City;
(vi) that the component of the Improvements for which such payment relates is satisfactory to the
(vii) that the balance remaining in the Improvement Account after payment of such amounts,
together with any investment income reasonably anticipated to be deposited in the Improvement Account
and any other funds reasonably anticipated to be available therefor, will be sufficient to pay the costs of
the Improvements; and
Exhibit 0
JT25S-55
(viii) that capitalized terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Lease Agreement.
Dated:
CITY OF SANTA ANA
By
Name
Title
APPROVED:
By
Name
Title
Exhibit D
JT25S-56
EXHIBIT A
DISBURSEMENT CERTIFICATE NO.
Payee Name and Address
Purpose of Obligation
Amount
Exhibit D
JT25S-57
Quint & Thimmig LLP
04/29/05
06/13/05
REIMBURSEMENT AGREEMENT
by and between the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA
and the
CITY OF SANTA ANA
Dated as of , 2005
(Central City Redevelopment Project)
19014.06
JT25S-58
REIMBURSEMENT AGREEMENT
THIS REIMBURSEMENT AGREEMENT, dated as of ,2005, by and between the
COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA (the" Agency")
and the CITY OF SANTA ANA (the "City");
WITNESSETH:
WHEREAS, the Agency is a duly constituted redevelopment agency under the laws of
the State of California and pursuant to such laws has duly proceeded with redevelopment
activities within the Central City Redevelopment Project (the "Project Area") within the City;
and
WHEREAS, the redevelopment plan for the Project Area provides for tax increment
financing in accordance with the provisions of Chapter 6, Part 1 of Division 24 of the California
Health and Safety Code and Section 16 of Article XVI of the Constitution of the State of
California; and
WHEREAS, the Agency is authorized, with the consent of the City Council of the City,
to pay all or part of the value of the land for and the cost of the installation and construction of
any building, facility, structure or other improvements which are publicly owned, upon a
determination by the Agency and said City Council that such buildings, facilities, structures or
other improvements are of benefit to the Project Area; and
WHEREAS, when the value of such land or the cost of the installation and construction
of such building, facility, structure or other improvement, or both, has been or will be paid or
provided for initially by the City, the Agency may enter into a contract with the City under
which it agrees to reimburse the City for all or part of the value of such land or all or part of the
cost of such building, facility, structure or other improvement, or both, by periodic payments
over a period of years; and
WHEREAS, the obligation of the Agency under such contract shall constitute an
indebtedness of the Agency for the purpose of carrying out the redevelopment project for the
Project Area, which indebtedness may be made payable out of taxes levied in the Project Area
and allocated to the Agency under subdivision (b) of section 33670 of the California Health and
Safety Code, or out of any other available funds; and
WHEREAS, the City has undertaken the financing of certain public parking facilities
(the "Project") a portion of which will be of substantial benefit to the Project Area; and
WHEREAS, the parties hereto in consideration of their mutual undertakings, past and
present, herein and otherwise, desire to provide for repayment by the Agency to the City of the
moneys paid as Lease Payments under and as defined in the Lease Agreement (each as
hereinafter defined), entered into between the Santa Ana Financing Authority and the City in
the amounts specified in Exhibit A attached hereto and incorporated herein, which Lease
Agreement provided financing for the Project; and
19014.06
JT25S-59
WHEREAS, the Agency and the City have previously determined by resolution that the
Project is of benefit to the Project Area;
NOW, THEREFORE, in consideration of the mutual covenants herein contained it is
agreed by and between the parties hereto as follows:
Section 1. Definitions. Unless the context otherwise requires, the terms defined in this
Section 1 shall, for all purposes of this Reimbursement Agreement and of any amendment
hereto, and of any certificate, opinion, estimate or other document herein mentioned, have the
meanings herein specified. Any capitalized term not defined herein shall have the meaning
given to such term in the Lease Agreement.
"Agency" means the Community Redevelopment Agency of the City of Santa Ana, a
redevelopment agency and public body, corporate and politic, duly organized and existing
under and by virtue of the laws of the State of California.
"Authority" means the Santa Ana Financing Authority, a joint exercise of powers
authority, duly organized and existing under and by virtue of the laws of the State of
California.
"Business Day" means a day which is not a Saturday, Sunday or legal holiday on which
banking institutions in the state in which the Assignee is located are closed or are required to
close or a day on which the New York Stock Exchange is closed.
"City" means the City of Santa Ana, a general law city and municipal corporation duly
organized and existing under and by virtue of the Constitution and laws of the State of
California.
"Fiscal Year" means each twelve-month period beginning on July 1 of any year and
ending on June 30 of the succeeding year, or any other twelve-month period hereafter adopted
by the City as its official fiscal year period.
"Law" means the Community Redevelopment Law of the State of California,
constituting Part 1 of Division 24 of the California Health and Safety Code and the acts
amendatory thereof and in supplement thereto. Whenever reference is made in this
Reimbursement Agreement to the Law, reference is made to the Law as in force on the date of
the execution of this Reimbursement Agreement, unless the context otherwise requires.
"Lease Agreement" means that certain lease entitled "Lease Agreement" by and between
the Authority, as lessor, and the City, as lessee, dated as of , 2005.
"Lease Payments" means all amounts paid by the City as lease payments pursuant to
Section 4.4 of the Lease Agreement.
"Project Area" means the Central City Redevelopment Project of the Agency.
-2-
JT25S-60
"Tax Increment Revenues" means all taxes allocated to, and paid into a special fund of the
Agency for the Project Area pursuant to Article 6 of Chapter 6 of the Law and Section 16 of
Article XVI of the Constitution of the State of California, and as provided in the redevelopment
plan for the Project Area, including all payments and reimbursements, if any, to the Agency
specifically attributable to ad valorem taxes lost by reason of tax exemptions and tax rate
limitations, but excluding any amounts required to be paid to other taxing agencies pursuant to
section 33401 of the Law and any amounts required to be used to improve the communities
supply of low or moderate income housing pursuant to Section 33334.2 of the Law.
Section 2. Reimbursement; Other Payments. Subject to pledges of Tax Increment
Revenues heretofore or hereafter made by the Agency (this Agreement being subordinate to
any such pledge), the Agency and the City agree that, to the extent necessary but only to the
extent available, and not in excess of the amounts specified in Exhibit A attached hereto and
incorporated herein, in any Fiscal Year, Tax Increment Revenues shall be used and applied to
repay the City such portion of all current or previously unreimbursed Lease Payments made by
the City to the Authority under the Lease Agreement. In addition, the Agency may apply other
legally available moneys to make repayments hereunder. This Reimbursement Agreement may
be amended from time to time by the parties hereto for any purpose and with any effect
whatsoever. If, in any year, there are insufficient Tax Increment Revenues for the Agency to
fully reimburse the City for Lease Payments made in such year, such deficiency shall be carried
forward to each succeeding year until the Agency has sufficient Tax Increment Revenues to
make up all Carried over amounts. Available Tax Increment Revenues shall first be used to
reimburse the City for current year Lease Payments then for carried over amounts.
Section 3. Default by Agency. If the Agency has available Tax Increment and shall fail to
repay the City or shall fail to pay any other payment required to be paid hereunder at the time
specified herein, and such failure shall continue for a period of ten (10) days, then the City or, if
applicable, any assignee, shall be entitled to exercise any and all remedies available pursuant to
law.
Section 4. Remedies Not Exclusive. No remedy herein conferred upon the City shall be
exclusive of any other remedy and each and every remedy shall cumulative and shall be in
addition to every other remedy given hereunder or hereafter conferred on the City.
-3-
JT25S-61
IN WITNESS WHEREOF, the parties hereto have executed this Reimbursement
Agreement as of the day and year first above written.
COMMUNITY REDEVELOPMENT
AGENCY OF THE CITY OF SANTA ANA
By
Name
Title
Attest:
Patricia E. Healy
Secretary
CITY OF SANTA ANA, as Lessee
By
Name
Title
Attest:
Patricia E. Healy
City Clerk
-4-
JT25S-62
Lease
Payment
Date
9/1/06
3/1/07
9/1/07
3/1/08
9/1/08
3/1/09
9/1/09
3/1/10
9/1/10
3/1/11
9/1/11
3/1/12
9/1/12
3/1/13
9/1/13
3/1/14
9/1/14
3/1/15
9/1/15
3/1/16
9/1/16
3/1/17
9/1/17
3/1/18
9/1/18
3/1/19
9/1/19
3/1/20
9/1/20
3/1/21
9/1/21
3/1/22
9/1/22
3/1/23
9/1/23
3/1/24
9/1/24
3/1/25
EXHIBIT A
AMOUNTS TO BE REIMBURSED
Principal
Component
Interest
Component
Exhibit A
Page 1
JT25S-63
Total
Lease
Payment
RESOLUTION NO. SAFA 2005-002
RESOLUTION APPROVING, AUTHORIZING AND DIRECTING
PREPARATION AND EXECUTION OF CERTAIN LEASE
FINANCING DOCUMENTS AND AUTHORIZING AND DIRECTING
CERTAIN ACTIONS WITH RESPECT THERETO
BE IT RESOLVED BY THE SANTA ANA FINANCING AUTHORITY AS
FOLLOWS:
Section 1. The Board of Directors (the "Board") of the Santa Ana Financing
Authority (the "Authority") finds, determines and declares as follows;
A. The City of Santa Ana (the "City") proposes to finance the costs of the
construction of a parking structure on City-owned property located
adjacent to the proposed State Appellate Court Building in Santa Ana,
California (the "Improvements");
B. The City has determined to finance the Improvements by entering into a
site lease (the "Site Lease") and a lease agreement (the "Lease
Agreement") with the Authority;
C. The Authority intends to assign its rights under the Site Lease and the
Lease Agreement to one or more purchasers to be determined (the
"Assignee"); and
D. The documents below specified shall be filed with the Authority and the
members of the Board, with the aid of its staff, shall review said
documents;
Section 2. Resolution No. SAFA 2005-001 previously adopted by the Board on
February 7, 2005, relating to the financing of the Improvements is hereby rescinded.
Section 3. The below-enumerated documents, substantially in the forms on file
with the Secretary, be and are hereby approved, and the Executive Director is hereby
authorized and directed to execute said documents, with such changes, insertions and
omissions as may be approved by such official, and the Secretary is hereby authorized
and directed to attest to such official's signature:
A. The Site Lease, by and between the City, as lessor, and the Authority, as
lessee, pursuant to which the City will lease certain real property (the
"Site") to the Authority;
B. The Lease Agreement, by and between the Authority, as lessor, and the
City, as lessee, pursuant to which the Authority will lease the Site and the
Improvements back to the City; and
Resolution No. SAFA 2005-002
Page 1 of 2
JT25S-64
C. An assignment agreement, by and between the Authority and the
Assignee, pursuant to which the Authority will assign certain of its rights
under the Lease Agreement, including its right to receive lease payments
thereunder, to the Assignee.
Section 4. The Executive Director, the Secretary and other officials of the
Authority are hereby authorized and directed to execute such other agreements,
documents and certificates as may be necessary to effect the purposes of this
resolution and the lease financing herein authorized.
Section 5. This Resolution shall take effect upon its adoption by the Authority
Board, and the Secretary shall attest to and certify the vote adopting this Resolution.
ADOPTED this 20th day of June, 2005.
Miguel A. Pulido
Chairperson
APPROVED AS TO FORM:
Joseph W. Fletcher, Authority Counsel
AYES: Authoritymembers
NOES: Authoritymembers
ABST AI N: Authoritymembers
NOT PRESENT: Authoritymembers
CERTIFICATION OF ATTESTATION AND ORIGINALITY
I, PATRICIA E. HEALY, Secretary of the Authority, do hereby attest to and certify
the attached Resolution No. 2005-_ to be the original a resolution duly adopted by
the Santa Ana Financing Authority on the 20th day of June, 2005.
Date:
Authority Secretary
Resolution No. SAFA 2005-002
Page 2 of 2
JT25S-65
Quint & Thimmig LLP
01/31/05
04/29/05
06/13/05
AFTER RECORDA nON RETURN TO:
Quint & Thimmig LLP
One Embarcadero Center, Suite 2420
San Francisco, CA 94111-3737
Attention: Brian D. Quint, Esq.
THIS DOCUMENT IS EXEMPT FROM RECORDING FEES PURSUANT TO SECTION 27383 OF THE
CALIFORNIA GOVERNMENT CODE.
ASSIGNMENT AGREEMENT
THIS ASSIGNMENT AGREEMENT, made and entered into as of , 2005, is by and
between the SANTA ANA FINANCING AUTHORITY, a joint exercise of powers authority
duly organized and existing under the laws of the State of California, as assignor (the
" Authority"), and , as assignee (the" Assignee");
WITNESSETH:
In the joint and mutual exercise of their powers, in consideration of the mutual
covenants herein contained and for other valuable consideration, the parties hereto recite and
agree as follows:
Section 1. Recitals.
(a) The City of Santa Ana (the "City"), as lessor, and the Authority, as lessee, have
entered into a site lease, dated as of , 2005 (the "Site Lease"), whereby the City has leased
to the Authority, and the Authority has agreed to lease from the City, certain property more
particularly described in Exhibit A attached hereto (the "Site"), in the manner and on the terms
set forth in the Site Lease.
(b) The Authority, as lessor, and the City, as lessee, have entered into a lease agreement,
dated as of , 2005 (the "Lease Agreement"), whereby the Authority has agreed to lease to
the City, and the City has agreed to lease from the Authority, the Site and certain
improvements to be constructed on the Site, more particularly described in Exhibit B attached
hereto (the "Improvements" and, with the Site, the Property"), in the manner and on the terms
set forth in the Lease Agreement, which terms include, without limitation, the obligation of the
City to pay Lease Payments (as defined in the Lease Agreement) to the Authority in
consideration of the City's use and enjoyment of the Property.
19014.06
JT25S-66
(c) Under the Lease Agreement, the Authority is required to cause to be deposited with
the City certain sums of money to be paid to the City for the payment or reimbursement of the
costs of the Improvements.
(d) Each of the parties has authority to enter into this Assignment Agreement and has
taken all actions necessary to authorize its officers to execute it.
Section 2. Assignment. The Authority hereby transfers, assigns and sets over to the
Assignee all of the Authority's rights, but none of its obligations, under the Site Lease and the
Lease Agreement (excepting only the Authority's rights under Sections 5.7, 7.3 and 9.4 of the
Lease Agreement), including without limitation (i) the right to receive and collect all of the
Lease Payments from the City under the Lease Agreement, (ii) the right to receive and collect
any proceeds of any insurance maintained thereunder and of any condemnation award
rendered with respect to the Property, and (iii) the right to exercise such rights and remedies
conferred on the Authority pursuant to the Lease Agreement as may be necessary or
convenient (A) to enforce payment of the Lease Payments, or (B) otherwise to protect the
interests of the Assignee in the event of a default by the City under the Lease Agreement.
Section 3. Acceptance. The Assignee hereby accepts the assignments made herein.
Section 4. Application of Proceeds. In consideration of the Assignee's right to receive a
portion of the Lease Payments, as described above, the Assignee shall, on the Closing Date,
transfer the amount of $ to or to the order of the Authority.
Section 5. Conditions. This Assignment Agreement shall not confer rights upon the
Assignee beyond those expressly provided in the Site and Facility Lease or the Lease
Agreement, nor shall it impose any duties on the Assignee. The Assignee assumes no
responsibility for the accuracy of the recitals herein.
Section 6. Applicable Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of the State of California.
Section 7. Execution in Counterparts. This Assignment Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original but all together
shall constitute but one and the same instrument.
-2-
JT25S-67
IN WITNESS WHEREOF, the parties have executed this Assignment Agreement by
their duly authorized officers as of the day and year first written above.
SANTA ANA FINANCING AUTHORITY
By
Name
Title
, as Assignee
By
Name
Title
-3-
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[NOTARY ACKNOWLEDGMENTS TO BE ATTACHED]
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EXHIBIT A
DESCRIPTION OF THE SITE
All that certain real property situated in the City of Santa Ana, Orange County, State of California,
described as follows:
That portion of Blocks A, B, C, and D of the Ross Addition to Santa Ana as shown on the map filed in
Book 3, Pages 534 and 535 of Miscellaneous Records of Los Angeles County, California, together with
those portions of Fifth Street, 60 feet wide, Sixth Street, 60 feet wide, Van Ness Street, 60 feet wide, and
Parton Street, 60 feet wide, all being shown on said map of the Ross Addition to Santa Ana, as abandoned
by Resolution No. 69-27 of the City Council of the City of Santa Ana, a certified copy of which was
recorded February 19,1969 in Book 8878, Page 863 of Official Records of said Orange County, all in the
City of Santa Ana, County of Orange, State of California, described as follows:
Beginning at the intersection of the centerline of Santa Ana Boulevard (108 feet wide) with the centerline
of Ross Street (106 feet wide) as shown on Record of Survey 95-1031, filed in Book 149, Pages 49 and 50 of
Records of Survey, Records of said County; thence South 49002'03" West 248.90 feet along said centerline
of Santa Ana Boulevard; thence North 40057'57" West 54.00 feet to the northwesterly line of said Santa
Ana Boulevard and the True Point of Beginning, said northwesterly line also being the northwesterly line
of Parcell as described in Resolution No. 68-186 of the City Council of the City of Santa Ana recorded
December 18, 1968 in Book 8819, Page 934 of Official Records of said Orange County, said point being the
beginning of a curve concave northwesterly having a radius of 746.00, a radial bearing to said beginning
bears South 40057'57" East; thence southwesterly along said curve and said northwesterly line 401.75 feet
through a central angle of 30051'21"; thence leaving said northwesterly line North 0005'22" West 53.21
feet; thence North 54013'46" East 27.92 feet; thence North 0005'22" West 36.93 feet; thence South 54013'46"
West 64.85 feet to the centerline of said Parton Street (abandoned); thence North 0005'22" West 186.31 feet
along said centerline to an angle point therein; thence continuing along said centerline North 0003'00"
West 310.62 feet to the intersection with the centerline of said Sixth Street (abandoned) thence North
89058'20" East 309.89 feet to an angle point therein; thence continuing along said centerline North
89057'41" East 246.29 feet to the westerly line of Ross Street, 106 feet wide; thence South 0037'23" East
235.48 feet along said westerly line to a curve concave northwesterly having a radius of 25.00 feet; thence
southerly and southwesterly along said curve 21.67 feet through a central angle of 49039'26" to the
northwesterly line of said Santa Ana Boulevard; thence South 49002'03" West 213.66 feet along said
northwesterly line to the True Point of Beginning.
Except that portion of said land lying easterly of the following described line:
Beginning at a point on the curved northwesterly line of said Santa Ana Boulevard having a radius of
746.00 feet, as described above, said point being an arc distance of 74.14 feet southwesterly from the
northeasterly terminus of said curve; thence North 0037'23" West 342.65 feet; thence North 89022'37" East
66.00 feet; thence North 0037'23" West 51.08 feet to a non-tangent curve concave westerly having a radius
of 33.00 feet, a radial line to said curve bears South 57047'22" East; thence northerly along said curve 19.53
feet through a central angle of 33054'20"; thence North 1041'42" West 5.71 feet to a curve concave
southeasterly having a radius of 18.00 feet; thence northerly and northeasterly along said curve 14.69 feet
through a central angle of 46044'51"; thence North 45003'09" East 11.84 feet to a point on the centerline of
said Sixth Street (abandoned).
Also except that portion of said land described as follows:
Beginning at the angle point in the centerline of Parton Street (abandoned) as described above; thence
South 0005'22" East 23.18 feet along said centerline; thence North 89058'59" East 17.31 feet to the True
Exhibit A
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Point of Beginning of this exception; thence continuing North 89058'59" East 136.50 feet; thence North
0001'01" West 193.00 feet; thence South 89058'59" West 136.50 feet; thence South 0001'01" East 193.00 feet
to the True Point of Beginning.
Said parcel contains 267,010 square feet/6.1297 acres, more or less.
Exhibit A
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EXHIBIT B
DESCRIPTION OF THE IMPROVEMENTS
The Improvements consist of a three hundred (300) vehicle 3 level parking facility one hundred
and twenty-four feet (124') wide by two hundred and seventy feet (270') long comprising one on grade
level and two elevated levels. The structure shall be long-span, cast-in-place concrete with post-tensioned
slabs and beams, cast-in-place columns, slab on grade with concrete foundations. The structure is a two
bay 3 level parking facility designed for two-way traffic flow and 90-degree parking. The parking
structure is designed as an above-grade "open" parking structure of Group S Division 4 Occupancy; of
Type I fire resistive construction per the 2001 California Building Code.
The primary use of the structure is to offset the parking lost by the sale of the adjacent property to
the State Appellate Court. The ground floor will be designated for the self-parking of seventy (70)
automobiles of Appellate Court Staff. 230 spaces will be provided on the two remaining elevated levels
for general Civic Center parking. The northeast corner of the facility will be devoted to stairs, one elevator
and the elevator machine room for the vertical circulation of pedestrians. A second stair will be located at
the southwest corner of the parking facility.
The vertical vehicle circulation is achieved by means of short ramps that rise one half floor level
before turning and rising another half level to the next level. The short ramps are required because of the
limited site available for the parking facility. The north end of the facility is depressed below grade one
half level to allow vehicles entering the facility at the southwest corner at grade level to ramp up half a
level a point one full level above the parking below at the north end. Vehicles entering on grade at the
southeast corner will ramp down one half level to a point one full level below the parking above at the
north end.
Exhibit B
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RESOLUTION NO. CRA 2005- 004
A RESOLUTION OF THE COMMUNITY REDEVELOPMENT AGENCY
OF THE CITY OF SANTA ANA AUTHORIZING AND DIRECTING THE
EXECUTION AND DELIVERY OF A REIMBURSEMENT AGREEMENT
IN CONNECTION WITH CERTAIN FINANCING PROCEEDINGS OF THE
CITY OF SANTA ANA, AND APPROVING RELATED DOCUMENTS AND
OFFICIAL ACTIONS
BE IT RESOLVED BY THE COMMUNITY REDEVELOPMENT AGENCY OF
THE CITY OF SANTA ANA AS FOLLOWS:
Section 1. The Community Redevelopment Agency of the City of Santa Ana (the
"Agency") hereby finds, determines and declares as follows:
A. The City of Santa Ana (the "City"), working together with the Santa Ana
Financing Authority (the "Authority"), is proposing to proceed with a lease
financing;
B. The City proposes to finance the costs of the construction of a parking
structure on City-owned property located adjacent to the proposed State
Appellate Court Building in Santa Ana, California (the "Improvements");
C. For the purpose of obtaining the moneys required for such purposes, the
City proposes to lease certain real property and the Improvements to be
constructed thereon (collectively, the "Property"), to the Authority and to
lease the Property back from the Authority under a lease agreement (the
"Lease Agreement"), the payments under which will be assigned to one or
more purchasers to be determined; and
D. The documents below specified have been filed with the Agency and the
members of the Agency, with the aid of its staff, have reviewed said
documents;
Section 2. The Agency hereby approves a reimbursement agreement, by and
between the City and the Agency, pursuant to which the Agency will agree to reimburse
the City, from tax increment revenues allocated to the Agency's Central City
Redevelopment Project, for the payments to be made by the City under the Lease
Agreement, in substantially the form on file with the Secretary, together with any
changes therein or additions thereto deemed advisable by the Chairperson, the
Executive Director or the Treasurer, whose execution thereof shall be conclusive
evidence of the approval of any such changes or additions. The Chairperson, the
Executive Director or the Treasurer is hereby authorized and directed for and in the
name and on behalf of the Agency to execute, and the Secretary is hereby authorized
and directed to attest to, the final form of the foregoing document.
Resolution No. eRA 2005-004
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Section 3. The Chairperson, the Executive Director, the Treasurer, the Secretary
and all other officers of the Agency are each authorized and directed in the name and
on behalf of the Agency to make any and all assignments, certificates, requisitions,
agreements, notices, consents, instruments of conveyance, warrants and other
documents, which they or any of them might deem necessary or appropriate in order to
consummate any of the transactions contemplated by the documents approved
pursuant to this Resolution. Whenever in this Resolution any officer of the Agency is
authorized to execute or countersign any document or take any action, such execution,
countersigning or action may be taken on behalf of such officer by any person
designated by such officer to act on his or her behalf in the case such officer shall be
absent or unavailable.
Section 4. This Resolution shall take effect immediately upon its adoption by the
Agency, and the Secretary of the Agency shall attest to and verify the vote adopting this
Resolution.
ADOPTED this 20th day of June, 2005.
Miguel A. Pulido
Chairperson
APPROVED AS TO FORM:
Joseph W. Fletcher, Agency Counsel
AYES: Agency members
NOES: Agency members
ABSTAIN: Agency members
NOT PRESENT: Agency members
CERTIFICATION OF ATTESTATION AND ORIGINALITY
Resolution No. eRA 2005-004
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I, PATRICIA E. HEALY, Secretary of the Authority, do hereby attest to and certify
the attached Resolution No. 2005-004 to be the original a resolution duly adopted by
the Santa Ana Financing Authority on the 20th day of June, 2005.
Date:
Agency Secretary
Resolution No. eRA 2005-004
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